Oaths of Allegiance: Too Icky, Too Tricky, and Too Sticky

Ashley Mantha-Hollands (European University Institute)

Patti Lenard’s kick-off to this forum has defended mandatory oaths of allegiance understood in their thinnest form as “a commitment to obey the law” and “a shift in beliefs and sentiments.” Contributions have, so far, analysed some of the moral and ethical challenges (Erez, Vasanthakumar, Sharp, Owen) of the proposal, as well as evaluated oath taking requirements in other contexts such as in hostile immigration states (Hobden), their colonial and historical backgrounds (Irving, Goldstone and Pasternak, Kim), or extraterritorial settings (Džankić). One of the aspects currently still under-developed in the conversation (although both Lenard and Bauböck offer some food for thought) is on the content of oaths of allegiance – what exactly makes an oath ‘thin’ or ‘thick’, and what is permissible and impermissible content? Or are ‘thin’ oaths merely a fiction (as Helen Irving argues)? In this brief contribution, I will look at different loyalty oaths and reflect on why they can be both ‘icky’ (filled with objectionable content) and ‘tricky’ (used to unfairly exclude newcomers) from a liberal perspective using both comparative and historical examples. Moreover, if we are to accept Lenard’s proposal of a ‘thin’ oath of allegiance, it should be noted that loyalty oaths and their content are rather ‘sticky’ and have been resilient to change.

‘Icky’ oaths – on vague and ambiguous content

One of the problems with oaths of allegiance is that their content is often vague and thus, what exactly is being asked of the newcomer is unclear. Looking across some current naturalisation oaths reveals this ambiguity. For example, the Australian pledge of commitment states, “From this time forward, [under God], I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey.” What exactly are the democratic beliefs that the newcomer is expected to share? How is this belief to be proven? And what is the legal obligation derived from this oath? Liav Orgad writes that the content of an oath, such as this one, can be interpreted in two ways: i) “loyalty to substance”, i.e., the thing itself, in which case it would need to be specified what democratic beliefs are, in order to guarantee that they are shared; or ii) “loyalty to a legal form,” i.e., the acceptance of the fact that Australia is a democratic state and that democracy is the legal procedure for amending or creating laws. This distinction is important. For example, someone who does not hold democratic beliefs and would like to see that Australia move to another form of government (but by way of current democratic processes) could not ethically take the oath under the first meaning but could do so under the second. As currently worded, the obligation is not clear, and thus has the potential to create problems for the person asked to swear it.

Other oaths are similarly vague. The pledge in Britain asks newcomers to “uphold its democratic values” and to “fulfil my duties and obligations as a British citizen.” Fulfilling the “duties of citizenship” is present also in the oaths in Canada, Greece, India, New Zealand, and the Czech Republic. What are the duties a newcomer is expected to fulfil? While empirical evidence would be needed to prove this in each context, my best guess is that most people taking the oath are unclear on what is expected of them. Does this include the duty to vote? Or participate in democratic deliberation? In Canada, these duties are outlined in the ‘Discover Canada – Study Guide’ and include: “obeying the law”, “taking responsibility for oneself and one’s family”, “serving on a jury”, “voting in elections”, “helping others in the community”, and “protecting and enjoying our heritage and environment.” While some of these duties are specific, others are vague or go beyond what is asked of birthright citizens. As Vasanthakumar writes, “many natural-born citizens do not participate in democratic processes” nor are they expected to “help others in the community.” Not all countries provide such a guide, in these cases, if being involved in democratic processes is not one of the duties enshrined in the oath, are these simply other ways of articulating the requirement that the person follow the law? If yes, then does that include all laws? And to what degree? As Irving highlights, “this makes no sense absent understanding of ‘the law’ as something beyond the regular law, having a higher, transcendent character.”

There are other oaths that are filled with less subtle and more objectionable content from a ‘thin’ liberal perspective. As discussed by Oliviero Angeli, in Germany, there have even been recent proposals for newcomers to pledge to support the right of existence of a particular foreign state – Israel. Moreover, any oath that requires a commitment or reference to religious or cultural criteria is surely out. In states such as, Lithuania, Georgia, and Armenia, newcomers are asked to make a pledge to respect the state language, national culture, and traditions. These examples can be categorised in the ‘too thick’ category.

In other cases the oath is less about democratic principles but refers to the need to defend the country’s independence, as in Hungary which asks for the defence of “the country as far as my strength allows” or Lithuania where the oath asks for defence of “the independence of Lithuania” and “to protect the territorial integrity of the state.” In the U.S., as well, newcomers are asked to support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic.” Again, these oaths, as written, seem to me to be asking for military service which is a commitment that would not be shared by natural-born citizens in states without mandatory military service. However, if we are to understand defending the country or constitution in a ‘thin’ sense, as Bauböck suggests, then is this content objectionable in the context of rising anti-immigrant sentiment and democratic backsliding? In my view it still is, as the implication then is that it is immigrants who are the ones responsible for the backsliding whereas, in the examples provided, it is natural-born citizens that are moving towards more autocratic sentiments.

Lenard defends a ‘thin’ oath which she defines as a commitment to obey the law. But she aptly writes, “the precise boundary between permissible and impermissible content is fuzzy.” It is much harder, from a liberal perspective, to decide what can go in the appropriately ‘thin’ box. As I have laid out, even the thinnest of oaths are full of vague criteria and legal expectations that can be problematic. How should states decide what is considered permissible or impermissible content? What criteria are used? As others in this forum have suggested, simply uttering the words “I will follow the law” is quite futile when all within the territorially bounded state are already expected to do so. Daniel Sharp suggests that oaths be “purge[d] of their objectionable content” and proposes that if mandatory oaths be maintained, the state should allow “more choice over the content of the oath.” But if the state becomes too elastic in what exactly they allow newcomers to profess loyalty towards, this would likely defeat the purpose of the oath altogether.

‘Tricky’ oaths – the importance of specificity

As we have seen, oaths are entrenched with cloudy and sometimes objectionable expectations. Why is specificity important? Because in the past, abstract requirements have been used by states to exclude ‘unwanted’ or ‘undesirable’ citizens. This danger is particularly clear in American (de)naturalisation cases. One enlightening example is the case of Mahmoud Kassas, a Syrian national, who applied for American citizenship in 1992. Kassas requested to take a modified oath of allegiance since his religious faith prohibited him from taking up arms against another Muslim person or country. In the U.S., a modified oath is an option for people who are opposed to bearing arms. However, because Kassas was not opposed to bearing arms in general, but only in certain cases, the District Court stated that by being hesitant to take the oath, Kassas could not be considered attached to the U.S. Constitution (which has historically been a separate naturalisation requirement). The court decided that Kassas’ beliefs were somehow an indicator of his potential future behaviour – i.e., whether he would be a law-abiding citizen.

I have written elsewhere about some of the challenges inherent in vague naturalisation requirements. States may use these to exclude certain people or groups when criteria are not clearly spelled out. Allegiance itself is a polysemous concept which means different things to different people in different contexts and at different points in time, and thus as much specificity as possible is necessary to secure equality, fairness, and justice for new incoming members.  

‘Sticky’ oaths – the resiliency of loyalty oaths

Should it be agreed that an oath is necessary and that current oaths are too thick in content, what would be the process of modifying the oath of allegiance? Or what would be involved in doing away with it altogether? Oaths have, historically, proven hard to get rid of or change. Think of the German case where oaths of allegiance have come in and out of formal naturalisation requirements for years. After reunification in 1990, naturalisation required that the person declare that they would not support endeavours that could be considered directed against the democratic basic order (along with the payment of fees). In 1999, the declaration of loyalty was introduced by reform. A formal oath was re-introduced in 2006: Upon receipt of the certificate of naturalisation, the applicant must recite: “I solemnly declare that I will respect and observe the Basic Law and the laws of the Federal Republic of Germany, and that I will refrain from any activity which might cause it harm.”

In Canada, there have been numerous (at least eight since 1977) attempts to modify the oath’s content since its adoption in 1947. Despite these attempts, the content has only been changed on two occasions (in 1977 and in 2021). Changing the oath requires a Bill to be passed by parliament, which on its own entails a massive amount of time and resources. One such attempt occurred in 1994, when the Minister of Citizenship and Immigration commissioned a team of writers and poets to re-write the oath in order to remove reference to the monarch. The Minister described the proposals for the new oath to Canada as “beautiful, simple, powerful, and modern.” The process was eventually cut by then Prime Minister Jean Chretien and the entire endeavor was wasted (a similar situation also occurred in 1987). There is currently a bill (Bill S-262, “An Act to Amend the Citizenship Act (Oath of Citizenship))” that has gone through a first Senate reading. If passed, it would provide two options for reciting the oath: one to the King and his heirs, and the other to Canada. Yet, there is no guarantee that this effort will not meet the same fate as its predecessors.

Conclusion – who should be signalling?

I am sympathetic to the view that oaths are a form of ritual that can be a nice way to signify the shift into something new, or “a change of membership status” as Bauböck notes. I think back fondly to my own wedding vows, which, while practically did not change much in our partnership, was a nice proclamation of our commitment and change in legal status. But the problem with oaths of allegiance, at least the ways in which they have been written to date, is that they try to capture a sentiment which is not ephemeral using language that does not seem to help  a state produce the intended outcome.

I agree with Bauböck that in the face of democratic backsliding we should consider a different approach. However, I would flip the switch. My own home country Canada, which is supposedly congenitally immigrant-friendly, has seen a drastic rise in xenophobia and a constant echo of blaming immigrants for various largely unrelated social problems (a trend that is also true in states across Western Europe). Keith Banting suggests that oaths can be used to signal the affective belonging shared by newcomers which will help improve public perceptions of immigration and that oaths may help reduce the “membership penalty” immigrants face. But “given the intensity of public anxiety about immigration” in states with already thicker versions of oaths of allegiance than Lenard advocates for in her proposal, will a thinner oath really appease the backlash towards immigration? I agree with Geoffrey Brahm Levey that we should get back to thinking of naturalisation as a “mechanism of immigrant absorption,” in which case the state should be the one asked to renew its commitment and swear an oath to newcomers, to commit to being welcoming and tolerant of the plurality of ways of life that are supposed to be accepted in a liberal democracy. This, in my view, would be a more appropriate signal to the public that immigrants are an integral part of the “we.”