RESPONSE TO REVIEWERS
Helen Irving (University of Sydney)
Let me begin by expressing my immense gratitude to GLOBALCIT for organising this book symposium, as well as to the reviewers who so generously read and wrote about my book, pushing me to reflect in greater depth on the subject and inviting me to view my conclusions from multiple lines of inquiry.
The question of definition
In the book I define allegiance as, essentially, a relationship or orientation of obedience on the part of the citizen to the sovereign or the state, a relationship that is fundamentally incompatible with liberal-democratic values. Some reviewers question this definition. Eric Fripp considers it ‘extreme’ and ‘over-rigid’. There is an alternative definition, he suggests, one that is consistent with a commitment to liberalism – ‘civil liberties, democracy, individual rights, and equality.’ I’m not entirely persuaded that this is an alternative definition, so much as a hopeful claim, but my question in return would be: how much, in reality, does this alternative definition reflect the current use of the term allegiance in its recent ‘comeback’ in law and in legal/political discourse? (Fripp’s particular reason for seeking such a definition – the dangers to democracy of rejecting allegiance as the bond between citizens – is discussed below.)
Jules Lepoutre, describing the concept of allegiance as ‘polysemous,’ suggests that my conflation of allegiance with ‘loyalty’ defeats the aim of a specific analysis of twenty-first century allegiance. I agree that ‘allegiance’ may indeed carry definitional specificity not captured by ‘loyalty’ (and vice versa). The use of both terms, sometimes together, and often just loosely, certainly created challenges for interpretation, but I nevertheless found many examples of ‘loyalty’ which captured, I thought, the same meaning as allegiance and/or conflated the terms. Still, Lepoutre’s unpicking of these terms (including as they are employed in the 1961 Statelessness Convention) is informative and stimulating; one can indeed imagine a dedicated study of the subject. I’m not sure, however, that Lepoutre’s idea of loyalty as ‘voluntary submission’ – if by this is meant pre-commitment – works much better than ‘allegiance’ in expressing attachment between citizens and liberal democracies. Willingly submitting, like willingly taking an oath, conveys a suspension of the critical, reflective scrutiny of power and its exercise that is essential to liberal democracy. ‘Commitment’ may perhaps work better here than ‘loyalty’; a citizen may commit (rather than submit) to liberal democratic values, in the sense of undertaking to act along these lines, without suspending his or her exercise of critical inquiry. But, drawing out the distinctions between ‘loyalty’, ‘commitment’ and ‘allegiance’ only highlights, I think, the specificity of ‘allegiance’ as a specific demand – a demand of obedience.
The comparativist challenge
A number of reviewers questioned the scope and range of the country examples I draw on to illustrate the ways in which ‘allegiance’ has been articulated in legal/political discourse. Several note, correctly, that my examples come mostly from the Anglo common law world, and some offer alternative examples of ways of treating citizenship and/or allegiance in other countries. This provides very interesting data, going beyond my own expertise, and all the more valuable for that. My first response, however, is a simple point: the book was not intended as a survey of the treatment of allegiance in different countries. It is the study of a concept, illustrated by examples of allegiance conceptualised, specifically, as constitutive of citizenship. This is not to say that I reject comparativism, but a genuinely comparativist approach (which would probably have required an edited collection, as well as decisions about equivalent terms in non-English languages) would not necessarily offer an understanding of how the discourse of allegiance, in itself, may serve (and increasingly is serving) a purpose that is both conceptually and in practice antithetical to liberal-democracy.
At a closer focus, Timothy Jacob-Owens’ objection is directed at my particular country examples: the UK, US, Canada, Australia (what he calls – good humouredly, I hope! – ‘the usual suspects’). The experience of other countries, he suggests, would shine a different light on the book’s subject. This particular light would be on ‘the role of allegiance as an instrument of imperialism’, something the book ‘does little to explicitly acknowledge’. The book’s gap, Jacob-Owens writes, leads to a ‘naïve’ reading on my part, of the relevant history.
It is a true that I do not discuss imperialism or post-coloniality (other than a brief mention) and it is certainly true that these are important subjects. But, again, they are not the book’s subject. Jacob-Owens, it seems, wanted a different kind of book: an account of the historical and ongoing subordination and dispossession of Indigenous peoples by imperialist powers. My argument that citizenship is constituted by shared territoriality, he appears to suggest, amounts in practice to a claim that the oppressed, as ‘citizens’, must share a territory and a territorial identity with the oppressors. Again, it is true that I don’t follow this line of analysis, but I remain genuinely puzzled by the assertion that the lack of attention to the coloniality of citizenship law weakens the book’s ‘normative prescription.’ If anything, I thought, his account tends rather to support the proposition that ‘allegiance’ is a detrimental way of understanding citizenship and should be rejected.
In the history of British imperialism, for example, colonised subjects of the Crown were indeed expected to identify with and celebrate being British, as if they were British, to subordinate their pre-colonial identities and to align their interests with British interests, especially with respect to taking sides in wars. Certainly, the colonised, in very many cases were treated in practice as aliens and denied the rights of British subjects/citizens, including the vital right of abode in Britain (the scandalous treatment of the Windrush generation, as Jacob-Owens notes, offers just one of the many examples in recent history). But none of my comments about the territorial bond between citizens (as an alternative to allegiance) would deny this or imply that the dispossessed who are asked to assume an imperial territorial identity should accept this arrangement without protest. Nevertheless, I am grateful for the prompting to think further about territorial identity specifically with a focus on the reality of the territory itself and its lived history.
A common law concept?
A further aspect of the comparativist challenge is the question of whether allegiance understood as obedience is characteristic specifically of the common law world, and less applicable in civil law jurisdictions. The feudal view of subjecthood (as ‘ligeance’), Lepoutre suggests, still lingers in the common law, and continues to shape modern ideas of citizenship, particularly in Britain. This is a challenging (and intriguing) insight, and it deserves a good deal of thought. I am not sure, however – if it is true of Britain – how much it applies to other common law countries. The retention of constitutional references to the monarchy, for example, does not necessarily mean that citizenship is conceived in feudal/common law terms. Legislation, not the common law, has governed citizenship in Britain and the Dominions since 1914 and although for decades this legislation mirrored the common law with respect to (simple) jus soli acquisition of citizenship, jus soli was ended in Britain under statute in 1981, Australia 1986, New Zealand 2006 (Canada, alone of the former Dominions retains it. Is Canada more ‘feudal’?).Feudal society, one might add in contemplating the territorial identity argument, was deeply rooted in the land and codes of inheritance. There is no evidence, however, that modern republican ideas of citizenship are less territorial than in Britain.
Nevertheless, there may be something in the distinction between common law and civil law ways of conceptualising the citizen-state/citizen-citizen relationship. It is fascinating to contemplate, for example, whether France’s republican culture, embedded in its code, offers an understanding of allegiance that is essentially more egalitarian, more horizontal and more democratic in comparison to the common law world. But, as is evident from the reviews, there are differing views about the place of ‘allegiance’ in French thinking. Rachel Pougnet explains the case of Ghoumid and Others v France, in which, following the terrorist attacks in France in 2015, the Conseil d’État approved the revocation of the French citizenship of five men who had a decade earlier been convicted of terrorism offences (the decision was upheld by the European Court of Human Rights). Among other grounds, the apparent lack of the men’s allegiance to France and French values was cited. Lepoutre, in contrast, suggests that the French no longer engage in such thinking, evidenced, he states, in the abolition of compulsory military service in France and the disappearance in 1973 of the term allégeance from French legislation. (I have noted the first fact in the book and take note of the second point here. Indeed, I think it fits what I understand to be a wider phenomenon – the relative absence of ‘allegiance’ in legal discourse in the decades following the War, making its renewed and amplified appearance in the twenty-first century all the more intriguing). Still, it is thought-provoking to observe that probably the most drastic citizenship revocation laws in recent times (in modern democracies) in which disallegiance is the core ground, can be found in Britain and Australia. (Devyani Prabhat’s discussion of the case of Shamima Begum, stripped of her British citizenship for joining the terrorist organisation ISIL in Syria, offers a salient example.)
More abstractly, we might ask: does thinking about allegiance in republican terms mean that allegiance is less likely to be demanded of the citizenry in republics than in modern constitutional monarchies? In the influential ‘republican revival’ literature of recent years we find a way of conceptualising citizenship that claims to be egalitarian and offers a horizontal view of the citizenry; one that is public-minded rather than self-interested. This republican discourse of ‘good citizenship’ and ‘civic virtue’, I suggest, unwittingly promotes a culturally singular understanding of the place and role of the ‘citizen’, and implicitly demeans the citizenship of those who do not, or cannot, exercise public virtue. I should probably have made more of this issue, and I am grateful to Prabhat for noting my argument that the idea of civic virtue acts as an obstacle to attracting protection from the state.
Allegiance as affect
Another theme in several of the reviews concerns allegiance as an emotional or affective quality; allegiance/citizenship as lived experienced understood from the ‘bottom up’. Marta Bivand Erdal finds emotional attachment to the citizen’s country to be significant. She identifies among the youth of Norway, a sense of ‘togetherness … anchored in a contested sense of nationness, on the backdrop of the reality of actually living in and … being citizens of a specific nation-state.’ This perspective is primarily drawn from sociological research, but I think it is compatible with my conclusion that legal citizenship is existential and that the territorial bond between citizens is not an abstract but a concrete experience, a matter both of law and of lived human experience. And, while I worry about basing the citizenship bond on emotion (which may be far from warm or generous to outsiders), I agree, too, that emotions attached to citizenship can be compatible with ‘plural belonging’ and that, as part of ‘people’s life worlds’, can be ‘enriching and sometimes deeply meaningful’. Indeed, I believe that this conclusion follows from my rejection of allegiance to describe citizenship, since allegiance, examined closely, is essentially, even analytically, exclusive.
Fripp worries that the rejection of allegiance means that citizens cannot (even must not) love their country. Citizens, he writes, can be in disagreement – even ‘dramatic disagreement’ – with their country and its leaders, and at the same time hold a ‘greater idea’ of the state to which they belong. I have no argument with this proposition, but I reject the idea that a citizen must hold such an idea, that it is indeed constitutive of citizenship, and that the state itself can require it of citizens. At the same time, I don’t see that my conclusion that the bond between citizens is one of shared territoriality is incompatible with the idea (borrowed, as Fripp notes, from Renan) of solidarity and consent in a ‘common life’, although I also question whether it is compatible with the modern acceptance of dual nationality, and I worry, in return, about the conflation between a higher idea of the state and nationalism (something I reject as the bond between citizens).
The issue, however, goes further than simply whether love of country is discouraged by the rejection of a conflation between allegiance and citizenship. Without an emotional commitment to one’s country and its preservation, Fripp suggests, liberal democratic principles risk becoming a ‘suicide pact’ (US Justice Robert Jackson’s expression in Terminiello v. Chicago). Here we confront one of the – perhaps the – great unresolved dilemmas of liberalism as a set of values upon which democratic institutions may be built. Liberalism is a theory of tolerance and freedom of conscience. Tolerance and freedom extend to those who hold anti-liberal views. At what point must these be withheld; where is the line to be drawn between liberal principles and their extension to acts or views that would undermine, even destroy liberalism? No one has yet found a definitive answer. What amounts to a genuine danger to democracy has changed and evolved over time. So, too, has the idea of what constitutes disallegiance (and, notably, so has the view that disallegiance, however it is defined, is an automatic ground for revocation of citizenship). I don’t for a moment suggest that I have pulled the sword from the stone, but I do contend that to describe citizenship as a matter of allegiance is to threaten the foundations of liberal democracy, not necessarily to the point of ‘suicide’, but to a point where we should worry. A shared commitment to self-government built around the territorial bond of citizenship must include a commitment to its preservation. But what is required for its preservation cannot (even purely in a prophylactic sense) be built on moral-engineering; it must surely be built into the practice of self-government itself. But, what should be done with those who threaten rather than preserve democracy, and whether revocation of citizenship is the right response is not clear. That, of course, leads us into a larger discussion, for another time (the stimulation of which is one of the wonderful products of reviews such as these).
Erdal is also concerned about the preservation of social bonds, especially in times of crisis. She asks: What is the basis of the ‘we-hood’ (I like the expression) that citizens share as a ‘necessary condition for fostering’ these bonds? This is a very good question, but the idea that citizens should be subject to a process of ‘fostering’ bonds is troubling, especially in time of crisis. In not a small number of countries, I note, the imperative of national security has been employed in disturbing frequency to assert the need for harsher immigration and naturalisation laws, as well as citizenship revocation laws. (This is evident, as Prabhat points out, in the Shamima Begum case.)
I am exceptionally pleased that none of these wonderfully diverse reviews questions the proposition that citizenship is fundamentally important in the individual’s life (a proposition that some theorists, at least in the US, have questioned.) And I agree entirely with the reviewers: the book could have been longer. It should certainly have said more about protection as the supposed quid pro quo of allegiance (I would have asked for this, had I been a reviewer); it could have examined more fully the variety of understandings of ‘allegiance’ around the world and in different legal systems.
The different perspectives offered in their reviews, I thought, highlighted the very complexity of the concept of allegiance and its relationship to citizenship. I hope that readers, reflecting on this complexity, will see the book and the reviews as part of an ongoing conversation about one of the most compelling issues of legal and political theory in the world today. Who are we as citizens – legal subjects – in our relationship with the state and with each other? What difference does the name we give to this relationship make?