‘Il giuramento decisorio’ : a discussion of Article 2160 of Chapter 16 of the Laws of Malta

Abstract

‘It takes two to speak the truth: One to speak, and another to hear’ - Henry David Thoreaui Had this dissertation been written two centuries ago, the perception of the oath would have indeed been different. There would have been a significant weight attributed to it - a subtle message embedded therein that suggests a sense of trustworthiness. If one were to go down the historical lane. it would result that the oath traces its origins to the ‘judicium dei’ - the divine judgement. An oath, therefore, is, or rather, used to be, in its very essence, the calling of God as a witness; and thus, the heightened status that the oath used to occupy and its irreplaceable capacity of endowing concomitant security and fear. The institute of the oath is not short dating, and this, in view of the fact that as early as the seventeenth century, Rubens, acting in England in an attempt to strike peace between England and Spain, could be seen testifying under oath before a court, on the issue of goods which had been captured from a Genoese merchant. ln the same manner, Locke, back in 1689, expressed his doubts in writing about the thrust that would propel one to accredit a non-believer with the holding of office, provided that one who was not fearful of God could not be relied upon It was for the mentioned reasons that an oath taken in a courtroom used to be believed to give weight to the testimony given by a witness. The oath was indeed intended as a reminder for the witness about both the seriousness of the undertaking, as well as to alert him to the penalty incurred should dishonesty result to have taken place during the process of the same undertaking. It is however doubtful how effective the oath in our times is. This dissertation will seek to address the extents to which a testifying party, particularly a debtor, is willing to admit his debts simply because he is under oath. This dissertation will raise and try to answer questions relating to the balance, if any, that exists between self-interest and one's conscience.