The oath (also called a bodily oath ) is used to personally confirm a statement.
He obliges to the truth (e.g. in court proceedings ) and to bear the consequences (e.g. in the oath of the oath ) of the oath statement. The oath is often referred to as a conditional self-curse, since an oath with a religious affirmation invokes a deity as an oath helper and as the avenger of untruth. Oaths exist not only in the European legal tradition (e.g. among the Greeks , Romans and Celts ), but also in China , in ancient Israel and among numerous ethnologically investigated indigenous peoples . The ancient Greek oath of Hippocrates obliged doctors to comply with their professional duties and ethical principles (including protecting the sick from harm, observing the duty of secrecy).
An oath is usually linked to rituals or ceremonial acts, which are intended to express the general awareness of the effectiveness of a statement or promise of behavior made under oath. For example, everyone present or everyone involved must stand up. Culturally different, for example, the left hand is placed on a constitution or a religious script and the right hand is shown openly or as an oath hand . Such actions are only standardized in writing in a few cases, but mostly just traditional consensus.
There was also the superstition that one could at least protect oneself from the “punishment of God” for perjury and that the oath would be lifted if a counter-ceremony, e.g. crossing the fingers of the left hand, was carried out in a concealed manner.
In the ancient Orient, oaths were important in state treaties. A number of gods were usually invoked to punish the oath-breakers. In the vassal contract between Azarhaddon and the kings of the Medes, for example, the oath-breaking should not reach old age, An should strike them with insomnia, distress and illness, Sin should strike them with leprosy , Šamaš should blind them, Ninurta should strike them down with his arrows, their blood shall fill the steppe, a stranger shall have their wives' wombs, they shall not inherit their sons, and Adad , the dikemaster of heaven, shall flood their land. Išḫara , an underworld deity, protected the oath (in the Šuppiluliuma - Šattiwazza treaty, KBo I, nos. 1 and 2, she is expressly referred to as "mistress of the oath" in the formula of the curse). In Persia , Mithra was the protector of the oath and justice.
In the Old Testament , God swears by himself ( 1 Mos 22 : 16-17 EU ) to Abraham to bless his family and to multiply them like the stars in the sky. God asks people in the OT ( 3 Mos 19.12 EU ) not to swear wrongly by his name and ( 4 Mos 30.3 EU ) not to break the word after taking an oath, but to do everything, as with the oath has passed the lips.
According to Prodi, an innovative element is the integration of the God of the Jews into his oath to covenant with Israel, while in other ancient cultures the gods only act as witnesses and avengers (cf. Erinyes ) of the oath. The biblical term covenant reflects the two biblical key terms ברית ( Hebrew berīt ) and διαθήκη ( Greek diathēkē ) and includes the meanings of a solemn covenant, contract or oath, otherwise diathēkē stands for testament. The (Christian) choice of words New and Old Testament for the main parts of the Bible go back to this. Christian theology emphasizes God's declaration of will, while the Jewish interpretation tends towards contract or covenant .
In the Old Testament, the execution of the oath on the hips of the oath-taker indicates a use that was also widespread among the Romans. They swore in the testis , the (own) testicles - the word relationship of witnesses , testify and procreation has a similar context.
In the New Testament , in the Sermon on the Mount ( Mt 5,33-37 EU ), Jesus demands not to swear at all, but to keep his word even without affirmation on oath. Whether Christians are allowed to swear an oath was therefore often controversial in church history . Some church fathers of late antiquity rejected the oath completely; but the canon law, which was decisive for the later Catholic doctrine , allowed it and said that it was acceptable to everyone. The larger Protestant churches also approve the oath, while conservative Anabaptist groups such as Amish , old-order Mennonites , old colonial Mennonites , Hutterites and Quakers still reject it today, citing the Sermon on the Mount .
The ban on the oath is also taken into account in the Catholic Church with the ritual of the vow . This is understood as the well-considered promise freely made to God. This happens with religious vows that are accepted by a church official (e.g. the bishop or superior ) on behalf of the church, like private vows. The examination of the different roles and influences as well as the question of the oath as a political sacrament played an important role in the investiture controversy or the assignment of marriage . The superordinate community-building element as well as the Christian skepticism towards the oath led to important differentiations. According to Paolo Prodi's classic, it was the Christian Church itself that, as the guarantor of the oath, paved the way for the secularization of politics .
As David Hume derivability one Shall from being questioned (see. Hume's Law ), made John Searle 's proposal, an Shall by a promise from His derive. This corresponds to the idea of contractual loyalty (cf. Pacta sunt servanda ), which is why an oath can be understood as a type of contract in which the final judge of the fulfillment of the contract can be seen as the one to which the oath relates (e.g. an oath before God).
Role of different legal cultures
In the early continental European Middle Ages, the oath took up ancient and Judeo-Christian traditions; elements of Germanic legal customs were also adopted, as in the ordeal ( divine judgment ), and only replaced by the oath in a modern form in a laborious process. The oath also played an important role in the then developing Anglo-Saxon common law tradition , which emphasized judicial law and oral proceedings. It plays a different role depending on the legal system . In the Anglo-Saxon environment, among other things, an oath was taken from young freelancers not to commit any crimes. To the present day, cross-examination under oath is part of the case law there and, because of its dramaturgical value, it is also a popular subject of court films .
Oaths were already widespread in the Germanic legal culture and served as a means of oral law finding. In Sumbel (an. Sumbl , aeng. Symbel , as. Sumbal ), the oath was taken as part of a ritual drink or a ritual drinking binge . Examples can be found in the Beowulf epic (lines 489–675 and 1491–1500) in the old Saxon Heliand as well as in the Edda song Lokasenna , the Heimskringla , in the report on the funeral drink by Sven Gabelbart for his father and in the book about the Norwegian kings, the Fagrskinna . It was sworn on the chief's horn while he was drinking, and animals were occasionally included.
The Germanic oaths were also a popular research topic in the 18th and 19th centuries. They were also used in ethnic and national socialist environments to distinguish them from Christian-Jewish antiquity and the independent German legal culture . Among other things, the subject was the formula of the oath and the required touch of an object on which one swore. Corresponding rituals, such as the oath of the flag or public oaths and vows in the military, were traced back to an early, pre-Christian and Germanic origin.
Prodi now sees the decisive turning point in the 5th to 7th centuries, when the pagan and the per creaturas oath were forbidden at councils , while the Christian oath is preserved and given a clearer sacred and liturgical meaning. These were also included in the first books of penance and pontificals. The Vœux du paon , a courtly poem (around 1312), in which joking oaths on a peacock become a courtly parlor game, is a later reflex of this pagan ritual. At the Pheasant Festival in Lille in 1454, a pheasant at the Burgundian court swore to undertake a crusade, but this did not materialize.
Belton and Lupoi see a shift in the oath of the Roman era from the political and legal environment to wide areas of society as a common phenomenon of (early medieval) European jurisprudence.
The cleaning oath as well as the use of oath helpers also belonged to the forms attributed to the Teutons. Belton and Lupoi see the specifically Germanic origin as disproved in the meantime, but emphasize the central and important role in the early Middle Ages.
Slips of the tongue or formal errors in the taking of the oath could lead to its rejection. According to Stefan Esders , individual cleaning flosses have already been documented for Roman practice, but were overshadowed by the law of evidence. The early medieval judicial processes differed from the Roman practice mainly in the question of the burden of proof as well as the lower legal obligation. Esders cites a thesis put forward by Franz Beyerle as early as 1915 , according to which litigation at that time was always an alternative to the possible violent resolution of conflicts. The cleansing oath was thus also self-assertion and the willingness or refusal of oath helpers was already part of the conflict in the run-up to the process. A cleansing oath also had to convince the opposing party to avoid violent execution. Slips of the tongue and errors in the performance could already call him into question. By contrast, until the High Middle Ages, torture was only common in exceptional cases (servants, offenses against the royal power). It contradicted the self-image among armed free people. It was not until the late Middle Ages and the early modern period that torture became more widely established as an instrument of evidence.
The collective oath was a central element of Western political life for a long time, and the ' day of oath ' is still preserved in some places as a citizens' and folk festival. The so-called oath shops were presented to the swearing parties during solemn oaths or were to be touched. As with the Eideskapelle of the Lübeck Council , the form itself takes on a sacred claim, the ritual itself shows the independent claim to power of the council or the citizenry. The election of the council itself was preceded by intercessions in the services of the city churches in Lübeck . The newly elected councilors gathered before the oath in Lübeck's Marienkirche . The oath itself took place in the council chamber, where the council's jewel was placed. The new councilors knelt there in pairs and swore the oath with one finger on the oath chapel.
The central ceremony of the inauguration of the President of the United States is the oath of office. Franklin Pierce was the 14th President of the United States from 1853 to 1857 and the only president to date to take an oath when taking office, which is also provided for in the American Constitution. Inauguration and the oath are of great importance in the United States; When Barack Obama was inaugurated in 2009, the associated events lasted three days and were followed by an audience of millions. Obama swore on the Lincoln Bible on January 20, 2009 . Obama, like Chief Justice John Roberts , made a few slip of the tongue when taking the oath. As a Senator, Obama himself voted against Roberts as Chief Justice. To be on the safe side, the oath was repeated on January 22nd, 2009, this time without a Bible.
In the US, which is Pledge of Allegiance ( English allegiance ) as an expression of loyalty to the nation and the flag of the United States part of the common morning ritual, especially in public schools. The formulation a nation under God , introduced in 1954 , has been the subject of legal disputes several times, as have the requirements for the form of service stipulated in the associated flag law of the United States . A binding obligation to actively participate was often called for, but not enforced.
In the British House of Commons, the oath of office provides for a religious affirmation and also applies to the monarchy. Charles Bradlaugh was denied a seat in the House of Commons in 1880 because, as a declared atheist, he would not be able to swear to the British Oath of Allegiance. Well-known British Republicans such as Tony Benn or Richard Burgon took the oath, which had not been changed, only under protest or with additions, Tony Banks with crossed fingers.
Role in Germany
Oaths in court
Witnesses , court experts and court interpreters can be sworn in by a judge . If the evidence of the party hearing is used in civil proceedings , it is also possible to swear in the party . Also honorary judges are sworn in before the first participation in a hearing by a judge ( DRiG ).
Cases of swearing
Before the first Justice Modernization Act of August 24, 2004, an oath always had to be taken in court that the witness or the expert opinion had been given to the best of their knowledge and belief . The swearing-in could only be waived if all those involved renounced the swearing-in. The renunciation corresponded to general practice. Since the Justice Modernization Act, a witness or an expert can only be sworn in if the parties do not waive the oath and the court considers an oath to be necessary, taking into account the importance of the matter or to bring about a truthful statement ( ZPO ; StPO ). The unsworn testimony has since become the rule. The document translator is to be treated in the same way as an expert . In contrast to the witness and the expert, the court interpreter must always take an oath in court to the effect that it will be faithfully and conscientiously transmitted ( GVG ). The interpreter may only be sworn in in front of a court if he was brought in within the scope of a procedure of voluntary jurisdiction ( Abs. 3 GVG) or if the clerk of the office was used as interpreter ( GVG ). For reasons of procedural simplification, experts and interpreters have the option of having an oath taken from them in advance by the judicial administration (“publicly appointed and sworn interpreter”). Experts and interpreters can refer to this oath in the main hearing because of (2) GVG .
Oath and oath
A distinction must be made between prejudging and subsequent oath. The rules of procedure stipulate that the oath must only be taken after the testimony has been given or the report has been submitted. Before submitting the testimony or submitting the expert opinion, the witness or the expert only has to be instructed that he could be sworn in. In civil proceedings, however, the judge can require an expert to take an oath instead of an oath. Interpreters must always take an oath.
Ability to take oath
A swearing-in is only possible if the person is able to swear. Young people under the age of 18, the mentally handicapped and witnesses who are themselves suspects may not be sworn in (StPO).
The swearing-in is usually not done because human memory is unreliable, events to be witnessed often date back a long time and witnesses who are ready to make truthful statements often remember wrongly. Only if there is a strong suspicion that someone is knowingly making false statements is one threatened with the oath or actually allowed to take it.
The oath before a German consul , before examination offices and patent departments of the patent office and before the investigator in disciplinary proceedings is equivalent to an oath before a judge.
Authorities are not authorized to take oaths within the meaning of consul , patent office). Witnesses, experts or interpreters who are questioned by an authority always give their testimony, their expert opinion or their speech transmission without oath. Interpreters or experts cannot rely on their general sworn oath before an authority. Lying to authorities is therefore unpunished. The only exception is the filing of an intentionally false criminal complaint before an authority that is authorized to receive complaints.StGB (exceptions: German
Insurance under oath
In certain cases, however, a duty of truth is feasible. In the cases provided for by the law, authorities can require an affidavit in lieu of an oath . Taking a false affidavit in lieu of an oath is punishable ( Criminal Code).
The affidavit is particularly important in civil law . In contrast to the publicly and ceremonially taken oath, this can also be given in writing and unsolicited if there is a hurry or if it is intended to (publicly) reinforce a certain statement of fact that is directly named. The best known is the asset information previously known as the " oath of disclosure " ,
- for the affidavit and its history and use in Germany, see also: Versicherung an Eidesstatt
Oath of office
The official oath is to be distinguished from the oaths within the meaning of § 153 StGB . In public law , the official oath of civil servants , soldiers ( swearing and vow of soldiers of the Bundeswehrswehr ) and judges as well as the elected high representatives of the state, such as the Federal President and Chancellor , is an official duty. Taking the oath is not a prerequisite for assuming the office, but just a consequence of that. The handover of the certificate of appointment or, in the case of the Federal President, the declaration of acceptance of the election, provided that the term of office of the predecessor has already ended, is the justification for the office (constitutive). The oath is a purely declaratory act, which outwardly expresses the acceptance of the new task. In the case of civil servants, however, the refusal to perform the service obligation entails dismissal (Section 23 (1) No. 1 of the Civil Service Status Act). Except for the judges' oath of office, this swearing-in on the constitution is not taken by a judge or a court and is therefore not punishable as perjury if the oath is broken.
In Austria, no oath is taken when taking up public office. However, a similar role is played by the vow that when carried out as part of the inauguration swearing-in is to be taken. However, the oath plays a role in two cases: as an oath in court and in the submission of affidavits.
Oaths in court
The wording of the law of May 3, 1868 regulating the procedure for taking oaths in court is only applicable to the swearing-in of witnesses and experts in court proceedings. For some proceedings before other authorities, however, the analogous applicability was expressly declared, for example in FinStrG for proceedings before the financial criminal authority.
After the competent judge has clarified the meaning of the oath, including the legal and religious consequences of perjury, the oath-taking witness has to swear the following formula regardless of the religion: I swear by God the Almighty and All-Knowing, a pure oath that I am above Everything about which I have been questioned by the court (will be questioned) have testified (will testify) the pure and full truth and nothing but the truth; so help me God! Experts, on the other hand, swear: I swear a pure oath to God Almighty and All-Knowing that I will submit the findings and my expert opinion to the best of my knowledge and belief and according to the rules of science (art, trade); so help me God!
Special features depending on religion
- Christians have to take the oath in front of two burning candles and a crucifix . People of the Swiss Confession are excluded from this.
- When taking the oath, Jews have to cover their heads and put their hands on the Torah , 2nd Book of Moses , chapter 20, verse 7 BHS EU .
- Muslims have the question Do you swear by God? to answer with Jemin ederim (I swear) . In addition, they must confirm the oath with one or all of the following additions: Billahi Taala (by God the Most High) or Wallahi (by God) or Bismillahi (in the name of God) .
- Persons for whom taking an oath is not compatible with their religious denomination are exempt. You are only admonished to tell the truth and must confirm this with a handshake. The threat of punishment intended for perjury also applies to them.
Criminal Code threatens false testimony in court with imprisonment for up to three years. However, if the statement is made under oath, the range of punishment increases to imprisonment from six months to five years.
Oaths in court
In Switzerland there is no swearing in court. Witnesses, experts, translators and interpreters are obliged to give truthful testimony by virtue of their function; deliberately false testimony, incorrect translation, etc. are offenses and must be prosecuted ex officio. Persons in these functions are to be instructed by the judge about this legal situation; a special swearing-in does not take place. (Witnesses may refuse to testify under certain circumstances, but they may not give false testimony. Only the accused in the criminal process is allowed to lie.)
Nor are sworns sworn before other authorities in Switzerland. An affidavit can be submitted to the notary's office. For example, the migration authorities require such a declaration about family relationships, especially about the existence of other children abroad.
Oath of office
Before taking office, some public officials are required to take an oath of office, in which the public official affirms that they will exercise the office assigned to them in accordance with the law. Every person is free to take a vow with no religious connotation instead of the oath . The oath and vow are legally equivalent. See also swearing in (Switzerland) .
- Hans-Werner Gensichen, Horst Seebaß, Nico Oswald, Gerhard Dautzenberg , Peter Landau a. a .: Oath I. Religious history II. Old Testament III. Judaism IV. New Testament V. Historical VI. Ethical VII. Practical-theological. In: Theological Real Encyclopedia . 9 (1982), pp. 373-399 (overview with ref.).
- Ernst Friesenhahn: The political oath. With a foreword to the reprint and a list of recent literature on the oath as an appendix. Wissenschaftliche Buchgesellschaft, Darmstadt 1979, ISBN 3-534-07580-3 (first edition Bonn 1928).
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- Paolo Prodi (Ed.): Faith and Oath. Loyalty formulas, creeds and social discipline between the Middle Ages and modern times . Oldenbourg, Munich 1993, ISBN 978-3-486-55994-1 ( full text as PDF ).
- Paolo Prodi: The oath in European constitutional history (= writings of the historical college . Lectures 33). Munich 1992 ( digitized version ).
- Jeff Zeleny: I Really Do Swear, Faithfully: Obama and Roberts Try Again. In: The New York Times . January 21, 2009, accessed March 1, 2009 .
- Markus Euskirchen: Military rituals: The aesthetics of state power. Critique and analysis of an instrument of rule in its historical-systematic context. 2004, ISBN 3-89438-329-1 , doi : 10.17169 / refubium-5814 ( fu-berlin.de [accessed June 29, 2020]).
- Herbert Willems: Staging Society . An introductory manual. Ed .: Martin Jurga. Springer-Verlag, 1998, ISBN 978-3-322-89797-8 , pp. 222, 223 .
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- Rykle Borger: Assyrian State Treaties. Freudenstadt 1982, pp. 755-745.
- DD Luckenbill : Hittite Treaties and Letters. In: The American Journal of Semitic Languages and Literatures. 37/3, 1921, 169 ( JSTOR 528149 ).
- Paolo Prodi: The oath in the European constitutional history (= writings of the historical college. No. 33). Munich 1992, p. 9. The background was a lecture given in 1991 at the Bavarian Academy of Sciences.
- See the Canonices 1192, 1196 and especially 1197 of the CIC (Latin) , (German)
- Paolo Prodi, 1991, including p. 11 of the lecture manuscript
- Paolo Prodi: The sacrament of rule. The political oath in the constitutional history of the Occident. Duncker & Humblot, Berlin 1997. Quotation with reference to p. 23 from Gerd Schwerhoff : Review by H-Soz-Kult .
- John Searle: How to derive Ought from Is. ( Memento from August 20, 2011 in the Internet Archive ) (English)
- Amy Hackney Blackwell: Law . Infobase Publishing, 2010, ISBN 978-0-8160-7970-4 .
- Paolo Prodi: The oath in the European constitutional history. 1991, p. 8.
- Rüdiger Schnell (ed.): Conversational culture in the pre-modern era: genders in sociable conversation. Böhlau Verlag, Cologne / Weimar 2008. Explicit references in Schnells contribution like that of Martinelli-Huber in the same volume, p. 192 and 239.
- Joseph Calmette: The great dukes of Burgundy. Munich 1996.
- Maurizio Lupoi, Adrian Belton: The Origins of the European Legal Order . Cambridge University Press, 2007, ISBN 978-0-521-03295-7 .
- Stefan Esders: The cleaning oath with helpers. Individual and collective legal concepts in the perception and representation of early medieval conflicts. In: Stefan Esders (ed.): Legal understanding and conflict management. Judicial and extrajudicial conflict resolution in the Middle Ages. Cologne u. a. 2007, pp. 55-77.
- Franz Beyerle: The development problem in the Germanic legal process. Volume 1: Atonement, revenge and surrender in their relationship to the criminal process of the people's rights (= German law contributions. Volume 10, no.2). Winter, Heidelberg 1915. Esders cites pp. 291 and 454 ff.
- Volker Krey: On criminal procedural torture. Legal historical considerations. In: Robert Esser (Ed.): Festschrift for Hans-Heiner Kühne. Hüthig Jehle Rehm, 2013.
- Paolo Prodi, 1991, including p. 17 of the lecture manuscript with reference to the work of Wilhelm Ebels and Uwe Prutscher on the municipal (legal) role in Italian and German cities in the accompanying footnote
- Dietrich Poeck: Rituals of Council Election: Signs and Ceremonies of Council Assembly in Europe (12th – 18th Century) (= urban research / A: Representations 60). Böhlau, Cologne / Weimar 2003, ISBN 3-412-18802-6 , pp. 178-180.
- Jeff Zeleny: I Really Do Swear, Faithfully: Obama and Roberts Try Again. In: The New York Times . January 21, 2009, accessed March 1, 2009 .
- Evelyn Nieves: Judges Ban Pledge of Allegiance From Schools, Citing 'Under God' . In: The New York Times . June 27, 2002, ISSN 0362-4331 .
- Commons Library redirect information (PDF)
- Labor MP Richard Burgon Calls For End Of Monarchy Before Swearing Allegiance To The Queen. In: The Huffington Post UK. Retrieved May 20, 2015 .
- Research paper 01/116, 14 December 2001, The Parliamentary Oath, the British House of Commons.
- Information page of the association sworn. Interpreters and translators in Bavaria
- Oath of disclosure of the debtor. In: Schuldnerberatung 2020. Schuldnerberatung.de, accessed on June 29, 2020 (German).
- Code of Civil Procedure. In: Book 8 - Foreclosure (§§ 704 - 945b). Retrieved June 29, 2020 .
- Current version in the RIS
- Court decree of December 21st, 1832, to all appellate courts, as a result of the highest resolution of October 20th, 1832, on the court commission's presentation in legal matters
- Court decree of August 26th, 1826, to all appellate courts, in agreement with the court commission in legal matters
- Court decree of January 10th, 1816, to the Galician Appeal Court, in agreement with the Court Commission in legal matters
- Notariat Kt. ZH: Statutory declarations 
Specific forms of the oath