Definition and legal significance of the oath
Der Eid is, in law, a solemn declaration made publicly, affirming the truthfulness of a statement or the conscientious fulfillment of a duty, invoking a higher authority, often religious or moral in nature. The oath is an important legal institution, serving as a means of confirming statements and obligations in numerous legal systems. Particularly in criminal and procedural law, as well as in constitutional law and the public service, the oath plays a central role in securing truthful statements and diligent conduct in office.
Historical development of the oath in legal systems
The origins of the oath can be traced back to early law in antiquity. Even in Roman and Germanic law, oaths were used as an indispensable element of evidence and to confirm legal obligations.
With the legalization of state structures, the oath gained institutional significance, for example in the context of assuming office, in courts, and in public life. Today’s legal structure and significance of the oath result from this historical development and have been continuously adjusted over the centuries.
Oaths in German law
General framework
In German law, the oath serves various functions. On the one hand, it is used in judicial proceedings as a means of affirming the truth, and on the other hand, it ensures integrity and loyalty of those obliged in the public service, during inaugurations, or in the political arena, towards the community.
Oath in criminal and procedural law
Oath of evidence and swearing-in
In criminal and civil procedure law, witnesses, experts, and parties may be required to take an oath. This is particularly done to affirm the accuracy of their statements. The oath is administered according to a standardized wording and serves as an additional safeguard against false statements:
- Possibility of swearing-in: As a rule, witnesses in civil and criminal proceedings today are primarily heard unsworn (§ 391 ZPO, § 59 StPO). Swearing-in occurs only in legally regulated exceptional cases, such as in instances of particular importance of the testimony.
- Form of the oath: The oath can be religious (“So wahr mir Gott helfe” / “So help me God”) or can be made as an affirmation without religious reference.
- Affirmation equivalent to an oath: In addition to the oath, it is possible to give a so-called “affirmation equivalent to an oath,” which is legally considered as equal, for example for certain public officials.
Criminal significance
The commission of perjury (false oath) is, under § 154 of the German Criminal Code (StGB), a serious criminal offense and is punishable by imprisonment of not less than one year. Attempted perjury is also punishable. The sanctioning underlines the considerable significance of the oath as an instrument of legal fact-finding and maintaining legal peace.
Official oaths and oath obligations in public service
Official oath
In many areas of public service, taking an oath is a legal requirement. Office holders, civil servants, and soldiers are obligated upon assuming office to take a loyalty and constitutionally faithful oath of office. Typically, the official oath includes formulas such as pledging to uphold the laws and to conscientiously fulfill assigned duties.
Example: In accordance with § 38 Civil Servant Status Act (BeamtStG), civil servants take the following oath upon entering service: “I swear to uphold the Basic Law for the Federal Republic of Germany and all the laws in force in the Federal Republic, and to conscientiously fulfill my official duties, so help me God.”
Refusal to take an oath
Refusing to take an oath may result in consequences, such as removal from office or denial of swearing-in as a witness, which in case of lacking justification may lead to a fine or imprisonment. For reasons of faith or conscience, the oath in the religious formula can be refused without incurring any adverse consequences.
Oaths under constitutional law
Oath-taking by constitutional organs
In Germany, the highest state organs, including the Federal President (§ 56 GG), Federal Chancellor and Federal Ministers (§ 64 GG), as well as members of the Bundestag (§ 44a AbgG), take an oath upon entering office either on the constitution or on the conscientious exercise of their office. In doing so, they document their constitutional loyalty to the Federal Republic and its fundamental rights.
Peculiarities of the oath formula
The formulas used are prescribed by law or constitution, for example with the addition “so wahr mir Gott helfe” (“so help me God”); however, this religious affirmation may be omitted without giving reasons. The oath is also legally valid in the version without religious reference.
Oaths in international and European law
The legal institution of the oath exists in numerous legal systems worldwide, in various forms. Both before international courts and during official inaugurations, as well as in diplomatic service, the taking of an oath is an established legal instrument.
In the European and international legal context, oaths perform similar functions with regard to truthfulness and sense of duty, although the legal form, sanctions for perjury, and the specifics of the prescribed formula vary from country to country.
Legal consequences, scope, and sanctions
Significance in the law of evidence
The oath is a central means in the law of evidence for reinforcing the credibility of statements. The oath carries greater binding force than a mere unsworn statement, so that it is given particular weight in the court’s free evaluation of evidence.
Criminal consequences for breach of oath obligations
The deliberate commission of perjury (false oath) or the making of a false affirmation in lieu of an oath are considered serious offenses. For false affirmations in lieu of an oath, the penalties under § 156 StGB are imprisonment for up to three years or a fine.
Significance for legal peace and the common good
Taking an oath sustainably strengthens the relationship between the state, society, and the individual responsibility of each person. The oath creates trust in the rule of law and supports the functioning of legal and state institutions.
The oath as a legal institution: Summary and current significance
In summary, the oath in law is a complex and multifaceted instrument that serves to secure truthfulness, adherence to the law, and integrity in office. Despite a growing restraint in swearing-in, for example in civil and criminal proceedings, the oath remains an indispensable element, particularly in official duties and constitutional contexts, for ensuring the functioning of the state and the rule of law. The careful design of its statutory provisions and the strict sanctioning of breaches of duty underscore its continuing legal and social relevance today.
Frequently asked questions
What are the criminal consequences of perjury?
Perjury is, under § 154 of the German Criminal Code (StGB), a particularly serious criminal offense in Germany. Anyone who deliberately swears falsely before a court or another authority competent to administer oaths is guilty of perjury. The penalty ranges from at least one year of imprisonment; a fine is not provided for. In less serious cases, the court may reduce the sentence to not less than six months’ imprisonment. The reason for such high penalties is the fundamental importance of the search for truth in a constitutional state: The oath is intended to decisively strengthen the credibility and reliability of the statement. In addition, an attempt at perjury is also punishable (§ 154 para. 2 StGB). Prosecution occurs ex officio; therefore, a criminal complaint is not required. It should be noted that in addition to perjury, so-called “false affirmation in lieu of an oath” under § 156 StGB is also punishable, in which the offender swears falsely negligently – that is, without intent but by breaching the required standard of care. The consequences of perjury are not only criminal: The judgment may also have professional and civil law repercussions, such as exclusion from public office or disciplinary measures.
When is oath-taking envisaged in civil procedure law?
In German civil procedure law, the oath is an exceptional but legally regulated means of evidence (§§ 452 ff. Code of Civil Procedure – ZPO). The so-called “decisive oath” is required only under strict conditions, namely when other evidence is insufficient or unavailable. It is usually used to clarify those facts that lie solely within the sphere of one party. A party may be permitted to take an oath to confirm contested facts in need of evidence (so-called “party oath”). The court decides at its discretion whether to allow the oath. The oath is administered in court according to prescribed wording; the witness or party is informed in advance of the scope and the criminal consequences of perjury. A refused oath may be considered as a disadvantage against the refusing party in the evaluation of evidence.
Who is authorized to administer an oath?
The administration of an oath in Germany is strictly regulated and is reserved exclusively for courts and certain authorities within their statutory scope of responsibility. In judicial proceedings (criminal, civil, administrative courts, etc.), the responsible judges or court officials administer the oath. In addition, other public officials, for example notaries (for affirmations in lieu of oath under § 27 of the Certification Act) or administrative officials – especially in the case of civil servant oaths or certain administrative proceedings – may administer an oath. A prerequisite is always that the law expressly provides for oath-taking in the relevant procedure. Private persons or institutions not explicitly authorized are generally not permitted to lawfully administer an oath; disregard may result in the act being void.
In which cases can oath-taking be refused?
Refusal to take an oath is permissible under certain legal conditions. According to §§ 383, 384 ZPO (similarly regulated in criminal and administrative procedures), a person may refuse to take an oath in particular if doing so would expose themselves or close relatives to the risk of criminal prosecution (privilege against self-incrimination, also “nemo tenetur” principle). There are also statutory rights to refuse to testify or to refuse the oath, for example for persons bound by professional secrecy such as doctors, lawyers, clergy, or members of parliament with regard to parliamentary matters. Minors under 16 years of age are not permitted to take an oath under § 393 ZPO. Additionally, for reasons of faith or conscience, oath-taking may, under certain circumstances, be refused, but in these cases a so-called “affirmation in lieu of oath” is often required instead.
What formal requirements apply to oath-taking in court?
Oath-taking in court is subject to strict formal requirements. First, the valid and legally prescribed text of the oath is read aloud and clearly for all present, usually with the addition “so wahr mir Gott helfe” (“so help me God”), which can be omitted at the swearer’s request. This respects religious commitments. The law also distinguishes between a sworn oath and an “affirmation in lieu of oath” (§ 156 StGB, § 478 ZPO), the latter generally reserved for persons who, for reasons of conscience, do not wish to take an oath. Before the oath is taken, the person must again be expressly informed about the implications and consequences of perjury. The oath-taking is recorded in the minutes; a missing or incorrect protocol may impair the evidential validity of the procedure. In addition, witnesses and parties must stand upright; only exceptionally – for example, due to health concerns – is another posture permitted.
Can an oath taken be challenged or revoked later?
An oath, once taken, generally has immediate legal effect and cannot be revoked. A subsequent challenge of the oath – for instance, due to new evidence or a subsequent admission of a false statement – is not generally provided for. However, the person who has falsely taken an oath may correct their statement or disclose the untruth. This does not relieve them of criminal liability (see perjury or false statement), but may have a mitigating effect, especially if the withdrawal of the perjury occurs before judicial adjudication (§ 157 StGB: withdrawal exempting from punishment). A challenge on the grounds of duress, deception, or error is only possible according to the provisions of general civil law, and has no direct effect on criminal prosecution in a criminal case.
What are the differences between an oath and an affirmation in lieu of an oath?
The oath is a formal declaration of truth, subject to strict procedural and substantive rules, and is usually administered before a judge or authority. The affirmation in lieu of an oath, on the other hand, is a written declaration in which the person affirms, in place of an oath, the truthfulness of their statement. While oath-taking is subject to rigid formal requirements and rituals, the affirmation in lieu of an oath is used more for private or extrajudicial purposes (e.g., in administrative law). A false affirmation in lieu of an oath meets the legal definition of § 156 StGB (“False affirmation in lieu of an oath”), which is punished somewhat less severely than perjury. Documents containing an affirmation in lieu of an oath can serve as strong evidence in court and administrative procedures but do not carry the same weight as an oath. Furthermore, an affirmation in lieu of an oath may only be requested and given in the specific cases expressly stipulated by law.
