Jules Lepoutre (University Côte d’Azur)
What legal concept can summarise and subsume citizenship and all contemporary developments in its management and functions? In other words, what can define citizenship today, and hence membership of a political community? Acknowledging that this question is certainly an ‘enigma,’ Helen Irving’s stimulating book offers a key to both understanding and criticising citizenship: allegiance. Coming straight out of feudalism, as the fidelity of a vassal to his suzerain, the proposal is both provocative and puzzling. How can we analyse allegiance, with its connotations of submission and domination, in the context of modern citizenship based on democratic and liberal values?
Helen Irving’s book is therefore doubly paradoxical. The first paradox is that it proposes to take a fresh look at citizenship through the peculiarly ancient notion of allegiance. Hailing from the Middle Ages, making allegiance a useful concept for understanding citizenship in the twenty-first century is ambitious, to say the least. The second paradox is that the author is normatively opposed to the idea of allegiance, which is seen as incompatible with the democratic and liberal standards that forge modern citizenship. The book is thus as much a descriptive survey of contemporary uses of allegiance in law and legal discourse, demonstrating the survival and relevance of the concept, as it is a normative critique of this notion for shaping citizenship. Thus, throughout the thematic chapters, there is a constant and parallel work of construction (descriptive) and deconstruction (normative) of the links between citizenship and allegiance that the reader must keep in mind in order to fully grasp the scope of the work and the argument.
The subject of the book is also particularly complex. The concept of allegiance is polysemous. In fact, it is defined in three specific respects: as a feudal relationship of a quasi-synallagmatic nature (the submission of a vassal to a suzerain in exchange for protection); as a synonym for nationality; and as a set of obligations (or duties) owed by a citizen to his state. Of these three definitions, Irving has chosen to focus primarily on the last, i.e., what allegiance implies in terms of a citizen’s obligations. This essay is therefore firmly rooted in law, in that it focuses primarily on the norms and judicial decisions that formally or substantively manifest the idea of allegiance as a synonym for – or a requirement of – citizenship.
It is therefore a pleasure to revisit often familiar issues in thematic chapters on dual citizenship, naturalisation, oaths, treason, and the loss and acquisition of citizenship, reconsidered from the perspective of allegiance. More generally, at a time when citizenship carries many rights but few obligations (Ferrera and Bauböck 2017; Joppke 2010), it is interesting to show that citizenship still imposes many constraints. Indeed, this status is also a matter of verticality and subordination, which is well reflected in law and legal discourse. Treason, oaths, restrictions on access to elected office, the risk of losing citizenship by breaking allegiance, etc. are all situations in which citizenship is a burden, a brake on autonomy and freedom, rather than a source of emancipation. The book brilliantly highlights this vertical and restrictive dimension of citizenship, while at the same time calling for a horizontal, democratic and liberal conception of citizenship, free of allegiance.
Allegiance, not a relic? A regional perspective
Since the Calvin’s case, the common law has made allegiance the criterion of nationality and the basis of a series of duties incumbent on citizens. This model continues to this day. Irving shows perfectly how the oath of allegiance or the restrictions on political participation of dual citizens, which are the subject of two chapters, are fuelled by the notion of allegiance. Specifically in the Australian context, dual citizens cannot stand for elective office because of the allegiance they owe to another state – a situation recently settled, but certainly not ruled out, by the Australian courts, as shown by Irving. While oaths of allegiance are a clear constraint on the body of newly accepted citizens. They are very powerful constraints on citizens, on their agency and their aspirations, demonstrating their submission to the state of which they are citizens. The allegiance implied by citizenship constrains citizens to an extent that is often ignored. This constraint is proven both formally (law in books) and materially (law in action) by the notion of allegiance.
But what is the scope of this analysis? The author legitimately points out, at the beginning of her book, that “this is not a work of comparative law.” However, she considers that the selection of examples from “mostly (but not exclusively) common law, English-language jurisdictions” has a global purpose: “I have drawn on these examples to illustrate assumptions, claims, dilemmas and legal initiatives that are common to many, maybe even most, countries, and I hope the examples will be read in this light” (Irving 2022, x). However, the inevitable comparison that the continental (and especially the French) reader makes with his or her own system reveals a number of divergences that temper the global scope of Irving’s analysis.
First, on a purely semantic and formalistic level, the discourse of allegiance is not global. Paul Lagarde, author of the reference treatise in France, writes that “the political bond of allegiance was once very important. It expressed a personal bond, like that of the vassal to the suzerain, and was in principle permanent. What remains today is a situation of subordination of the national to his state, manifested in a certain number of obligations (obligation of loyalty, military obligations)” (Lagarde 2011, 2, my translation). However, the small number of obligations (and in particular the disappearance of military service) compared to the rights conferred by citizenship has gradually erased the bond of submission, the verticality of nationality. In fact, the term disappeared from French legislation in 1973 in order to simplify and adapt the legal language. Only administrative practice still uses it to describe the voluntary loss of nationality (“libération des liens d’allégeance”), as does administrative and judicial case law. The term therefore survives in scattered use as a subtle and somewhat outdated synonym for nationality.
Second, from a material point of view, Irving’s most striking examples are geographically situated. Oaths of allegiance are relatively specific to countries with a common law tradition. Neither France nor Germany, for example, use them. The prohibition on dual citizens holding elected office is again a specific consequence of (exclusive) allegiance that is difficult to generalise globally – many countries do not attach any particular consequences to dual citizenship. Moreover, while treason is undoubtedly a criminal constraint specific to nationals, the French context again allows for nuance. Article 411-1 of the French Criminal Code, which opens the title on offences against the fundamental interests of the nation, states that “the acts defined in the [relevant] articles shall constitute treason if committed by a French national or a member of the military in the service of France, and espionage if committed by any other person.” The offences are therefore exactly the same whether they concern a French person or a foreigner, the only difference being semantics: the French person is convicted of treason, the foreigner of espionage. The coercion is therefore universal, only the name changes.
The point here is certainly not to compare one regional perspective with another. Two regional perspectives do not make a global one. Rather, if Irving’s argument is not global, the point is to understand why. One possible explanation lies in the nature of the common law. Traditionally, it provides the best surviving examples of feudal institutions. As early as 1933, a French author wrote that “the history of allegiance in French law is not as sharp as in English law. The institution lost its feudal character much faster than in England. […] In all areas of law, England is the country that has kept its feudal traditions intact the longest, and it is always to English law that we must turn if we wish to study in detail the characteristics and history of a feudal institution” (Kieffé 1933, 60, my translation). The feudal system, enduring through monarchy, subjecthood and allegiance, continues to produce part of the specificity of common law citizenship. Making the (not only continental) observer aware that allegiance still saturates the norms and decisions about citizenship in common law legal systems is a key feature of this book.
Allegiance or loyalty? A conceptual dilemma
There is a certain tension in Irving’s work when allegiance is equated with loyalty. Are the two synonymous? It is true that the author follows the existing literature, which postulates this identity in a particular context. In international law, allegiance would be synonymous with nationality (a status), while in domestic law allegiance would be synonymous with loyalty (an obligation) (Boll 2005). In the abstract context of relations between a state and its citizens, allegiance would be “loyalty to the law,” while obedience alone would be “conformity to the law” (Orgad 2014, 100). Loyalty would thus be an obligation translated from allegiance in domestic law and made the duty of citizens only. Irving’s book, however, seeks to give consistency and autonomy to allegiance, evoking its ‘comeback’ or ‘amplification’ in law and legal discourse, and the subsequent need to fill a gap in the literature to describe an “enigmatic and under-theorised” concept. How, then, are we to understand the fact that loyalty and allegiance are regarded as synonyms, used together, or that loyalty is regarded as allegiance, especially in the literature? In other words, since Irving’s aim is to evoke the return or intensification of the notion of allegiance, it is precisely to demonstrate its distinctiveness in relation to other competing notions, and the indiscriminate use of loyalty seems to run against this ambition.
While it is true that allegiance per se no longer attracts much academic attention, the same cannot be said of loyalty, which is at the heart of contemporary analysis of citizenship. Unlike allegiance, loyalty is not particularly enigmatic and certainly not under-theorised (see, among many others, Stilz 2011). Loyalty is thus at the core of new conceptions of citizenship, “harder to get, easier to lose” (Macklin 2017; Joppke 2021), where allegiance to the values of the state, not only in actions but also in hearts, determines the conditions for acquiring but also retaining citizenship. Taking the two terms as synonyms thus defeats Irving’s aim of providing a special and specific analysis of the concept of allegiance in the twenty-first century. The book thus inevitably leads us to question the synonymy between these two concepts, especially as the law leaves room, and provides keys, for comparison.
The 1961 Convention on the Reduction of Statelessness makes an instructive distinction between the two concepts. Article 8(3) authorises, by way of exception, the loss of nationality leading to statelessness if, on the one hand, the person has acted in a manner inconsistent with his or her ‘duty of loyalty’ (a) or, on the other hand, has sworn ‘allegiance’ to another State or has manifested a definite intention “to renounce his [or her] allegiance” to his or her State of origin. This distinction between loyalty and allegiance in the flagship instrument of international nationality law shows that positive law does not make these terms synonymous. It follows that in this Convention, allegiance seems to be understood as formal submission to a foreign State or formal repudiation of one’s own State of origin, whereas loyalty is understood as actions that are detrimental to the interests of the State.
Moreover, loyalty goes far beyond the context of citizenship. It is central to contractual relations between individuals and between States, and reflects a requirement of good faith in fulfilling legal obligations. Loyalty is thus a way of circumscribing the actions of legal subjects within the ends accepted by the obligations they perform. A legal theory of loyalty could attempt to observe how this notion, which is part of the horizontal framework of private law, has blossomed in citizenship law. More precisely, loyalty is rooted in the will of the individual. It has a contractual and horizontal dimension. The coercion that it may generate is simply the consequence of the individual’s commitment. Allegiance, by contrast, might be more indicative of submission and verticality (although the contractual idea is historically not absent). This is why liberal democracies demand loyalty rather than allegiance, i.e., voluntary submission out of attachment to the law rather than forced submission imposed by the law.
Helen Irving’s book makes visible (and therefore debatable) the return of allegiance in citizenship – in a way that is probably more material than formal. This review, moreover, does not detract from the depth of theorisation on the nature of citizenship that the author brings in this book and the mapping of all the contemporary challenges of citizenship. As such, her essay invites scholars to further generalise and delineate her major investigation.
 The Convention establishes, in the same article, two situations that clarify what is meant by a breach of the ‘duty of loyalty’: “the person (i) has, in disregard of an express prohibition by the Contracting State rendered or continued to render services to, or received or continued to receive emoluments from, another State, or (ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State.”