There’s no such thing as ‘thin’ allegiance.
Helen Irving (The University of Sydney Law School)
In Patti Lenard’s defence of mandatory oaths of allegiance in naturalisation ceremonies, the oath plays both a functional and expressive role. It serves to reassure the existing citizenry that the new citizen will (or at least will promise to) conform in conduct and commitments to the national community rules, and, at the same time, it offers meaningful, even joyful, value to the new citizens themselves as they willingly embrace the authority of their new state. The ceremony in which oaths are sworn, Lenard writes, is part of the ‘welcome’ extended to new citizens, but the welcome, it is clear, is also inflected with mistrust and anxiety about the character of the incoming citizens. Lenard attempts to minimise the mistrust by surrounding the oath-taking with liberal-democratic conditions. However, for reasons explored below, it is the mistrust that inevitably dominates as an inescapable outcome of a discourse of ‘allegiance’.
The conditions in which the oath is taken, Lenard explains, must respect the cultural and religious commitments of the new citizens; it must be ‘entirely thin’, making only minimal substantive demands of the naturalising immigrant. Examining these conditions, Lenard commendably acknowledges the need ‘to consider ‘what allegiance is’ (something most citizenship scholars who employ the term fail to do). Her account distinguishes between a ‘thinner’ and a ‘thicker’ version. The thinner version understands allegiance “minimally to mean a commitment to obey the law’. In contrast, the thicker account understands allegiance as requiring ‘certain beliefs or sentiments or ‘loyalty to the law.’” Characterised in this manner, thick allegiance is incompatible with the liberal-democratic values and practices that, in Lenard’s account, legitimise thin oaths. We can dispense with the thick version, Lenard suggests, and in doing so, we can stamp oath-taking – even mandatory oath-taking – with a democratic, welcoming, and joyful character. It is here, I think, that Lenard misstates the core character of allegiance and, thus, misses the point of oaths of allegiance.
Lenard’s characterisation of thick allegiance is correct, albeit incomplete, but her concept of thin allegiance is a misnomer, even an oxymoron. Allegiance is specifically and intentionally a thick concept. It is both content laden and coercive. The very purpose of swearing allegiance is counter-consensual; it is to constrain the citizen’s choices and bind the citizen’s conscience, tying both conduct and belief to the commands of the state or sovereign. The decision to swear allegiance in a naturalisation ceremony may be ‘voluntary’ in the sense that choosing to undergo naturalisation is voluntary. Once that choice is made, however, if ‘allegiance’ is part of the deal, consent – including to the obligations that follow the oath – is exhausted; no prevarication or equivocation is permitted. Allegiance, furthermore, is essentially singular; one cannot ‘split’ allegiance or owe allegiance to more than one sovereign.
The principle of exclusive allegiance, it might be objected, is contradicted by the fact of dual or multiple nationality, an expanding global reality, now more or less tolerated in a world that once treated it as anathema and sought by international effort to reduce it. But, even tolerated, jurisprudence and enduring rules of international law (such as the ‘master nationality rule’) indicate that dual nationality is not to be confused or conflated with dual allegiance. In Vasanthakumar’s words, dual nationals ‘may enjoy multiple rights but their duties [of allegiance] may conflict.’ To give the paradigmatic example, under international law, one cannot bear allegiance to one country and, at the same time, fight against that country in a war. The oath of allegiance is an oath of obedience to a single sovereign or state.
Lenard, as we have seen, characterises the oath of allegiance as signifying the incoming citizens’ willingness to recognise the authority of their new state and, with that, their commitment to obeying the law. This makes no sense absent an understanding of ‘the law’ as something beyond the regular law, having a higher, transcendent character; meaning, effectively, the state itself. No one, whether citizen or alien, is free to disobey the law in its ordinary sense simply by virtue of having failed or declined to swear to obey, and no evidence is given that an oath of allegiance in itself (in the absence of targeted legal sanctions or heavier penalties for breaches of the law by naturalised citizens) creates a higher incentive to be law-abiding on the part of those who have sworn. But the citizen who has sworn allegiance must in principle, identify with, and subordinate his or her judgment to the new state. Oaths, as Vasanthakumar writes (with reference to the citizen’s duty to disobey) “relegate naturalising citizens to a narrow conception of citizenship as obedience to the state’s commands” (see also Orgad and Lavi.) This is a counter-democratic conception, incompatible with democratic notions of citizenship which must allow for the citizen to work “to fundamentally re-shape the state, including through disobedience.”
Distinguishing allies from enemies
An understanding of the concept of allegiance as analytically ‘thick’ draws upon the history of oaths of allegiance. Oaths, as I have noted elsewhere, were historically administered not merely to secure support for the sovereign, but importantly, in order to distinguish allies from enemies. Those who refused to swear would, in refusing, expose themselves as enemies, risking serious punishment. Falsely swearing also attracted penalties. It was anticipated and pre-empted in certain naturalisation oaths; for example, in the United States, where, since the 1790s, the oath has included a promise that its commitments were undertaken without ‘mental reserve’ or ‘purpose of evasion.’ An individual could be denied the right to swear if it was known that he or she would do so falsely. The case of Charles Bradlaugh, the prominent nineteenth-century English atheist and secularist, offers a memorable illustration. Bradlaugh was repeatedly disbarred from swearing the parliamentary oath (which included a reference to God) and thus from taking the seat in the House of Commons to which he had been elected. He professed himself willing to swear, but did not disguise the fact that he would do so insincerely, his conscience unbound. This principle of strict obedience to both the wording and the intent of the oath, preventing its personalisation, was echoed more recently in the disqualification from office in 2016 and 2017 of several pro-democracy members of the Legislative Council of Hong Kong who, in protest against the oath’s identification of Hong Kong as part of China, recited the oath in a manner that distorted or mocked its words. It was echoed in Australia last year, when Lidia Thorpe, a newly-elected Senator and an Indigenous woman, added words to the Senators’ oath of allegiance, protesting against Britain’s historical colonisation, but was required to recite the oath correctly before being permitted to take her seat.
A context of fears about dubious loyalty
Such examples, it might be objected, are tendentious or atypical; surely an oath need not include such antiquated or undemocratic commitments. This, indeed, is Lenard’s argument: an oath of allegiance may be both mandatory and legitimate, so long as it is ‘thin’ in its commitments and is taken under conditions of liberal democracy and tolerance. In return, Lenard should consider more closely the context in which naturalisation oaths are increasingly appearing. The context, as she herself acknowledges, is one of fear that immigrants who become citizens will ‘take advantage of the benefits of living in stable and democratic host societies’ while remaining loyal to their country of origin and its counter-democratic values and practices. Such fears, she notes, have found a place in the last two decades in particular as a response to new global pressures of immigration and the rise of Islamophobia. Hence the expanding number of countries in which an oath of allegiance has been added to the naturalisation process. Lenard, however, takes insufficient note of this context and what it signifies.
If we consider the motives behind the recent introduction of oaths of allegiance, we find that ‘dark readings’ – to use Lenard’s expression – dominate. Governments are responding to public concerns, in particular that Muslim immigrants who gain a foothold through naturalization, will undermine the democratic national culture of their new state, and contribute to radicalisation and its offshoot, terrorism. These concerns and the chain of reasoning attached to them were undisguised in Britain’s amendment of its citizenship law in 2006, allowing for the revocation of citizenship if this is ‘conducive to the public good’, extending such grounds, among other things, to revocation for involvement in terrorism. Similarly, Australia’s amendment in 2015 of its Citizenship Act to provide for revocation of citizenship (whether acquired by birth or naturalisation) for conduct amounting to a breach of allegiance, focused pre-eminently on acts of, or support for, terrorism. In the political discourse surrounding the introduction of these laws, Muslims were depicted as being under an allegiance not to the state, but to an alternative non-state sovereign. As such, their loyalty was treated as essentially insecure and unreliable.
Lenard side-steps these issues by defending only thin oaths of allegiance that are sworn under liberal-democratic conditions. She thus loads the dice. But these conditions are such as to make an oath effectively redundant. As Erez writes, “The kind of oath she defends is at odds with the reasons such an oath is viewed as necessary.” Not only is an oath of allegiance redundant, it also essentially serves as a negative reminder that immigrants’ allegiance is unproven until they swear, that they must distinguish themselves from the enemies they may otherwise be suspected of being, and that they must reassure existing citizens of their obedience to the state. The very conditions upon which they are permitted to become part of the citizenry are thus paradoxically tainted with the counter-democratic ‘unwelcome’ that Lenard’s thin version of allegiance wants to resist.
An oath of allegiance was never meant to be democratic; it has always strained against the principle of freedom of conscience, pre-committing the oath-taker to exclusive, uncritical obedience and subordination to the sovereign or state. What might legitimately be demanded of immigrants in their transition to their new citizenship is a very large question. But the answer cannot be that they must make a non-revocable promise to obey the commands of the state, both in conduct and conscience, at least not if the state we have in mind is a liberal democratic one.