Oaths

How does a Jewish person swear an oath? Or should Jewish people affirm affidavits instead?

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Judaism is one of the most ancient and well known religions on earth.

When it comes to making an affidavit, people often want to know whether a Jewish person should swear an oath or make an affirmation.

The question may be asked by the Jewish affiant themselves, or a notary public might wish to know whether their Jewish affiant should affirm or swear their affidavit.

The answer to the question of swearing or affirming is the same for Jewish people as it is with anyone else: it is up to the individual!

This means that some Jewish people swear oaths when making an affidavit and others do not. There is no “right” or “wrong” answer – different people are entitled to have different views on the matter even within the same religion.

How does a Jewish person swear an affidavit?

Many Jewish people prefer to affirm rather than swear an oath when making affidavit.

For those that do swear, the usual oath is in the same form as a Christian oath. That means the Jewish affiant will say:

“I [name of person making the affidavit] swear by Almighty God that this is my name and that the contents of this my affidavit are true and correct.”

They might also make their oath in question and answer form. To do this, the person administering the oath (usually a notary public) will ask the following question:

“Do you swear by Almighty God that [name of person making affidavit] is your name and that the contents of this your affidavit are true and correct?”

Do Jewish people use religious books when swearing an oath?

Often people of religion prefer to take their oath by placing their hand on a religious text although there is no absolute requirement that they do so provided the oath taken binds their conscience.

People of the Jewish faith who take oaths can have different views about whether a religious book should be used and, if so, what it is.

Generally it is accepted that a Christian Bible is inappropriate for a Jewish person to use to take an oath because the New Testament is not a part of the Jewish faith.

A Jewish person may use the Old Testament to take an oath or a Hebrew Bible. Sometimes the Pentateuch (the first five books of the Old Testament) are used.

And sometimes no religious text at all is used. Once again it is very much up to the individual making the affidavit so it is important to ask them.

 

What is an oath?

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It is often said that oaths are as old as time itself, and that there are as many different oaths on earth as there are religions.

At a glance, each of these statements is plainly wrong. Yet they have something important to tell us about what an oath is – and what it is not.

In this article I will give you a clear definition of what an oath is. I will also explain some common misconceptions about oaths and how they apply to affidavits.

Definition of an oath

An oath is simply defined as a solemn promise to tell the truth which a person makes in a religious fashion. When a person makes an oath, this is also known as “taking” or “swearing” an oath.

It’s important to know that the wording and any ceremony used to administer an oath are completely up to the person swearing the oath. All that the law requires is that the person swearing the oath believes that the oath, in the form it is administered, binds their conscience to tell the truth.

The critical feature of an oath is that it is made by a person of religion in a fashion consistent with their view of that religion. Most commonly (but not always), the person will swear to either a single god or multiple gods in whom they believe. They are swearing to (or before) that god or gods that what they are saying is true.

However, not all religions have gods (Buddhists are an obvious example of this). This does not prevent people of those religions from taking an oath in the form that they believe will bind their conscience to tell the truth.

Is a religious book necessary to swear an oath?

It is common for people to swear oaths on a religious book of their choice (for example. a Christian will often swear on the bible). There is widespread confusion about whether this is actually necessary.

The simple answer is that it is not necessary to use a religious book if the person swearing the oath believes that the oath, in the form it is administered, binds their conscience to tell the truth.

This will usually be the case as it is difficult to imagine a religious person swearing to their god but then claiming that this meant nothing because no religious book was present. It is the adult equivalent of claiming that it is OK to tell a lie if your fingers are crossed behind your back.

However, if the person swearing the oath believes that it will not bind them unless a religious book is necessary then a religious book must be used.

What is an affirmation and how is it different to an oath?

An affirmation is a  non-religious form of an oath. Affirmations are intended to have exactly the same purpose and significance of an oath, namely to ensure that the person making the affirmation tells the truth.

Affirmations are usually made by non-religious people. This is because non-religious people cannot take oaths as the definition above explains.

Can a religious person choose to make an affirmation instead of an oath?

Affirmations are sometimes made by people who are religious as well. There may be many reasons for this. The person may object to taking an oath because taking oaths is not part of their religion. This is the case for some Jewish people.

A religious person might also make an affirmation if they believe that a certain ceremony is necessary to take an oath and the ceremony cannot be undertaken (for example if a religious book is required and is not available.

It is a myth that religious people can choose to take an affirmation if they are unsure of what they are attesting to. In Wigmore on Evidence (3rd edn, 1940, para 1827) the authors relate a story of an Uncle Rastus who swore one week and affirmed the next. When asked why by the judge, he claimed “I was more sure of my facts in the earlier case that I am in this one!”

Whether the story is true or not, the fact is that the obligation of a religious person to tell the truth when making an affirmation is exactly the same as if they had made an oath.

Why are oaths or affirmations required for affidavits?

All affidavits require the person making them to swear an oath or make an affirmation. In the English case of Re Cohen Evershed MR explained the reason for this by stating:

“Affidavit evidence can only be entitled to the same weight as oral evidence, when those who swear the affidavit realise that the obligation of the oath is as serious when making an affidavit as when making statements in the witness box. “

Can Hindus and Buddhists swear oaths?

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Hinduism and Buddhism are two closely-related religions with over a billion adherents worldwide. It should not therefore be surprising that people frequently ask whether a Hindu or a Buddhist can swear an oath to make an affidavit.

In the case of a Hindu, the answer is straightforward: yes, the common law permits a Hindu to swear an oath. Accordingly, a Hindu can make an affidavit in this way.

For Buddhists however, the answer is not quite that simple. To explain why requires an explanation of the common law history of oaths, starting with how the principles apply to Hindus.

A Hindu has been permitted to swear an oath at common law since the celebrated case of Omychund v Barker. In that case, Hindus were permitted to give sworn evidence in court on oath. The court explained that, under the common law:

(1) a person of any religion is competent to testify on oath provided that they hold a belief in the existence of a God, and a belief that there is a system of rewards and punishments for their acts by that God; and

(2) the oath can be administered with such ceremony and in such form as the witness declares to be binding on their conscience.

Turning to Buddhists, it is the first point decided in Omychund v Barker that causes the difficulty. This is because, unlike Hindus, Buddhists do not believe in the existence of a God. That suggests that a Buddhist would not satisfy the test for taking an oath at common law set out in Omychund v Barker.

The issue of whether a Buddhist can take an oath at common law does not appear to have been revisited since.

However, despite not meeting the test for an oath at common law, in some jurisdictions Buddhists can and do validly swear oaths to make affidavits. This is because of legislative changes it that particular jurisdiction which amend the effect of the common law.

An obvious form of legislative wording is one that states that a person may take an oath even if the person’s religious or spiritual beliefs do not include a belief in the existence of a god. Clearly this would allow Buddhists to take an oath.

Therefore the answer to the question is that a person of the Hindu religion is able to take an oath to swear an affidavit, and a Buddhist may perhaps be able to do so depending on the rules that apply in the relevant jurisdiction.

Omychund v Barker and the law of oaths

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The old English case of Omychund v Barker (1744) 125 ER 1310; [1744] Willes 538 (sometimes spelt as Omichund v Barker) is well known for its contribution to the development of the (now largely defunct) best evidence rule.

However the case is also famous for the development it made to the law of oaths and affirmations. This post explains that aspect of the case.

What does Omychund v Barker say about oaths?

The two key points about oaths which were decided in Omychund v Barker (1744) 125 ER 1310 were:

(1) a person of any religion (and, in particular, not just the Christian religion) is competent to testify on oath provided that they hold a belief in the existence of a God, and a belief that there is a system of rewards and punishments for their acts by that God; and

(2) the oath can be administered with such ceremony and in such form as the witness declares to be binding on their conscience.

A case summary of Omychund v Barker (1744) 125 ER 1310 on the law of oaths appears below.

Summary of the facts in Omychund v Barker

Omychund was an Indian merchant. Barker was a British employee of the East India Company. In July 1729 Omychund and Barker entered into a partnership for the sale of goods.

Omychund provided money to purchase the goods. Barker purchased them, and sold them at a great profit. However Barker refused to account to Omychund for his share of the profit.

Omychund sued Barker in the mayor’s court at Kolkata (then known as Calcutta) but Barker left on a ship for Europe before the case could be heard.

The court interpreted Barker’s departure as a “flight from justice” and determined he should pay the full amount he was sued for plus costs. Unfortunately for Omychund, Barker died on the ship back to Europe. However Barker’s will charged his estate as responsible for payment of his debts.

Omychund sued Barker’s son for the debt in the English Court of Common Pleas, and commissioners went to India to take evidence. The commissioners took evidence from witnesses named Ramkissenseat, Ramchurnecooberage and several others who were persons of the Hindu religion.

The witnesses were sworn by having an other interpreted to them, after which they each touched the foot of a Hindu priest. Another priest then had the oath interpreted to him and touched the hand of the first priest. This was the usual and most solemn form in which oaths were administered to witnesses of the Hindu religion, and the way such oaths were usually administered in the courts of justice in Kolkata at the time.

There was evidence before the court that persons of the Hindu religion believed in a God as the Creator of the universe, and that the God was a rewarder of those who did well, and an avenger of those who did ill.

Over objection, the evidence was admitted. All four judges gave separate judgments.

The judgments in Omychund v Barker

Lord Chief Baron Parker held that the forms of oath taken by Christians and Jews were various and there was not one correct oath for these religions. The oath taken by the Hindu witnesses was not a new oath that required Parliamentary approval.

Lord Chief Baron Parker stated:

It is plain that by the policy of all countries, oaths are to be administered to all persons according to their own opinion, and as it most affects their conscience.

Lord Chief Justice Willes held that Jews had constantly been admitted as able to give evidence in the English courts.

Lord Willes CJ powerfully dispensed with an earlier pronouncement of Lord Coke, who had confined the law to only allow Christians to give evidence on oath. The Lord Chief Justice said:

The defendant’s counsel are mistaken in their construction of Lord Coke, for he puts the Jews upon a footing with stigmatized and infamous persons: this notion, though advanced by so great a man, is contrary to religion, common sense, and common humanity ; and I think the devils themselves, to whom he has delivered them, could not have suggested any thing worse.

Lord Willes CJ stated the requirements to give evidence on oath as follows:

I am of [the] opinion that infidels [meaning, in this context, “non-Christians”] who believe [in] a God, and future rewards and punishment in the other world may be witnesses; yet I am as clearly of [the] opinion, that if they do not believe [in] a God, or future rewards and punishments, they ought not to be admitted as witnesses.

Lord Chief Justice Lee gave a short judgment agreeing entirely with the judgments of Lord Chief Baron Parker and Lord Chief Justice Willes.

The final judgment was given by the Lord Chancellor who noted that the case was one not only of great expense but also of great consequence.

On the issue of what was required for a person to swear an oath, the Lord Chancellor quoted Bishop Sanderson:

All that is necessary to an oath is an appeal to the Supreme Being, as thinking him the rewardor of truth, and avenger of falsehood.

The Lord Chancellor, like Lord Willes CJ, was dismissive of the attempt by Lord Coke to narrow the field to Christians:

This is not contradicted by any writer that I know of but Lord Coke, who has taken upon him to insert the word Christian and is the only writer that has grafted this word into an oath.

As to the form of oath, the Lord Chancellor noted that it had been “laid down by all writers that the outward act is not essential to the oath.” The Lord Chancellor stated that all that was necessary had been done in this case: “an external act was done to make it a corporal act.”

The Lord Chancellor concluded, in agreement with various writers, “that it has been the wisdom of all nations to administer such oaths as are agreeable to the notion of the person taking…”.

 Conclusion

It was held that the objections be over-ruled and the depositions of the witnesses be read as evidence in the case.

How to swear an oath for an affidavit

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Making an oath to swear an affidavit is easy! Oaths and affidavits have been used to create formal statements of evidence for hundreds of years. The essential legal principles about oaths are well established and are explained in this article. However to ensure the validity of an affidavit, it is necessary to understand these principles and to carefully apply them. A form of words that can be used to use for swearing oaths is provided at the end of this article.

What does swearing an oath mean?

An oath is a solemn appeal to one or more gods that the person taking the oath will tell the truth. Thus an oath is a promise to tell the truth which is made by a religious person to the highest authority that their religion recognises.

Who can swear an oath?

An oath can be sworn by a person of any religion provided their religion involves a belief in a higher being (ie a god or more than one god). A religious person whose religion does not include a belief in a god or gods (for example a Buddhist) may be able to swear an oath, depending on the legal system for which the affidavit is to be sworn.

A person who is not religious cannot swear an oath. A non religious person must make an affirmation instead of an oath. An affirmation is a non-religious promise which is otherwise equivalent to an oath; therefore an affirmation is the most solemn, legally-recognised promise a non-religious person can make. (Some legal systems also allow a non-religious person to make a certification instead of a sworn affidavit.)

What form should an oath be sworn in?

No particular form of words or ceremony is necessary to make an oath. Rather, what is essential is that the person making the oath believes that the oath will bind their conscience to tell the truth.

While there is no “official” or “correct” wording for an oath, there are conventional forms for an oath that have traditionally been used by the common law and are commonly used today. A religious person will ordinarily believe that an oath administered in that traditional or conventional form will be binding on their conscience as the law requires.

A Christian oath for an affidavit is usually made by the person taking the oath stating the following words to the person administering the oath: “I [name of person making the affidavit] swear by Almighty God that this is my name and that the contents of this my affidavit are true and correct.”

The oath may also be made in a question and answer form. To swear an oath this way the person administering the oath will ask the following question:

“Do you swear by Almighty God that [name of person making affidavit] is your name and that the contents of this your affidavit are true and correct?”

The person making the affidavit must then reply “yes” or “I so swear.”

Traditionally the person taking the oath would place their hand on a bible. However this is not a legal requirement and the oath will be effective without it provided the person taking the oath believes it to be binding on their conscience.

Another custom (particularly in some American jurisdictions) is for both the person taking the oath and the person administering it to raise their right hand. Again, this is not a legal requirement.

Some Christians taking the oath may prefer to do so in the Scot’s form.

Oaths for non-Christian religions

A Jewish oath is made by using the same words as the Christian oath. Again, no religious book is required. If a religious book is used, it will usually be the Old Testament although some Jewish people prefer to take the oath on the Penta// (the first five books of the Old Testament). Other Jewish people believe that it is wrong to swear on any religious book. Whether a religious book is used simply comes down to what the person making the affidavit believes will bind their conscience to tell the truth.

For oaths for other religions, a suggested form of oath is as follows:

“Do you swear by [name of God or Gods in which the religion believes] that [name of person making affidavit] is your name and that the contents of this your affidavit are true and correct?”

Once again, the use of a religious book is not legally required provided the person making the oath believes it to be binding on their conscience.