Rav Avi: Hi, welcome to Responsa Radio, where you ask and we answer questions of Jewish law in modern times! I'm Rabbi Avi Killip, here with Rabbi Ethan Tucker, Rosh Yeshiva at Mechon Hadar, a center for higher Jewish learning based in New York City. Alright, how are you today?
Rav Eitan: I'm good, Avi, how are you doing? It's getting a little cold outside.
Rav Avi: I know, it's, I think, colder here in New York than it is for you there in Tel Aviv!
Rav Eitan: Yeah, I'm sorry to say that that's the case. But we'll just have to do the best between us.
Rav Avi: Today we're gonna look at a question about oaths, and I think this question fits into a category that we've addressed before, which helps us distinguish between our lives as Jews and our lives as citizens of countries that are not primarily Jewish countries — in this case, America. Here's the question: "I'm about to renew my commission as a notary public, which requires a few routine oaths — an oath to faithfully and impartially perform the duties of a notary, and oaths to support the constitutions of my state and the United States. The law permits me to affirm rather than swear. Should I? Are these routine oaths even oaths at all, for Jewish purposes?"
Rav Eitan: Alright, that's a really interesting question. There's a lot of angles here — I mean, first, just for sort of the background here, in US law, the permission to affirm rather than swear, which for those who have read the Constitution, you can see that in the president's oath and in a number of other places — this actually dates back to the Quakers, and it was an accommodation to Quakers who did not want to take a formal oath but wanted to affirm, essentially say, I, you know, I promise I'm — or I'm really telling the truth, but I don't want to make a special oath — for them it was grounded in a notion of, what do you mean I'm taking an oath to tell the truth? I always have to tell the truth. If I have to take an oath, it implies that the rest of the time, you may be able to doubt me. And so they objected to that whole way of sort of distinguishing between different kinds of speech, and that led to all kinds of accommodations in American law, I think in most states and certainly in the federal Constitution, for affirming rather than swearing.
The Jewish picture here is a little different, I don't know — by the end we'll see if it has some overlap. I remember being really surprised when — I can't remember how old I was when I kind of first heard that there was a notion of Jews being reluctant to take an oath, and I think I was surprised because if you just start with the Torah, you have tons of stories of oaths, and it just clearly assumes that people take them all the time when they want other people to take them seriously. So you've got Avraham making his servant swear when he sends him off to find a wife for Yitzchak; he himself takes an oath to the Philistine king Avimelekh; Yaakov makes Eisav swear to him that he'll give him the birthright; Yosef swears, adjures his brothers, makes them promise that, you know, they'll bring his bones back — I mean, you can go through the whole Torah, and just find example after example, it carries into later parts of Tanakh. The elders of Israel swear to the Gibeanites, the givonim, who's this, like, local Canaanite people, that they won't wipe them out. All kinds of oaths are taken all the time, and, you know, the surface picture that you get is that the Tanakh doesn't really care about swearing an oath; what it cares about is not lying, and not swearing by the names of other gods. Right? Those are basically the two concerns. Don't lie under oath, and that includes things like, right, don't take G-d's name in vain, which seems like it means don't use G-d's name in an oath that you're not gonna actually keep, or shevuat sheker, you know, just lying under oath, and then the other verse that talks about this is, don't mention the names of other gods, don't let them be heard, rather take an oath in G-d's name, in the name of YHVH, the G-d of Israel.
Rav Avi: So, right there, right off the bat, it makes me a little nervous to hear you say that not taking an oath is about not lying under oath, because then I feel like, oh, having a Jewish person sit there and say to, you know, to the legal official, oh, I need to affirm instead of make an oath sounds like because I'm not gonna tell the truth.
Rav Eitan: Yeah. We're gonna come back to this, but I think if you really just had, certainly the narratives of the Torah as a guide, but even its normative portions, it would seem to be that, well, yeah, if you're doing something that requires people to feel really good and secure about your truthfulness and it's not involving you in invoking other gods or other kinds of foreign principles that are inimical to Judaism, yeah, what would be the problem? And of course the Torah itself requires oaths in a number of places, like when the two disputants can't agree what happened, right, the classic case being if someone leaves some property with you and then you go back to them and say, you know, actually it got stolen or it got destroyed, you can get off, you're not responsible to pay them back, but you're supposed to take an oath. Shevuat hashem yihyeh benechem, there has to be an oath in G-d's name. So, yeah. It seems like what's the problem here?
Rav Avi: Well, maybe you'll get into this — they sound a little bit different to me, the difference between an oath between individual people, which is a lot of the examples you're giving from the early Biblical stories, and what this sounds, especially with the Constitution, it's not explicitly written here as an oath of allegiance, but it is more an oath of allegiance, you know — it's like, take this oath of allegiance to the Constitution. I wonder if that feels like you can take an oath of allegiance in the name of our G-d to that Constitution, or is it the allegiance to something that's not our G-d that maybe creates a problem?
Rav Eitan: Yeah, I think that's right. Some of this is gonna hang on how one understands what fealty to the Constitution is, and what this obligation even is. The more it is about, you know, some competing belief system, obviously the more problematic it is; the more that one understands the Constitution just essentially to be a set of laws and social ordering mechanisms that, you know, essentially require a degree of truthfulness, loyalty, decency, et cetera, they may already be folded within how a decent Jew should behave. And that's a point I actually want to get back to, the notion of how one thinks about things that maybe one is already obligated to, and superimposing an oath on that. Because where you do start to get some queasiness, even in the Tanakh, even in the Bible itself, is when you start talking about what I would call extra-judicial oaths. Oaths that are not strictly authorized by the Torah.
And here you get this in terms of vows, in particular, right, the notion that someone might take a vow to commit that they're gonna do something. And, you know, already in the Book of Devarim, in chapter 23, the Torah is very clear: if you take a vow like that, make sure you don't delay fulfilling it, because G-d will really demand that you fulfill this, and reminds you, it's almost like a helpful reminder, and by the way, you know, if you don't bother to vow in the first place, there's nothing wrong with that. And that seems to already indicate, look — if you're already gonna take on some commitment, you already gotta be very careful with that. And since we're nervous that people, a lot of times, take oaths and then don't fulfill them, and there's something very seriously problematic about that, maybe it's better to just avoid taking on those, you know, optional commitments in the first place.
Rav Avi: Clarify for us, quickly, if these words "vow" and "oath" are synonymous, or do they have some different meaning, and are they translations of different Hebrew concepts, or are they one and the same?
Rav Eitan: Good. So, it's a great point. It seems like they are overlapping but not identical. So, in the Book of Bamidbar, the Torah goes on at length about vows taken by women and whether the husbands and fathers in their lives can uphold them or cancel them, or all sorts of kind of intrapatriarchal family politics. And the words there are used almost interchangeably. It talks about a neder, a vow, and it talks about a shevuah, an oath, and it kind of seems like the legal mechanisms around them are the same. At least rabbinically, they're understood to be a little different: a vow is understood to be something that's inherent in an object — you basically say, I won't allow myself to eat any of the food in my refrigerator if I don't, you know, come over to your house for a meal, or something like that.
And in that sense, the force of the vow is really devolving on the food or the object you're refraining from benefiting from. Whereas an oath is a kind of commitment to action. Like, you would take an oath like, I'm not gonna sleep all night tonight, or something like that, or I won't eat anything all day. And that potentially leads to some sort of different formulation — I would say, overall, it doesn't seem like the Bible gives an indication that they're treated dramatically different.
Rav Avi: But that definition of oath does work with the definition we're using here in terms of becoming a notary public.
Rav Eitan: Definitely, I think we would definitely call that a shevuah, an oath in a classic sense. And assuming there's some basic degree of overlap here, it's then much more serious when the Book of Kohelet, of Ecclesiastes, says straight up, better not to make a vow than to make a vow and not to fulfill it. And so to the extent that there is, you know, a feeling of taking an oath and you're not sure that you're actually gonna fulfill that oath, there is already in the Bible some bias to saying, be very careful about it. And I want to be clear: there's no notion here of any prohibition of taking an oath, that this is something that, oh, Jews shouldn't be taking oaths; it's more putting you on notice: if there's two ways to do something, and you can not make a vow and not make an oath, that is, on some level, preferable in that why put yourself in a situation of potentially violating, you know, a serious prohibition of not living up to your word?
Rav Avi: So, it sounds like there is — there would be nothing preventing this person from becoming a notary public if he had to, he or she had to actually take an oath, but if given the option to affirm instead, that might actually be advisable, or there might be some hinting towards that, or reasons for that?
Rav Eitan: Yeah. So I think this is where we get even the notion that a person should prefer behaving that way. It's the beginning of this queasiness, which then really fully flowers in a host of rabbinic sources that, hey, better not to wade into this whole territory of unnecessary commitments. That gives birth to some notion of, well, why would I ever take an oath if I can avoid it? And you have a whole series of statements in the Talmud that start talking about vows being terrible and they'll only lead to bad things, but the most dramatic statement about oaths is in a midrash in Bamidbar Rabbah.
So the midrash in Bamidbar Rabbah is on the passage in Bamidbar, in Numbers, that talks about vows and oaths in the context of the family. And the midrash has G-d speaking to Israel, to the Jewish people, and saying, don't get the wrong impression here. The fact that I'm giving you these laws about when to uphold and cancel vows — don't think that that means that you're just allowed to take oaths in My name. In fact, you are not allowed to swear in My name, unless you can live up to all of the kind of character traits that it talks about in another verse in the Torah, where it talks about swearing in G-d's name. There it says, fear the Lord your G-d and worship G-d and cleave to G-d and swear in G-d's name. Says the midrash, well, sure, I guess if you're as G-d-fearing as someone like Avraham or Yosef, then you could take an oath. If you're really worshipping G-d in the sense that all you do all day is study Torah and perform mitzvot, sure, if you really cleave to G-d in the sense that you have made your entire life and your family structure oriented around G-d, specifically you've made sure that your daughters have married scholars and you make sure that your business activity is devoted to supporting people who study Torah and all of these other ways — then, bishmo yishaveah, then you can actually swear in G-d's name. This text is sort of amazing because what it does is, all the things from the Bible, all the things from the Bible that we talked about as seeming like, well, people are taking oaths all the time, become exceptional as opposed to paradigmatic.
Rav Avi: So, this sounds like a very high bar. Yeah, this sounds not only like a very high bar, but actually like a very specific package deal, what it means to live a life that includes oath-taking.
Rav Eitan: Yeah. In case you had any doubt about this, it ends with a story saying that Yannai Hamelekh, King Yannai, who was one of the Hasmonean kings, it said he had 2,000 towns that were under his domain, and they were all destroyed and wiped out al shevuat emet, for people taking true oaths, meaning oaths about the truth. And what's an example of this? For instance, someone would say, I swear to you, they would say to their friend, I swear to you, I am going to go and eat a meal in such and such a place. And then that person would go and fulfill the oath and all those cities were destroyed on the account of that behavior. So that the text here is very clear — even if you take out any issue of lying or being unfaithful, this was completely reckless and unacceptable behavior, and it's this text that forms, even though it's a kind of midrash, it's an aggadah, it's a narrative text, this is really the normative kernel of lots of substantive Jewish practice of saying we don't take oaths whenever we can avoid it.
Rav Avi: This is really interesting — I've never heard that text before, and I've never thought about oaths as — it sounds, you know, in this text it's almost like it's a privilege to be able to take these oaths, that you have to have been living this certain lifestyle or, you know, have this certain commitment to G-d, and that it seems like the destruction at the end of this story, you know, in the context of the text that you're reading, is it's not really about oath-taking as dangerous; it's about not living up to these other ideals in terms of commitment to G-d, that I hadn't necessarily connected those with oaths previously.
Rav Eitan: Yeah. So there is something about kind of the image of a pious person in that way, and that making those kinds of promises, certainly with G-d's name, should be restricted to that group of people. And you see that — I mean, there's sort of other crazy texts, I mean — you know, I don't mean crazy in a sort of dismissive way; I mean in a way that, beyond what we expect existing, continue those lines.
I mean, the Sefer Chasidim, which is in the Middle Ages reflecting German pietist circles in the Middle Ages, has this text about a Jew who needed to take an oath with respect to a gentile that he was in a monetary conflict with. And he basically comes to some rabbinic figure and he says, look, if I take an oath about my claim in this case, which is true, right, I'm telling the truth, then I can — actually the court will allow me to collect from him. And he already clearly feels bad about taking an oath, but he says what if I take an oath and give half of the proceeds to tzedakah, right? In other words, I know I'm not supposed to take an oath, but at least I'll get back half of my money. Won't that be good? And the answer that Sefer Chasidim provides is, better that tzedakah gets nothing and you not take an oath, even if you're telling the truth, and then it goes and cites this midrash about the towns that were destroyed. And this is against someone who is not Jewish, right? You could have imagined a whole counter-theory being developed — well, when it's getting money back from the gentiles, Jews have to kind of look out for themselves and protect their property and their rights — and it toes the line and says this is actually a fundamental part of Jewish culture, as this text understands it, and we don't make these kinds of oaths. And so this is all by way of just even understanding where the questioner is coming from, the hesitance to do this comes from a very deep Jewish, I would say not just normative, but cultural place.
Rav Avi: What's your understanding of what the concern is? Like, why is it so bad?
Rav Eitan: Yeah. I'll be honest, I'm not sure I have a full grounding in what's really getting at it. I would love your thoughts as well. Clearly when G-d's name is involved, there is some nervousness, I think, about bringing down the force of the Divine Presence to earth and the sort of presumptuousness of doing that. And this goes to the question of what really counts as an oath. But it's pretty clear in the Sefer Chasidim text — they're not invoking, you know, certainly G-d's Hebrew name in a court case with a gentile. So there's some sort of much more general thing, maybe by almighty G-d, et cetera, that in general we do say in Jewish law, that those kinds of things, those sorts of references to G-d, even if they don't use G-d's name, are considered to have the same force, because everyone knows what you're talking about.
But there's something here, I think, about the nervousness of the power of words, and it's bad enough if, you know, sometimes people lie or are not truthful, but to actually put yourself out there where the statement of this sort — I don't know, it's invoking some higher power. But I agree with you, it's very intense, because we're even talking here about just essentially superimposing upon a statement about the past, about the fact, right, a fact that already happened, a statement of seriousness that I swear that this is true. Which seems like it should not be as big a problem as, don't go off and make oaths about something you're going to do, which you may not fulfill, which seems to be the Bible's concern.
Rav Avi: Right, right. Do you happen to know if these sort of political oaths, an oath to support the Constitution, if those oaths include language about G-d?
Rav Eitan: Well, in the Constitution it's interesting — right, the Oath of Office for the president does not include any reference to G-d, but popularly, anyone who's, you know, been to an inauguration or, you know, seen some mimicking of it on TV, knows that that oath in popular culture ends with "so help me, G-d." Interestingly enough, that's not in the Constitution itself, and formally, someone who is an atheist or refused to include those words would have total constitutional authorization to do so. But invoking G-d in the oath has become part and parcel of American culture around those inaugurations and swearing-in ceremonies.
Rav Avi: I think that also strengthens the — just really the concept that we see emerging from this text that you just brought, of there being some inherent connection between making an oath and a commitment to G-d or a belief in G-d, that even in this sort of totally secularized version of the American ethos, it feels weird to have the idea of making such an oath without referencing G-d, you know, that it's, like, it sort of gets stuck in there. You know, it can't be totally divorced.
Rav Eitan: That's right. And presidents and congressmen also bring, they bring a Bible, or some equivalent scripture, even though that's also not required by the Constitution or by law. Alright, so those are all the reasons why, sure, I think you could understand why this person might say, alright, you know, if the affirmation route happened to get in under the Quakers for other reasons, I'm gonna avail myself of that option, and, you know, go ahead and not swear, but rather affirm.
But there is another angle here, which I think is important, and this will take us back to what you raised earlier, which are what are the costs of not swearing an oath. So, another really interesting text is in the Talmud Bavli, in Nedarim. And it's a statement quoted in the name of Rav. And he says, how do we know that you are allowed to take an oath in order to fulfill a mitzvah? And then he quotes a pasuk that says, nishbati vakayma lishmor mishpotetei tzidkecha, I've taken an oath to fulfill Your righteous statutes. Now, this is interesting, because this is essentially a person who is taking an oath to, you know, promise to observe all the laws of shabbat. Or taking an oath that they will sit in a sukkah on sukkot. Right? Something like this. To which the Gemara then of course immediately objects, and says v'halo mushba v'omed mihar sinai hu! But this person has already taken an oath when they were standing at Mount Sinai — obviously not them themselves, but through their ancestors — what does that mean, to take an oath on top of it? And then the Talmud clarifies: well, what this is getting at, what this means is, a person is allowed, through the form of an oath, to incentivize themselves to fulfill an obligation that's already incumbent upon them.
Rav Avi: It's like making a New Year's resolution to do something that you knew you already had to do.
Rav Eitan: Right. It would be like, a New Year's resolution, instead of a New Year's resolution like, I'm gonna go to the gym, it would be like, I'm making a New Year's resolution that I am going to pay my taxes this year. Right? Something like that.
Rav Avi: Yeah, right. Right. Or, like, I'm gonna show up at work on time. It's like, you kind of already were supposed to show up at work on time.
Rav Eitan: Exactly. But I think the key here is, not just a resolution; here we're actually talking about an oath. And this then becomes a text where the Talmud has indisputably signed onto the legitimacy of taking an oath regarding an obligation that you already have. And then question then becomes, so how does this interplay with what we just saw in that narrative text? Now, there's all kinds of ways you can, you know, break this down, right? The narrative text, if you paid close attention to it, the example it gave of a shevuat emet, of an oath about the truth, was actually something frivolous. It was, I'm gonna go and eat a meal in such and such a place. And so someone more positively disposed to oaths could come along and say, yeah, that means don't go around attesting to the truth of things or promising to do things that are really inconsequential and totally optional, but that text was never talking about serious oaths of duty or loyalty or things that are, you know, already incumbent upon you.
And someone who wanted to play this the other way could say, well, the Babylonian Talmud text, which talks about, you know, validating oaths, is only about things that you're already commanded about from Mount Sinai. Anything outside of that is sort of extra-canonical, and you're taking on a Torah-level obligation that wasn't there, and you shouldn't be doing that for anything.
Rav Avi: It does feel like a meaningful distinction to me, to say there's a difference between, you know, making an oath that I commit to eat in a sukkah or do something that I feel I was already commanded to do, or even uphold the Constitution, versus taking an oath that says, like, I promise I'm gonna make it to your birthday party. That feels like a logical distinction to me.
Rav Eitan: Yeah. So I think exactly that distinction is the way I want to offer to think about this, and then give one other example, which is to think about the difference between something that you're not really already obligated to, and that is an area where it might make sense to give some added weight to the traditional Jewish recoiling from taking an oath, certainly if it's something you might reasonably fail to do, right? A commitment that you might not live up to. But when you're thinking about something that, you know, you obviously have to do, and it's clearly attainable, it's not some sort of outlandish commitment, I'm gonna bike 10,000 miles this year, or something like that; it's something like, I swear to uphold the Constitution, right — in other words, it's something you can do — then it makes sense, I think, to give greater weight to the voices, like in the Babylonian Talmud, of this is essentially just kind of amping up your commitment to do something which you really ought to already be doing.
And what that then interestingly ushers in, is a discussion of, well, how much do we identify with the full scope of what the person is swearing to? In other words, the more we think, well, the thing that's being sworn to here is something, well, of course you should be doing that, and we're just adding force to it, the more we'll say, yeah yeah yeah, no problem to actually take an honest-to-goodness oath. Where we're feeling a little more dicey about that piece, or at least the full scope of it, the more we might say eh, why don't you affirm? Now, a surprising place where this has come up — you said in the introduction to the question, this comes up especially, let's say, Jews living under other kinds of jurisdictions. One of the most intense place where this has come up is in Tzahal, in the IDF, where there is —
Rav Avi: Yeah, I was gonna raise it if you didn't!
Rav Eitan: So there's an oath of enlistment that happens for new soldiers. And one of the questions that has been a live question since the founding of the state, has been what should religious soldiers do when confronted with the standard requirement and expectation of taking an oath? And there has been an accommodation since the beginning of the state that a person, instead of being nishba, instead of taking an oath, can matzir, can actually just affirm that they are going to fulfill their obligations.
And you have these fascinating debates among religious Zionist rabbis as to whether it is appropriate to take advantage of that exception. So, you can predict how it comes out: you have all sorts of voices that say well, what do you mean? Jews traditionally don't take oaths, and particularly given that the formula of the oath is not just "I swear loyalty to the State of Israel," but "I swear that I will fulfill all of my commander's commands," right, all of his orders, well, what if there's a time where I'm lazy and I sleep in and I don't — why should we be saddling people with sort of a Biblical prohibition of taking this on? And then other people on the other side saying, what are you doing? You're suggesting that the obligation to serve in the Israeli army is a sort of like, you know, a luxury that some people can take on and therefore you're only going to affirm, and not swear? And shouldn't we interpret the oath more broadly, and shouldn't we also basically say this person is expected to be loyal no matter what, and the oath is just adding seriousness?
So that, I think, is a fascinating place where in a totally internal Jewish space, you're having this same debate around, well, what is basically already expected of me, and then the oath is an add-on, and what is something where the oath is taking me to a different place where I otherwise would have been, and then I start to get skittish as an observant Jew, as part of this tradition, of invoking, whether it's through G-d's name or implicitly, the sort of larger authority of the Torah.
Rav Avi: Yeah, I have to say, I — at some point, I don't know, maybe in my teenage years, I actually happened to get to watch one of those ceremonies and I remember being, like, shocked that they were taking an oath, because it felt so surprising or, you know, for whatever reason I had inherited discomfort, the allergy of Jews taking oaths, even already as a teenager. And I think again now, it sounds so surprising to me to say, oh, the same questions would come up in an Israeli context, especially considering the people who are taking this language the most seriously may be the people opting out, which seems like kind of an ironic situation to have created. What do the people who are taking the oath believe that that oath is about?
Rav Eitan: Yeah, there is something odd about that. And there is the other factor that you raised at the beginning, which we can raise both in the context of something like the idea of a swearing-in ceremony, and also in terms of a notary public or a Quaker in the United States, which is what's the effect to the outsider of seeing someone refuse to swear and to affirm? There's plenty of people who would be generous or cynical enough to say, eh, who cares, it's words anyway, as long as I have a sense that the person is taking it seriously, I'm fine with it; but there's no question that other people, and perhaps not unreasonably, would see the failure to take the oath as indicating putting some daylight between that person and the commitments of this system.
And that is, to me, ultimately, if you asked me where it sits, that is to say, I think if you're not going to take an oath in a situation like this, you've gotta be prepared to own up to why this is not actually just incentivizing yourself with even greater power to fulfill an obligation you know you've got to fulfill. And so if you asked me, like, I would say this notary public, if they felt they wanted to affirm, I wouldn't criticize them for that, but I would say it would be totally appropriate for them to take an oath, certainly in the context of how I understand what the Constitution demands, which is basically that they're being truthful, not being a traitor, not being disloyal, and those are things I think we would expect of anyone in public office. And in that sense, I think it's fairly in the category of nishbayin al mitzvot. And if I had a child in the IDF, I would tell them that they should take the regular oath, not the affirmation route, even though, look, I'm not gonna run around and say that everyone who does to the contrary is somehow doing something terrible.
Rav Avi: Yeah. I have to say, I see the distinction between these two moments as a distinction of the past-future question that feels to me like, you know, it's one thing to commit to uphold a constitution, which I can read, that's already written, versus committing to follow an order that hasn't been given yet. Even if I'm 100 percent committed to the concept that I have to follow orders, you know, it's like I could know for sure that I'm gonna go to your house for dinner, but G-d only knows what situation may come up that would prevent me from being at that dinner, that there's some similar future unknown that makes me a little bit more nervous and anxious in the Tzahal context. You know.
Rav Eitan: Yeah. And there's clearly a lot of people who think that way. And look, the other way you can engage that is you can say, maybe we should be tinkering with the language of the oath in a way that doesn't sort of weaken or dilute the overall commitment to the project, but that somehow phrases it in a way that makes it clear that the oath is a big-picture commitment, and is not, at this moment, predicting every small detail of how that big-picture commitment plays out.
Rav Avi: So, I think we'll leave this questioner with permission to follow either path, and a homework assignment of really working to understand the Constitution and the duties of this role before making this decision.
Rav Eitan: Sounds right to me.
Rav Avi: Have a halakhic question you'd like answered on the show? Email us at halakhah@hadar.org. Or you can leave us a voicemail message at (215) 297-4254.