Citizenship Oaths and Territorial Admission: Insights from the German Debate

Oliviero Angeli (MIDEM – TU Dresden)

Migration has been a powerful catalyst for social polarisation and political division in recent decades. Many people worry that the growing hostility and animosity surrounding migration-related issues threatens to deepen the existing divide between native and immigrant populations. Bridging this divide requires not only the willingness on the part of the native population to accept immigrants as integral members of society, but also a minimum willingness on the part of immigrants to identify with the host country and its core values. This is where the concept of a citizenship or naturalisation oath usually comes into play. States understandably have an interest in avoiding harbouring individuals who are blatantly hostile to their constitutional order, preferring instead to welcome new members who have a positive regard for their state’s legal order – a sentiment that can be expressed through naturalisation oaths.

The German case: are citizens required to share constitutional values?

Using Patti Tamara Lenard‘s framework, which distinguishes between a thinner and a thicker conception of loyalty, German naturalisation practice occupies a middle ground. While it departs from the thinner view, which sees loyalty as mere compliance with the Basic Law, it broadens its scope to include values that are intrinsic to the constitution. In contrast to the thicker understanding, it avoids integrating cultural elements external to the constitution and concentrates solely on values derived from it. Nevertheless, the consensus on naturalisation practice remains fragile, as recent controversies over proposed reforms demonstrate.

As part of the naturalisation process, applicants must affirm their commitment to the constitution by signing a declaration of loyalty to the Basic Law. In recent years, both the Christian Democratic Union (CDU) and the liberal Free Democratic Party (FDP) have explored options to transform this declaration into a more ceremonial gesture. The CDU, for example, has proposed the introduction of an oath to be taken by individuals before receiving naturalisation documents that would include a public pledge to respect the German Basic Law, with an optional religious affirmation. More recently, these proposals have been expanded to include a commitment to uphold important constitutional values, not just the law (as I will show below).

These proposals serve two purposes. First, increasing the ceremonial aspect of naturalisation adds symbolic meaning to the act of becoming a citizen and encourages immigrants to make a deeper commitment. By publicly pledging allegiance to the constitution, newcomers are likely to develop a deeper connection to the values and principles of their host country. As Lenard points out, a citizenship oath symbolises and “solemnises” the moment when immigrants commit themselves to a new state. Second, and more narrowly, the oath of allegiance aims to screen out individuals who are unwilling to embrace German constitutional values, acting as a gatekeeper to ensure that those seeking citizenship are aligned with the fundamental ideals and principles of the German constitution.

On a normative level, the first point is less of a concern. One might argue, as Ashwini Vasanthakumar does, that the process of naturalisation itself with its significant costs and efforts should be enough to signal voluntary consent and commitment from immigrants. But I am inclined to agree with Lenard that the act of taking an oath and the ceremony that accompanies it can be a significant moment for most immigrants as it comes to symbolise the recognition of their transition and the culmination of a long process. Moreover, it is quite possible that the oath is a way of reassuring current citizens by publicly demonstrating new citizens’ commitment to the values and laws of the host country, although the evidence for this still needs to be gathered, as Daniel Sharp and David Owen rightly point out.

The second point, however, is of greater concern. Critics may argue that requiring an oath of allegiance is potentially illiberal because it interferes with the moral attitudes of individuals. In their view, the state’s role should be limited to ensuring compliance with the law. Along these lines, the German Federal Constitutional Court has argued in a 2010 ruling that “citizens are not legally obliged to personally share the values of the constitution” and that they should be “free to question even fundamental values of the constitution as long as they do not endanger the legal interests of others” (my translation). Moreover, in addition to being seemingly illiberal, applying a duty of loyalty to all naturalised citizens could be seen as unfair, imposing a disproportionately burdensome requirement compared to the native population. As Daniel Sharp points out, mandatory oaths “create problematic inequalities between natural-born and naturalised citizens”.

I won’t go into too much detail about the ‘inequality charge’ because it appears to be less compelling. Like Rainer Bauböck, I believe that a naturalisation oath serves an “additional function” that is specific to immigrants, namely that it “affirms a change of membership status and proclaims inclusion in a new political community”. Moreover, it is worth noting that discriminatory legal measures can manifest themselves in different ways for both native and immigrant populations. While native Germans generally do not take an oath of allegiance, they are subject to other forms of coercive value ‘inculcation’ from which immigrants are typically exempt. For example, political education is integrated into the school curriculum to promote democratic principles and civic engagement among the younger generation and to prevent the resurgence of authoritarianism. From this perspective, the oath taken during the naturalisation process can be seen as a ‘fast track’ for individuals to express their commitment to the legal and ethical principles of the host society.

The charge of illiberalism, however, raises a deeper point, which is how much states can demand of non-nationals in order to preserve their distinctive legal and political values. I am inclined to accept the argument that oaths of allegiance are difficult to justify with respect to long-term resident aliens. Elsewhere, I have argued extensively that immigrants should be provided with a path to citizenship once they have settled in a foreign country. Refusing to naturalise long-term settled noncitizens poses a particular challenge in a democratic country, where citizens as law’s addressees should also ideally be seen as its authors. Conditioning the naturalisation of resident immigrants on an oath of allegiance effectively risks relegating them to an inferior and unequal position, treating them merely as objects of the law rather than as equal participants in shaping it.

Pledging allegiance at territorial admission

However, this is hardly the end of the story. As I see it, the discussion of naturalisation misses an important point if it is not informed by the legal distinction between initial territorial admission and the subsequent decision about how to treat long-term, settled noncitizens who are already participating in the economy and subject to the laws of the nation. In this sense, the question is whether the oath of allegiance should be applied to the territorial admission of nonresident aliens rather than to resident immigrants. It strikes me that if states may permissibly deny nonresident aliens access to citizenship in some cases, then states may permissibly require nonresident aliens to pledge allegiance to the host country’s core values before or at the time of admission. In other words, if a state has the right to deny entry, it may also have the right to set conditions for entry, such as requiring nonresident aliens to pledge allegiance to the core values of the host country. This is all the more true in view of the dangers (emphasized by Bauböck) posed by the current increase in the number of autocracies. To illustrate this argument, consider the current debate over whether an application for German citizenship should be conditioned on a declaration of support for Israel’s right to exist, which is seen as a significant aspect of Germany’s post-Cold War political self-understanding, although not explicitly codified in German law. One could argue about the political merits of a policy that excludes nonresident aliens who do not support Israel’s right to exist. However, my assumption is that from a moral point of view it would not be inherently wrong to implement such a policy. I see three possible counter-arguments.

First, it could be argued that asking for allegiance from individuals who haven’t yet committed to permanent residency might seem premature. Nonresident aliens may have a less entrenched connection to the host country, and imposing such a commitment might be seen as a hurdle for those exploring temporary opportunities. Second, an inherent contradiction may arise when arguing that requiring resident immigrants to pledge allegiance to the core legal values of the host country poses a potential constraint on freedom of expression, while simultaneously suggesting that imposing the same allegiance requirement on non-resident immigrants does not present such concerns. Third, it can be argued that mandating refugees, who often flee persecution or conflict, to swear allegiance to the host country may seem unjust. This objection recognises the involuntary nature of displacement for refugees and suggests that imposing political obligations through an allegiance oath may not align with the principle of providing refuge without additional burdens. This concern resonates with Lior Erez’s argument that the choice to naturalise would not be entirely voluntary if the alternatives were not sufficiently acceptable.

With regard to the first argument, it is crucial to recognise that, especially in Western countries, legal entry can serve as a steppingstone to permanent residency and, subsequently, citizenship. While it is true that not every legal immigrant will eventually become a naturalised citizen, the process of legal immigration is a common pathway to permanent residency and citizenship. Moreover, for individuals who do not plan to stay permanently, the oath of allegiance may be viewed as a temporary commitment and therefore not particularly onerous. For them, the commitment is not permanent in the sense that it can be relinquished if they decide to leave the country. Nevertheless, it is clear that the application of oaths to migrants is a policy primarily directed at permanent migrants, and distinguishing between truly temporary migrants and those transitioning to permanent residence can be a complex task. In addition, the dynamics of applying oaths to migrants may be different in international settings, particularly in regions such as the European Union, where member states have committed to freedom of movement. In such cases, traditional understandings of loyalty and commitment may need to be adapted to fit the unique characteristics of these regional arrangements.

In response to the second argument, I should emphasize that criticism of the distinction between resident and nonresident immigrants overlooks the special demands and responsibilities that come with residency in a country. While a universalist perspective might neglect these special demands and responsibilities, from a statist perspective, the moral and legal implications of residency provide a reasonable basis for imposing different, and potentially more stringent, legal requirements on nonresident aliens.  To illustrate this point, consider the somewhat related case of me looking for a roommate. If I, as the current resident, bring someone into my living space, it may be perceived as unfair if I unilaterally impose rules on the cohabitation after a few years of living together. At that point, the roommate could reasonably be considered an equal resident, and imposing new rules could be seen as arbitrary and coercive. However, the situation may be far less problematic if the terms of cohabitation have been clearly communicated and agreed upon as a condition of admission for new roommates. Similarly, in the context of states, the establishment of certain obligations as a condition of territorial admission can be seen as a transparent agreement that reflects the legal inequality between members and non-members. Finally, the third objection, while compelling, may be overstated when applied broadly to the entire immigrant population. It is true that in the case of forced migrants, including asylum seekers, concerns about the voluntariness and validity of the oath of allegiance do matter. Forced migrants, faced with the involuntary nature of their displacement, may feel compelled to subscribe to anything that facilitates entry into a safe country. However, forced migrants represent only a small fraction of legal migrants, so even exempting them from the obligation to swear allegiance would not completely undermine the argument.

A last caveat emerges with regard to the concern expressed by Helen Irving that efforts to introduce an oath of loyalty stem from the suspicion that naturalised Muslim immigrants may undermine the democratic national culture. Indeed, requiring non-resident immigrants to reject any kind of “anti-Semitic crime” and to declare their support for “Israel’s right to exist”, as in the German case, could be seen as an indirect anti-Muslim stance. One may hold that the policy of excluding people who do not commit to Israel’s right to exist, however political problematic, is not morally impermissible to implement in and of itself. The problem, however, is that such policy may be interpreted as expressing disrespect for minorities within the society, whether naturalised or not.

Consider the special relationship to Germany’s troubled past: While the Holocaust occupies a central place in German historical consciousness and is a key element of constitutional patriotism, immigrants from regions with a difficult relationship with Israel may not have the same connection to this history. This difference in historical perspective could create a sense of exclusion or alienation among Muslim communities who have no biographical connection to German history while being exposed to conflicts in the Middle East. In this sense, one might caution against using constitutional values as a litmus test for belonging, as it may exclude those who do not share the same historical references in interpreting the constitution, potentially leading to discrimination or stigmatisation. Given the existing Islamophobia in many countries, these concerns are not entirely unfounded.

The ground is shifting underneath constitutional patriotism

In conclusion, while I endorse Lenard’s arguments in support of requiring new citizens to take an oath of allegiance, I find it more reasonable to apply this principle to nonresident aliens seeking legal immigration (excluding forced migrants). Obviously, the context of legal immigration may diminish the solemnity of the oath, since it signifies entry into a new country rather than admission to a new membership through naturalisation, but the act still symbolizes a voluntary commitment to the fundamental constitutional values of the host country.

While I believe that the exclusion of non-resident aliens who are unwilling to subscribe to these values can be justified, it is also crucial to address concerns about the potential marginalisation of communities with different historical references. Care must be taken to avoid discrimination and alienation, especially given Germany’s complex historical context and the diverse backgrounds of its immigrant population. Striking a balance between upholding constitutional values and promoting inclusiveness is challenging but essential to avoid high levels of polarisation. Germany’s constitutional patriotism, rooted in universalist values, prioritises shared values over inherited characteristics. However, it is crucial to recognise that the evolving societal interpretations of these values may challenge the very idea of constitutional patriotism. If different groups interpret constitutional values in significantly different ways, the unifying power of constitutional patriotism is likely to be undermined.