Emperor Leo (the Wise) VI, Novel 97

Emperor Leo (the Wise) VI, Novel 97

Promulgated c. 890 CE.

Source: S. P. Scott, The Civil Law, XVII, Cincinnati, 1932. Available at: https://droitromain.univ-grenoble-alpes.fr/Anglica/NL97_Scott.htm

PARTIES LITIGANT SHALL BE SWORN WHEN ISSUE IS JOINED IN A CASE, AND MAGISTRATES SHALL TAKE AN OATH WHEN THEY ASSUME THE DUTIES OF THEIR OFFICE.

The Same Emperor to the Same Stylianus.

Although the law which directs magistrates, before entering upon their judicial duties, and parties litigant, when they appear in court, to be sworn, may appear contrary to the Divine command which forbids persons to swear at all, still, where anyone understands the meaning of the words, it can be seen that this is not a violation of the command, but, on the other hand, by ordering the oath to be taken, it has the same end in view as the Divine law had in forbidding it; for the latter intends to prevent falsehood, in prohibiting an oath, just as the former wished to do in having recourse to it. Therefore, paying less attention to the letter than the spirit of the law, We do not think that the civil rule should be rejected as being opposed to the Divine precept, but rather that it should preserve all its force as being devised to accomplish the same object. Moreover, We think that the command of God was not only intended to be applicable to the transactions of ordinary life, but was promulgated in order to enable persons to attain to a more elevated rank in a better world, and He has left us many other precepts of similar character which are contained in the same law, for example: "Do not permit your hearts to be sad, because you are poor, and do not conceal your treasures in the earth," etc., for these things are only intended for persons who wish to be perfect. Therefore, as We have already said, maintaining the Civil Law in full force, We do hereby order that magistrates who are about to assume the discharge of judicial functions, and parties litigant who are on the point of contesting a case, shall swear that they will prefer truth to falsehood, and will, under no circumstances, leave the straight road to follow the crooked path of fraud.

Isho’bokht, Corpus Juris, I.6 (On Oaths) [Church of the East]

Isho’bokht, Corpus Juris, I.6 (On Oaths) [Church of the East]

Likely written late 8th Century CE. Originally written in Persian, now lost, preserved in Syriac.

Source: Mathieu Tillier. The Evolution of Judicial Procedures in East-Syrian Canon Law after the Islamic Conquests: The Judicial Oath. Journal of Eastern Christian Studies, Peeters Publishers, 2018, 70, pp.227-240.

Regarding oaths, Moses gave the following law: “You shall not swear falsely” (Lev. 19:12). Then our Lord commanded: “Make no oath at all!” (Matt. 5:34). As for us, however, for reason of necessity (ananqī), we sometimes prescribe the use of oaths. It does not mean that we oppose the command of our Lord. Paul the Apostle himself did not oppose our Lord when he said that “men swear by One greater than themselves, and with them an oath given as confirmation is an end of every dispute” (Heb. 6:16).

Our Lord did not institute this rule for worldly affairs, nor for judges dispensing justice in this type [of dispute]. You can see that He commanded: “Whoever slaps you on your right cheek, turn the other to him also. If anyone wants to sue you and take your shirt, let him have your cloak also!” (Matt. 5:39-40). This does not mean that, if a man comes to us and complains that another slapped him, we order him to turn the other cheek. Nor that we order someone who was taken his shirt to give his coat. Indeed, our Lord prescribed this rule to His apostles, who were perfectly aware of all the affairs of this world, and to whom He also asked to carry their cross and follow him.

[This rule] is offered to the will of those who wish to approach absolute perfection. The same applies when He recommends: “Make no oath at all!” [This injunction] does not mean that it is forbidden [to swear] during lawsuits between men, for it would be impossible to complete these lawsuits without using oaths. He addressed this recommendation to His disciples because they were fair and did not need to resort to oaths. They said what was as it was, and what was not as it was not.

However, because we deal with worldly matters in courts, for our part we cannot do without oaths when dispensing justice among human beings. Therefore, we need to admonish litigants as much as possible: we [ask them] not to take or administer the oath if they can avoid it, to reconcile and to behave with integrity during the trial. A plaintiff who sues his fellow often inclines to ask him to take the oath. We advise him to avoid asking him to swear, as much as possible, and to bear the injustice that was done to him, confident in God’s retribution. However, if the judge wishes [to use the oath], we do not prevent him from doing so.

As for the defendant, we cannot often forbid him to take the oath. Indeed, [his adversary] often demands of him something that is above his strength, or that he does not understand. Even to him, we recommend whenever possible not to swear. If there is no alternative, however, we do not oppose his right [to take the oath].