Public Values and the Oath of Office



Post Print version of

M.R. Rutgers (2010). The oath of office as public value guardian, The American Review of Public Administration, Vol. 40, p. 428-444

Abstract

The oath of office is perhaps the ultimate means to set public office apart: public functionaries in most countries have to swear to let public interests prevail over private concerns.

The oath of office establishes a moral commitment to the office that transcends a contractual, managerial and/or legal approach to public authority. It signifies the guardianship of public officers and links personal conscience with public values and public interests.

The Oath of Office as Public Value Guardian?[1]

1. Introduction

Public employment is not just instrumental, but intrinsically associated with the nature of the public function; i.e. involving a specific (public) ethos. Arguments to support this refer to the moral responsibility implied in having public authority and tax funding, obliging to give priority to the public interest over private interests.

Perhaps the most marked, traditional, as well as symbolic expression for a special morality for public office is the requirement of the oath of office. Oaths survive in most (not just Western) countries, mainly for political and (principal) administrative functions. They can be quite common for lower public functions as well.

Whether or not we regard an oath of office as the highest moral commitment possible is not the issue at stake. Factually an oath (still) has this status, as is visible in law courts and public inquests, and in case of political appointments (presidents, members of parliament, and so on). Underlying the oath of office has to be the notion that there are specific values for public functionaries that warrant the unique demand of an oath to begin with.

Is this still a tenable position?

Bozeman’s Public Value Perspective takes as its starting point that everything within the state is relevant, not just the specific government and (its) administration. This is not a very promising beginning to argue for it implies that the provision of commodities, services, or broadly speaking, of public values is not limited to public functionaries. That something is regarded a public value, does not imply a statement who is to provide for it (cf. Bozeman, 2007, p. 17). This could easily be interpreted as resulting in universal values for employees. However, public administration in the broad sense concerns the construction and maintenance of what is ‘public’ and ‘private,’ including what public goods are to be provided for ’publicly’ or collectively, and what ‘privately’. Aspects of this encompassing arrangement within a state include ownership (legally public or private), availability (free, limited), costs (publicly funded, market price), and so on. It implies that ‘public values’ are the very reason the state exists. To give a simple example, a private firm may provide a public good, but strictly speaking, that is not the prime reason for its existence: some private interest or profit is. Even a private philanthropic organization exists for a specific purpose and lacks (formal) public authority to support its claim on the public interest. It is from a state perspective that the provision of public values is arrived at: ‘state failure’ implies that such provision by either ‘market’ or ‘government’ is lacking and that ultimately the government is to guarantee such services (who else?).[2] In this sense a public value perspective is a state perspective for it is from this view that we can try and change arrangements and bring to the fore the importance of public values. How does the state, or rather its actual governmental structure, ensure the best provision of public values and, what kind of governance does this call for? In this perspective public administration is important as it is extensively involved in the provision of public values, as well as, in formulating policies and preparing lawmaking that result in a specific ‘governance arrangement’ in a society. Public officials have a specific legitimate power to be involved in the preparation and execution of fundamental decisions, even though they are ultimately made by politicians. So we can ask ourselves, are there specific public values for these public officials?

3. The Origins of the Oath of Office

Everybody has to behave properly, do his/her job and duties, and is expected to show integrity; but do we demand more so of public functionaries? I would argue this is indeed the case. There is a demand ‘to behave as a good public functionary or civil servant should’ that goes beyond everyday professional demands and applies even ‘out of office’ for the official in question. As such, this may not seem so special either, for the old ‘is there a doctor in the hall’ also indicates we expect a physician to act in his professional capacities at any moment. Yet, in case of a public function, the demand usually not only concerns professional actions as such, but also personal actions, possibly even the behavior of family and friends.

It implies we are concerned with a moral claim on the public functionary; one that does not stop at the office door, and that implies that behavior in conflict with the law may result in being fired.[3] An example of this 24/7 dimension of public office is provided by the Dutch military professional code introduced in 2007. The statement in this code ‘I am aware of my responsibilities’ is clarified as: ‘We do realize that for the rest of society we are 24 hours a day and 7 days a week military functionaries’.[4] The ‘for the rest of society’ stresses that we are not dealing with formal-legal or contractual demands being made here, but with the perception of society of public functionaries as such, even in their spare time. Morality is more than legality, and includes the judgment of others of one’s behavior. We expect a public functionary not only to act professionally, but, up to a point, to carry certain values into their private life. It is important to note, that, as stated before, this includes a restriction on civil rights such as (some) political activity, striking, and the like. The special nature of public office is thus expressed in moral codes, and most explicitly captured in the demand of an oath of office. It indicates that public office traditionally is placed in a moral, even religious, context. As indicated, it is remarkable that in a time of so called ‘normalization’ of employment relations in the public sector an oath of office is even reaffirmed by law in the Netherlands. If it is not an oath, it is at least some moral code, code of conduct, or adherence to an organization's core values that is somehow demanded more and more in the public sector. Where as these ‘tools’ are more common in many organizations, an oath of office is not a feature of work conditions in the private sector.[5] Why then has the oath been, and continues to be, salient for public office?

A brief history

The origins of the oath of office are in prehistory.[6] By invoking the gods as witnesses and avengers, oaths provide the much needed guarantee that truth is spoken and promises are met. Oaths were a core social phenomenon for the Greeks, in fact, oaths were regarded the very foundation of democracy (Plecia, 1970, p. v). Nevertheless, even in the classical times, the oath was partly replaced by legal contract. In the context of the courts, an oath was also no longer accepted as simply the truth. Also earthly punishments became added to divine punishment for perjury. Despite a recurring warning that people may not stick to their oaths,[7] it can hardly be underestimated how important the oath was for our forefathers well into the nineteenth century. Its use became more and more limited to public settings and functions, whereas in the private sphere legal contract became regarded as adequate warranty. What remained were oaths in courts and oaths of office. In the high Middle Ages oaths were thus widely used. For example, in towns everyone involved in an activity of public important - i.e. that was involved in providing public value - had to take an oath: butchers, gate keepers, doctors, apothecaries, even brothel keepers (Kolmer, 1989: 118). The prime aspect of these oaths is that they demand loyalty: be it to the monarch, the lord of the town, and /or the town council (and later, ‘the constitution’, and ‘the people’). Over time and alongside the oath of loyalty, a special oath of office developed concerning the duties of a member of a collegium (Friesenhahn, 1928/1979, p. 64).[8]

Originally, what we can call, a true oath was required, i.e. a solemn promise involving a reference to a transcendental being (God or gods) as witness and avenger. However, apart from rare early exceptions on religious grounds (for instance for Mennonites and Quakers), in the course of the 19th and early 20th century it became standard practice in the Western World to offer a choice between oath and solemn affirmation. For the purpose of this article I will not reflect on the differences and simply refer to the oath of office. The oath of office was important, and remained in general use. How can we explain this? Why did this very ancient, highly symbolic, and, on the whole, personal and conscientious ritual persist for public office?

Outline of a theory

The recurring argument for the oath of office boils down to the following: a public function brings with it special responsibilities that warrant asking the highest security and commitment a person can give. The reason being that a public office has a very special status, unlike any other office in society: someone is granted access to the most significant powers in society in the form of public authority and to the greatest economic means in society in the form of state powers. These vast powers can be used or abused for one’s personal interest[9], rather than for the general interest.

The oath of office developed over time into a more complex construct than just a simple sworn promise. An oath of office in general consists of three parts: first, an opening formula such as ‘I swear’ or ‘I solemnly promise’; second, a statement containing the actual promise(s), usually starting with respect for the laws such as ‘I will support and defend the Constitution of the United States’[10], or ‘I swear to protect the statutory law for the Federal Republic of Germany’[11], a promise to act correctly, for instance, ‘I will well and faithfully discharge the duties of the office’[12], ‘[I will] fulfill my duties of the office faithfully’[13], ‘I will be conscientious, honest, and, trustworthy’, and sometimes also some additional promises such as ‘I will do nothing that may harm the esteem of the office’[14]; third, a closing formula, with reference to the nature of the guarantee of the oath (‘so help me God’ or ‘this I promise’ or in the past ‘on my honor’, or ‘may lightning strike me’). Of course, as pointed out above, the strictly religious foundations of an oath are debatable, but a solemn promise or affirmation is regarded as equivalents by law nowadays.

If we focus on the promises sworn to in an oath of office, it immediately appears oaths of office are complex, i.e. a ‘full traditional’ one consists actually of three different oaths: an oath of purification, whereby the oath-taker ascertains he/she got the job in a fair and proper manner (‘In order to get my function I did not give nor promise anything to anyone, nor will I do so in the future.’[15]), and two we encountered before: an oath of loyalty – ‘the political oath’ - , toward king, country, constitution, president, the chief executive, the people, the general interest, or the like, and, what I would like to refer to as an oath of (professional) performance including matters such as prudence, commitment, precision, dedication, and so on, i.e. a promise to carry out one’s office properly. This triple oath – of purification, loyalty and of performance - is present on most contemporary oaths of office, although some are more limited (such as the oath of the President of the United States) or the oath of purification is, for instance, taken separately.

Finally, it is important to note that an oath is not just a matter of words being spoken (sometimes just saying ‘Yes’ or ‘I do’), but always involves specific gestures and/or attributes, i.e. there is a certain ritual act involved. Next to a true, oral oath, a solely written oath is possible, but clearly the exception, and also involves ritual such as signing in the presence of witnesses. At the same time it should be noticed that, since the high middle ages an oath is always recorded.

The oath of office is an extraordinary, solemn occasion as a person gives as warranty to the promise to perform the assigned tasks, and use the public authority granted correctly, his or her highest personal moral convictions (i.e. moral, religious and/or existential principles). To put it a bit dramatically - in line with the state tradition – on the taking of an oath, someone is granted the moral authority of the state to make decision affecting the lives of other citizens who are neither kin, friend, nor protégée. This public power can range from decisions on life and death, to more every day decisions regarding parking tickets and building permits. The authoritative part implies citizens having no alternative as to obey (or perhaps go to the court, or emigrate), as state authority constitutes a monopoly. Leaving aside specific religious connotations, the oath of office constitutes a double link: a social and moral bond between oath taker and fellow citizens, and it aligns the most personal - an individual’s conscience - with the most public - the common good (or the constitution as the procedural and institutionalized expression of it) - in the use of state authority.

The prime purpose of an oath of office is to provide security or trust. It implies that a person is prepared to give the best and highest moral commitment to act in the public interest. In a sense the public realm is thus established: the common wealth and the public good (in the function of the monarch, the president, or the constitution) are accepted as transcending the private (individual, group, class) good and interests. Even politicians, who are elected to represent the interest of their voters, are expected to transcend the specific interest of their supporters for the good of ‘the people’, ‘the common wealth’, or ‘the state’.[16]

Impersonal loyalty

Central to an oath of office is the loyalty of a person as a functionary to ‘the common good’ in terms of loyalty to a constitution, the people and/or political representatives. Just as much as we expect every citizen to have integrity and to carry out his or her job well, loyalty is also expected of everyone somehow: loyalty to one’s family, firm, fellow workers, and so on. Loyalty is in this sense an aspect of trust as the cement (or prerequisite) in social relations. But there is more to what is meant by loyalty of public functionaries. At first glance, we are simply dealing with loyalty to ‘politics’, i.e. to what is politically decided upon according to the political regime one subscribes to. However, we are not simply dealing with loyalty between a person and another person, but with a more abstract loyalty, as captured in the oath: loyalty to a constitution, a state, the public interest. Loyalty of public functionaries is not a simple matter of obedience; it is not a matter of loyalty to a specific person/individual, but to a functionary or rather, to ‘the hierarchy’ and the constitution. In fact, it can be argued that an oath of office never establishes loyalty to a specific individual.[17] The loyalty of a functionary is a loyalty to the abstract ‘public interest’. A civil servant can therefore never hide behind an order being given, for there is always a personal responsibility towards the constitution, the state, or the common good.[18] It is not at all clear, however, what loyalty means in a specific situation. As is the case with integrity, a person can be confronted with different sets of values. In particular conflicts between one’s personal values and what one is expected to do as a public functionary may prove difficult. Carrying out one’s duties loyally implies not doing something with aversion, but doing it with conviction and dedication even if one disagrees as a citizen. ‘As a citizen’ is important here, since obviously we are ultimately dealing with a person’s moral conviction in which loyalty as a functionary becomes one’s moral duty.

Here oath and loyalty touch upon what Weber (1985) called the honor of the function: to do as the hierarchical superior demands, to execute laws and regulations, and to suspend one’s own norms and values. Based on professional knowledge, one is obliged to point out if a demand or policy is ill advised, yet, when the (political) superior sticks to it, it is the functionaries honor to act accordingly. This does not imply a slavish execution, for the loyalty of the functionary is to the ‘general interest’ or ‘the state’ and thus can be at odds with a specific demand from a superior. Execution is not a personal favor, but an act in line with the constitution. Weber’s (in)famous Sine ira ac studio can be interpreted as the moral obligation following from accepting a public function: it is not an amoral stance as objectivity and neutrality are moral values, not empirical observations. It is a big thing to ask someone to be prepared to put aside personal preferences, interest, even emotions and morals, and make them secondary to the demands of the function (leaving aside here whether or not this is really possible or even desirable when approach from other angles).

None of this is to deny personal responsibility. To the contrary, in situations where personal moral responsibility has to prevail, voicing objections (including possibly whistle-blowing), or even ‘exit’ may be required. This is the counterpart of the protection against political discharge of public functionaries: the duty to perform one’s function and the responsibility to take the consequences if one cannot or can no longer accept the duties required by the function. In the last instance, one may conclude that the function cannot prevail over personal values. Morally, this is a dilemma, for integrity is at stake: someone can be blamed or praised for staying in office, as well as for abandoning office. Here again we encounter fundamental and enduring problems with the oath of office: an oath has an absolute nature, but what if conditions change, are we still bound by it? In fact, it is because of the absolute nature of the loyalty implied in an oath that the oath is demanded in the first place, as much as it is a reason for people to object to an oath of office. This issue is, however, not to be resolved here.

4. The oath of office in administrative theory

The rudimentary theory of the oath of office presented so far may seem farfetched as the outlined meaning of the oath is probably not on the mind of someone taking an oath of office. Yet, an oath of office still seems to have a high moral meaning to most people, as is perhaps best illustrated by the fact that people may object to taking an oath precisely because an oath is experienced as highly intrusive and morally constraining a person. An oath is not rare in a public setting: It is a prerequisite for political representatives, chiefs executive, and high state employees all over the globe, as well as for judges, military, police officers, and for witnesses and experts in the courts or public hearings. Oaths are not just symbolic either, i.e. a sworn police officer’s or civil servant’s testimony does count as evidence in the courts, more so than that of others.

The oath is however, rarely discussed in the study of public administration. It is lacking in most introductions to public ethics (cf. Svara, 2007). One of the few authors discussing the oath of office recently is Menzel: “The oath [of office] guides autonomy and deters public managers from becoming maximizing bureaucrats” (2007, p. 42). Despite his attention to the oath of office, it has clearly lost the deep significance it used to have. As is especially the case with managerial approaches to moral issues, the oath is quickly reduced to a ‘tool’ for ‘integrity management’ in a public organization. We can speculate that precisely because an oath does not really fit this vocabulary, it is overlooked and attention reduced to less explicitly moral regulations in terms of ‘codes of conduct.’ Menzel, however, follows closely the argument that Rohr made over two decades ago, where the oath has a much deeper meaning. Let us therefore take a closer look at Rohr’s stance, as he is the most important author on this issue in the field of public administration.

In Rohr’s To run a constitution (1986) the oath is central to arguing the special nature of administrative ethics. Instead of the more abstract or ideal ‘state’ or ‘general interest’ and ‘common good’ with all their difficulties, Rohr sticks to ‘The Constitution’ (of the USA) as the point of reference – the actual ‘state’ or ‘public order’-, as this is what the oath of office is sworn to in the USA: “The Constitution is the symbol of our common life as a people who are organized for action in history” (p. 192). Rohr links professionalism and oath: for the public administrator the oath to the constitution implies not simply obedience, but also “an initiation into a community of disciplined discourse, aimed at discovering, renewing, adapting, and applying the fundamental principles that support our public order” (p. 192). The oath of office has a dual, legitimating function, according to Rohr: it is a guiding principle, as well as justifying autonomy: “The role of the Public Administration is to fulfill the objective of the oath of office: to uphold the Constitution of the United States. This means that administrators should use their discretionary power in order to maintain the constitutional balance of powers in support of individual rights” (p. 181).

Professionalism implies (some) autonomy, and the oath “legitimates some kind of administrative independence” (p. 187). Of course professional autonomy is also wanted in the private sector. But the difference is that, in the public sector, we are dealing with special responsibilities in opposition to the demand of ‘political subordination.’ This autonomy relies on an ethical commitment to the public interest, and the nature of the oath is that it is “a profound moral commitment” (p. ix) legitimating autonomy despite political ‘obedience’. The oath reflects the special status of the public service and ensures (or symbolizes) the public functionaries trustworthiness. In secular terms: “Many of us would find the violation of an oath morally offensive, because in terms of a secular ethics we believe that oaths bind in conscience.” (p. 189). It is not required outside the sphere of government in this sense. Thus Rohr notes that, although for instance the influential Brownlow Report relied on the structure of the private sector as a model of government: “it wisely abandons this model when it discusses the character of those who make their careers in government.” (p. 151). The oath of office, in line with the argument in the previous section, does not simply imply loyally, but provides room for autonomy so much needed in the public setting precisely because the public administrators are to be guardians of the public interest, with a special responsibility: “Oaths, precisely because they are of moral significance, cannot be reduced to an abdication of one’s will and judgment in favor of another human being.” (p. 189).

This brings us to the second aspect Rohr links to the oath, namely a commitment to act in a specific way: “The moral character of the oath confers professional independence, not personal isolation.” (p. 191). For the public administrator the oath implies “an initiation into a community of disciplined discourse, aimed at discovering, renewing, adapting, and applying the fundamental principles that support our public order” (p. 192).

The arguments Rohr provides link well with established insights into the importance of administrative discretion. We want and need somehow to check administrative judgment. This is all the more important in an age of ‘contracting out’: what can be implemented and executed fairly instrumentally has been taken out of the hands of civil servants and what remains is all the more sensitive and important, and thus open to misuse: the appraisal of information, both in order to ‘control’ implementation, as well as in the preparation of new laws and policies. In these judgments a public functionary, having integrity and honor, has to transcend his own moral opinions. Society has specific expectations of those working as public functionary, bestowed with public authority and paid out of public funds. Where in many cases the ´ordinary´ private employee can take his own interest as a starting point, the public functionary has to put public interests first.

The previous consideration may seem at odds with the idea that we nowadays prefer values such as flexible, efficient, enterprising, and compassionate, rather than neutrality and loyalty for public functionaries. But, the existence of double binds, is very much part of being a public functionary. Citizens demand opposing qualities: the public functionary has to be compassionate, friendly, open to the citizens troubles and interest, as well as treat every body equally and not let his personal opinion intervene with legal rights; they have to be entrepreneurial, but should not risk public money; they have to be efficient, effective, but also promote citizens involvement and uphold the laws and regulations.

The demands for public functions are at odds with values prevailing in other social contexts. Jacobs (1992) even argues ‘deceive for the sake of the task’ as a public value. This brings us to other troublesome issues such as the moral problems of ‘dirty hands’ and of ‘raison d’état’ (cf . Geuss, 2001). Integrity of public functionaries in these contexts does not concern integrity in the sense of ‘personal innocence’: Walzer (1973) argues that public functionaries are confronted with serious moral dilemma’s as action has to be taken (or not) at the expense of some individuals, groups and/or fundamental moral values. This is in line with the ideas of, for instance, the philosopher Hampshire (1989) and the theologian Holloway (1999). Both stress that moral dilemma’s demands that (top) public functionaries have to transcend the diverging moral demands around in society will a peaceful society be possible. This includes being able to outdo one’s own moral values.

There is no need to agree with all the claims made here in order to acknowledge that there are specific demands for the public sector. Of course all kind of societal spheres have specific moral demands (docters, psychologist, teachers), but more than other areas there is a 24/7 scrutiny of behavior and even some civil rights have to be sacrificed in the name of the function: Paradoxically certain limitations of civil rights of the public functionary are in the interest of the protection of keeping up the state or the constitution and thus civil rights. This is what is captured in the oath of office.

5. A Demand for All Seasons?

“Some scholars believe that oaths have lost much of their value in the modern age.” (Menzel, 2007, p. 70)

Public values are at the heart of what makes humans human. They are in this sense perhaps primarily ‘general’ values that apply to anything human: life, water, food, safety, up to self attainment (following Maslow’s ordering). At the bottom, we are dealing with the physical survival; rising up to what makes us humans ‘truly’ human: culture, creativity, religion, science, and so on. Although public values are not simply governmental as Beck Jørgensen and Bozeman (2007, p. 373) point out, in the sense that by no means the public sector has to provide for all possible public values. Yet, all more complex societies have established a specific order, i.e., a state with a constitution, which provides arrangements as to the nature and scope of government and governance. This constitutes a practical outline of the contents of the public interest or common good. We also have, as Beck Jørgensen and Bozeman state, characteristic expectations: “The public sector must not serve special interests, it must serve society as a whole; the public sector is there for everybody, it is not the extended arm of a particular class or group.” (2007: 361). In other words, we have institutionalized the common good and the public interest: it is at the very heart of our image of humanity and of our models of society as expressed in centuries of debate on democracy, separation of powers, and the like. It is therefore fitting that we have special demands for those working as public functionaries. To consider public functionaries ‘normal employees’ reflects a stance that is just as ideological as is a state or public interest perspective. The liberal, individualistic tradition cannot be declared sacrosanct without annihilating essential demands of a well functioning public sector. Even hardcore economists such as Von Mises acknowledged the importance and necessity of a well functioning public sector and this is a message repeated over the years (Von Mises, 1946; cf. Light, 2008). The other way around, we cannot simply fall back on an unproblematic state perspective (let alone on the idea of a ‘special universal class’), for it has problematic aspects, not in the least the very notion of a public interest.

There is also a difference between the value attached to working in the public and the private sector. Sometimes their values are at odds with one another, as are the expectations of society. What is proper behavior in the one setting may be absolutely unacceptable in the other, such as the exchange of gifts or the reliance on established relationships (cf. Jacobs, 1992). It can result in different priorities being attached to general values such as (technical) efficiency, and it may even imply that an entirely different meaning has to be given to some seemingly universal values, such as loyalty and responsibility.

Another issue concerns the possible tension between personal, organizational, and public demands. From the perspective of the organization integrity of functionaries concerns the consistency and coherence of behavior with an organization’s policies: it is the well known issue of aligning individual behavior and organizational goals (cf. Simon, 1976 and many others). From the perspective of the individual functionary, integrity concerns ‘wholeness’ of the personal life and identity. Moral problems in this sense are often the result of conflicting demands of the different roles (and thus value spheres) an individual has to deal with in his life (family, work, profession, party, etc.).

So far, no differences seem to exist between public and private employment. However, in the public sector both individual and organization have to deal with integrity in relation to ‘the common good’, ‘the state,’ or whatever denotes the encompassing public sphere. This may imply tensions between organizational values and these more general public values, which both management, and individual functionaries have to use for consideration; not as an ‘after thought’ but as inherent in judgment and legitimacy of public action. This encompassing public framework lies outside the specific (public) organization and accounts for the importance, as well as problems of whistleblowers in the public sector. The values of the particular organization or agency are not always the most relevant: a public functionary has the wider public sphere to include in his or her value orientation. This is at the heart of Rohr’s call to take the constitution as point of reference. It is in line with the previous remarks that loyalty is not personal, but abstract, i.e. to the public cause. This is not an instrumental or just a legal matter, but very much moral, as is captured by the oath of office.

The need to establish such a moral commitment to the public good and/or the constitution is all the more important if it is realized that public functionaries and civil servants are not just executers or implementers, but in a time of neo-liberal politics and management, they are more and more involved in policy formulation and preparation. Not only is this even more difficult to ‘control’, but the judgments involved concern the prime political process of policy and law making. We are dealing with the administrators ‘advice and appraisal: “Administrative appraisal is a more complex and elusive process than execution” (Self, 1982, p. 192).

The oath of office is a traditional key symbol for the special demands made on the public functionary, because of their involvement in public decisions: the oath symbolizes and ensures the need to trust public functionaries because they, more than others citizens, put themselves in a position of reliance on their actions being in the public interest. An issue that cannot be resolved in the context of this paper is to what extent an oath of office is an archaic, or a valuable personal and social act. It is obvious that despite possible reservations the oath is still in use, and that people have always been aware of the dangers of perjury and opportunism. Therefore ‘contractual arrangements’ can be regarded the everyday replacements of oaths. This became possible because legal arrangements and continuity of social order was achieved, ensuring a secular, i.e. state, witness and avenger over the promises made. The oath of office remained, and interestingly applies precisely to the sphere that has to ensure the very possibility of contractual relations: executive, judiciary, and their administrators. What is more, the oath is used where legal agreement is not regarded adequate as such: vows supplement a marriage contract[19], securing the truthfulness of a witness in court[20], and they are symbolic for stressing that a public function requires a special moral commitment.

The oath of office stresses that a contractual, legal approach to public office is not adequate. As Menzel states (following Rohr): “The point here is that oaths provide officials with the legitimacy and empowerment to carry out their duties in a transcendent manner that is both ethically and morally sound. This approach contrasts significantly with the ‘follow the rule’ approach that many codes become when transformed into law-like documents” (Menzel, 2007, p.72). An oath of office is undoubtedly the oldest ‘integrity tool’ around, and most explicitly linked to religious beliefs, involving a call upon a god, gods and/or something sacred (a shrine, book, statue), or with sacrosanct significance to the oath-taker (parents, spouse, children, honor, conscience), as witness, avenger, and thus ultimate guarantee for someone’s keeping a promise. Originally, vengeance in the case of oath-breaking and perjury was left to the metaphysical power and/or after-life. With the introduction of an earthly punishment for perjury, the transcendental meaning of an oath was not regarded diminished. As a tool for integrity of public value management a codex or code of conduct is the next step, with even less binding force, and less strict ritual. A codex is of much less impact and will be experienced as less personally binding compared to an oath.[21] As far as I am aware, there are no conscientious objectors to a codex – in particular irrespective of its contents -, whereas oaths will still raise objections as it feels clearly as very personal and binding indeed. In this sense, it is also much more doubtful whether it makes sense to refer to an oath as a possible management tool, for it refers to value rationality, rather than to purpose or instrumental rationality. The rise of codes of conduct is perhaps to be regarded as a watering down of an oath of office, i.e. something in between the oath and standard regulations and personnel policies.

Of course one can doubt the status of an oath, i.e. a commitment to try to be loyal to the public cause, to be committed, yet neutral, and so on. However, there is evidence of the very real existence of a specific public service motivation (cf. Bozeman, 2007, p. 182) indicating that this is not just ‘mythical.’ An oath can be regarded as ‘just’ a social construct. But that does not imply social constructs are not at the core of social reality, for as the famous Thomas theorem states: “If men define situations as real, they are real in their consequences” (Thomas, 1951, p. 81).[22]

But it can be objected that even if this rather philosophical stance sounds interesting, modern employees do not want to be bothered with ethical responsibilities, they ‘long’ to be utility maximizers, searching for their profit, and not being hampered in doing so by archaic – religious, perhaps even magically tinted – rituals. Well, that’s a problem, and one that is exacerbated by stressing that an employee is an employee wherever he or she is working.

To conclude, the special status of public functionaries does not reside in their physical actions as such, but in the moral meaning they have that derives from the public authority on which they rely. Some actions are therefore only allowed for public functionaries, such as the infringement of civil rights. There are specific expectations of public functionaries. The oath of office is the core symbol for these high expectations. In this context it should be noted that oaths are not just a western phenomenon, most religions and cultures use oaths or some equivalent. It is a prime trust creating social ritual. It expresses that there are expectations that cannot be captured in an ordinary contractual relation (that also exist in most cultures). Being a symbol does not imply it will have a direct, reliable, ‘measurable’ and/or enduring effect on the behavior of individuals. This again is not a new insight, for already in 1817 Jeremy Bentham argued “the utter inefficiency of this instrument”(p.11). Nevertheless, symbols are important as they do shape our perceptions and provide legitimation: as such the oath of office creates a public officer and binds him or her morally. The oath of office is perhaps the ultimate indication of the pervasiveness and importance of public values. What is more, the oath of office cuts through, or rather unites different aspects of public values that other conceptual tools do not seem to be able to: it links the most public and private, i.e. a broad public moral sphere with individual consience, as well as, constitutes an actualization of deeply historically rooted ideas on public behavior. The oath of office constitutes the warrantee that public values are met in so far as it succeeds in binding a person to act in the public interest. Clearly more research is needed into the nature of public values in relation to the oath of office; especially empirical research on the presentday meaning of oaths and other social mechanisms to establish trust. The oath of office functions as a public declaration establishing someone as a public functionaries. It establishes mutual trust; of citizens in a functionary, and of the functionary in the citizens acceptance of his or her office. However, it should be noted that symbols can become meaningless if they are not institutionally embedded and reaffirmed (then they become just a symbol without content). Looking back at the Dutch example, it implies that arguing ‘normalization’ is no less value loaded, as is the reintroduction of the oath of office. At the beginning of the article the question was posed whether these two approaches are compatable. Treating public servants and public organizations as identical to private employees and organziations, will probably result in them accepting similar values, including private profit seeking, which will be a big stimulus for the ultimate misuse of office: corruption. At the same time demanding an oath of office because there are specific moral responsabilities involved will probably diminish the value of oaths as it signals morals being just ‘symbolic’ to the function. The managerial, instrumental approach, it seems, harms the social and moral context in which an oath of office, or public ethics, for that matter, can flourish. This requires more empirical research into the social and ideational context in which an oath of office, and other ethical construcs can function. For the time being, there is good reason to be carefull with the status of the public service and not be too hasty in regarding all employment of equal status when it comes to moral claims and expectations. Perhaps the biggest threat to the public interest- whatever that is - is a public functionary without an espoused public ethos, and the recognition of its importance as inherent to the function by society.

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Authors note

Mark R. Rutgers is professor of public administration at Leiden University, the Netherlands. His areas of interest include the philosophy and history of (the study of) public administration, the nature of public values, and public integrity. This article was written as a fellow at the Netherlands Institute for Advanced Study in the Humanities and Social Sciences, Wassenaar, The Netherlands.

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[1] The author would like to thank Karen West, as well as the four anonymous reviewers for the suggestions to improve this article.

[2] It should be noted that we are concerned her with ‘the idea of the state’ (cf. Steinberger., 2004), not some specific realization of the state by means of a specific constitution and/or government apparatus (i.e. the realization of the state).

[3] Examples of such extreme demands on personal behavior of public functionaries pop up regularly. For instance Menzel (2008) points at the existence of even ‘anti-adultory policies.’

[4] Gedragscode Defensie, Defensie Krant, april 5th 2007, p. 5.

[5] Also the well known Hippocratic oath is of a different nature (Miles, 2004).

[6] The main sources for the following account are Bauer (1884); Ernste (1895); Friesenhahn (1928/1979); Hirzel (1902); Kolmer (1989); Plescia (1970); Prodi (1993). Tyler (1834); Van den Doel (1989); Van Leeuwen (1881).

[7] As voiced already by Plato and Cicero.

[8] It should be noted that the collegium was the main kind of organization, certainly for the more executive functions, before debates on the ‘bureau-system’ as an alternative rose late 18th century.

[9] I.e. for purely personal gain, for family, friends, group and/or class.

[10] From the US postal service oath of office (Menzel, 2007: 73)

[11] From the oath of the president of Germany (according to the German constitution).

[12] From the US postal service oath of office (Menzel, 2007: 73)

[13] From the oath of the president of Germany (according to the German constitution).

[14] From the oath of office for state civil servants in the Netherlands

[15] From the oath of office for state civil servants in the Netherlands

[16] Such an acceptance of a modern notion of ‘the public’ in a democratic setting is visible in the early example of the oath required by the Constitution of Pennsylvania of 1776: “that as a member of this assembly I will not propose or assent to any bill, vote or resolution which shall appear to me injurious to the people; nor do or consent to any act or thing whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared in the constitution of this state; but will in all things conduct myself as a faithful honest representative and guardian of the people, according to the best of my judgment and abilities.” (Friesenhahn, 1928/1979, p. 66).

[17] A dramatic example of the problem of an oath of loyalty to a person is provided by (deceitful) oath Hitler had military officers take on his person (cf. Honecker, 1968). In this respect it is interesting that the Catholic/Canonical doctrine of the oath already for centuries forbade ‘unconditional personal oaths’ (Honecker, 1968, p. 61).

[18] In Germany this is even explicitly anchored in the constitution.

[19] Although perhaps hardly a proof for the power of an oath in modern society.

[20] Even though perjury is as such part of the legal system and a punishable crime.

[21] Svara (2006) provides a number of examples of ‘ codes of conduct’. Without exception they start with references to ‘public trust’, ‘loyalty to the constitution’, ethical principles above private gain’, ‘loyalty to the highest moral principles’, ‘to promote the public interest’, ‘social responsibility’, ‘highest ideals of honor and integrity’, ‘high standards of integrity.’

[22] According to me one of the most important insights in the social sciences/studies.

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