Rachel Pougnet (University of Bristol)
Helen Irving’s Allegiance, citizenship and the law is a fascinating inquiry into ‘allegiance’ as the counter-part of citizenship. Through an exploration of the history and modern usages of the concept, this book not only provides its readers with a much-needed clarification of what allegiance actually means, it also forcefully demonstrates allegiance’s inadequacy in a modern democratic context.
Irving explains that to talk about citizenship as allegiance is fundamentally incompatible with liberal democratic principles because it connotes a disposition of unreflective pre-commitment and obedience on the part of the individual to the state. But Irving does not stop at dismantling allegiance; she also works to characterise what, in fact, glues citizens together and with their state. Throughout the book, we are reminded that citizenship is foremost a formal legal status. But while it is formal, it is also not merely formal. It is the legal but also the existential difference between citizens’ and aliens’ territorial abode (the right to return and remain in one’s own country). And it is this territorial belonging that promises protection and self-government. In sum, the ‘glue’ of citizenship, Irving tells us, is shared territoriality from which arises a common interest in governing the state. Answering the ‘century old question’ of the citizenship bond is by no means an easy task and I am grateful to the author for exposing her views in such a clear and convincing manner, leaving us readers with much food for thought.
A ‘wolf in sheep’s clothing’: allegiance in the citizenship deprivation debates
Let me begin elaborating on these thoughts with a brief digression. Imagine it is October 2015, in France. Paris had recently been the theatre of a series of terrorist attacks. The city is about to witness another set of traumatic events which will propel a full-scale constitutional revision with proposals to introduce citizenship deprivation together with a state of emergency in the constitution. Perhaps setting the tone for the proposals that were to come, on 7 October, the Ministry of the Interior deprived 5 people of their citizenship. These five individuals had all been convicted of a terrorist offence in 2007; they were all multiple nationality holders and they had all acquired French citizenship after birth (two were born in France to foreign parents, one acquired citizenship as a child following the naturalisation of his father, and two had acquired citizenship by marriage). They all appealed the decision before the Conseil d’Etat arguing, amongst other issues, that their loss of citizenship constituted a disproportionate infringement of their right to private and family life (article 8 of the European Convention of Human Rights).
In this ‘M.A’ case, (later to become Ghoumid v France the Conseil d’Etat acknowledged that losing one’s citizenship affected one’s ‘social identity’, which is protected under the ‘private life’ limb of article 8. The pressing question for the court thus became how to measure, in law, the strength of this social identity, the importance of a person’s citizenship in their private life? In the eyes of the rapporteur- the person in charge of advising the court – the Conseil d’Etat had to look at the person’s mode of entry into the citizenry (naturalisation, registration, etc), the length of time since acquiring citizenship and the degree of their allegiance to French dominant values, or to put it more crudely their degree of ‘integration’. Applying these criteria to the facts of the case, he concluded that while three out of the five individuals in this case had a strong claim under article 8 (because they were born in France and/or had acquired citizenship as minors):
[…] the actions for which they have been convicted [terrorism] reveal [different] allegiances as well as the little role that their allegiance to France and its values played in the development of their personal identity.
In a nutshell: their integration had failed. France and its values had not played an important role in the development of their personal identity. But rather than France’s failure, the failure was interpreted as theirs and theirs alone: they had failed in their test of becoming good citizens by acting in ways that were considered to be fundamentally ‘un-French’.
There is much in this brief account that illustrates the ‘come back’ of allegiance that Irving warns us about. Indeed, the use of allegiance in the rapporteur’s conclusion does not only suggest that certain conduct are treated as revealing of (dis)allegiance (which is not in itself new), but also that allegiance is increasingly treated as revealing a subjective pre-disposition; a predisposition that prompts the court to inquire whether ‘a fellow citizen in law is also a fellow citizen in conscience’ (p. 11), with the risks that this carries in terms of stigmatising conducts and communities. Crucially, this ‘come back’ of allegiance has been suited to expand state powers. As Irving reminds us throughout the book, while allegiance is couched in discourses that promote social cohesion and solidarities, it is in fact a tool that predominantly works in the hands of the state, effectively ‘a wolf in sheep’s clothing’ (p. 17).
‘Protection’ in the citizenship bond
Put differently, there does not seem to be any counterpart to the government’s attribution of a duty of allegiance to citizens; its historical alter ego – the performance of a duty of protection- has largely been evaded in state discourses and practices. One of the great values of the book, in my view, is to begin to engage with a much-needed discussion about ‘protection’ from a citizenship and constitutional perspective.As Irving makes clear, discarding allegiance in discourses about citizenship should not amount to the dropping of protection – on the contrary, the trend should be reversed (protection should be kept without allegiance). Indeed, protection is one of the ‘very purposes of government’, an ‘elemental need in human life’, a ‘particular obligation to citizens linked to the institutions of democratic government’ (p. 106). Should we endorse this conclusion (as I think we should), this paves the way for rich new scholarship focused on the content and effect of this duty to protect (also sometimes framed as a ‘duty of care’ in the literature) in the citizenship bond, its roots, attendant territorial connection and (in)application, from theoretical, historical, or comparative perspective. For example, how is ‘protection’ conceptualised in ‘de-territorialised’ spaces, say in discourses on citizenship at the level of the European Union? What consequences are attached to the state’s failure to protect? (Pretty much none, I would suggest; indeed, in the context of terrorism, mechanisms to compensate victims have typically been created to avoid state’s liability). And what do we make of state’s selective application of ‘protection’, of protection’s unequal distribution, such as in the context of state’s refusal to repatriate so called ‘foreign terrorist fighters’ and their families? (The analysis of which would have been very much at home in this book as a particular set of discourses and practice of allegiance).
Another area of research that this book opens up, I think, is comparative in character. Irving makes clear that the scope of her book is not one of comparative law; yet, one could imagine new research on allegiance from a comparative and socio-legal perspective. Do claims of allegiance have the same substance everywhere? And if not, why not and how does it affect state practices today? My hunch is that this would have something to do with state’s historical contexts, with different modes of government and, also, with colonialism (indeed, most of the examples in the book have some connection with the UK). Furthermore, the French example illustrates that being a republic and not sharing a colonial history with the UK does not mean that citizenship in that country is shielded from the return of discourses of allegiance.
Conclusion To finish with perhaps a less cheerful note, I retain some doubts about the claim in the book that we are moving towards a world based on the sovereignty of the individual-citizen. Certainly, many states prohibit the loss of citizenship (perhaps adopting the view of the constitutional sovereignty of the citizen – as in the U.S. (Weil 2012)– although this will need to be checked empirically); and certainly, the individual – understood as a person endowed with rights – is much more present than it was before in processes of legitimation of state practices; but this is different from talking of a global trend towards the reshuffling of the relationship of sovereignty. Indeed, it is perhaps better to interpret Helen Irving’s claim as a call to move away from a world of sovereign states, rather than an empirical account of what is actually happening on the ground. This is a call that I would very much endorse. With this in mind, I will conclude by re-stating that this is a really important book and a must read for anyone concerned with the ‘what’ that binds citizens together, as well as citizenship studies more broadly.