I was wondering...

If contracts are, as Prof. Lessig defined them for us on the first day of class, "self-imposed obligations" and contracts are about mutual assent (see offer, acceptance, consideration doctrines), are 1) Wills and 2) Oaths (e.g. Hippocratic, citizenship, boy scout, honor code, etc.) contracts?

Who is the other party in these cases? "Society", "The State," "The Law", God, oneself, the sub-society administering the oath in the case of the oath?

Is there consideration? And what is it?

And what are the remedies in the event of a breach?

-- Anonymous, November 24, 1998

Answers

Oaths and extra-legal dimensions

Good questions, Katherine. I'd like to take a stab at oaths--particularly the Boy Scout oath, the oath of office, and the Citadel-type honor code. I'll focus on these because I was a boy scout, I've studied the presidency a bit, and my roommate this summer was the Citadel's top graduate. I hope other people will take up wills and the other oaths you've listed (and expand my own coverage here), according to their own experiences.

Primary sources follow, then brief discussion.

"Oath":

Any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully.... An outward pledge by the person taking it that his attestation or promise is made under an immediate sense of responsibility to God. A solemn appeal to the Supreme Being in attestation of the truth of some statement. An external pledge... coupled with an appeal to a sacred or venerated object, in evidence of the serious and reverent state of mind of the party, or with an invocation to a supreme being to witness the words of the party, and to visit him with punishment if they be false. (Black's. FRCP and U.S. Const. allow for solemn affirmation)

The Boy Scout Oath:

"On my honor, I will do my best to do my duty to God and my country and to obey the Scout Law; to help other people at all times; to keep myself physically strong, mentally awake, and morally straight."

The Oath of Office:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The Citadel Code:

http://www.citadel.edu/corps/ccode.html (about a page long--a bit much for this space).

In each of these cases, the oath is sworn as a public act. All three deal to a fair extent (more, naturally, in the oath of office) with the state and the oath-taker's responsibilities thereto. To a large degree, the Citadel takes the place of the state in its code, although the state proper is mentioned in terms of duty.

Theological considerations are present within the text of the Boy Scout Oath and the context (hand on Bible) of the Presidential Oath. The Citadel's Code does not contain an overt theological element. It does, however, deal extensively with the concept of honor.

God and honor are two vastly important junctions between society and contract law. I have, in the past, referred to the punishment of "Burning in Hell." While capitalizing the phrase renders it somewhat comical, it must be remembered that European and American civilization historically and currently rely heavily on the citizen's careful consideration of the eternal effects of his actions. And for those whom eternal effects don't dissuade, there's the loss of earthly honor.

So, when someone violates an oath (say, oh... to preserve, protect, and defend the Constitution...), what should happen? Should a bolt of electromagnetic energy reduce him to charred rubble right there in the windowless corridor? Should the nation before whom he swore fall upon him with pitchforks? Remove him from his position by more civilized means? Legal recourse, whatever it may be, seems small and inadequate compared to the breach of such an important promise. And lightning is notoriously underused these days.

Abraham Lincoln said his oath was "registered in heaven"--he, like many rulers before him and since, considered the matter to be primarily between him and God. But he also frequently offered to resign, if someone else would like to do a better job--and sometimes he meant it. Oaths, when taken seriously, are the point at which the individual, the society or state, and the Creator converge. I don't think that such puny things (with all due respect!) as contract law, constitutional law, or law in general can even begin to fathom the depths of this convergence. It resides at the very heart of civilization, both grounding and transcending it at once.

Please contribute to this discussion. I really do think that Katherine has raised a fundamental point.

Paul

-- Anonymous, November 25, 1998

I take a different approach to the question of oaths and the like. First off, I think that oaths are one and the same as contracts and for beter or worse are not/should not be viewed with such reverence as Paul places on them. For example, the Boy Scouts oath...."Duty to G-d and my country and obey the laws of the pack." In obeying the laws of the pack,it seems that that contract is made only with the pack. i.e. if the pack determines that one has not obeyed the laws of the pack then that is a breach of contract and the Boy Scouts no longer have a duty to keep you in the organization.

As for Paul's specific question as to what the recourse should be for one who takes the duty of office and fails, I think that legal recourse is sufficient, and not "small and adequate compared to the breach of such an important oath." I disagree. A president who takes the oath is making a contract with the American people. Forbearance to act a certain way in return for a position (a la Hamer v Sidway). When he breaks this oath, it is merely a breach of contract and then the American people are to decide what the recourse should be. And with executive privilege (president can't be sued for things he does in office) he can't be sued for damages for this breach. The only recourse the American people have is to break their end of the bargain (impeachment). As for the portion of the bargain with G-d, it is up to him/her/it to decide on the punishment from his/her/its perspective. This reasoning is not dependent upon belief in G-d. If you believe in G-d then it is up to ... to decide the punishment. If you don't then that part of the contract is unenforceable as one cannot make contracts with fictionsl beings. Either way, it is not up to us mortals to decide on punishment for breaching a duty to G-d.

-- Anonymous, November 30, 1998