Eric Fripp (36 group/36 Public and Human Rights)
As Helen Irving makes clear in this intelligent, clear and fair-minded work exploring the standing of allegiance as a legal concept, its identification as such invokes substantial questions. In Calvin’s Case (1608) 77 ER 377; (1608) Co Rep 1a, allegiance (or ‘ligeance’ in the language of the case) was taken as a key aspect of the relationship between subject and sovereign. But the world has changed, and the law with it. Irving asks how this has affected the survival of allegiance within the law.
An important part of Irving’s conclusion is that allegiance ‘cannot be the bond’ between an individual citizen and the state (p. 165) ‘as it connotes a vertical, subordinate relationship of obedience on the part of the person to the sovereign state [whereas] the relationship between citizens in the modern liberal democratic state must be horizontal and egalitarian, as is necessary for self-government.’ That disapproval of allegiance is natural if one accepts a definition of it as a relationship imposing absolute subservience to the state by the citizen. But I doubt that that definition does justice to the concept overall, expressing as it does only one possible understanding amongst a wide, perhaps almost infinite, range of meanings.
In this response I would like first to consider the place of allegiance – whether it is located in international or domestic law or both. This is, as it were, an addition to the ground covered by Irving. Thereafter, I will address some issues raised by Irving in her survey, necessarily focusing on those where ground for query arises. Finally, I will try to offer an alternative conclusion to her rejection of allegiance, which I believe depends on an over rigid definition. I believe an alternative to complete rejection of the concept is consistent with the commitment to liberalism – in the loose sense of a political and moral philosophy attaching a high value to civil liberties, democracy, individual rights, and equality – which I believe we both hold as important. However, I willingly accept that setting out a possible alternative way of thinking about allegiance in the law does not diminish the importance and interest of Irving’s work, which casts valuable light on an important area deserving of continued examination.
It seems that in international law allegiance has been seen almost exclusively as a satellite concept related to nationality. In the 1950s, Paul Weis (Weis 1956, pp 131-2) cited allegiance principally in describing the principle of inalienability of nationality which had come to Anglo-Saxon common law from Roman law, but had been abandoned in the United Kingdom and the United States by the time of writing. Oppenheim’s International Law states (Jennings and Watts, eds. 1992, pp. 851-2) that ‘Nationality of an individual is his quality of being a subject of a certain state. It has its origins in the notion of allegiance owed by the subject to his king, and traces of that underlying notion remain.’ But the reference to allegiance obviously suggests at least fading if not disappearance since the ancient days. As to more recent sources, the Max Planck Online Encyclopedia of Public International Law does not offer any discrete entry on ‘allegiance’. The entry on ‘nationality’, by Oliver Dörr, mentions it in passing as a duty of citizenship (in the current discussion one could say ‘an assumed duty’ of citizenship), the perceived diffusion of which has motivated past state opposition to dual nationality- reinforcing the sense of national law as the home locus of allegiance, so far as it has one. In this light, allegiance has no place in international law. Irving rightly identifies the fact of debate concerning the claim of ‘genuine link’ between individual and state as a requirement for extension of nationality on the plane of international law, arising from comments in the decision of the International Court of Justice in the Nottebohm case (Liechtenstein v Guatemala) ICJ Reports (1955) (pp. 39-40, 144-145). Irving cites this as an issue raised by opponents of dual nationality (pp. 40-41). She does not suggest that ‘allegiance’ constitutes the elusive ‘genuine link’, or a part of it. Nor, so far as can be seen, do promoters of the existence of such a link- although proponents have been notably slow to identify any substantive content that can be associated with a ‘genuine link’. Overall, the ‘genuine link’ principle is perhaps best regarded as a narrow construction limited, in effect, to the sphere of international protection, as Chittharanjan F. Amerasinghe has suggested (Amerasinghe 2008, pp. 113-116). There are compelling arguments that if any wider requirement applicable to naturalisation arises, its substance is very limited indeed – perhaps only the important constraint noted by Peter Spiro by which from the later 19th century “states were subject only to one clear constraint: they could not naturalise an individual without [that person’s] consent” (Spiro, 2019, p. 4). There seems little basis for any claim to allegiance, however defined, as an aspect of such a ‘genuine link’ requirement.
Allegiance therefore has contact with international law, if at all, as a projection of a feature in domestic law akin to nationality as an extension from citizenship. However, in contrast to nationality, allegiance would seem, if projected onto international law, to have little or nothing actually to do there. It seems to be a concept relevant to law, if at all, in the context of domestic law, which may or may not rely on it- it is possible to imagine cases in which it would be redundant, for instance a state where the population is so coerced by the ruler or rulers that loyalty or allegiance in any form is unnecessary.
Irving conducts a scrupulous (and consistently interesting) examination of the areas in which considerations of allegiance may arise in domestic laws, citing leading scholars. Addressing dual citizenship, she notes that the great increase in multiple nationality of recent decades has not dispelled the idea of nationality or citizenship as exclusive (p. 42). In her assessment she emphasises an extremely strong definition of allegiance: “liberal democratic principles do not sit comfortably, to say the least, with the idea that citizens instinctively or unthinkingly obey the state of one citizenship against the state of the other.” I agree, but I wonder if the definition used is in this context an obstacle to realistic assessment. Instinctive or unthinking obedience is only one very particular, and extreme understanding of allegiance, and probably alien to most people who think about this. There is no obvious reason, to take a personal example, why one cannot be a citizen of Canada and the United States, notwithstanding different political cultures and regular disagreements over, for instance, timber export or automobile manufacturing quotas. It is not just that a citizen may look beyond such disagreements, but that loyalty may be broader or based on other matters. If allegiance is owed not to the executive, but to some arguably greater idea of the state, it is not dispelled even by dramatic disagreement by a citizen with the actions of the state: a citizen of a state with a tyrannous regime, such as North Korea or Myanmar today, may feel loyalty amounting to allegiance to the country or its people or some other aspect of it rather than to the ruler, or any policy or action thereof. A citizen may obviously detest a state’s leaders or its actions, without detesting the country. Some people who take up arms against a regime would strongly defend the proposition that allegiance to the state or an idea of it is precisely their reason for doing so.
Irving looks next at the discrepancy between the imposition of ‘citizenship tests’ for those naturalising as citizens and the absence of these born citizens, which is undeniable (pp. 55-57). But it is not clear that there is illogic or harm in asking for some sign of commitment from those seeking naturalisation, even if those already possessing nationality are not subject to the same requirement, or that in some way this is harmful. Inconsistency may simply reflect historical development or the different political positions of those already citizens and those seeking to join, and given the relative autonomy of states in nationality it is hard to say that imposition of such tests by law is objectionable per se.
Addressing treason and the growing phenomenon of deprivation of citizenship by states, Irving makes the valid observation that prosecutors and legislators increasingly focus on deterrence or penalisation of specified conduct, rather than breach of a more abstract attributed allegiance. She suggests that “modern liberal principles require that crimes should not be identified on the basis of the character of the victim” and that punishment for a ‘crime against the state’ or ‘crime against the people’ is objectionable; “evok[ing] a totalitarian conception of government” (p. 109). This might be so- but should perhaps depend upon the relationship of individual, state, and/or people in the individual case rather than be admitted as a categorical statement.
In these chapters, Irving provides a consistently attractive and tightly focused survey of the main instances, or potential instances, of allegiance in domestic laws.
Irving writes so well, and this is such an interesting survey, that it requires an effort to venture disagreement with her conclusion that the concept of allegiance is antithetical per se to the liberal democratic state. I am grateful to Irving for prompting me to a much closer examination of the concept of allegiance – and some important considerations concerning the state- than I might otherwise have entered into, but I do disagree on this important matter, expressed in its strongest form. Effectively I believe that allegiance, in some form, is not antithetical to, and may indeed be necessary for the preservation of, liberal democracy.
Paul Weis noted that the word ‘nationality’ had two meanings which had to be distinguished. The first denoted political and legal linkage to a state, the second was a “historico-biological term denoting membership of a nation” (Weis 1956, p. 3). The former was a term of positive law, the latter a more elusive concept of social science which the lawyer could (perhaps with gratitude) leave aside as irrelevant. This distinction seems relevant to allegiance because whilst capable of (for instance statutory) definition, allegiance has a continuing existence as a fluid concept, somewhat akin to nationality in Weis’ second sense. On this understanding the understanding of ‘allegiance’ is both fluid and variable- it will change over time, and it has multiple subjective meanings for different people or groups of persons or institutions, some if not all perhaps transient, internally contradictory, or imperfectly realised. Allegiance is similar to ‘punishment’, which Nietzsche categorized as representing “an entire process [which] is semiotically concentrated” and “defy[ing] definition” stating famously that “only something which has no history can be defined”. The philosopher Raymond Geuss points out that for Nietzsche the difference between two types of institution was that “A triangle was a triangle in fifth-century Greece or in nineteenth-century Tasmania, and the same was true of water. Human history, though, was concerned in the first instance not with entities such as these, but with objects such as Christianity, punishment, conscience, and morality, which were historically inherently variable…” (Geuss 2001, p. 7). Irving is obviously very conscious of history and its relevance to the enquiry in this book, and I suspect she would agree with Geuss that in considering a complex human conception “there is no analytic short-cut, no Royal Road… which bypasses history and yet leads to any significant understanding” (Geuss 2001, p. 8). In this light allegiance must be understood as a concept which in general is radically unfixed, being highly fluid, subject to plural interpretations, and resistant to final definition.
The concept of allegiance is not unusual amongst our current institutions. The modern concepts of ‘nation’, ‘nationality’, and ‘citizen’ have little precedent before the late 18th century, and the terms were often used with very different meanings prior to this. Concepts closely related to ‘allegiance’, such as ‘nationality’ and its cognates ‘nation’ and ‘nationalism’ have remained resistant to close delineation despite intensive study: ‘notoriously difficult to define, let alone to analyse’, in the words of the political scientist and historian Benedict Anderson (Anderson 2016, p. 3). The concepts are more novel than may be acknowledged: the historian Eric Hobsbawm said both that “[t]he basic characteristic of the modern nation and everything connected with it is its modernity” and that the criteria for nationhood “language, ethnicity or whatever- are themselves fuzzy, shifting and ambiguous” (Hobsbawm 1992, pp, 6 and 14). Assumptions about the past may miss important aspects of historical concepts and usages: Irving cites Salmond on the mediaeval relationship of liege lord and subject as a root for the concept of allegiance (p. 1), but modern lawyers’ analyses of legal concepts used in the Middle Ages probably elide a great deal of what was in practice something with a large degree of fluidity and variation, given human diversity and imagination and changing circumstances including shifting general or individualised balances of power.
Irving concludes, as I noted at the start of this response, that the concept of allegiance is inconsistent with modern liberal democratic values. Accepting as I do a set of liberal political and moral ideas, must I reject the continuing relevance of allegiance? It seems to me that the answer is negative. In Terminiello v City of Chicago, 337 U.S. 1 (1949), a decision of the United States Supreme Court concerned with the constitutionality of restriction on speech which in the case at bar had been used to incite a mob to racist violence, Associate Justice Robert Jackson stated “The choice is not between order and liberty. It is between liberty with order and anarchy without either… if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” I wonder in this context whether the liberal democratic state can afford to dispense with allegiance, including an allegiance which may be variable and conditional but also lend sustaining power to liberalism and democracy.
I do so because beyond the trite observation that the continuation of particular political and social institutions is not self-guaranteed lies the more complex question of what does lead to continuation of such institutions. Addressing the conditions for existence of nationhood, Ernest Renan famously asked why the Netherlands was a nation, when Hanover and the Grand Duchy of Parma were not. Renan’s answer was that something more than physical or demographic characteristics, in the nature of a collective volition, was necessary: “A nation is therefore a vast solidarity… It presupposes a past; it is however summarized in the present by a tangible fact: consent, the clearly expressed desire to continue a common life. A nation’s existence is (if you will pardon the metaphor) an everyday plebiscite, just as an individual’s existence is a perpetual affirmation of life…” (Renan 1882, pp. 261-2) The continuity of liberal and democratic institutions does not necessitate an imposition of instinctive or unthinking obedience, of the type Irving and I both find objectionable because of the authoritarian or totalitarian character of any such requirement. But neither, I suggest, should the notion of allegiance as consistent with or even necessary to the survival of liberal democracy be dismissed out of hand, solely because one extreme variation of this highly fluid and subjective concept may be theoretically incompatible with it. At some point a democratically appropriate form of allegiance- including a loyalty to democracy and common interest in its continuity- may represent a necessary condition for the survival of democracy itself. If so, it is hard to see why or how it can be entirely excluded from relevance to law. It may certainly be better taken up by law, then left to the extension of politics lying beyond the scope of law and juridical order. These thoughts would not have come to me without the prompting of Irving’s work, for which I am grateful and which I strongly commend to the reader.