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Monday, August 13, 2018


Fifty-seven years ago, I taught an upper class undergraduate course in Harvard’s General Education program called “Value and Reality in Western Society.”  Part One of the course dealt with The Problem of Loyalty in Contemporary America.  Part Two was devoted to An Analysis of Historical Materialism.  Doing some background reading for Part One, I found myself one day in the reading room of the Harvard Law School.  I can still recall the look and feel of the long library tables, at one of which I sat reading a law review article about the origins of the modern practice of having witnesses in a trial testify under oath.

The author of the article [who was, I recall, a woman, but her name is long since lost to me] explained that the oath a witness swears in court originated as what she called a conditional self-curse.  That is, the witness said, in effect, “If I should testify falsely, let God damn me to eternal hell fire.”  This conditional self-curse was taken so seriously by all involved that if a witness issued uttered it, his testimony was accepted forthwith as reliable, since it was unimaginable that anyone would call down upon himself so terrible a punishment.  The modern phrase “so help me God” uttered ritually by witnesses “taking the oath” is a compressed and fragmentary remnant of the original conditional self-curse.

This has absolutely nothing to do with anything, but I thought it was interesting.


Dean said...

"In the history of culture, institutions of ancient origin are often adapted to newly emerging situations, either because their ancient rationale has been of permanent value or because of a change in their nature or justification. The oath has survived unsupported by either reason. Originally a primitive conditional self-curse, the oath has undergone only superficial renovations. In the pre-animistic stage, the oath was a meaningful expression of man's belief in his own magic powers; within the framework of such belief, it was a rational means of social control. So long as social rather than cognitive elements dominated procedure, the procedural act of a dispositive self-curse was well suited to the ends of litigation. As man ceased to believe in his ability to dominate the course of events through supernatural media, the oath as a self-curse became an anachronism. As litigation became oriented to a cognitive concept of truth, the oath, even where it ceased to be conclusive and developed into a probative device subject to judicial evaluation, became obsolete. For notwithstanding its change of function, the oath has never quite lost its primitive roots in the decisive magic rite."

Helen Silving, The Oath: I, 68 Yale L.J. 1329, 1389 (1959)

Robert Paul Wolff said...

Good grief, brilliant!!! How on earth did you find it so fast? My memory was right, that the author is a woman. Now, if I could just recall what I had for breakfast ...

Dean said...

I have good tools at my disposal. But they're not good enough for me to find so quickly the early English case to which you refer in the previous post!

LFC said...

The late Bertram Wyatt-Brown, a historian one of whose books I happen to have checked out of a library at the moment, wrote a lot about the "ethic of honor" in U.S. contexts, esp. but not only the antebellum South (e.g. he also wrote about its role in the era of the Am. Revolution), and he notes its connection to oath-taking, which also involved "the sacred." But clearly the practice goes way, way back, into the mists of pre-history, if I understand the passage that Dean quotes, above.

MS said...

Regarding the nature of oaths, I need to expand a bit on my comment in the previous blog entry relating to alternative pleading. The example of alternative pleading regarding the contract is easily defended for the reasons I gave – whether a contract has been formed can be a complex combined factual/legal issue, particularly in the absence of a written document. However, the example of the borrowed jar is quite different. Whether a jar existed, whether it was borrowed; whether it was broken, etc., are not complex legal issues. They are solely factual allegations that are either true or false. What the imaginary pleader in the case of the jar is doing is relying on the burden of proof – it is the plaintiff, the person suing for the alleged broken jar, who, by law, has the burden of proving every factual element of his/her case. So, rather than admitting that there was a borrowed jar and that it was broken, the defendant is denying each of the elements and telling the plaintiff to prove them. Pleading in the alternative with respect to such factual allegations, however, is not without its risks. Under the federal court rules, a party that continues to deny factual allegations in the face of strong evidence that the factual allegations are accurate (e.g., a document signed by the defendant indicating s/he borrowed the jar) can be sanctioned by the court with an assortment of penalties, e.g., reimbursing the plaintiff’s attorney for the legal expenses required to prove the allegation true.

What does this have to do with what Giuliani and Trump are doing? Most of Giuliani’s double-talk relates more to factual issues, like whether the jar was borrowed, rather than combined factual/legal issues, like whether a contract was formed. Moreover, Giuliani is not (as of yet) representing Trump in a legal proceeding, ala’ Clinton’s deposition in the Paula Jones lawsuit. Remember when President Clinton was castigated for answering a question during that deposition by saying, “It depends on what the meaning of the word “is” is.”? His answer, although criticized as being “legalistic,” was a perfectly good answer to a very badly worded question by Jones’ attorney. The attorney, using the present tense, asked Clinton a question about whether he was having sexual relations with Monica Lewinsky. Clinton focused on the use of the present tense and gave a perfectly acceptable answer in a legal proceeding. From this perspective, contrary to the shouts for his impeachment, he did not commit perjury. Clinton was a defendant in a civil lawsuit; he had every right to be particular in his answers and to expect that the plaintiff’s attorney ask questions in a professionally worded manner.

What President Clinton did in the course of a deposition, however, was not an acceptable answer outside the context of a legal deposition. When addressing the American people at a news conference, for example, when acting as the President of the United States, he had an obligation not to give cunning, legalistic answers to questions. Although in that context he had not taken an oath prior to testifying, he had, as Trump has, taken an oath of office specified in Aritcle II, Sec. 1 of the Constitution to, “faithfully execute the Office of the President of the United States, and ... to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.” Article II, Sec. 3 of the Constitution provides that the President “shall take Care that the Laws be faithfully executed.... .” I submit that when Giuliani, on Trump’s behalf, gives blatantly contradictory answers to factual questions – none of which relate to issues of national security – as if he is pleading in the alternative in a legal proceeding, Trump, via Giuliani, is violating that oath.

J. Bogart said...

As MS notes, maintaining denials or allegations without reasonable grounds “can be sanctioned by the court” — but sanctions are very rare. So don’t get your hopes up re Giuliani being sanctioned.

MS said...

I agree that Giuliani will not be sanctioned by any court for his conduct. But that is primarily because his representation of Trump is not part of any legal proceeding. But the point I was attempting to make in my earlier comment, perhaps a bit obscurely, is that precisely because it is not related to a legal proceeding, his conduct on behalf of a mendacious President is much worse. In a legal proceeding, Giuliani’s tactical maneuvering, his “pleading in the alternative,” would, up to a point, constitute legitimate advocacy on behalf of his client. But outside the context of a legal proceeding, we have a right to expect a degree of candor, a degree of consistency, in our President that, in a legal proceeding, might be regarded as poor gamesmanship. The President should not need to recite an oath to tell the truth, with his hand on a bible, to be expected to tell the truth at a press conference. Yes, it is true, that most politicians and most presidents, bend the truth. But, as President Obama noted in his recent speech in South Africa, it used to be when a politician was caught in a lie, s/he at least would affect embarrassment. Trump, aided and abetted by Giuliani, doubles down on the lies. He lies more than any other President has done; and then he contradicts the lies, and lies about the lies. For all of Nixon’s faults, and there were many, when he declared, “The American people have the right to expect that their President is not a crook. Well, I am not a crook.” he at least recognized that there was a standard of decent behavior that the President owed the country, even though he failed to live up to that standard.

By his outlandish advocacy on behalf of Trump, Giuliani is doing serious harm to the office of the President that will have a lasting, deleterious effect on this country. Trump’s critics express legitimate concerns about the repercussions his policies will have on international relationships and voice concern that he may do something rash militarily in order to prove his manhood. But even if, hopefully, none of these worse case scenarios come to pass, the harm that Trump’s behavior is causing to the psyche of this country will last well after he is long gone. He is teaching the young people in this country that the way to be successful in life is to lie, cheat and bully your opponent. Giuliani’s contradictions in defense of Trump is legitimizing that behavior.