RESPONSE
Timothy Jacob-Owens (University of Edinburgh)
Helen Irving’s new book is now surely the reference work on the manifold intersections between citizenship, allegiance, and the law, offering a rich synthesis of pre-existing historical and theoretical work (including by Irving herself) together with a set of novel legal insights and thought-provoking normative claims. I have nonetheless also been struck by certain gaps and limitations pertaining to Irving’s (1) case selection, (2) thematic focus, and (3) normative prescriptions. I consider each of these in turn below.
The title of the book, Allegiance, Citizenship and the Law: The Enigma of Belonging, gives no indication of any geographic focus. However, it quickly becomes apparent that Irving’s account is by no means global in scope. Instead, as she notes in the preface, her analysis focuses on illustrative examples drawn ‘mostly (but not exclusively) [from] common law, English-language jurisdictions’ (p. x). Among these jurisdictions, there is also a pronounced bias in favour of a familiar handful of states in the so-called Global North. This bias is not without exceptions. For instance, in discussing restrictions on dual citizens holding public office, Irving refers to examples from countries including Fiji, Jamaica, and Pakistan (p. 34). Nevertheless, the bulk of the materials which receive any in-depth treatment are drawn from Australia, Canada, the United Kingdom (UK), and the United States (US).
The focus on these latter states might be (partially) justified on the basis of the shared historical origins of the association between allegiance and (legal) citizenship in the common law world. As Irving explains (pp. 5-6), this association can be traced to Calvin’s Case of 1608, in which Sir Edward Coke affirmed that allegiance to the Crown was the defining feature of English subjecthood. As a consequence of English and later British imperialism, this conception of subjecthood was subsequently transmitted across the territory of the Empire and has been retained in various guises across the common law world to this day. Irving’s narrow case selection might be further (partially) explained by her focus on ‘modern liberal democratic states’ (p. 5), which follows from the book’s overarching aim of determining whether allegiance is compatible with liberal democratic principles. This focus would seem to rule out some other potential inheritors of the English law of subjecthood: for example, while Zimbabwe’s post-independence citizenship law has been strongly influenced by its British colonial heritage, the country is unlikely to be considered a liberal democracy.
However, neither the historical context nor Irving’s theoretical orientation can fully explain her focus on the aforementioned Anglophone, common law states in the Global North. While the common law notion of ‘allegiance’ may be unique in its origins, analogous concepts also exist in the citizenship law of civilian jurisdictions. For instance, as Claus Hofhansel discusses, ‘loyalty’ has played a key role in the development of German citizenship law, including with respect to naturalisation requirements, modes of citizenship loss, and the regulation of dual citizenship. Greater attention to the various overlaps (and indeed differences) between common law allegiance and its civil law counterparts could have provided both richer legal insights and a more robust foundation for Irving’s theoretical claims. The bias in favour of the ‘usual suspects’ of Australia, Canada, the UK, and the US is even less clearly justifiable, given the availability of pertinent examples from (Anglophone, common law, liberal democratic) states elsewhere in the world. There is, for example, a rich seam of constitutional jurisprudence emanating from the Commonwealth Caribbean concerning ‘foreign allegiance’ as a disqualification for holding parliamentary office: see, for example, the decision of the Caribbean Court of Justice in Ram v Attorney General [2019] CCJ 10 (AJ) (N.B. as an illustration of the region’s liberal democratic credentials, note that Barbados has a higher Freedom House score than either the UK or the US). More detailed engagement with such examples could have strengthened Irving’s claim that her chosen materials ‘illustrate assumptions, claims, dilemmas and legal initiatives that are common to many, maybe even most, countries’ (p. x, emphasis added). At the very least, a more clearly articulated explanation of and reflection on the limitations of the book’s geographic scope would have been a welcome addition to the overall framing.
Alongside, and perhaps in part because of, the focus on the ‘usual suspects’, the book is also silent (or at least quiet) on the theme of empire and its relationship with allegiance. As noted above, Irving’s historical account traces the origins of common law allegiance to Calvin’s Case. In his report on the case, Sir Edward Coke concluded that anyone born within the king’s ‘power and protection’ would be automatically considered an English subject, necessarily owing a concomitant obligation of allegiance to the Crown. As Keechang Kim explains, in arguing for this conclusion, Coke was ‘advocating James I’s imperial claim that all the peoples under his subjection – in and out of England – should be united in one political and legal unit’. By liberating ‘the notion of allegiance […] from the confines of the kingdom and its law’, and in anticipation of the dramatic territorial expansion engendered by English and later British imperialism, Calvin’s Case allowed for the involuntary attribution of subject status to everyone born in both the metropole and the colonies. In turn, this served to project an image of a single, homogenous political community stretching across the Crown’s dominions. Calvin’s Case thus helped to lay a ‘founding stone of the British Empire’, ensuring that territorial conquest and the (legal) subjection of colonised peoples went hand-in-hand.
This important aspect of the history of common law allegiance is largely overlooked in Irving’s account. This is not to suggest that she makes no reference at all to the historical implications of an allegiance-based conception of citizenship for colonised peoples. In the introduction to the book, for example, she notes that prior to the enactment of the 1924 Indian Citizenship Act, Indigenous peoples were denied citizenship in the United States on the basis that they were considered to owe allegiance to their ‘tribal nation’ (pp. 7-8). Nonetheless, the book does little to explicitly acknowledge the role of allegiance as an instrument of imperialism. Nor does the book address the ongoing coloniality of contemporary citizenship law and the role of allegiance therein. For example, Zainab Naqvi has shown that the practice of citizenship deprivation in the UK (discussed by Irving in chapter 6) is ‘rooted in racist imperialist ideologies’ which are closely tied to Britain’s role as a former colonial power. Relatedly, in Canada, New Zealand, and Solomon Islands, as well as in a majority of Britain’s former Caribbean colonies, including Antigua and Barbuda, Grenada, and St Kitts and Nevis, the practice of ‘swearing allegiance’ (discussed in chapter 4) has retained an overtly colonial character: applicants for naturalisation are still required to swear that they will ‘bear true allegiance’ to the British monarch and to their ‘Heirs and Successors’. Notwithstanding their obvious links to many of the book’s core themes (hierarchy, subordination, obedience, and so on), such examples – and their ties to the project of empire – go unmentioned in Irving’s analysis.
In turn, this inattention to citizenship law’s ongoing coloniality ultimately weakens the force of Irving’s normative prescriptions. Throughout the book, she develops a compelling argument against the idea of allegiance as the ‘modern citizenship bond’, grounded in the claim that ‘it connotes a vertical, subordinate relationship of obedience on the part of the person to the sovereign/state’ (p. 165). In place of allegiance, Irving suggests that we should see the roots of the modern citizenship bond as lying in the notion of shared territoriality: ‘What legal citizens have in common is a shared legal belonging to a particular territory over which they, in common, exercise self-government’ (ibid.). This shared legal belonging requires neither ‘a love of their country nor a commitment to its ideals’; rather, it is ‘a type of self-interest that, logically, citizens must extend to other citizens’ (ibid.).
While I agree that shared territoriality seems a more attractive starting point than allegiance, I remain somewhat sceptical about its applicability in the many societies across the world in which territoriality has figured as a highly contested feature of (post)colonial citizenship. In an early footnote, Irving rightly observes that ‘the colonised cannot be asked to owe allegiance to the government of the coloniser’ (p. 15, fn 39). How, then, should the (formerly) colonised be asked to engage with the notion of shared territoriality in postcolonial/postimperial societies? As Nadine El-Enany has shown, unequal access to the metropolitan territory of Britain – with the accompanying material benefits of wealth, safety, security, and so forth – has been a central feature of the past and present experience of British subjecthood/citizenship for racialised groups. For example, in the late 1960s and early 1970s, despite enjoying the same legal status as their (predominantly white) counterparts in Britain, British people of South Asian descent were denied the right to enter the UK as they fled persecution in the former protectorates of Kenya and Uganda (as discussed e.g. here by Ian Sanjay Patel). A similar denial of shared territoriality has likewise characterised the UK’s relationship with both members of the Windrush generation and the Chagos Islanders, the latter of whom have been refused access not only to Britain but also to their ancestral homeland (as I have outlined elsewhere). In this context, can shared territoriality plausibly be considered the essence of the British citizenship bond? In a similar vein, in the former settler colonies of Australia, Canada and the US, where the ‘sharing’ of territory has come about as a consequence of genocide and dispossession, is it really the case that Indigenous peoples ‘must extend’ a shared sense of legal belonging to the descendants of white settlers? In short, while Irving’s normative vision may be appealing in the abstract, it strikes me as naïve, if not potentially counterproductive, in a world still profoundly shaped by the legacies of Europe’s empires.
Overall, Irving’s book undoubtedly represents an important step forward for the field of citizenship law and for citizenship studies more generally. Nonetheless, the past and present coloniality of common law allegiance and its implications for citizenship theory in postcolonial/postimperial societies still leave plenty to explore.