Oaths, Laws and A Contradiction

Thomas More: Listen, Meg, God made the angels to show Him splendor, as He made animals for innocence and plants for their simplicity. But Man He made to serve Him wittily, in the tangle of his mind. If He suffers us to come to such a case that there is no escaping, then we may stand to our tackle as best we can, and, yes, Meg, then we can clamor like champions, if we have the spittle for it. But it's God's part, not our own, to bring ourselves to such a pass. Our natural business lies in escaping. If I can take the oath, I will.
(A Man for All Seasons)

States members have to take an oath to take their seats in the States:

"that you will well and faithfully discharge the duties of (Senator) (Deputy); that you will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to Law; that you will uphold and maintain the laws, privileges, liberties and franchises of the Island, opposing whomsoever may wish to infringe the same; that you will attend the meetings of the States whenever you are called upon to do so; and generally that you will fulfil all the duties imposed upon you by virtue of the said office. All of which you promise to do on your conscience."

What does it mean to "uphold and maintain the laws"? This is of course, logically incoherent if one thinks about it. The States is an Assembly which deliberates and makes laws, and changes laws. How can this mean upholding and maintaining the laws? Would not changing a law count as infringing the existing law, and certainly not upholding or maintaining a law? In strict logic, this does not make any sense at all. How can you uphold a law and change or remove the same law?

In fact, this is not just my quibble or nit-picking. This is a serious issue which was raised by lawyers in the past, as they sought to tease out the meaning of the laws. The use of an oath to "uphold laws" is an old one, going back to Antiquity, and we find it in Greek and Roman civilisations. It was not until the 16th century, however, that this question was answered.

Jacques Cujas  (1520 - 1590) was a French legal expert. In his "Observations and Emendations", he considered the Roman Law from which European Law derived and was modelled upon. Now the Emperor's oath off office held that he would "uphold and maintain the laws", yet - as well as that - it appeared that the  emperor was freed from the laws in the sense that he had "the power of enacting, or abrogating, or derogating law."  And in Cujas time, the  princes also took an oath to uphold the laws of the land, which was correspondingly similar.

This is very much the same problem that we have with the oath of office in Jersey, with the same kind of inconsistency. The resolution that Cujas found was to say that the Emperor was not above the laws in the sense that he did not have to obey them. Instead, for so long as they were existing laws the Emperor had to obey them. However, he was free to change the laws.

So while the laws are in place, the Emperor or Princes - or States members - have to obey them, they are subject to them. That is how Cujas understands the "upholding and maintaining the laws", but above that they nevertheless are pemitted the ability of to add to or change or even remove the existing laws. Upholding and maintaining the law means that one is subject to the law, not that one cannot change the law.

And that is a bulwark against rulers acting in an arbitrary fashion, as at the very least, they have to pass legislation first. That is not to say that it cannot be done. Freedoms can be destroyed fairly rapidly if that is what the majority of those in power decide. But until that is decided, they cannot just act on whim and are bound by procedures laid down in laws. In this way, the law functions as a protector of the rights of the ordinary citizen, and that is why coupled with "upholding the law" - as we see in the Jersey oath - is also "upholding the liberties" in the oath of office. 

Likewise, "true allegiance" to "her Majesty the Queen", since the English Restoration,  means placing her, like the Emperor, beneath the law and subject to the law, and she herself is a guarantee of upholding and maintaining the law in her office as monarch, and not (as the Civil War demonstrated) because of any divine and arbitrary right to do as she pleases with the laws of the land, which is why the oath of fealty contains the addendum "according to law".

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
(A Man for All Seasons)