Naturalisation without Allegiance

Daniel Sharp (LMU Munich)

Patti Lenard makes a persuasive case that mandatory citizenship oaths are “defensible policy,” if they meet certain conditions. Nevertheless, I remain unconvinced by her argument. I believe (and have argued elsewhere) that mandatory oaths of allegiance should be abolished, even if they meet Lenard’s conditions. It is wrong to condition immigrants’ access to citizenship on their swearing allegiance.

Lenard makes three arguments in favor of mandatory oaths: 1) they secure voluntary consent to state authority, 2) they publicly signal to current citizens that naturalising citizens merit citizenship, and 3) they are a meaningful moment for naturalising citizens. I argue that, in each case, the alleged benefit is outweighed by a corresponding cost, and that the benefit can instead be better achieved by a voluntary oath of allegiance or citizenship ceremony.

Obligations and Inequality

First, Lenard suggests that taking the oath signals the voluntary consent of new citizens to the authority of the state. She understands oaths as “especially weighty promise[s]”, which confer an obligation to do as promised. She thinks securing the state’s authority is very important; so, this is a reason to compel immigrants to take an oath.

Of course, promises only bind if they are voluntarily made. Lenard emphasizes that “naturalisationis voluntary”, but she acknowledges that immigrants in countries like the U.S. lack the option to naturalise without taking an oath. Like Lior Erez and Ashwini Vasanthakumar,  I have my doubts about how ‘voluntary’ oath-taking really is, given the costs of remaining a noncitizen. This is especially so for those whose original citizenship has been rendered inoperative (e.g., stateless persons and refugees). I thus don’t think oaths create binding obligations for those whose need for citizenship is most dire, since it would severely wrong them to make their access to citizenship conditional on swearing an oath. Still, I concur with Lenard that they are often voluntary enough to create genuine obligations.

Contra Lenard, however, I believe that creating such obligations for immigrants comes with a cost., Adam Lovett and I have argued that mandatory oaths create problematic inequalities between natural-born and naturalised citizens. Let me explain. To begin, note that, unless they take on a public office, natural-born Canadians (to take an example Lovett discusses here) don’t typically swear allegiance to Canada. They don’t typically make promises to obey the law. They, therefore, don’t have an obligation based on a promise to obey the laws of Canada. Of course, as Lenard suggests, natural-born Canadians have some obligation to obey the law. However, because they have not explicitly promised to obey the law, they have weaker obligations to do so than naturalised Canadians.

Lenard suggests that natural-born citizens may have consented “via an alternative mechanism”. I have argued elsewhere that this is mistaken. It is simply not the case that anything citizens typically do involves giving valid consent to obey the law or be loyal to the state. Moreover, this defence would, at best, render oaths of allegiance pointless because immigrants, like citizens, would invariably ‘consent’ in just the same way citizens do. On this point, I concur with Erez. What is true, however, is that natural-born citizens have some reason to obey the law, though these aren’t based on consent. Still, whatever these reasons are, and whatever their source is (there’s much debate about this among philosophers), naturalising citizens also generally have, and will anyway usually acquire, these obligations as well. But only naturalising immigrants, in virtue of taking an oath, have an additional obligation based on a promise.

The point is not that natural-born and naturalised citizens have reasons of different kinds to obey the law. Rather, the promise gives naturalising citizens an extra reason, on top of those they already have, to obey the law or remain loyal to the state. This puts on them an overall weightier obligation to obey the law or be loyal to the state. We might, like Erez, regard this as a dilemma: either the promise adds no weight to naturalising citizens’ overall obligations to show allegiance to the state, in which case the practice is pointless, since naturalising citizens already have all the reasons naturalised citizens have obligations to obey the law; or the promise adds something—another reason on top of those naturalising citizens already have—and thus gives new citizens a stronger overall obligation to obey the law.

What’s the problem with naturalising citizens having weightier obligations to obey the law or remain loyal to the state than natural-born citizens? There are, in my view, two issues, both of which concern equality. First, justice requires an equal, or at least fair distribution, of burdens among citizens. But having weightier duties to obey the law is burdensome. The state’s laws are, after all, sometimes unjust. Thus, requiring naturalising citizens to swear an oath foists upon them burdens, which are heavier than those that natural-born citizens have. This is an unjust distribution of the burdens of citizenship. Second, this sort of inequality undermines the sort of social equality implicit in the ideal of equal citizenship. It is widely thought that citizens ought to relate to each other as social equals. This requires sharing in the benefits and burdens of citizenship equally. Consider an analogy: suppose a husband announces he will marry his wife only if she promises to do all the housework. He makes no similar commitment to do his part. This kind of arrangement is no basis for an equal marriage. The burdens are too unevenly shared. Analogously, forcing only immigrants to promise to obey the law is no basis for fostering a relationship of equal citizenship between naturalised and natural-born citizens.

So, although I agree with Lenard that oaths of allegiance create political obligations, I think it is unfair to foist such obligations on immigrants alone.

The Expressive Dimension of Oaths

Lenard’s second argument (or, at least, a key aspect of it—her discussion here is intricate) is that oaths have a public, “expressive dimension”. Because such oaths involve “publicly accept[ing] the responsibilities of citizenship”, this “signals to current citizens that incoming citizens have done the work they need to warrant citizenship status, and that they ought therefore to be welcomed since they can be trusted to take their role as citizens in their new state seriously.”

This argument is, at best, inconclusive, given the lack of data on the nature of oaths’ signalling effects. At worst, I fear the expressive role of mandatory oaths may further undermine new citizens’ quest to be received as equal members. Lenard’s interpretation of signalling fits with a broad body of research, which suggests, as David Bartram puts it that “the real ‘targets’ of [citizenship requirements] are not the immigrants themselves but rather those who are already citizens.” They are, in his words, “intended primarily to reassure anxious citizens that the government is ‘doing something’ about immigration”. Despite this being the motivation for such policies, there’s no evidence, to my knowledge, that these policies in fact reassure such voters or increase trust.

Indeed, I find it more plausible that mandatory oaths of alliegance do the opposite. By singling out only immigrants as needing to take an oath before they can be trusted with citizenship, they express that naturalising citizens are presumptively disloyal or disobedient. This contributes to the broader climate of “heightened suspicion” of (racialized) immigrant subjects. Moreover, it contributes to a politics in which those who have not chosen to naturalise are seen as “undesirable” and undeserving. Thus, although more data is needed on this issue, the ‘expressive dimension’ of mandatory oaths of allegiance strikes me as at least as likely to exacerbate inequalities and foment racialized suspicion of immigrants as it is to reassure anxious citizens that those who naturalise ‘deserve’ citizenship. Here, though, more data are needed on the actual effects, if any, of these policies. Rather than play into a discourse on whether people ‘deserve’ citizenship and can be ‘trusted with it, we ought to make citizenship status easily available for all long-term immigrants.

Meaningful, Meaningless, or Alienating?

Third, Lenard argues that “[f]or many individuals, the journey of taking on citizenship has been long and difficult, and they are at least relieved and sometimes even ecstatic about the event. So the oath, and the ceremony surrounding it, are a meaningful recognition of a valuable transition for many immigrants.” Her evidence for this claim comes from a study of participants in naturalisation ceremonies in Norway.

However, this study hardly offers unambiguous support for her argument. The study’s authors, Hagelund and Reegård, note that “new citizens vary in their view on citizenship ceremonies.” True, “for an enthusiastic minority the ceremonies represented important symbolic events.” But this is a minority. In Norway, where naturalisation ceremonies are voluntary, the “majority” of new citizens choose “not to participate”. Although, as Lenard notes, many don’t attend for practical reasons, others were “simply not that interested in taking part” because “for many new citizens such ceremonies appear as being without much meaning.”

Those who do participate often do so for more mundane reasons. Some were “curious”; others “had made no other plans…and thought to themselves: Why not?” We thus shouldn’t overstate the symbolic import of these events. Indeed, Kamran Khan’s study of W., a Yemeni man’s journey to British citizenship suggests it is often practical concerns that matter most to immigrants: “For all that political discourse promot[ing] a sense of citizenship…W.’s first thought following the ceremony was for the passport.” Worse, David Bartram suggests that “being forced (in a mandatory citizenship ceremony) to feign a loyalty one does not already genuinely feel might instead foster a sense of alienation,” a concern given even more force by Liav Orgad’s worries about how compelling may affect freedom of conscience and echoed in Ashwini Vasanthakumar’s insightful contribution.

There are two further reasons to doubt that the data support Lenard’s conclusion. First, it is unclear that those who find naturalisation ceremonies meaningful also find the oath particularly meaningful. Here’s Hagelund and Reegård again:

“We asked both participants…. how they felt about the oath of allegiance. … Among participants the refrain was ‘ok’. One informant was explicitly negative about the oath of allegiance as ‘people have different cultures’.”

The oath, after all, is only one part of the “ceremony surrounding it,” and it is not obviously an essential part. Second, as Vasanthakumar points out, the data come from Norway’s voluntary naturalisation ceremony. Indeed, the authors of the study speculate:

“One unpublished study of new British citizens indicates that participants view ceremonies as a mainly bureaucratic procedure they had to go through to get their British passport…An interesting question thus arising is whether the voluntary character of the Scandinavian ceremonies opens up to a more positive experience for those who choose to participate, than if the ceremony had a legal function.”

More data are needed to help answer this question. Still, it seems unfair to mandate oaths just because a minority finds them meaningful, if the data show that at least a substantial minority finds them alienating.

Alternatives to Mandatory Oaths

I have argued that mandatory oaths of allegiance do not unambiguously serve the functions Lenard identifies. Moreover, they come with serious disadvantages. They create problematic inequalities between natural-born and naturalised citizens, imposing unfair burdens on the latter. They may contribute to a problematic presumption of disloyalty. Finally, they may alienate those who reasonably feel distanced from the content of the oath.

Still, I have sympathy for Lenard’s aspirations—what she wants oaths to achieve. Fortunately, there are alternatives that better achieve these aspirations:

1. Rather than conditioning citizenship on oaths, states can make naturalisation ceremonies and naturalisation oaths fully voluntary, like in Norway.
2. States can retain mandatory naturalisation ceremonies, but make oaths a voluntary part of such a ceremony.  
3. States can cease to make oaths a condition for naturalisation, but provide other positive incentives for immigrants to take them.
4. States can retain mandatory oaths, but allow participants to exercise more choice over the content of the oath that they swear.

Any of these alternatives would better serve the purposes Lenard identifies, but I will focus on the first since it is closest to existing practice and, in my view, the most desirable option of the bunch. First, fully voluntary oaths are certain to create promissory obligations. They better fit with the “voluntaristic tradition” Lenard draws on, though surely fewer people will end up taking such oaths. They also more likely avoid creating problematic inequalities, since any extra burdens are purely chosen. Second, such oaths are less likely to create a culture of suspicion—although perhaps there is a risk of this, since publics may come to distinguish between “oath takers” and “oath shirkers”. Finally, since only some people find citizenship ceremonies meaningful, voluntary ceremonies would allow those who want meaning to find it without coercing those who lack interest to participate.

I thus think there are decisive reasons to prefer voluntary oaths of allegiance to mandatory ones. Nevertheless, I think it would be even better to do away with oaths of allegiance entirely (though this is compatible with retaining mandatory naturalisation ceremonies). Doing so best avoids the worries about inequality raised above. Moreover, an oathless naturalisation process is also more likely to foster a culture of presumptive welcome, rather than presumptive suspicion, towards new citizens Finally, with Vasanthakumar, I believe it is worth questioning how often really existing states merit obedience or deserve loyalty; I thus think that other modes of good, active, and disobedient citizenship are both possible and desirable. Nevertheless, I agree that Lenard’s proposal for a ‘thin’ oath would be an improvement over the ‘thick’ oaths that are characteristic of the current practice: if states are to retain such oaths, they should at least purge them of their objectionable content.