In late Second Temple times, a person would take an oath by verbally invoking the Torah. Over time, with the emergence of the Torah as a sacred object for Jews and Christians alike, Torah scrolls began to be used in court-administered oaths.
Dr. Moshe Blidstein
Swearing on Scripture is a fixture of our political and legal lives. Presidents, senators and other public servants are commonly sworn in to office on a Bible, as are witnesses in court.
Similarly, Jewish law requires certain court administered oaths to be taken holding a Torah scroll. Maimonides states in his Code:
משנה תורה שבועות יא:ח
וּשְׁבוּעַת הַדַּיָּנִין בֵּין שֶׁהָיְתָה שֶׁל תּוֹרָה אוֹ שֶׁל דִּבְרֵי סוֹפְרִים בֵּין עַל טַעֲנַת וַדַּאי בֵּין עַל טַעֲנַת סָפֵק כָּךְ הִיא. הַנִּשְׁבָּע אוֹחֵז סֵפֶר תּוֹרָה בִּזְרוֹעוֹ וְהוּא עוֹמֵד וְנִשְׁבָּע בְּשֵׁם אוֹ בְּכִנּוּי…
Mishneh Torah Shevuot 11:8
The judicial oath, whether biblical or rabbinic in origin, whether arising from a definite claim or from a doubtful claim, is administered as follows: The person who is taking the oath holds a Torah scroll in his arm while standing and swears by the divine name or a substitute for the divine name…
This law is not mentioned in tannaitic literature (the Mishnah, Tosefta, or the Tannaitic midrashim). How did it come about?
Invoking the Torah While Swearing
In our earliest sources, the Torah is invoked verbally during an oath-taking ceremony, but it is not physically present.
Dead Sea Scrolls
In the Damascus Covenant, a sectarian text dating to the 2nd century BCE that includes a set of “halakhot” for the Dead Sea Sect, we read the following:
[כל שבועה אלי שבע] וגם באלף ולמד וגם באלף ודלת כי אם שבועת ה[בנים] באלות הברית ואת תורת משה אל יזכור כי בה [כל פרוש השם] ואם ישבע ועבר וחלל את השם.
|[He will not sw]ear by Aleph and Lamed (אל = God) nor by Aleph and Daleth (אדני= The Lord), but by the oath of the youths, by the curses of the covenant. Neither should one mention the law of Moses, for in it is the full enunciation of the name.|
This passage likely suggests that in the late Second Temple period some Jews would verbally invoke the Torah, perhaps because of the divine names included in the Torah.1
Later, in tannaitic literature, the Tosefta mentions different common oath formulae that likewise invoke the Torah:2
…האומ’ נשבע אני חייב בתורה ובשמים פטור:
t. Shevu‘ot 2.16
…Someone who says “I swear” is liable [if he swears] “by the Torah,” and exempt [if he swears] “by the heavens.”
The text’s reference to someone who swears by the Torah does not assume a physically held scroll, rather a verbal invocation, just as someone who swears “by the heavens,” must mean an oral invocation.
Likewise, the following passage from the Tosefta includes different forms of verbally invoking the Torah in a vow.
הנודר מן התורה, הרי זה מותר, מן הכתוב בתורה אסור.
t. Nedarim 1:4
One who vows by the Torah, he is [still] unbound. From that which is written in the Torah [i.e. the sacrifices written in the Torah] he is bound.3
In the Presence of a Torah?
In Leviticus Rabbah – a fifth century CE midrashic compilation – a second century Palestinian sage mentions a Torah scroll while describing an oath ceremony. Notably, there is no explicit reference to the oath-taker actually holding the scroll. :
ויקרא רבה ו:ג
אמר רב אייבו: מפני מה משביעין האדם בס”ת ומביאין לפניו נודות נפוחים? לומר אתמול היה הנוד הזה מלא גידים ועצמות ועכשיו הוא רק מכלן. כך המשביע לחבירו לשקר, סוף שיצא ריקם מכל ממונו.
Leviticus Rabbah 6:3
Rav Eybo said: Why do they administer an oath to a person with a Torah scroll, and bring inflated skins before him? In order to convey that yesterday this skin was full of bones and sinews and it is now entirely empty; so also one who causes another to swear falsely will become empty of all his money.
Notably, R. Eybo speaks of physically bringing in the inflated skins, in contrast to the swearer apparently verbally invoking the Torah.
The Amoraic Source for Holding a
Torah Scroll during an Oath
The first explicit source for swearing on a Torah scroll is found in a talmudic discussion dedicated to court-administered oaths:
שבועות לח ע״ב
היכי משבעינן ליה?
אמר רב יהודה אמר רב: משביעין אותו בשבועה האמורה בתורה דכתיב ואשביעך בה’ אלהי השמים.
Babylonian Talmud Shavuot 38b
How do we [the court] administer an oath?
Rav Yehuda says that Rav says: The court administers to him the oath stated in the Torah, as it is written: “And I will make you swear by the Lord, the God of heaven” (Genesis 24:3).
Rav (third century CE) does not mention holding sacred objects, but somewhat elliptically requires courts to use “the oath stated in the Torah,” and points to Abraham’s imposition of such an oath on his trusted servant at Genesis 24:2. Later, fifth century sages then debated the meaning of the linkage with this oath:
אמר ליה רבינא לרב אשי: כמאן כרבי חנינא בר אידי דאמר בעינן שם המיוחד.
|Ravina said to Rav Ashi: In accordance with whose [opinion is Rav’s statement]? Is it in accordance with the opinion of Rabbi Ḥanina bar Idi, who says [that when one is liable to take an oath] we require him to take it using the unique name [of God]?|
Ravina explains that oaths must include the name of God, as the verse states “And I will make you swear by the Lord, the God of heaven.”
After pointing out that the majority opinion does not require uttering God’s name, Rav Ashi suggests that Rav meant to require the holding of an object while swearing:
אמר ליה אפי’ תימא רבנן דאמרי בכינוי, ונפקא מינה צריך לאתפושי חפצא בידיה.
|[Rav Ashi] said to [him]: even according to the Rabbis who say that an appellation [of God (and not his real name) is sufficient. Thus,] the ramification [of Rav’s citation of Genesis 24:3] is that he must hold something [sacred] in his hand.|
The requirement to hold something sacred, is likely derived, as Rashi notes, from Abraham request of his servant to “…put your hand under my thigh” (Genesis 24:2-3) i.e. Abraham’s circumcision, being the sacred object! 4
Fourth Century Reference
The Talmud then asserts that the fourth century amora, Rava, required a sacred object to be held:
וכדרבא דאמר רבא האי דיינא דאשבע בה’ אלהי השמים נעשה כמי שטעה בדבר משנה וחוזר.
|And it [the interpretation of Rav’s ruling as requiring a sacred object to be held] is as Rava said, for Rava said: A judge who administers an oath by “the Lord God of heaven” is counted as having erred in the ruling of a Mishnah, and must repeat.|
The Talmud deduces that since Rava disqualifies an oath that uses God’s name, like Rav Ashi, he must have required that a Torah scroll be held while taking the oath. 5
The passage continues with the view of Rava’s student, Rav Pappa, who insists that only a Torah scroll, and not another sacred object, is effective for oath-taking:
ואמר רב פפא האי דיינא דאשבע בתפלין נעשה כמי שטעה בדבר משנה וחוזר…
|And Rav Papa said: A judge who administers an oath by [holding] tefillin is counted as having erred in the ruling of a Mishnah, and must repeat [the ceremony]…|
Swearing on Tefillin
A subsequent unattributed ruling maintains that only non-rabbinic disciples were barred from swearing on anything other than Torah scrolls:
שבועה מעומד תלמיד חכם מיושב שבועה בספר תורה תלמיד חכם לכתחלה בתפלין.
|The oath [must be taken] standing; a rabbinic disciple [may take it] sitting. The oath must be administered with a Torah scroll, [but] a rabbinic disciple may take it with tefillin, [even] initially.|
The passage’s interest in banning or at least limiting the use of tefillin in court-administered oath suggests that, indeed, some people were using tefillin in this context.
God Swears by His Tefillin
This connects to a passage from the mystical Merkava literature, a collection of texts describing heavenly encounters written at an unknown date during the first millennium, which describes how no less a being than God uses tefillin for oath-taking:
אמר ר’ ישמעאל. אני ראיתי מלכו של עולם יושב על כסא רם ונשא. וגדוד אחד עומד מן הארץ עד לרקיע וסנדלפון שמו. ובשעה שהוא מבקש רוזיי י’י אלה’י ישר’ להשבע בתפיליו ולהשליך שבועה בידו. הוא נוטל תפילין מראשו ומבטל גזרות מן הארץ
Said Rabbi Ishmael: I saw the King of the World seated on the high and exalted throne, [accompanied by] a single troop that stood reaching from earth to heaven. Its name is Sandalphon. At the time when He seeks – Rozey YHWH the God of Israel – to swear by His tefillin and to cast an oath by His hand, He takes the tefillin from His head and He nullifies decrees from the earth.
The peculiar notion that God wears tefillin also appears in a Talmudic passage, which may also imply that God uses His tefillin – alongside a Torah Scroll – to take an oath.
בבלי ברכות ו ע״א
אמר רבי אבין בר רב אדא אמר רבי יצחק: מנין שהקדוש ברוך הוא מניח תפילין שנאמר נשבע ה’ בימינו ובזרוע עזו; בימינו – זו תורה, שנאמר: מימינו אש דת למו, ובזרוע עזו – אלו תפילין, שנאמר: ה’ עז לעמו יתן.
b. Berakhot 6a
R. Avin son of Rav Ada in the name of Rabbi Yitzhak: How do we know that the Holy One, blessed be He, lays tefillin? As it is said, “The Lord has sworn by His right hand, and by the arm of His strength” (Deuteronomy 33:2); “By His right hand” means Torah, as it is said, “At His right hand was a fiery law unto them”; “by the arm of His strength” means tefillin, as it is said, ”The Lord will give strength unto His people.”
Here we see that God not only wears tefillin, he also swears by them.
Swearing with the Tzitz
In a similar vein, tannaitic literature records a practice about Second Temple priests who occasionally swore by the tzitz – a ritual headdress which, like tefillin, was etched with the divine name.6
That said, even if the custom of swearing by the Torah, and possibly tefillin, is rooted in earlier Jewish custom, its physical manifestations only developed in the amoraic period. How are we to explain this development?
The “Iconization” of Sacred Texts:
A Comparative Approach
To understand the rise of this practice, we need to consider ancient oath-taking more broadly.
People in antiquity not only swore by the names of their gods, they also added gestures linking their oaths to these gods. They would touch the altar or statue of the god or goddess, or the sacrifices made to him or her. These objects were considered sacred and imbued with divine power, thus enhancing the significance of the oath and its power in obliging the swearer to be true in her speech or fulfill her promise.
A poetic example is the oath of Latinus, from book 12 of the Aeneid, the late first century BCE masterpiece written by the Roman poet, Virgil:
Latinus, who followed him, spoke thus,
Eyes looking skyward and right hand stretched to the stars of the heavens:
‘By these same powers, Earth, Sea, Stars, I now swear, Aeneas,
And by Latona’s twins, by the two-headed nature of Janus,*
By the infernal power of the gods, by the relics that ruthless
Dis enshrines! Let the Father whose thunderbolts sanctify treaties
Hear this! I’m touching the altars whose flames and whose powers
shall be witness…
Swearing by the Gospel in late antique Christianity
This practice seems to have continued all the way through to the Christians living in the Eastern Mediterranean and Mesopotamia in the last quarter of the fourth century – the same general time and place as the amoraim. During this period, bishops complained that members of their congregations were swearing by the gospel-books laying on the altars in the churches in order to settle disputes among themselves.7
John Chrysostom, for example, an important bishop living in the late fourth century, fulminates8:
Do you think that the church was made for the purpose of swearing? It was made for praying! Is the altar placed there, in order to allow people to swear? … fear at least that book, which you reach forth in putting the oath; and open the Gospel, which you take in hand when you come to swear; and when you hear what Christ there declares concerning oaths, shudder and desist! … I am horrified when I see any one coming near this altar, placing his hands upon it, touching the Gospels, and swearing.
Yet, many Christians continued to swear by their Scriptures. After all, the gospel books were considered to be objects of great power, not merely vehicles for spreading teachings of the faith, and a person committing perjury while swearing on them was believed to be severely punished by God.
In this way, Christians scriptures underwent a process of “iconization,” which entailed an emphasis on the physical presence and power of scriptures in addition to their content. Ultimately, swearing by the Gospels became obligatory in Byzantine law-courts by the time of Justinian, in the sixth century CE.
The Emerging Sacrality of Torah,
Tefillin of Mezuzot
For Jews, the Torah scroll, tefillin and mezuzot already began to emerge as sacred objects among Jews in the late Second Temple Period.9 The sacrality of the Torah scroll in this period can be seen, for example, in Josephus’ description of the horror of Jews who witnesses its desecration by a Roman soldier:
On this occasion a soldier, finding in one village a copy of the sacred law, tore the book in pieces and flung it into the fire. At that the Jews were roused as though it were their whole country which had been consumed in the flames; and… all on the first announcement of the news hurried in a body to [the Roman governor] Cumanus at Caesarea, and implored him not to leave unpunished the author of such an outrage on God and on their law.10
While it is true that even in the first century CE, Jews considered the Torah scroll to be a sacred object, this perception increased in time with the expansion of halakhot regarding the correct method of writing Torah scrolls, laws governing their sale, how they should be stored, and more.
Gradually, Jews (and Christians) began to link their oaths with Torah scrolls and tefillin, first verbally and later by physically holding them. Despite some opposition along the way, in late antiquity the practice of swearing on scripture solidified, and it became required – for Jews and Christians alike – to take court-administered oaths on the Bible.
- This interpretation depends on the reconstruction of the fragmentary text; see E. Qimron, “Further Observations on the Laws of Oaths in the Damascus Document 15,” Jewish Quarterly Review 85 (1994): 251–57. ↩
- Likewise, in discussions recorded in both the Yerushalmi and the Bavli, rabbis sometimes swear by “Moses” (a common way to reference the Torah in antiquity): y. Yoma 1.1, 38c = Horayot 3.2, 47a; y. Taanit 4.1, 67b = Megilah 4.8, 75c; y. Nazir 5.1, 54a; y. Sanhedrin 2.1, 19d; b. Beitza 38b; b. Sukkah 39a; b. Hullin 93a. At b. Eruvin 17a there is a reference to an oath by “torah, prophets and writings.” ↩
- This translation is based on Saul Lieberman, Tosefta Seder Nashim (New York: Jewish Theological Seminary of America, 1996), p. 102. ↩
- This is the also Genesis Rabbah’s interpretation of Genesis 24:2-3:
בראשית רבה, נט, ח
שים נא ידך תחת ירכי
אמר רבי ברכיה: לפי שנתנה להם בצער, לפיכך, היא חביבה ואין נשבעין אלא בה, ואשביעך בה’ אלהי השמים.
Genesis Rabba, 59.8
“Put your hand under my thigh”.
R. Berechya said: because it (=the covenant of circumcision) was given to them through pain, therefore it is especially beloved, and they only swear by it, (as is written), “and I will make you swear by the Lord, the God of heaven.”
It is important to note that in its original context, the gesture of putting the hand under the thigh probably has nothing to do with circumcision per se, but with the penis itself which is sworn by. Indeed, circumcision itself, as a solemn oath or covenant, is performed on the genitals. This connection between oaths and genitalia can be seen in other cultures, for example in the double meaning of testes in Latin – testicles and witnesses which survives in English in “testimony”. See Joshua T. Katz, “Testimonia Ritus Italici: Male Genitalia, Solemn Declarations, and a New Latin Sound Law,” Harvard Studies in Classical Philology 98 (1998): 183-217. ↩
- Rava does not say this explicitly, although it is difficult to understand what would be wrong with swearing by “the Lord God of heaven.” At the same time, the other part of Rava’s statement, that one who swears such has erred in a mishnaic ruling, is hard to understand, since the Mishnah never requires a scroll to be held, and indeed never explicates the oath that must be recited. In short, more work is needed to understand this passage and its development. ↩
- See t. Halla 1.9 and b. Qiddushin 66a. Indeed, the Talmudic and merkavah passages about God swearing by His tefillin also suggests a connection between the tefillin and God’s name. ↩
- Indeed, swearing with the Gospel was highly problematic, as Jesus himself prohibited oaths altogether and declared them to be evil (Matthew 5:33-37). ↩
- Interestingly, Chrysostom also tells and responds to a story about Christian swearing in a synagogue in the fourth century. See John Chrysostom, Homilies Against the Jews, 1.3. ↩
- On tefillin and mezuzot, see Yehudah Benjamin Cohn, “The Origins of Tefillin.” On the Torah scroll, see James W. Watts, Understanding the Pentateuch as a Scripture (Blackwell, 2017). ↩
- Jewish War, 2.230-31 (Thackary translation). ↩