journal of law, religion and state 6 (2018) 195-212 brill.com/jlrs The Rule of Law, Religious Authority, and Oaths of Office Nicholas Aroney The University of Queensland [email protected] Abstract The rule of law requires political office holders to exercise their powers in accordance with the law. Most societies, however, rely not only on the moral obligation to obey the law but also require office holders to take a religious oath or solemn affirmation. The divine witness to the oath of office stands in as a guarantor of the political order but also looms above it. As such, the oath represents a paradox. It guarantees the performance of official duties while also subjecting them to external judgement. The oath thus encompasses the large question of the relationship between religious con- viction, personal fidelity, moral principle, and political power. It suggests that law and religion are as much intertwined as separated in today’s politics. By tracing the oath of office as a sacrament of power, much light can be shed on the relationship between law and religion in today’s liberal-democratic politics. Keywords oath – office – religion – law – faith – power – secular 1 Introduction The rule of law means, among other things, that those who hold political of- fice are required to exercise their powers and perform their official duties in accordance with the law. Most liberal-democratic societies, however, do not rely only on the proposition that office holders are morally obligated or legally compelled to comply with the law. Typically, such societies also require office holders to take a religious oath, or at least a solemn affirmation, in which they publicly promise to fulfill their duties in accordance with the law. © koninklijke brill nv, leiden, 2018 | doi 10.1163/22124810-00602003Downloaded from Brill.com09/26/2021 09:38:16AM via free access <UN> 196 Aroney Oaths of office bind office holders to their duties by invoking divine or reli- gious sanction for the performance of those duties. This divine witness to the oath appears to stand in as a guarantor of the political order, but also looms large as an authority that is separate from the political order, and in some sense stands above it. This opens the possibility for this “other sovereign” to make demands that supersede those of the political order and the duties incumbent upon the office holder. Oaths of office thus confront us with a paradox. They are meant to guarantee the performance of official duties, but at the same time they subject the content of these duties to external judgement. This paradox is embedded in the very nature of the oath of office, which captures within its short compass the large question of the relationship between religious convic- tion, personal fidelity, moral principle, and political power. By tracing the oath of office as a kind of sacrament of power, as Paolo Prodi once put it,1 much light can be shed on the nature of the contested relation- ship between law and religion in contemporary liberal-democratic states. This relationship is at times framed as an opposition between legal and religious authority, but the oath of office, at once both a legal and a religious instru- ment, suggests that the situation is more complex. The oath is required by law and supports the lawful exercise of political power, but it appeals to religious sanction as the guarantor of that law and power. It involves a personal com- mitment and invokes religious authority, but it does so in order to underwrite the authority of the political order—while also subjecting that authority to external judgement. The oath of office thus suggests that law and religion may be as much intertwined as they are separated in today’s politics. 2 The Rule of Law We invest vast power in our political leaders. Why do we do so? Perhaps we see it as a matter of necessity, justice, or right order. But we also take comfort in the thought that our political leaders are constitutionally constrained. We rely on their democratic accountability, on the separation of powers, on the rule of law. Most constitutions divide power into three types—executive, leg- islative, and judicial—and invest these powers in distinct institutions. And it is fundamental to our liberal-democratic constitutions that these powers are 1 Paolo Prodi, Il Sacramento Del Potere: Il Giuramento Politico Nella Storia Costituzionale Dell’occidente (Mulino, 1992). journal of law, religion andDownloaded state from 6 Brill.com09/26/2021 (2018) 195-212 09:38:16AM via free access <UN> The Rule of Law, Religious Authority, and Oaths of Office 197 subject to the law. Our presidents and prime ministers may have considerable power, but their authority is limited. The law determines the outer limits of their capacities, and if they should act beyond those limits, the courts are on hand to declare, authoritatively, that their actions are void and of no effect. This is what makes our political systems a “government of laws,” rather than a “government of men.” But that is to understand our systems of government only on the surface of things. All these checks and balances depend upon something more funda- mental than laws, institutions, and procedures. There is something more im- portant that holds them all together. There is something deeper that ensures that each individual who holds public office is bound by the duties of that office. Our systems of government do not simply pit raw power against raw power. If that were really the case, political conflict would descend rapidly into physical conflict. But there are rules of the game, and the crux of our constitu- tional democracies does not lie in competition between the powerful, but in the willingness of the competitors to abide by the rules of the game. And here it is not enough to say, when office holders break the rules (as they will), that the courts are on hand to enforce the rules, for the judges are themselves partici- pants and office holders, and it is just as much a question whether a judge will perform his or her duties in accordance with the law, as whether a president, a prime minister, or a member of parliament will do so. The rule of law thus depends on more than the existence of law and the op- eration of independent courts. It also depends on the commitment of judges to exercise their powers in accordance with the law, and the corresponding willingness of politicians to accept their determinations. At the heart of the system is an active commitment to perform one’s duties of office and abide by the rules of the game. Merely compiling a set of laws and establishing a set of institutions—although valuable—is not enough. A government of laws still needs the government of men to put it into operation. To transform a govern- ment of men into a government of laws requires that men are prepared to act in accordance with the law. It is not enough to add one more layer of law or yet another checking institution to ensure that those who hold political power will exercise it in accordance with the law. Every additional institution, every layer of law always needs individuals to administer it, and the system will always depend upon the willingness and commitment of these individuals to perform their duties under the law. But what is it that constitutes, underwrites, and guarantees this active will- ingness and commitment to perform one’s official duties? That is the question. And the answer is: the oath of office. journal of law, religion and state 6 (2018) 195-212Downloaded from Brill.com09/26/2021 09:38:16AM via free access <UN> 198 Aroney 3 A Strange Ubiquity, a Haunting Paradox Oaths of office are strangely ubiquitous in modern liberal-democratic re- gimes.2 The constitutions of almost all such societies require their heads of state, their heads of government, their members of parliament, and their judges to take oaths or affirmations of office. At her coronation in 1953, Queen Elisabeth ii of England promised under oath to govern the peoples of the United Kingdom and her overseas possessions in accordance with their re- spective laws and customs; to cause law and justice, in mercy, to be executed in all her judgements; and to maintain the laws of God and the true profession of the gospel within the United Kingdom.3 Presidents and prime ministers of Israel are likewise required to pledge their loyalty or allegiance to the State of Israel and to faithfully carry out their official duties.4 Oaths of office are simi- larly required of presidents, members of congress, and justices of the United States,5 but when, at his inauguration in 2009, Barack Obama pronounced the words of the presidential oath in the wrong order, the oath was readminis- tered the next day “out of an abundance of caution.”6 If oaths of office are mere 2 As Denis Baranger has observed, “Dans l’histoire du droit occidental, le serment est partout présent”. Denis Baranger, “Le Serment Des Juges Dans Marbury v. Madison – Ou : Qu’est- Ce Qu’obéir À Une Constitution Écrite?”, in E. Zoller (ed.), Marbury v. Madison : 1803–2003 – Un Dialogue Franco-Américain (Dalloz, 2003), 51, 52. 3 Edward C. Ratcliff, The Coronation Service of Her Majesty Queen Elizabeth ii (Cambridge University Press, 1953), 3. 4 Basic Law: The President of the State (1964), s. 9; Basic Law: The Government (2001), s. 14. 5 u.s. Constitution, Art. ii, Sec. 1, cl. 8; Art.