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Published online by Cambridge University Press: 09 June 2015
In the common law world the oath has long provided one way of ensuring that trial witnesses tell the truth. The moral power of the oath supplements the judicial power of perjury laws. But unlike laws forbidding perjury, the oath cannot be used automatically. Through ignorance, belief or conscience a person may be incapable of meaningfully swearing an oath. Over the years there have been many legislative enactments and judicial pronouncements which sought to clarify conditions for the use of the oath and establish alternatives to it. With increasing secularization of society, the traditional ground rules have required modification. Because there has been little serious, theoretical discussion of the nature of the oath, these modifications have often exhibited inadequate understanding of the moral dimensions of the oath. As a result, judicial discussion has reached an impasse. In January, 1988 Bill C-15 became law. It contained yet another attempt to satisfactorily harness the power of the oath to the needs of the judicial system. The interpretation of this new legislation will offer excellent opportunities to eliminate some of the confusion surrounding the oath in Canadian law. This paper will analyze the nature of the oath with special attention to its obligation-generating capacity. The analysis developed here may help provide the understanding necessary for sensible judicial interpretation and reform.
I am indebted to C. Anne Crocker and Jack A. Iwanicki for helpful comments on earlier versions of this paper.
1. Bill C-15, An act to amend the Criminal Code and the Canada Evidence Act, 2nd Sess., 33d Pari., 1986–87.
2. I do not mean to imply that the oath is unique to Western culture, for it is not. I shall emphasize Western sources, however, because they have had the greatest impact on common law cultures.
3. Code of Hammurabi, section 20, contained in The Oldest Code of Laws in the World trans. Johns, C.H.W. (Edinburgh: Clark, 1903) at 6.Google Scholar
4. Ibid. section 120 at 22.
5. Ibid. section 131 at 25.
6. Harrison remarks, A.R.W. in The Law of Athens trans. (Oxford: Clarendon Press, 1971) Vol.2 at 150–51,Google Scholar In earlier times oaths had played a much more prominent role in litigation, and a grammarian records a law of Solon which laid down that, where neither party could produce either contract or witness to establish his case, the parties had to take an oath … as to the truth of their case.
7. Ibid. 150–53.
8. Iliad, trans. Rieu, E.V. (Middlesex, Eng.: Penguin Books, 1950) 66 (book iii).Google Scholar
9. Ibid. 66–67.
10. Aeschylus, The Eumenides, trans. Hugh, Lloyd-Jones (Englewood Cliffs, N.J.: Prentice-Hall, 1970) II 762–66.Google Scholar
11. Ibid. II. 619-21.
12. Ibid. II. 679-80.
13. Menachem, Elon ed., Principles of Jewish Law (Jerusalem: Keter Publishing House Jerusalem Ltd., 1974) 615–16.Google Scholar
14. Genesis 22:1.
15. Genesis 22:16–17.
16. Genesis 24:1–4.
17. Genesis 25:33.
18. Genesis 26:28–29.
19. Spevack, Marvin The Harvard Concordance to Shakesp (Cambridge, Mass.: Harvard University Press, 1973).Google Scholar
20. R&J II.ii.90-93.
21. R&J II.ii.112.
22. R&J II.ii.118.
23. TA V.i.69.
24. TA V.i.73–81.
25. TA V.iii.195.
26. This appears in the Bekker edition of Aristotle as 1432a 33-35. The most readily available source is Jonathan, Barnes ed., The Complete Works of Aristotle (Princeton, N.J.: Princeton University Press, 1984) Vol.2 at 2290.Google Scholar
27. 1377a 8 – 1377b 11.
28. That oaths of love do more than convey information does not negate the fact that they may, at the same time, contain propositions which are in some way affirmed as true. The extent to which this claim about the oath is accurate will be discussed in the next section.
29. Supra, note 21.
30. Supra, note 10.
31. For an ancient example, see note 35 infra and accompanying text.
32. (1744), 1 Atk. 22 at 48, 26 E.R. 15 at 32.
33. Cf. Regina v. Bannerman (1966), 55 W.W.R. 257 at 282, 48 C.R. 110 at 136 (Man. C.A.), where Dickson J. notes that divine punishment may be contrary to Christian belief in the “forgiveness of sins and the mercy of God.”
34. This is the so-called “problem of evil”.
35. Supra, note 21.
36. Supra, note 3 section 9.
37. Ibid. sections 120, 126 and 240.
38. See, for example, Genesis 21:23 and 24:3.
39. Supra, note 33 W.W.R. at 283, O.R. at 136–37.
40. Genesis 31:53.
41. I Samuel 1:26.
42. Genesis 42:15–16, where Joseph swears by the life of the Pharaoh.
43. For example, Genesis 24:9. See also supra, note 13 at 616.
44. Genesis 24:2–9 explicitly involves swearing by God, while Genesis 47:29–31 does not.
45. Hamlet 1.05.144ff.
46. Fell, W.J. & Keats, A.G. Boland and Sayer on Oaths and Affirmations 2nd ed. (London: Stevens, 1961) 108.Google Scholar
47. Ibid. It is reported in the note to The King v. Ah Wooey (1902), 8 C.C.C. 25, 9 B.C.R. 569 (B.C.S.C.) that the saucer oath was commonly used in British Columbia around the turn of the century. In the specific case, however, a witness was required to take the “chicken oath”, which explicitly invokes the “will of Heaven”.
48. [1966] 1 O.R. 739, 55 D.L.R. (2d) 289 (Ont. C.A.).
49. Supra, note 33.
50. I am using the word “undertakes” in its most general sense, not referring to any specific utterance or act but to any number of different kinds of performances and actions which can be used intentionally to generate a moral obligation or responsibility for oneself.
51. For a more careful analysis of this claim, see the next section.
52. Supra, note 26.
53. See especially, How to Do Things With Words (New York: Oxford University Press, 1962).Google Scholar The other great classic in the field is Searle’s, John Speech Acts (Cambridge, Eng.: Cambridge University Press, 1969).CrossRefGoogle Scholar
54. Illocutionary acts are one part or aspect of an ordinary speech act or utterance. To perform an “illocutionary act” is to do something (e.g. warn), usually by saying something (“There’s a bear coming!”).
55. For example, see Searle, John R. “A Taxonomy of Illocutionary Acts” in Expression and Meaning (Cambridge, Eng.: Cambridge University Press, 1979), and CrossRefGoogle Scholar Bach, Kent & Harnish, Robert Linguistic Communication and Speech Acts (Cambridge, Mass.: MIT Press, 1979).Google Scholar
56. Searle, note 55 at 14. Bach and Harnish say, “Commissives express the speaker’s intention and belief that his utterance obligates him to do something…” (Bach & Harnish, note 55 at 41), and “Commissives are acts of obligating oneself or of proposing to obligate oneself to do something specified in the propositional content…” (Ibid. 49–50).
57. Supra, note 55 at 50. A “constative” is “the expression of a belief, together with the expression of an intention that the hearer form (or continue to hold) a like belief.” (Ibid. 42.)
58. Ibid. 50.
59. The analysis can also handle cases where a statement is made and then, in response to doubts expressed by listeners, the speaker adds, “I swear it!” “It” would incorporate by reference the previously asserted proposition, thus becoming structurally equivalent to our first example.
60. “Swearing, Telling the Truth and Moral Obligation,” (1983) 9 Queen’s Law Journal 199 at 203.Google Scholar
61. Vowing, too, has received little analysis. Vows seem to be similar to oaths in the strength of obligation they create. Sometimes “vow” is used interchangeably with “swear”: Immediately following the passage quoted earlier from Titus Andronicus, and as part of the same exchange, Aaron concludes, “Therefore thou shalt vow / By that same god — what god soe’er it be / That thou adorest and hast in reverence — / T o save my boy, to nourish and bring him up; / Or else I will discover nought to thee.” (TA V.i.81-85). Often, though, there does appear to be a difference in use, perhaps related to their propositional content. While there is much cross-over, oaths generally obligate the speaker to specific behaviour and are often time- or occasion-limited (tell the truth in present testimony, etc.), vows are often open-ended both as to time and application (vows of poverty, marriage vows). Oaths demand specific performance; vows demand a mode of being or way of living.
62. For example, the analysis does not solve the problem of undertakings to do morally impermissible acts. There is something odd about promising, swearing or vowing to do a morally impermissible act, and yet we can sensibly say, “she swore vengeance,” or “he swore to kill me,” recognizing that vengeance and killing are morally wrong. If oaths always create obligations, these people have obligations to perform acts which are otherwise prohibited. This is at best paradoxical and at worse impossible. The analysis offered here sidesteps the problem. The first or “essential” condition of the oath is an intention to be morally bound. Normally this will constitute an effective undertaking, and the oath-taker will as a result have the intended obligation. But the analysis itself does not entail that the obligation is always created; the intention may fail in exceptional circumstances. These ‘defeating conditions’ could be specified among the preparatory conditions for the oath, excluding, perhaps, morally impermissible subject matter or cases where it would be wrong to take the oath were the moral implications of the specific undertaking fully known (e.g. when the wrongness of the subject matter ‘outweighed’ the rightness of taking the oath). The issue is complicated, and there are a multitude of possible approaches. In a legal setting, however, the issue is not pressing, since the court process and mandatory content of the oath is assumed to involve only morally permissible acts of great importance (telling the truth). I shall accordingly put the issue off until another day, with thanks to R.N. Bronaugh for calling it to my attention.
63. Cf. Kurzon, Dennis “Telling the Truth: The Oath as a Test of Witness Competency”, International Journal for the Semiotics of Law II/4 (1989), 49 at 51.Google Scholar
64. See especially In A Different Voice (Cambridge, Mass.: Harvard University Press, 1982).Google Scholar
65. It is worth noting that this analysis provides yet another explanation for the prevalence of the religious oath. One of the ‘beneficiaries’ of a religious oath might naturally be thought to be the god/dess invoked. The result is that the oath-taker becomesresponsible to the godldess, an especially compelling connection.
66. Supra, note 58.
67. Kant is a perfect example of this. The Categorical Imperative is expressly designed to remove duty from empirical or ‘concrete’ connections and feelings.
68. In this discussion I am assuming that the act which the oath-taker swears to do is morally permissible. See note 62.
69. The most compelling and controversial statement of this argument is that given by Searle. See Chapter 8, “Deriving ‘Ought’ From ‘Is’ ” in Speech Acts, supra, note 53.
70. 1 Wm. & Mary c. 18, s. 13.
71. 7&8 Wm. 3 c.34, s.l. Although the statute specified “sincerely promise and solemnly declare”, the utterance was referred to as a “solemn affirmation or declaration”.
72. 8 Geo. I, c.6.
73. R.S.C. 1985, c. C-5, s.l4(l): “… I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth, and nothing but the truth.”
74. Supra, note 32.
75. Supra, note 60 at 200.
76. R. v. Brasier (1779), 1 Leach 199, 168 E.R. 202 at 202.
77. Supra, note 32.
78. An Act Further to Amend the Criminal Law, S.C. 1890, c.37, s.13.
79. Canada Evidence Act, S.C. 1893, c.31, s.25.
80. Supra, note 1.
81. The best judicial justification for this view is found in R. v. Antrobus 87 C.C.C. 118, [1947] 2 D.L.R. 55 (B.C.C.A.). A persuasive academic discussion is found in McEwan’s, Terry D. note “Child Witness and the Nature of an Oath: Regina v. Budin”, (1981).13 Ottawa L. R. 426, at 428–31.Google Scholar
82. Supra, note 33, W.W.R. at 284, C.R. at 137. (emphasis added) See also Horsburgh v. R., [1966] 1 O.R. 739 at 755 (C.A.).
83. Ibid. W.W.R. at 285, C.R. at 138.
84. [1967] S.C.R. 309 at 368.
85. [1967] S.C.R. 746 at 777, (1967) 63 D.L.R. (2d) 699 at 728.
86. R. v. Budin (1981), 58 C.C.C. (2d) 352
87. (1983), 1 C.C.C. (3d) 370.
88. [1977] 2 All E.R. 288 at 291.
89. Supra, note 87 at 380.
90. Supra, note 88 at 291.
91. See, for example, R. v. Khan (1988), 27 O.A.C. 142.
92. Task Force Report, 18.2.
93. Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Children (1984), 367.Google Scholar
94. Supra, note 1.
95. R.S.C. 1985, c. C-5, s.16; am. 1987, c.24, s.18.
96. Rollie Thompson, D.A. “Taking Children and pacts Seriously”, (1988) 7 Canadian Journal of Family Law 11 at 38.Google Scholar
97. CEA 16.(3) allows testimony after promising in cases where the person is incompetent to swear or affirm but is able to communicate the evidence; 16.(4) prohibits testimony from someone who is neither competent to swear or affirm nor able to communicate the evidence. There is no mention of someone who is able to communicate but is incompetent to swear, affirm or promise.
98. Bill C-15 repealed those sections of the Criminal Code and Canada Evidence Act which required corroboration for the unsworn testimony of children. Supra, note 1 ss. 15, 18. Similar provisions in provincial evidence acts will probably disappear too.
99. For example, see Law Reform Commission of Canada, Report on Evidence 1975, s.50 and pp. 86–87. Under the proposed code, every witness would be required to “affirm”: “I promise to tell the truth…” See also Ontario Law Reform Commission, Report on the Law of Evidence 1976, 129–31. Under the Ontario proposals adults would solemnly affirm and children under the age of seven or not competent to affirm would be required to promise to tell the truth.
100. RSNB 1973 c.A-18 s.6(4) [Act repealed 1975] — affidavit re proof of giving notice.
101. RSNB 1973 c.W-12 s.l3(l) — affidavit stating amount due.
102. Cf. so-called “statutory declarations” under CEA s.41 (R.S.C. 1985, c. C-5), and parallel provincial legislation.
