English: Dutch Students had to sign an agreement that would prove their loyalty to Nazi Germany. Nederlands: Studenten moesten beloven dat ze zich zouden ‘onthouden van iedere tegen het Duitse Rijk enzovoort gerichte handeling’. Deze belofte moest schriftelijk worden gedaan, door een ‘loyaliteitsverklaring’ te tekenen (Photo credit: Wikipedia)
All regimes have loyalty oaths for citizens and those who work for the regime. These oaths are important political symbols as they explain what the regime holds most dear. They explain clearly the basis for obedience. Such obedience is beyond simply obeying the law of the land, which is considered the basic political obligation for anyone within that community even if they are a stranger. Therefore, it would reveal much about the regime if we know what these oaths contain and compare them to oaths in other regimes. Two such regimes are the UK regime and the Nazi regime. Winston Churchill described the British Monarchy as a benign kingdom that faced the sinister Nazi tyranny of darkness. A tyrant ruled Nazi Germany, a perverted form of kingship with a defective title to rule, in contrast to the legitimate king with a valid title, who ruled the British Empire.
Title to rule or title to tyranny?
Today, the Nazi regime is a distant memory and the word tyranny is reduced to a political term that describes any regime liberal democrats dislike. Yet, tyranny, as an idea that defines a king without a valid title to rule, remains. A valid title to rule is important to encourage obedience, obligation, and loyalty. These symbols are what a regime uses to remind people of their common identity. Even public events become symbols to remind the people of their duty. The basic public symbol is a loyalty oath. The oaths set their speakers apart from the average person. It demonstrates they have a different, higher, relationship with the ruler. However, in this relationship, the oath creates an inequality within the regime between the average citizen and those bound by the oath. The oath takers become the ruler’s agent through the institutions and practices they serve.
The two regimes, the UK and Nazi Germany are different in many ways. What connects, though, is their oaths. We begin with the Nazi Germany oaths and compare them the UK oaths to understand how each sets out what they expect of the oath taker. Through the comparison, we see how tyranny and kingship relate to the rule of law and a constitutional order. Moreover, they also help us to understand how the oath, by creating a systemic inequality, can encourage political or institutional corruption. The oath takers privilege their personal relationship with the ruler over their civic loyalty to the common good.
Oaths from Nazi Germany
We start at the top as it sets the tone for the regime. Hitler saw himself as independent of the regime. He stood above it as the source of its legitimacy. He demonstrated this by not swearing an oath to the constitution, the highest law of the land. (All the oaths are taken from Franz Neumann’s book Behemoth: The structure and Practice of National Socialism London Victor Gollancz 1942, P.74)
Hitler was independent of all other institutions, so that he has not had to (and did not) swear the constitutional oath to parliament, as required by Article 42 of the constitution.
What this suggests, as was confirmed by the war, was that Hitler as the Fuhrer saw himself as the source of the law. His will determined the law and the nation’s fate. Heidegger explained this in his lectures and speeches.
In the UK, a written constitution that rules over all does not exist. The Queen does not swear an oath to the law or to the constitution. As the source of the law, she is above the law.[1] Her Coronation Oath, by which she demonstrates she has assumed the throne, does not contain a promise to be ruled by the law. She does claim, perhaps for appearances, to respect the laws and voluntarily obeys them.
Archbishop. Will you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan, and Ceylon, and of your Possessions and the other Territories to any of them belonging or pertaining, according to their respective laws and customs?
Queen. I solemnly promise so to do.
Archbishop. Will you to your power cause Law and Justice, in Mercy, to be executed in all your judgements?
Queen. I Will.
A king is considered valid if they rule over willing subjects according to the laws. Yet, this definition raises two immediate issues. First, how do we know if the subjects are willing if they have not consent to the monarch? Can a person consent to a monarch? Moreover, is such consent tacit at best given that all the organs of power, the army, police, judges, and MPs swear an oath to the Monarch? The idea that a monarch rules according to the laws raises the question of the source of the laws and who makes them. The people do not make the laws, which would be the basis of a democratic system, as the Crown’s representatives make them. Parliament is part of the Crown and the Crown rules the people. The people do not rule the Crown. A democracy where the people rule and are ruled in turn does not exist. No one rules the Queen or the Crown.
Military Oaths
The military defend the Queen from all enemies. They do not swear an oath to Parliament or to the Law. We can see similarities between the military oaths.
The Nazi oath for military
“On the day of Hindenburg’s death every member of the army had to take the following oath
“I swear this holy oath to God: that I shall give unconditional obedience to Adolph Hitler, Leader of the Reich and the people, supreme commander of the army, and that as a brave soldier, I shall be ready to risk my life at any time for this oath.”
The UK army swears the following oath to the Queen.
“I swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Her Heirs and Successors, and that I will, as in duty bound, honestly and faithfully defend Her Majesty, Her Heirs and Successors, in Person, Crown and Dignity against all enemies, and will observe and obey all orders of Her Majesty, Her Heirs and Successors, and of the generals and officers set over me.”[2]
The Navy do not swear an oath, as they are the Queen’s own. They exist by the Queen’s prerogative and therefore do not need to swear an oath of allegiance.[3]
Both oaths require the soldiers to swear obedience before God. The Nazi regime explicitly indicates they must risk their life for the oath, which requires unquestioned obedience to Adolph Hitler. The same personal loyalty occurs in the UK oath. There the soldiers will defend the Queen from all enemies. The Queen need but indicate the enemies and the oath indicates that they are to defend her from it. Officers and generals who will give the soldiers orders require the same oath. Parliament has no role in this process. Parliament gives no orders and commands no obedience. The law is not mentioned in either oath.
Political Oaths
Cabinet Ministers, which we can consider similar to MPs, swore the following oath.
Cabinet members have to swear as follows: “I swear that I shall be faithful and obedient to Adolph Hitler, the Leader of the German Reich and people, that I shall give my strength to the welfare of the German people, obey the laws, and conscientiously fulfil my duties, so help me God. (Statute of 16 October 1934)
The UK MPs swear an oath to the Queen. If they do not wish to swear an oath, they can make an attestation. The text of these is as follows.
“I…swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth, her heirs and successors, according to law. So help me God.”
The text of the affirmation is: – “I…do solemnly, sincerely and truly declare and affirm that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth, her heirs and successors according to law”.
Under Hitler, the politicians agreed to obey the law and to obey Hitler. By contrast, the UK politicians agree to allegiance to the Queen according to the law. They do not make an explicit statement to obey the law. As mentioned above, there is an important difference between ruling or living according to the law and being ruled by and obeying the law.
The third area, the civil service shares some similarity to the police and judicial oaths within the UK.
The civil service oath
The German civil service had an oath of obedience. A similar oath does not appear to exist in the UK so the nearest equivalent is either the Police oath or the judicial oath. The Judiciary swears two oaths. The first is allegiance to the Queen. The second is the judicial oath.
Here is the German civil service oath.
“I swear that I shall be true and obedient to Adolph Hitler, the Leader of the German Reich and the people, that I shall obey the laws and fulfil my official duties conscientiously, so help me God”. (Section 4 of the Civil Service Act 26 January 1937.)
Even though the Queen is now limited by the law and by parliament, as prerogative power has slowly been scaled back and checked by the rule of law, it remains above or beyond the law. Moreover, prerogative power still exists. The government uses it as the Queen does not use it personally. Unlike the German system, the UK system does not invest power in one person. Instead, we see that the power has been diffused across the Monarchy, Parliament, House of Lords and the Church. In an important sense, this diffused power structure was what the UK relied on to resist Hitler’s assault. At the same time, it also showed the structural weakness to the Nazi system relying on the Fuhrer’s will and allowing no basis for succession.
The UK police oath and the judges’ oath are worth comparing.
Form of Declaration
’I………………..of………………..do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property; and that while I continue to hold the said office I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law.’”[4]
Oath of allegiance for judges
“I, _________ , do swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law.”
Judicial oath
“I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”
What do the Oaths tell us?
Both sets of oath swear allegiance to one person. The oath range from extreme, the military, to mild, civil servants. The UK oaths focus on allegiance while the Nazi oaths relied on obedience. Only the Nazi Civil Servants oath swears to obey the laws. In such a system, where the Fuhrer’s will makes the laws, one has to wonder if that holds any hope that the rule of law, which would restrain the Fuhrer’s will or the UK’s prerogative powers, would exist.
What is clear, though, is that the validity of the rule is in question for both. What the UK does have is the weight of tradition and the culture of obedience. Hitler tried to emulate such a culture in a perverted way. In the UK, power is diffused and continues to diffuse. The people, though, do not have a role in that process nor have they a role in the government. To the extent that power is diffused across the Crown, the UK looks less like the German system. Hitler was clearly a tyrant in his desire to central power in his person. However, the UK monarchy, as do all monarchies, has tyranny as a shadow as power seeks a focus. The Monarch may not be as active as it was in the 16th century but the prerogative can find a willing recipient in the Prime Minister. An imperial system without an active monarchy will encourage the emergency of a replacement focus for the power.
How can oaths encourage corrupt practices?
The oath creates an inequality within regime. There are those who take an oath and are the Crown’s servant and there is everyone else. Unlike the rule of law, where everyone is equal before the law, the oath of allegiance creates a space beyond the law. The person puts their allegiance to the Queen first and by extension the Crown. In the UK the Crown, through the Monarch, rules. The people are not sovereign and they do not rule. They are ruled. The oaths distinguish clearly between those groups. How this becomes a corrupt practice is in the following way.
When a Crown agent, such as a police officer or a soldier violates the law, they are held to account by the Crown. The people, through their institutions, do not hold them to account. One Crown servant, the Judge holds another Crown servant, the soldier or police officer to account. Although they are supposed to act in the public interest, the courts will be influenced by a view that the public interest coincides with the Crown’s interest. This does not mean that the Crown always wins, far from it, instead it means the system has an inherent bias when the Crown is challenged through the courts. The Crown creates the laws that set the public interest’s limits. We can consider three cases to illustrate this point. The first case is the problem of deaths in custody, the second is justice for serving soldiers and the third is prerogative power.
Police
Since 1969, no police officer has ever been convicted of a death in custody.[5] From 1998-2010 333 people died in police custody and no one was convicted of their death.[6] 1990-2014, in all forms of custody, 1515 people have died in custody. Despite trials, no one has ever been convicted of causing those deaths despite enough evidence to bring many cases to trial. The record suggests that the Crown does not hold itself to account very well. The issue reflects police power, the physical power over a vulnerable person, (is there anyone more vulnerable than a person in restraints?) that leads to a death. However, when someone dies it is not always through an act, it can occur from a failure to act. In both cases, though, the Crown fails in its duty of care to the most vulnerable.
The oath sets the police apart from the public. They inhabit an office that is firstly loyal to the Queen. Through their status and exclusivity, they bond with other post holders. Their oath identifies them and reinforces the distance between someone inside the force and outside of it. As such, the loyalty that the oath encourages can lead the officer to place their institutional loyalty before the public.
Soldiers
The second issue relates to the cases where serving soldiers receive less severe sentences. In this situation, the Crown’s interest in the soldiers exceeds the public interest in justice for the victims. Although they have received a sentence, they escape a more severe sentence because of their status as Crown servants. To be sure, in all situations, the Crown will consider a person’s character and societal role when they judge them; yet, these perpetrators are set apart by their status as Crown Servants.[7] To the extent that they receive a preferential service, they stand apart and the public take a back seat.
Prerogative power.
The Crown, through its servants, can exercise prerogative power beyond the rule of law. The Queen commands the military. Although she goes to war under the advice of ministers, that prerogative right is not subject to the rule of law. However, this example is the most extreme. What we find is that Ministers exercise the prerogative power on a regular basis on less serious issues. Their position as a Crown Servant, not as a democratically elected official, provides their position to exercise prerogative power. Consider the way in which another Crown Servant, the Queen’s Private Secretary, exercises prerogative power in the case of a hung parliament.
Conclusion
Nazi Germany was clearly a tyranny. The UK Monarchs have done much to create a legitimate title to rule and to rule according to the laws. They sustain their rule when they protect the public, maintain the public peace, ensure the public prosperity and protect the vulnerable from those with a predatory nature. However, the prerogative powers and the Queen’s status sustain the system; Parliament and a Supreme Court have yet to replace the Monarchy. The prerogative system remains vulnerable to abuse. Even if we want to believe the Crown has less prerogative power than previously, the oaths and their institutional context remain to remind us.
Some might say that the oaths are unimportant and a relic of a bygone age. If the oaths were unimportant, why do we have them? If we do have them, they must mean something. If they mean nothing and are considered a relic, why does Parliament refuse to seat anyone who will not take the oath? Would the military, the SAS, the SBS, and the Royal Marines consider such oaths meaningless and empty words? Do these men and women consider loyalty an empty word? If they do, we should pause a moment and consider that without the oath, the difference between a soldier and a mercenary begins to disappear. Yet, we are reminded that there are ways to obtain political loyalty and obligation beyond oaths. A system based on consent is possible. The question is whether the UK is ready to change its constitutional system from an imperial one based on loyalty and obedience oaths to one based on consent and the rule of law.
[1] http://www.royal.gov.uk/MonarchUK/TheMonarchyToday.aspx
[2] https://en.wikipedia.org/wiki/Oath_of_Allegiance_%28United_Kingdom%29#Armed_forces (accessed 31 December 2014)
[3] http://www.royal.gov.uk/MonarchUK/ArmedForces/QueenandtheArmedForces.aspx (accessed 31 December 2014)
[4] http://www.legislation.gov.uk/ukpga/2002/30 section 83 Attestation of Constables
[5] https://www.opendemocracy.net/opensecurity/deaths-in-british-police-custody-no-convicted-officers-since-1969
[6] http://www.theguardian.com/uk/2010/dec/03/deaths-police-custody-officers-convicted
[7] http://www.bbc.co.uk/news/uk-england-32449872 and http://www.cambridge-news.co.uk/Soldiers-punched-student-avoid-jail/story-22455393-detail/story.html
Philosophical Politics 
You are right Lawrence. In France the Constitution is the source of the laws and as citizens we have to consent to it. After the Libertarian problem you show also how tyranny is embushed in a mild kingdom. But, always, the problem is to know the source of the laws. Islamics say that under our Constitution the source is Christianity and its holly book, The Gospels. So for avoifing any tyranny or misinterpretation we have to validate and justify a Constitution without sources. Or, perhaps, as I have written, the only source for the laws is what ou who os able to give to everyone the possibility to earn one’s living and to survive by exploring the Universe.