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68 Yale L.J. 1329 (1958-1959)
The Oath: I

handle is hein.journals/ylr68 and id is 1343 raw text is: THE       YALE         LAW         JOURNAL
VOLUME 68            JUNE 1959              NUMBER 7

THE OATH: I*
HELEN SILVINOt
This Article is dedicated to the memory of Judge Jerome N. Frank.
Perhaps the most appropriate manner of honoring the memory of Judge
Frank is to attempt to repeat the message he tried to convey. The contribu-
tion most characteristically associated with his name is his fact-skepticism,
an expression of man's eternal doubt regarding his ability to perceive the
outside world, especially the world of past events. Judge Frank's jurispru-
dential message may best be described as idealistic realism. To him real-
ismi! was not a utilitarian device but an ideal of justice. Legal precepts could
not be just unless they were based on an evaluation of the facts of social life
and on an assessment of the realities of legal procedure in the light of such
facts. A great theorist of facts, he was peculiarly qualified to realize the short-
comings of certain rules as they are applied to facts. From this understanding
sprang his genius for criticising those particular rules which pertain to the
procedure of fact finding-the rules of evidence. His criticism was princi-
pally directed at the ritualistic, symbolical character of some of these rules.a
*This Article is divided into two parts. The first part is devoted to a presentation of
the historical evolution of the judicial oath in various legal systems. This presentation
is an attempt at showing that the oath has remained an atavistic survival of an ancient
ritual-a primitive self-curse. Legal systems in which an early oath tradition is either
entirely lacking or is rather tenuous have little or no desire to engage in oath practices.
This will be demonstrated by a brief outline of the history of certain legal systems which
presently have no oath. Since the concept of perjury is predicated upon the notion of
the oath, a final isection will deal with the history of perjury.
The second part of this Article will appear in the July issue of the Yale Law Joura.
It will deal with contemporary oath legislation and present suggestions for reform.
In both parts of this Article, the translations were made by author, unless otherwise
indicated by the context. Original sources were used whenever possible; however, Eng-
lish translations exist for many of the works cited.
fProfessor of Law, University of Puerto Rico; Visiting Lecturer, Yale Law School.
Completion of this article, as part of a comprehensive study of the Philosophy of
Criminal Justice, was facilitated by a grant of the Rockefeller Foundation. The author
is deeply indebted to Judith S. Kestenberg, M.D., New York City, for constructive
criticism of the manuscript. In no way, however, should Doctor Kestenberg be deemed
responsible for the views expressed herein.
a. See Hoffman v. Palmer, 129 F.2d 976, 997 (2d Cir. 1.942), aff'd, 318 U.S. 109
(1943).

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