The sacrament of language: Archaeology of the oath (Homo Sacer II, 3)

Giorgio Agamben

'No testimony informs us of these processes for which our conscience provides no pretext. All we have is a document that is as mute to the ignorant as it is eloquent to the erudite: language.' (1)

Hermann Usener

'The schematism of the categories of the understanding is ... an example of where metaphysics and physics conjoin like interweaving Styx [ Styx interfusa] .' (2)

Immanuel Kant

1. In 1992 Paolo Prodi published The sacrament of power and brought attention to the decisive role of the oath in Western political history. Prodi claims that the oath, situated at the junction between religion and politics, not only testifies to the 'double belonging' that characterises the specificity and vitality of Western Christian culture, it also lies at the 'foundation of the political pact in Western history': for this reason, it plays an eminent role every time the pact is in crisis or keeps interweaving with it in different ways, from the beginning of Christianity, to the struggle for investitures, from the ' the society of fealty' of the Late Middle Ages, to the development of the modern state. (3)

Prodi claims that, given its centrality, the irreversible decline of the oath must correspond to 'a crisis that invests the very being of humans as political animals'. (4) We are 'the first generation who, despite the persistence of certain forms and liturgies taken from the past [...] lead a collective life in the absence of an oath or any solemn and total bond that sacredly anchors to a political body'. (5) In other words, we are unknowingly suspended at the threshold of 'new forms of political association' and their being and meaning are still to be decided.

The subtitle, ‘Political oath in the history of Western constitution', implies that this is a historical inquiry and, as is often the case in historical research, the author is not concerned with what he calls 'the a-historical and static kernel of the oath-event'. (6) His definition 'from the anthropological point of view' is summed up in the ‘Introduction', which reiterates what have become commonplaces in the histories of law, religion and linguistics. On the one hand, the oath is a phenomenon or institute found at the intersection of different disciplines and fields; as such, it cannot be claimed by any one of them as entirely its own. Therefore, no attempt at a synthesis that accounts for the complexity, origin and relevance of this subject as a whole parallels the often imposing mass of particular studies of it. On the other hand, given that an eclectic collection of the results of every single discipline is not scientifically desirable and the model of a 'general science of man' has had bad press for some time, rather than an investigation into its origins, the present inquiry puts forward a philosophical archaeology of the oath.

Like all historical research deserving of the name, Prodi's own opens up questions about the present. By relating what is at stake in his work to the results of other inquiries in linguistics and the history of law and religion, the present study aims to ask: what is the oath, and how can it define and question man as a political animal? If the oath is the sacrament of political power, which elements of its structure and history provide it with this role? What decisive anthropological feature characterises the oath as something by which and through which an entire person, in life and in death, can be called into question?

2. The essential function of the oath in the political constitution is clearly expressed in the passage by Lycurgus that opens Prodi's book. ‘The oath is what holds democracy together [ to synechon/ s?? ? ??? ]'. Prodi could have used another quote, from Hierocles of Alexandria, the Neo-Platonist philosopher who restated the importance of the oath at the twilight of the Hellenic period by turning it into a principle that complements the law:

'We have previously shown how the law [ Nomos/ ??µ?? ] is an unvarying operation by which God leads all things into existence, externally and uniformly. We now define the oath [ horkos ] as what, following this law, keeps [ diaterousan ] all things unchanged and stabilises them so that so long as all things are covered by the oath's guarantee and preserve the order of the law, the unchanging rigidity of the order of creation is the fulfilment of the creating law.' (7)

It is worth drawing attention to the verbs that express the function of the oath in these two passages. According to both Lycurgus and Hierocles, the oath neither creates nor gives existence, but rather keeps united ( synecho ) and preserves ( diat e reo ) something that something else has placed into being (for Hierocles, that is the Law; for Lycurgus, the citizens or the legislator).

The oath is ascribed an analogous role in a passage from Cicero's De Officiis , which Prodi points to as the founding text on this institute inherited from Roman juridical culture, where the oath is defined thus ‘ Sed in iure iurando non qui metus sed quae vis sit, debet intellegi; est enim iusiurandum affirmation religiosa; quod autem affirmate quasi deo teste promiseris id tenendum est. Iam enim non ad iram deorum quae nulla est, sed ad iustitiam et ad fidem pertinet. ' (8) Affirmatio does not simply signify a linguistic utterance: it is rather what confirms and guarantees (the subsequent affirmate promiseris reiterates the same idea: ‘What you promised in the solemn and confirming manner of the oath'). Cicero calls attention precisely to this function of stabilisation and guarantee, when he writes: ‘In the sacrament, it is important to understand not the fear it generates as much as its actual effectiveness [ vis ]' (9) ; and what this vis consists of unequivocally results from the etymological definition of fides that is at stake in the oath, according to Cicero: ‘ quia fiat quod dictum est appellatam fidem '. (10)

From the perspective of this specific vis we need to reinterpret the words of Émile Benveniste's definition of the function of the oath at the beginning of his 1948 article, L'expression du serment dans la Grèce ancienne :

‘[The oath] is a particular mode of assertion that sustains, guarantees, and demonstrates, without founding anything. Whether individual or collective, the oath only exists by virtue of what it reinforces and makes solemn: a pact, a commitment, a declaration. It prepares or concludes a speech act that only possesses a signifying content, without stating anything in itself. In fact, it is an oral ritual , often rounded off by manual rituals of different kinds. Rather than the affirmation it produces, its function is the relation it establishes between the word uttered and the potential invoked'. (11)

Rather than the utterance as such, the oath concerns the guarantee of its efficacy: rather than the semiotic and cognitive function of language as such, it is the assurance of its truthfulness and realisation that is under question in the oath.

3. Resources and scholars seem to agree on the fact that the principal function of the oath in its different forms is to guarantee the truthfulness and efficacy of language. As Philo of Alexandria wrote: ‘Because they are untrustworthy [ apistoumenoi , that is, deprived of pistis , credibility], people resort to oath to obtain trust'.(12) So necessary does this function appear to be to human society that, despite the perspicuous ban of any form of oath in the Gospels (13), it was welcomed and codified by the Church, which turned it into an essential part of its own juridical system thus legitimising its standing and progressive extension in the law and practice of the Christian world. When Samuel Pufendorf gathered the tradition of European law in his 1672 treatise on De jure naturae et gentium , he grounded the need and legitimacy of the oath precisely on its ability to guarantee and confirm not only pacts and agreements between people, but language itself more generally:

‘By means of the oath, our language and all the acts that are conceived through language [ sermoni concipiuntur ] receive an eminent confirmation [ firmamentum ]. I could have discussed it more opportunely later on, in the section concerned with the guarantee of pacts; however, I would rather discuss it here because the oath confirms not only pacts, but also simple language [ quod iureiurando non pacta solum, sed et simplex sermo soleat confirmari ].' (14)

A few pages later, Pufendorf restates the accessory character of the bond of the oath that, in so far as it confirms an assertion or promise, presupposes not only language but also the utterance of an obligation, as in the case of the promissory oath: ‘Oaths do not produce a new or peculiar obligation in themselves, rather, they intervene as a bond that is somewhat accessory to an obligation that is valid in itself [ velut accessorium quoddam vinculum ].'(15)

The oath appears to be a linguistic act meant to confirm a signifying proposition - a dictum - and guarantee its truthfulness or effectuality. The soundness and implications of this definition, which distinguishes between the oath and its semantic content, will need to be verified.

§ The majority of scholars, from Lévy-Bruhl to Benveniste, from Loraux to Torricelli, are in agreement over the essentially verbal nature of the oath (even though it can be accompanied by gestures such as the raising of the right hand). As far as the dictum is concerned, a distinction is usually made between the assertive oath that refers to a past fact (and therefore confirms an assertion) and the promising oath that refers to a future action (and thus confirms a promise). This distinction is already clearly stated in Servius ( Iuro tunc dici debere cum confirmamus aliquid aut promittimus). (16) However, Hobbes not wrongly brings these two forms of oath back to a single figure, essentially that of a promise: Neque obstat, quod iusiurandum non solum promissorium, sed aliquando affirmatorium dici possit: nam qui affirmationem iuramento confirmat, promittit se vera respondere. (17) In fact, the difference concerns the semantic content of the dictum rather than the act of the oath.

4. At the end of his reconstruction of the ideology of the three functions through the epopee of the Indo-European peoples, George Dumézil examines a group of texts (Celtic, Iranian and Vedic) that appears to question the evil and scourges ( fléaux ) corresponding to each function. These are, so to speak, the ‘functional scourges' of Indo-European societies and each threatens one of their three fundamental categories or functions: priests, warriors and farmers (in modern terms: religion, war and the economy). In one of the Celtic texts examined, the scourge corresponding to the priests' function is defined as the ‘dissolution of oral contracts', that is, the disavowal and disownment of assumed obligations.(18) The Iranian and Vedic texts evoke the scourge in similar terms: the breaking of one's word, lies or errors in ritual formulae.

One might think that the oath is a remedy to this ‘Indo-European' scourge that is the violation of a word given and, more broadly, the possibility of falsehood inherent in language. However, the oath is revealed to be particularly inadequate to avoid such a scourge. In her study of ‘The oath as the child of discord', Nicole Loraux dwells on a passage from Hesiod's Theogony (19) where the oath is defined negatively and only through the possibility of perjury, ‘as if the former had no other aim than to punish the latter, and was only created as the greatest scourge for those perjuries that it produced merely by virtue of its very existence'.(20)

Translation by Arianna Bove

(1) H. Usener, Götternamen. Versuch einer Lehre der religiösen Begriffsbildung (Frankfurt am Main: Klosterman, 1896).

(2) I. Kant, Opus Postumum (Cambridge: Cambridge University Press, 1995), XXII.

(3) P. Prodi, Il sacramento del potere (Bologna: Il Mulino, 1992), 11.

(4) Ibid.

(5) Ibid.

(6) Ibid., 22.

(7) R. Hirzel, Der Eid. Ein Beitrag zu seiner Geschichte (Leipzig, 1902), 74. N. Ajoulat, Le néoplatonism alexandrine. Hiéroclès d'Alexandrie: filiations intellectuelles et spirituelles d'un néoplatonicien (Leiden: Brill, 1986), 109-110.

(8) ‘But the thing to be considered in people's taking of oaths, is not what danger they are in, should they break them; but what a sacred and powerful obligation is laid on them, for every oath is a religious affirmation; and whatever is promised after such manner, as it were calling God for a witness to your words, ought certainly to be performed: for now faith and justice require it of us, and not any fear of that anger of the gods, which is not incident to their divine natures.' Cicero, De Officiis , III, 29, 10, The Offices, Book 3, XXIX (London: Dent & Sons Everyman's Library, 1909), 158.

(9) Ibid.

(10) Ibid., I, 23

(11) E. Benveniste, ‘L'expression du serment dans la Grece ancienne' in Revue de l'histoire des religions, 1948, p.81-94.

(12) Philo of Alexandria, ‘The sacrifices of Abel and Cain' in Collected Works, Vol. 2 (London: W. Heinemann, 1929), 93.

(13) Gospels, Mat. 5, 33-37 and Iac. 5,12.

(14) S. Pufendorf, De jure naturae et gentium, (Berlin: Akademie Verlag., 1998), 326.

(15) Ibid., 333.

(16) Maurus Servius Honoratus, Commentary on the Aeneid of Virgil, XII, 816, available online through the Perseus Project in Latin.

(17) ‘It is no objection that sometimes an Oath may be said to be not promissory but declarative. For in strengthening an affirmation by means of an oath , he declares that he is giving a true reply'. T. Hobbes, De Cive , II, 20, On the citizen (Cambridge: Cambridge University Press, 1998), 41.

(18) G. Dumézil, Mythe et épopée (Paris: Gallimard, 1968), 616.

(19) Hesiod, The Theogony , II. 226-232 ‘But abhorred Strife bare painful Toil and Forgetfulness and Famine and tearful Sorrows, Fightings also, Battles, Murders, Manslaughters, Quarrels, Lying Words, Disputes, Lawlessness and Ruin, all of one nature, and Oath who most troubles men upon earth when anyone wilfully swears a false oath'.

(20) N. Loraux , La cite divisée. L'oubli dans la mémoire d'Athenès (Paris: Payot & Rivages, 1997), 121-122.