The Oath, Atheism, and the Law: The Binding Power of the Oath and its Source

And ye shall not swear by my name falsely, neither shalt thou profane the name of thy God: I [am] the LORD.
—Leviticus 19:12

Again, ye have heard that it hath been said by them of old time, Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths: But I say unto you, Swear not at all; neither by heaven; for it is God’s throne: Nor by the earth; for it is his footstool: neither by Jerusalem; for it is the city of the great King. Neither shalt thou swear by thy head, because thou canst not make one hair white or black. But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil.
—Matthew 5:33-37

Thought is always a multiplicity (Deleuze and Guattari 15) and no multiplicity, by dint of its nature, is free from its internal componential tensions because no one component has a repetition or, in other words, no two components are the same. These tensions constitute the politics of thought. Thought being the stuff that precludes the vacuum language would otherwise have been, language, by dint of its constitution, is inherently political. It, thus, stands to logic that anybody whose existential negotiations are processed through and regulated by language is consequently political. That probably is why man, as Aristotle claims, is more of a political animal than bees or any other animals—no animal has speech except man (Aristotle 4).[1] Thought itself is political and its manifestation in language through speech makes humans doubly political because

as speaking is always a political act, and speech (and silence) a narrative (meaning that it is strategic, and upholds certain things and hides certain other things, and they are presented in certain order—certain things first and the rest later, or even never), they speak what they say[,] not just to mean what they say on the literal plane (O’Cottage, 2016: 63).

In this sense, the oath, being a speech act, is a political one. In this scheme, religion can be subsumed under the political[2] though for certain reasons as would be clear soon their distinction is better retained. In The Sacrament of Language, Agamben takes as the object of his archaeological investigation the phenomenon of the oath as a linguistic utterance “situated at the intersection of politics and religion” (Agamben 1). The oath is basically a linguistic utterance “guaranteeing the truth and efficacy of language” (ibid 4) or “intended to confirm a meaningful proposition (a dictum), whose truth or effectiveness it guarantees”(ibid 5). Then there arises a serious question: if man can be unreliable because they are not only capable of lying or perjury but also incapable, more than often, of staying true to their word (ibid 8), not to say anything about the unreliability of language itself, then what is it in the oath that has made it considered possible for it to be invested with such a function (ibid 2)? To answer this question Agamben adopts Louis Gernet’s “prelaw,” hypothesizing “an originary phase in which law and religion appear to be indiscernible” (ibid 16). Prelaw cannot be merely a more archaic law, just as what stands before religion is not only a primitive religion; this is a condition that can be imagined only if we bypass the terms religion and law and try to think of an x (ibid 17). It would be perfectly arbitrary to distinguish in the juridical institution prevailing at this phase a more archaic phase in which it would be only a religious rite from a more modern one in which it belongs entirely to law (ibid 18). And in the absence of proof, it would be unreasonable to define the practice as more or less religious, or more or less juridical. However, as the oaths in the earliest documented times were sworn invariably to gods, calling the gods as witness, we have strong enough foundation to conclude that the oath derived its infallible credibility from the gods to whom it was sworn. The oath, thus, is the relationship that unites words and things/actions, whose indissoluble link is guaranteed by the name of god.

Agamben, thus, builds a metaphysics of the name (of god), which identifies in naming and the name “the very event of language in which words and things are indissolubly linked’ (ibid 46): the utterance of the name (of god) “immediately actualizes the correspondence between words and things” (ibid 49), and the oath becomes thus “the experience of language that treats all of language as a proper name” (ibid 53). This name is transformed into a curse if this relation is broken. Blasphemy is a form of oath in which the name of god, instead of guaranteeing the connection between words and things, is extracted from the context and uttered in itself, in vain, expressing thus the breakdown of language and its vanity (Salzani 103). The invocation of gods renders the oath sacred, and whatever sacred being consecrated to the gods and excluded from the world of men, when one swears the oath to a god, one gives oneself up to the god named. The credibility of the oath, thus, is built on the fear of the curse of the god at perjury, and it is generally believed that man fears the curse of the gods and so they prefer to keep their word. The oath thus results from “the conjunction of three elements: an affirmation, the invocation of the gods as witness, and the curse directed at perjury” (Agamben 31).

While the oath archaeologically has drawn its binding power from the testimony of the god or gods named, humans have always had a fundamental problem with this architecture of the oath, and this problem has become a crisis in our time when belief in God or gods has almost irreversibly declined and “‘we live our own collective life without the oath as a solemn and total, sacredly anchored bond to a political body’ (Prodi, quoted in Agamben 1) meaning that “we find ourselves, without being conscious of it, on the threshold of ‘a new form of political association’ whose reality and meaning we have yet to recognize” (Agamben 1). If the credibility or the affirmative potency of the oath is necessarily derived from the testimony of the divine, then does this necessity render an atheist incapable of making an oath thereby immediately outcasting him/her from god and the law (which still necessarily has the parties of a case swear by the scriptures of their religions) and hence from society in general, which in consequence makes him/her free to lie or claim anything without them having to anchor the content of their speech to certain verifiable reality or fact of lived life? When even a believer or a person who is affiliated to a religion can perjure and blaspheme, how sure are we that he/she (an atheist) will remain faithful to his word? If an atheist is reliable at all in this scheme, then where does his speech draw its credibility from? To find the answer Agamben, at one point, looks at the anthropological level of the oath (or rather confirmatory or promissory utterance), “defined by the correspondence between words and actions” (Agamben 21):

This [correspondence] happens not only on the theological level, in that it defines God and his logos, but also on the anthropological level, since it relates human language to the paradigm of divine language. If the oath is, in fact, that language that is always realized in facts and this is the logos of God (in De sacrificiis […] Philo writes that “God spoke and it was done, with no interval between the two […]”), the oath of men is thus the attempt to conform human language to this divine model, making it, as much as possible, pistos, credible (ibid 21).

Here Agamben seems to confer an almost infallible reliability on language. However, whether a person believes in God or not, language is such that “oaths could, if taken literally, signify something different from what the person to whom they were given could understand” (Agamben 8) or something (with a scope of meaning) different from what the oath maker honestly intended. Even if humans were incapable of lying and were perfectly honest, even then language would have surely introduced an interval between utterances and things—utterances cannot have fixed meanings. Thus Agamben, at the end of the book, maintains:

It is perhaps time to call into question the prestige that language has enjoyed and continues to enjoy in our culture, as a tool of incomparable potency, efficacy, and beauty. And yet, considered in itself, it is no more beautiful than birdsong, no more efficacious than the signals insects exchange, no more powerful than the roar with which the lion asserts his dominion (Agamben 71).

With God no more being the witness and language being not reliable enough, Agamben resorts to the ethics of some kind for the oath to be restored because it “regulates the relations among men as much as those between peoples and cities” (ibid 23):

The decisive element that confers on human language its peculiar virtue is not in the tool itself but in the place it leaves to the speaker, in the fact that it prepares within itself a hollowed-out form that the speaker must always assume in order to speak—that is to say, in the ethical relation that is established between the speaker and his language. The human being is that living being that, in order to speak, must say “I” must “take the word,” assume it and make it his own (ibid 71; original italics).

And it is in this ethical relation that the “sacrament of language” takes place precisely because “unlike other living things, in order to speak, the human being must put himself at stake in his speech, he can, for this reason, bless and curse, swear and perjure” (ibid 71).

If we base the question of the oath only on issues surrounding divinity, honesty, and perjury, we would be doing injustice to other areas of life where other issues figure at least significantly. People, with all their honesty, often fail to remain loyal to their words because, as it is often the case, they make oaths in certain set of perceived conditions and then living into the future they often genuinely find themselves in different circumstances in which they can no more keep their words without causing more harms than unwillingly reneging on their promise would cause.[3] Or people often learn and unlearn things, which at least significantly transforms their worldviews. Thus what we once would have died for may become a folly or bane today, in which case it sometimes becomes necessary for us to draw back from the promises we once made. Sometimes, depending on the nature of the oath we took, we find it is unjust to remain faithful to the oath we swore and have to recant:

if it is lawful not to observe an oath with pirates, with whom, as hostes omnium [enemies of all], it is not possible to have a common trust, it would be unjust “to confound by perjury the terms and covenants of war made with an enemy (ibid 23).

It now seems that while all of us at least agree that oaths are meant to be kept, that is, to be confirmed by facts or actions demanded by the oaths, the binding power of oaths is inflected by our understanding of truth, faithfulness, and our moral sense (our weaknesses and strengths), and our changing understanding of the whole situation in the light of all what we know and how we feel about things in general. It is thus thought and then ultimately language that unites and divides people.

The law, nation and culture are also constructs the building blocks of which are concepts constituting language. Coming back-forward, the law, nation and culture are acts of language because the “truths” (in the plural) which the ideas of the law, nation and culture (among other human artifacts) claim to be conforming to are constructs in language.[4] And being acts of language, their meanings can never be fixed, and they are always subject to interpretation. Actually, poststructuralism-informed Critical Legal Studies (CLS) treats legislature dead in the law court and vests the judge with the authority of interpreting the laws written in the legislature and holds him/her responsible for the substantive meanings he/she creates in the act of reading/interpretation. While poststructuralism is not a position of convenience,

it is even convenient and better, with regards to law and its courtroom interpretation, that the legislature is dead because it is practically not possible to reconvene the same assembly meeting which passed the law in question every time its interpretation encounters issues. It is not a matter of inconvenience or unavailability of the lawmakers, but repetition with no difference is never obtainable (O’Cottage 46).

The law, thus, lies in language. It, then, stands to reason that the state is a product of the law (its constitution and the other legal codes surrounding it which together make the whole legal body of the state). In other words, the state is a multiplicity of linguistic acts. With all its intricacies and resisting force, the body of law that constitutes the state along with its other components (territory, population and sovereignty) remains inherently nebulous and volatile and subject to interpretations in myriad possible ways we have been unaware of or unaccustomed to. In fact, this indeterminacy is what propels the law as is the case with any other aspect of life where thought and language form a part. It is this indeterminacy leading to agreement or disagreement on terms that makes it possible for new nations and nation-states to be formed by breaking away from former unions, or for nations or states to merge into larger formations. “Agreement or disagreement on terms” here is crucial because agreement on terms sends communities or nations or states into taking oaths investing themselves in each other’s trust for some common good in the future, while disagreement on terms often leads to wars or preexisting oaths/contracts being affected badly.

Every aspect of humans’ social life (friendship, family, community, nation, state, international relations, and the market), thus, is built on trust (fide), which is fragile because one the one hand we humans can lie and perjure and on the other hand with all our honesty we are often at odds with each other due to the inherent problems of language and to the fact that the constitution of our knowledge and moral sense changes over time.

Agamben opens and closes the book with an observation: our time sees the irreversible decline of the oath and this crisis entails a radical—though unforeseeable—transformation in the forms of political association. Without the bond of the oath that held them together, the living being is reduced to its biological reality (bare life), and the speaking being is lost in an unprecedented proliferation of vain words (blasphemy). He does not provide a way out from this deadlock, but it is certainly not a return to an ethical past. In fact restoring the oath in its most binding and infallible form would not do much good because by nature humans are radical and they cannot be contained in the straitjacket of oaths in the past for the whole of their future. It is actually unfortunate that lies, deceptions, and other forms of falsehood, like truth and facts, have gone into the making of our culture, history, politics, and identity (O’Cottage NP), but this is the hard truth we have to come to terms with, not for us to adopt a cavalier attitude to such moral problems but for us not to lose trust in humanity when oaths are sometimes violated.

[1] Given that language and thought are two different things, the debate as to which of these is primary despite the mutually causative relation between them is still on. Such modes of thinking as visual thinking and instinctual thinking which are based on sensuous perceptions and pure instincts are more ancient than linguistic thinking; however, such more primitive modes of thinking (if we can ever call the process “thinking”) don’t seem to be capable enough to politicize their modes of living. While the issues surrounding the political status of non-human animals is beyond the scope of this paper, the assumption has been made that it is language that makes human political in the sense we understand it. If any animal species, besides humans, have their own language, there must be certain politics (born of the nature of the language) defining their affairs, but the nature of that politics would certainly be different from the politics as we understand it. In the absence of language among animals and/or in the absence of our knowledge of the existence of certain kind of politics born of their own language among animals, we humans tend to indulge in political anthropomorphism by imposing a politics of our kind on the affairs of the animals.

[2] Religion offers truth claims and presents itself as a candidate in the struggle for power seeking to establish certain “police order” (see Rancière 12-19, 89), which is often a mode of political governance and moral regime, in their own scheme of things.

[3] Such senses as selfishness or reasonableness are our constructs and the grounds of our constructs are not universal. So when one party in a formal agreement/contract or an informally perceived mutual understanding finds with all honesty feels it reasonable to withdraw himself/herself from the agreement or understanding, the other may find it utterly selfish. An appropriate, legally stipulated or morally imposed, punishment (according to the stated or perceived terms of exit) may do some good but it does not undo the damage. So our concern is more about the fragility of assertive statements or oaths (which refer to a past fact and hence confirms an assertion) and promissory statements or oaths (which refer to a future act, thereby confirming a promise), than the consequences of the failure, for whatever reason, of a party to keep their word.

[4] Foucault, in The Politics of Truth (2007), reproduces the a French psychiatrist Dr. Leuret’s account (1840) of how he treated one of his patients, “successfully” making him recognize that he (the patient) was mad (though everybody in the old medicine, before the middle of the 19th century, everybody was convinced of the incompatibility between madness and recognition of madness):

One morning Dr. Leuret takes Mr. A., his patient, into a shower room. He makes him recount in detail his delirium.
“Well, all that,” the doctor says, “is nothing but madness.
Promise me not to believe in it anymore.”
The patient hesitates, then promises.
“That’s not enough,” the doctor replies. “You have already made similar promises, and you haven’t kept them.” And the doctor turns on a cold shower above the patient’s head.
“Yes, yes! I am mad!” the patient cries.
The shower is turned off, and the interrogation is resumed.
“Yes, I recognize that I am mad,” the patient repeats, adding, “I recognize it, because you are forcing me to do so.”
Another shower. Another confession. The interrogation is taken up again.
“I assure you, however,” says the patient, “that I have heard voices and seen enemies around me.”
Another shower.
“Well,” says Mr. A., the patient, “I admit it. I am mad; all that was madness.”
[…] He is not trying to persuade his patient that his ideas are false or unreasonable. What happens in the head of Mr. A. is a matter of indifference for the doctor. Leuret wishes to obtain a precise act: the explicit affirmation, “I am mad.” (Foucault 147-148)

Works Cited
Agamben, Giorgio. The Sacrament of Language: An Archaeology of the Oath. Trans. Adam Kotsko. Stanford: Stanford University Press, 2011.

Aristotle. Politics. Trans. C.D.C. Reeve. Cambridge: Hackett Publishing Company, 1998.

Deleuze, Gilles and Félix Guattari. What is Philosophy? Trans. Hugh Tomlinson and Graham Burchell. New York: Columbia University Press, 1994.

Foucault, Michel. The Politics of Truth. Trans. Lysa Hochroth and Catherine Porter. Sylvere Lotringer vols. Los Angeles: Semiotext(e), 2007.

O’Cottage, Thoithoi. Ground/less: A Few Stray Leaves. New Delhi: Library of Springbell Cottage, 2013.

—. “The Lapse of Honesty.” 11 12 2015. Lake Bard: Poetry, Film, Philosophy, Photography, and Cultural and Critical Theories. 11 12 2015. 8 September 2016 <;.

—. The Aesthetic and the Political: Translations and Critical Essays. New Delhi: Library of Springbell Cottage, 2016.
Rancière, Jacques. The Politics of Aesthetics: The Distribution of the Sensible. Trans. Gabriel Rockhill. New York: Continuum, 2004.

Salzani, Carlo. “The Sacrament of Language: An Archaeology of Oath (trans. Adam Kotso).” Journal of Contemporary European Studies 20.1 (2012): 103-104.


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