The Swearer's Prayer

37 Pages Posted: 12 May 2020

See all articles by Kellen Funk

Kellen Funk

Columbia University - Law School

Date Written: May 12, 2020

Abstract

At the time elite Americans abandoned or modified Christian theologies of perdition, American procedural law relied ever more strongly on the traditional link between law and the theology of divine punishment: the testimonial oath. While conventional histories of American evidence law tell a rather straightforward modernization story of a move from premodern sacral modes of prooftaking to rational forensic modes of examination, this paper shows that oathtaking did not diminish under modern law reform but significantly expanded with the influence of New York's code of 1848. For the first time in America, procedure codes required all pleadings to be sworn by the parties, and all parties and interested witnesses were made competent to take the oath and testify on the stand. Lawyers at first expected the dread of cross examination to deter perjury, but they quickly adjusted their theories in practice to detect lying under oath, which they believed had become rampant under the codes. The lawyers' faith in their ability to detect truth were stymied as racialized witnesses came before the bar. In order to account for racial disqualifications on testimony in a world increasingly open to party testimony (and perjury), lawyers revived an older theology of perdition, swirling together supposedly premodern and rational modes of investigation well into the twentieth century.

Keywords: oath, evidence, religion, law, nomos

JEL Classification: K40

Suggested Citation

Funk, Kellen, The Swearer's Prayer (May 12, 2020). Available at SSRN: https://ssrn.com/abstract=3599032 or http://dx.doi.org/10.2139/ssrn.3599032

Kellen Funk (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10009

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