Comments by Jules Lepoutre, Timothy Jacob-Owens, Rachel Pougnet, Devyani Prabhat, Marta Bivand Erdal, and Eric Fripp.
INTRODUCTION
Helen Irving (University of Sydney)
The origins of my book Allegiance, Citizenship and the Law (Edward Elgar Publishing, 2022) lie in my research on the history of laws that automatically revoked the (pre-marital) citizenship of women upon marriage to foreign men, and parallel laws that automatically conferred the husband’s citizenship on foreign wives. Such laws were adopted in virtually every country in the world in the period between the early nineteenth century and the early years of the twentieth century. As I attempted to explain what motivated these laws in countries that were, in other respects, constitutionally and culturally radically different, as well as those which shared common legal systems, the concept of allegiance kept coming to the fore. A married woman, it was assumed, owed allegiance to her husband and, through him, to his country of nationality. She could not retain her own citizenship; she could not hold more than one citizenship; she could not, in most cases, change her citizenship through naturalization on her own motion.
In this history, I would find the elements of a larger inquiry about the relationship between citizenship and allegiance, at the core of which was the principle that allegiance must be singular, that it could not be ‘split’ or multiplied. Alongside it, sat the historical doctrine that allegiance (and thus citizenship/nationality) was perpetual and inalienable; that it could not be revoked, renounced or ‘transferred.’ The doctrine of inalienable allegiance was radically reversed in certain countries in the mid-nineteenth century; indeed, the adoption of laws that stripped women of their pre-marital citizenship was a dramatic (if under-recognised) example of this shift. Furthermore, the alienability and transferability of allegiance came to be regarded as a personal right. Associated provisions for, and rules governing, ‘transfer of allegiance’ by naturalization were consequently adopted in many countries. By the second half of the twentieth-century, the first doctrine – the exclusivity of allegiance – had been overtaken by the numerical growth of cases of dual or multiple nationality around the world, and the reluctant (if still incomplete) concession of this reality on the part of the international community.
Thinking about these core rules and their amendment (or resistance to amendment) over time, generated many further questions. What did it mean to break these rules; what were the incidents of breach? More fundamentally: why allegiance? Why was it conflated so readily and uncritically with the legal status of citizenship or nationality? What was it that justified the sovereign (historically, the King) or the (modern) state, in demanding allegiance from his/its subjects or citizens? More fundamentally, just what did allegiance mean?
The routine answer to the last question proved circular, puzzling, and eventually troubling. Allegiance, it was repeatedly said, was the obligation owed by the subject or citizen in return for protection offered by the sovereign. But, to begin to fill out this relationship – supposedly one of reciprocity – one needed to know what was meant by allegiance in the first place. What were the obligations that demonstrated allegiance and merited protection in return? The response, found consistently throughout history, in citizenship theory and in citizenship law was: the performance of military service.
The book addresses many themes, divided into chapters, in the quest to understand what ‘allegiance’ means or meant historically: multiple citizenship; naturalization; oaths of allegiance; treason; citizenship loss; and the purchase of citizenship (can one buy allegiance?). Given the answer to the above question of what obligation(s) were owed in return for protection, it might then be wondered why the book lacks a dedicated chapter on military service. This was not an oversight. It reflected the fact that that military service is found in virtually every dimension of the inquiry. It appears repeatedly in the words and terms of oaths of allegiance; the evasion of military service is/was repeatedly treated as a ground for the denial of an application for naturalization; military service for an enemy country is/was the elemental act of treason. Allegiance, indeed, was (and remains) historically associated with fighting; citizenship and military service were seen as identical twins.
To point out that this was a gendered conception of citizenship (and allegiance) was to state the obvious. Further, the fact that military service (whether voluntary or compulsory) is not necessarily confined to citizens, and that compulsory military service has been abandoned in a growing number of modern states in recent times, troubles this particular idea of reciprocity. Is the sovereign entitled to withdraw protection as a response to these developments? But, again, the more basic question: what is meant by protection? There are many ways this question could be answered, but essentially, we can distinguish between protection offered to the people of the state; that is, to the state itself, and protection offered to the individual citizen. The first remains one of the core functions of the state – maintaining an adequate defence force even in peacetime, against the eventuality of foreign attack or invasion. The second is essentially the role of diplomatic and consular services for citizens in foreign countries. This second form of protection is not, however, guaranteed; it is not a right under international law, merely something a citizen may be entitled to request. It has certainly not always proven to be available in practice or, indeed, even extended to the individual citizen (as exemplified in the case of David Hicks – discussed in Chapter Six – whose British citizenship was revoked virtually hours after being conferred, specifically so that Britain could avoid any duty of protection it might otherwise have had). Does failure on the part of the state to protect justify the withdrawal of allegiance on the part of the citizen? What would that mean in practice?
As these and many more questions continued to spin off each other, I began to notice and then to ask why allegiance was making an increasing appearance in modern discourse, a phenomenon (noted by others too) that was particularly noteworthy, given that there was a period post WWII in which ‘allegiance’ was considered an outdated and ‘archaic’ concept for understanding citizenship. Yet, in many recent discussions about citizenship, both by scholars and governments, the term ‘allegiance’ is used unreflectively and automatically to describe or even define citizenship. But, increasingly, it appeared, governments were employing the term ‘allegiance’, not casually, but expressly to explain and justify the introduction of laws that conveyed distrust of foreigners: laws that restricted immigration and that tightened eligibility for naturalization, and in some countries (including my own) laws that established new grounds for citizenship stripping, including citizenship acquired by birth (in contrast, that is, to laws for the revocation of citizenship acquired by naturalization that may be found in many countries). Political leaders were now employing ‘allegiance’ to promote policies responding, as they saw it, to the growth of cultural and religious pluralism in modern states. Much in this new discourse was a response to twentieth century terrorism, the intimation (sometimes outright declaration) that certain religious communities (Muslims in particular) were fundamentally not allegiant to the state, and thereby essentially worrying, or even dangerous.
As I explored these dimensions of the concept and its association with citizenship, two foundational theoretical issues arose, and ultimately their discussion provides the bookends. While the history of allegiance and its multiple dimensions are of interest in their own right, the book was not intended as a history, as such. As a study in legal theory, its main concern is the place of allegiance in its association with citizenship in our world today. Why, I asked, might ‘allegiance’ be of particular concern in a modern, liberal democracy? What all accounts of allegiance – historical, theoretical, legal – had in common, it became clear, was the core principle that allegiance meant (undivided) obedience. A person cannot owe allegiance or swear allegiance to a country, a sovereign, or even an organisation, yet at the same time decide for himself or herself whether or not to follow the rulings or rules of the object of allegiance. If citizenship means allegiance to the sovereign or the state, the citizen is not free to reject the sovereign’s commands. To use the paradigmatic example, the citizen could not, consistently with owing allegiance, choose which country to fight for in the event of war. But, liberalism in liberal democracies, is founded on the principle that individuals are free to make choices about how they live their own lives, about the opinions they hold, and what their consciences require. Democratic principles allow – indeed require – choice of alternative policies and the choice of the political representatives who promote these policies. In a democracy, there is no superordinate sovereign to whom allegiance is owed (in the Hobbesian fashion where the people relinquish their freedom in return for protection from the Leviathan). This idea of allegiance belongs to the status of subject not citizen. Subjects obey their sovereign. To do otherwise is a breach of allegiance.
But, who is the sovereign in a modern liberal democracy? It is the people, the citizenry (of course this is an ideal, but nevertheless important as a guideline for, and restraint on, governmental practice). In a democracy, the citizens do not unthinkingly obey; they take part in the process of choosing from alternative conceptions of the good. The book’s Introduction, then, sets out this thinking, and signals the conclusion that liberal democracy is incompatible with the idea that citizenship is defined by allegiance. This, I emphasise, is a conclusion one can reach regardless if whether or not one holds or rejects liberal or democratic or liberal-democratic values.
The other end of the book – the concluding chapter – addresses the question that I suspect is likely to be of most interest to readers: the ‘enigma’ of citizenship as a form of belonging. If we factor out allegiance from citizenship, I ask, do we leach the latter of substance? Does ‘citizenship’ mean nothing more than the name of a country on a passport? If common allegiance provided the bond between citizens (in the sense of subjects) in the past, would its erasure mean that there is no longer a bond of any sort? For reasons explained in the concluding chapter, the answer is positive – citizens do enjoy a bond with each other. They have something in common as citizens: not a bond of common allegiance, but something else. The conclusion examines several theories that identify, broadly, what this thing in common might be.[1] All the theories I discuss – constitutional patriotism; national constitutionalism; the constitutional bond – offer valuable alternatives, but, I suggest, fail to consider the character of citizenship itself. That is to say, their point of departure is the idea that citizens share a commitment to constitutional procedures and norms (compatible with cultural pluralism) but, again, they do not explore the character of citizenship. The conclusion to the book’s Conclusion is this: citizenship (in the modern world) is not a matter of shared allegiance, but nor is it nothing. The core character of citizenship, I argue, is a common territorial attachment or ‘belonging’ which arises from the citizen’s right of abode. Citizens have in common an interest – both a self-interest and a shared interest – in maintaining the democratic practices and institutions of their common territorial state. They are attached to this particular state in a way that non-citizens are not (the abandonment of tests of allegiance, that is to say, is not a case for open borders or ‘world citizenship’), have their own ways and traditions of democratic practice, and they share these as citizens.
All this, I recognise, is a lot to cover in a relatively short book. But I decided early on that the book must either be short, or it must extend into multiple volumes (an impossible task, for me, at least). Nevertheless, there are some subjects that, with hindsight, should have received greater attention. In particular, I needed to think more about the nature of protection, including obligations (if any) that arise from the protection offered by the state against mistreatment by other states of its citizens, and alternatively, the way in which governments employ the idea that protection engages allegiance, in order to control their citizens, or take advantage of emergency rules or exceptions to democratic decision-making, and the way in which governments thereby evade transparency, in particular in the national security context. We see governments (or heads of government) effectively identifying themselves as sovereigns, taking unreviewable, secretive action in the name of protecting the people or the state. The response to twenty-first century terrorism around the world provides a stark example, in many cases, of a return to the doctrine or rhetoric of allegiance that, historically, is associated with pre-democratic subject status. But, does it really matter otherwise if we casually conflate citizenship and allegiance, talking of the two in the same breath? I believe it does, and I hope the book will at least provoke reflection on that question.
[1] These theories specifically reject the idea that nationalism provides the bond – a rejection that I share and that is implicit in the book, but is not developed, since the book’s argument is with allegiance.