Morality, Hypocrisy and Prudence
David Owen (University of Southampton)
In her tentative defence of mandatory oaths of allegiance, Patti Lenard identifies three reasons “that oath-taking, in which newcomers pledge their allegiance to their new country of citizenship, is defensible policy” which can be glossed thus:
1) as a signal of the voluntary consent of new citizens to the authority of their new state;
2) as a public ritual that gives expressive weight to the moment of consent;
3) as a meaningful moment for newcomers “who are happy and excited to join a new state formally and who recognize the moment as one in which they are accepted as belonging to a new state”.
For reasons that have already been outlined by Lior Erez, Ashwini Vasanthakumar, and Daniel Sharp, I think that these reasons are insufficient to ground a moral defence of mandatory oath-taking for immigrants. Indeed, for reasons akin to those Sharp outlines, I think that to require an oath of allegiance solely of immigrants wishing to naturalise is not to affirm the voluntaristic dimension of the liberal tradition but to exemplify its practical history of moral hypocrisy. From a moral standpoint, as Vasanthakumar nicely puts it, ‘an oath was a small price to pay perhaps, but that does not mean it should have been asked.’
However, to reject the moral case for mandatory oath-taking for immigrants is not to end the argument but to open two further, alternative ways in which oaths might be more successfully defended. The first is to maintain the commitment to mandatory oath-taking in the thin form that Lenard affirms but generalise it to all potential citizens. The second is to offer a prudential defence of mandatory oath-taking for naturalising immigrants that accepts its moral hypocrisy but argues that it serves important public ends. I will consider each in turn.
The Moral Argument
Lenard’s appeal to the idea that whereas immigrants can be required to take oaths, native-born citizens can be taken to consent in other ways is reminiscent of a widespread misunderstanding of John Locke on express and tacit consent, and going back to Locke may help clarify this issue. The development of the liberal theory of the modern state beginning with Locke is concerned to establish a natural right to leave’s one state as a fundamental liberty. There are two aspects to Locke’s argument. The first is that no one can be legitimately bound to a state to which they have not consented and hence, on reaching the age of majority, each person has a right to leave the territory of the state in order to join or, indeed, act with others to create another:
‘Tis plain then, . . . by the Law of right Reason, that a Child is born a Subject of no Country, or Government. He is under his Fathers Tuition and Authority, till he come to the Age of Discretion; and then he is a Free-man, at liberty what Government he will put himself under; what Body Politick he will unite himself to. (John Locke, the Second Treatise of Government, VIII.118)
Locke takes this practice not to be a threat to existing states but rather a justified historical practice. Moreover, as Fredrick Whelan notes:
This doctrine follows logically from Locke’s premises, although … it is a radical one, at variance with English law after as well as prior to 1688. It comprises a very clear argument for a right of emigration set within a general and coherent theory of political society, a right moreover which is fundamental because of its relationship to what is asserted to be the very basis of such society.
What is equally important, however, is the second aspect of Locke’s argument, namely, that this right is ceded once an individual chooses to become a citizen of a particular state, unless and until this government breaches the terms of the social contract:
Whereas he, that has once, by actual Agreement, and any express Declaration, given his Consent to be of any Commonweal, is perpetually and indispensably obliged to be and remain unalterably a Subject to it, and can never again be in the liberty of the state of Nature; unless by any Calamity, the Government, he was under, comes to be dissolved. (Locke, VIII.121)
Two points are pertinent here. The first is that for Locke citizenship is acquired by express consent and, if there is no breakdown of the legitimacy of the polity, denotes a lifelong status, a permanent bond. The second is that Locke regards the express consent of a rational adult to joining a polity to be both necessary and sufficient to establish their membership of that polity.
Locke’s view has been liberalised further by thinkers such as Thomas Jefferson in the context of the American Revolution to allow for voluntary renunciation of citizenship, but the important point for our current concerns is that the liberal idea of the consent of the governed is not simply compatible with mandatory oath-taking but requires it for all would-be citizens – citizenship needs to be acquired by all, and not just immigrants, through express consent, which could be performed through an oath. Moreover, such oaths certainly do not require obedience to law when the government is abusing the trust it is charged with upholding.
This liberal view may have been forged against a background in which the right to leave the state was more prominent than that of gaining access to another state. However, if one’s concern is with the consent of the governed then a suitably adjusted version of this particular argument could provide a basis for a moral argument for mandatory oath-taking so long as people have some reasonable degree of choice concerning where they become citizens. To put it in modern parlance, the voluntaristic strand of liberal thought in its non-hypocritical version links mandatory oath-taking with both its generalisation to all citizens, not just immigrants, and access to a valuable range of citizenship options. This may be attractive to Lenard given her wider theoretical commitments, but it cannot support the restricted argument she offers here.
The Prudential Argument
The alternative argument is to accept that mandatory oath-taking for immigrants is a piece of moral hypocrisy that is primarily directed at re-assuring existing citizens of the integration and loyalty of naturalised citizens and defend it on these grounds. This argument is conditional as it depends on empirical support. For example, we would need to look comparatively at states with mandatory oath-taking, voluntary oath-taking, and no oath-taking for naturalisation to see what, if any, positive effects mandatory oath-taking has and to judge whether, if it does out-perform the alternatives on relevant metrics, it is a proportionate means to the desirable ends. As Sharp notes, these musings can only be speculative since we do not seem to have the relevant data (and this would be a nice project). But let us assume for the sake of argument that states with mandatory oath-taking are more receptive to immigrants becoming citizens and more equitable in outcomes for naturalised citizens across a range of measures. In such circumstances, it would be plausible to argue that a mandatory citizenship oath is a small price to pay and well worth paying. Moreover, we could even argue that this prudential argument grounds an obligation of naturalising immigrants not to native citizens but to each other and future immigrants to sustain the (stipulated) conditions. Sometimes the moral hypocrisy of others may be worth enduring, at least in the short-medium term.
In this commentary, I have aimed to draw attention to the fact that the important (and, in my view, compelling) objections offered to Patti Lenard’s defence of mandatory oaths of allegiance for immigrants do not end the argument about mandatory oaths of allegiance or their specific use in relation to immigrants. I have suggested that mandatory oath-taking can be defended on grounds of liberal morality, but only when applied to all citizens and under conditions where there is an adequate range of citizenship options available for individuals. Since these conditions do not currently apply, I have indicated that another line of argument available to Lenard would be a prudential defence that mandatory oath-taking for immigrants makes citizens more likely to welcome them as new members. This defence is conditional on empirical support but, if it is supported, it would provide Lenard with a strong response to the criticisms directed at her view.
Acknowledgements: My thanks to Rainer Bauböck, Patti Lenard, Daniel Sharp, and Ashwini Vasanthakumar for quick and thoughtful feedback on a draft of this commentary.