Against Loyalty Oaths

Liav Orgad (Reichman University, WZB Berlin, and Peking University STL)

Patti Tamara Lenard has triggered a debate on an important and timely topic – the ethics of loyalty oaths. She has sympathy for such oaths, defending them when allegiance means obedience (“where allegiance requires a commitment to obey the law”), but also, subject to some conditions, when allegiance “requires a shift in beliefs and sentiments.” For me, Lenard’s thin loyalty is inessential, and her thick version can hardly be justified in a liberal democracy.

There are four objections against Lenard’s thesis on loyalty oaths.

Conceptually, loyalty oaths fail to specify clear obligations

Imagine that you want to naturalise in Austria. You have to pledge to be “a loyal citizen of the Republic of Austria,” “avoid everything that might harm the interests and the reputation of the Republic,” and commit yourself to “the basic values of a democratic European country and its society.” Can you identify your legal or moral obligations? What about pledging “loyalty to Australia and its people,” “fidelity to the Irish nation,” or “allegiance to His Majesty King Charles III”? Does it make more sense? Or perhaps a pledge to “consider Hungary” as “my homeland,” “protect the territorial integrity of Lithuania” and respect its “culture and customs,” or “spare no efforts” to protect the Latvian Constitution?

A key problem with loyalty is that no one knows what it means, as Ashley Mantha-Hollands points out. Lenard offers two possible meanings, thin and thick. For Helen Irving, “Allegiance is specifically and intentionally a thick concept”. As she points out “[t]here’s no such thing as ‘thin’ allegiance.” I am not claiming that Lenard is wrong and Irving is right (or vice versa). It’s just that we talk about many things in many contexts whose meaning varies among cultures, periods, and legal systems. To assess the ethics of loyalty oaths, we need a better understanding of their essence. Clarity is required on what obligation they entail, by whom, to whom, when, and where. Does the duty arise already when entering a country, as Oliviero Angeli suggests, or only when getting its citizenship? Is loyalty due only towards universal values or also towards particular identities?

The authors of this symposium often talk about different things for different goals; hence, their normative judgement differs. These differences may demonstrate an advantage, since, as Morton Grodzins notes in The Loyal and the Disloyal, “in democratic states it is easy to maintain loyalty because the meaning of … loyalty is ambiguous” (p. 75). The concept of loyalty is like a Humpty Dumpty theory of meaning: “When I use a word, it means just what I choose it to mean, neither more nor less.” Such a concept makes it easier to justify the oath. Especially if it “does not have any definite legal significance but is rather of a moral and political nature,” as Hans Kelsen claimed. Such an oath is merely a ritual. It reminds me of my bar mitzvah, when I pledged to obey religious laws and, once the ceremony ended, celebrated the event by eating non-kosher food.

In many countries, however, loyalty oaths are not only moral and political promises but a legal institution. Their lack of clarity leaves the oath-takers at a continued risk because the range of obligations the oath imposes is wide. In a rule-of-law system, vagueness is an obstacle. In one case, a U.S. court found a loyalty oath unconstitutional since its language was “uncertain and broad … forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning.” Loyalty oaths are a sneaky concept, an enigma. Does the promise to “support the U.S. Constitution” also require supporting the judicial interpretation on abortion or the right to bear arms? Can a migrant pledge to support the constitution yet advocate its repeal? Without understanding what we are talking about (elsewhere, I offered three ways to make loyalty less vague), defending the oath as a legal institution is difficult.

Historically, oaths have been used as instruments of fear and exclusion

One way to learn about the essence of loyalty oaths is to examine their role in (at least Western) history. After all, the gradual appeal to loyalty oaths in the recent decade has not happened in a vacuum. There are reasons to worry that, although some of the authors of this symposium want to credit naturalisation oaths with achieving legitimate goals, we cannot ignore that the history of loyalty oaths is rooted in religious crusades, feudalism, and abuse of power.

The modern concept of political allegiance was developed in medieval England. Fealty tied vassals to lords and obligated fidelity for protection. Oaths of allegiance derived from oaths of fealty. Allegiance was the obligation that subjects owed to the King for his protection. In 1534, when Henry VIII broke up with the Pope, he invoked the oath as a political test. Those who refused to recognise the validity of his marriage to Anne Boleyn and to pledge loyalty to the Church of England were put on trial for high treason. The story of Thomas More, whom Henry VIII executed because he refused to swear allegiance to the Protestant Church, is a known historical precedent.

History shows many occasions when oaths were carefully designed to intimidate and exclude non-conformists for political reasons. In the United States, this was the case during the Civil War, World War II, and the Cold War. Such backgrounds shall never be forgotten. As Christine Hobden shows regarding South Africa, oaths are politics by other means, usually against the “other.” Hobden, and to some extent Jaeeun Kim and Zara Goldstone and Avia Pasternak, demonstrate why assessing the ethics of loyalty oaths must be historically cautioned, context-related, and culturally sensitive. Irving even puts it more bluntly: “Oaths … were historically administered not merely to secure support for the sovereign, but importantly, in order to distinguish allies from enemies.”

One can claim that today’s oaths are different (in general or in a particular case) or that they have a legitimate goal. Rainer Bauböck, for one, perceives oaths as a possible mechanism to defend “democracy against its internal enemies” or signal a new membership and affiliation of newcomers, a view that Geoffrey Levey also shares. The idea of “good oaths” in the service of democratic ideals sounds compelling. But without clear evidence that this is the current function of loyalty oaths, either their motives/intentions or effects, such claims remain pious wishes rather than social reality. It is precisely in this context that we better look at history to learn what roles loyalty oaths have indeed played in social reality. And it is precisely in this field where we see that the history of the oath is the history of fear, exclusion, and xenophobia.

Empirically, there is no evidence for the positive effects of oaths

The lack of empirical data on the motives and effects of loyalty oaths is another reason to be cautious. It is striking that a legal institution, commonly used worldwide, escapes the radar of scholars in social science and social psychology. Are loyalty oaths effective in the immigration or citizenship context? For which goals? For which categories of immigrants (by age, religion, gender, etc.)? How long does their effect (whatever it is) last? Are there any side effects? And, overall, under which social structure are people generally prone to be more loyal to a state?

Some of the authors of this symposium admit the lack of evidence to support normative claims. For example, Jelena Džankić (“Being a citizen or being a ‘good citizen’ has little to do with any pledge of allegiance”) or Daniel Sharp (“there’s no evidence” that loyalty oaths “increase trust”). Others, like Ashwini Vasanthakumar, claim that loyalty oaths “may be counter-productive to making us newcomers ‘feel like [we] belong’.” This uncertainty is a major challenge to Lenard’s thesis about the potential benefits of the oath. The evidence that she presents is based on limited studies. Sharp rightly observes this lacuna and advises that “More data are needed.”

It might be that loyalty oaths are effective as a nation-building symbol or a mechanism to foster social cohesion, public trust, or other goals. But it also might not. We do not know how positive the oath’s influence is on one’s sense of loyalty. We do not know what transformation occurs in the hearts and minds of people taking a loyalty oath, either once or daily. We do not know if repeating words makes people more attached to the object of loyalty. And even if oaths effectively foster cohesion, trust, or a sense of belonging, their efficiency depends on their content and context. Forcing a Catholic Irish or a Jewish migrant to swear allegiance to King Charles III, who is the head of the Church of England, might well exacerbate social divisions rather than create social unity. And unlike daily pledges in schools, the immigration or naturalisation oath is a one-time event. It is naïve to assume that it has a significant impact on the newcomer’s identity.

Historical evidence raises doubt about the efficiency of oaths. The American Founding Fathers swore loyalty to King George yet rebelled against him. Benjamin Franklin noted that “there could be no reliance on their oaths” as they are “the last recourse of liars.” James Wilson wrote, “a good government did not need them, and a bad government could not or ought not be supported.” And Noah Webster claimed that “Ten thousand oaths” could not create a loyal subject.” Instead of a coerced statement, a country can create loyal citizens by good laws. Congressman John Page: “If we have good laws,” newcomers “will find it in their interest to be good citizens” (he warned against making the oath “a test of faith and politics”). And as Noah Webster nicely put it – only “A good Constitution, and good laws, make good subjects.”

Whether one believes that oaths positively affect the migrants (it’s good for them) or the citizens (it’s good for us), one must provide empirical support for the claim. Keith Banting tries to do this. But even he has to admit that, eventually, “there is no direct empirical evidence in support of this pragmatic argument for citizenship oaths.” Against this background, I stand with Sandy Levinson in warning that “anyone who intends to be loyal will be so without a specific promise, and those who are in fact disloyal will further demonstrate their perfidy by cheerfully lying about it.” This reminds me of the story about a naturalised U.S. citizen who was put on trial for a terrorist attack. When the judge asked him about his oath, in which he promised to be loyal to the U.S. Constitution, he replied: “I sweared [sic] but I didn’t mean it.”

Morally, oaths undermine freedom of conscience

Perhaps we can sustain loyalty oaths despite the lack of evidence of their benefits if they were cost-free. Unfortunately, this is often not the case. Let me put aside the issues of consent (see the replies by Erez, Vasanthakumar, Sharp, Owen, and Džankić) and equality (see the replies by Erez, Vasanthakumar, Sharp, and Hobden), and focus on what I consider a fundamental issue – freedom of conscience. This is not a claim against the oath but against problematic content and form or lack of conscience-related exemptions (note that my previous claims, too, are not against loyalty oaths per se but against their lack of clarity, empirical evidence, and legitimate goals).

As a secular Jew, I find it problematic to pledge loyalty to His Majesty King Charles III. I would find it similarly problematic to swear allegiance to Israel as a “Jewish state,” certainly if you are not Jewish but also if you are a secular Jew. A liberal state must respect one’s conscience, which often entails the freedom to dissent, not only from minor issues but also from matters that touch the heart of the constitutional order. I thus disagree with Vasanthakumar that the oath is “a small price to pay.” This is not a small price even when the oath “only” asks loyalty to the constitution as, e.g., is the case of Norway, whose oath Lenard finds legitimate. As a Jew, I find it difficult to pledge allegiance to a constitution whose article 2 declares “Our values will remain our Christian and humanist heritage.” Referring to oaths of beliefs in courts, Kant considers them as tortura spiritualis, even if they are taken “to the Common Good.” This does not imply that everything goes. If, e.g., a migrant denies a state’s right to exist, I can find no moral argument that forces the state to let him/her in as a rule (subject to some exceptions).

The cost generated by the oath may be softened by equating allegiance to obedience, avoiding ideological statements, turning oaths from mandatory to voluntary, and making loyalty oaths similar to statements of affiliation, only to universal values, as Bauböck and Levey suggest. “Sometimes less is more,” Levey says. True, but sometimes less is meaningless. Following this direction will end up with neither an oath nor loyalty. Erez catches this point by saying, “the pledge is either too hot to be defended by Lenard’s liberal framework, or too cold to serve its intended purpose … The kind of oath she defends is at odds with the reasons such an oath is viewed as necessary.” In other words, you cannot have your cake and eat it too.

Conclusion

People are willing to tolerate loyalty oaths since the commonly accepted proposition is that they yield benefits and are cost-free. This proposition begs reexamination. There is a further need to clarify what we talk about when referring to loyalty oaths/pledges – what is their motive, goal, scope, and legal validity; in other words, who owes what to whom, when, where, and why.