Citizenship oaths in embattled democracies
Rainer Bauböck (European University Institute and Austrian Academy of Sciences)
In this forum we discuss whether immigrants who have successfully gone through a naturalisation process can be required to pledge allegiance to their newly adopted country. Except for Christine Hobden, the authors who have contributed to this debate so far all assume a background of stable liberal democracies that welcome immigrants. In such a context, asking immigrants to perform an oath seems at best unnecessary and at worst mean-spirited as it puts them under a suspicion of disloyalty. While I accept some of the critiques raised against Patti Lenard’s defence of mandatory naturalisation oath, I want to shift the focus of the debate by proposing that such oaths can still be justified if democracies are under attack from the inside and outside.
Data collected by V-Dem show that after a long period of steady increase the number of liberal democracies has peaked in 2012 with 42 and has decreased to only 35 in 2022. Merely 13% of the world’s population live in these countries. There are more dictatorships today than a decade ago and the most frequent type of political regime are electoral autocracies where elections are held under conditions that are neither free nor fair to provide a veneer of legitimacy to autocratic regimes.
If one accepts the democratic peace hypothesis, the global democratic recession will contribute to new geopolitical conflicts that can result in wars. In some cases, wars of aggression have been threatened or undertaken by authoritarian regimes with the explicit aim of destroying neighbouring democratic ones. Just think of Vladimir Putin’s war against Ukraine or China’s destruction of democracy in Hong Kong and its threat to invade Taiwan. Massive democratic backsliding has also occurred in previously stable democracies – as in the US under the Trump administration, in Poland under the PIS government, in Turkey under Recep Tayyip Erdogan’s regime and in Hungary under Viktor Orbán’s. Even some Western European states with the longest continuity of democratic institutions, such as Sweden, Finland or the Netherlands, are witnessing a steep rise of radical right populist parties that aim at undermining the rule of law and that invariably scapegoat immigrant populations as they aim to restore an ethnically purified and culturally assimilated nation.
Liberal political theories since the 1970s have been mainly preoccupied with figuring out what justice requires in a global context where ever more countries would become stable liberal democracies with friendly relations amongst each other. But there is an older tradition of republican theory associated with Niccolò Machiavelli, Jean-Jacques Rousseau and Hannah Arendt that started from the assumption that republics are embattled islands of freedom in a sea of unfreedom. These theories asked what can and needs to be done for “mantenere lo stato”, as Machiavelli put it, i.e. to temporarily stabilise and extend republican freedom and its institutional support against internal and external enemies. We are not yet back in such a world, but when discussing justifications for devices such as oaths of loyalty, maybe we should take into account that the conditions for promoting liberal democracy have deteriorated in recent years.
What oaths of loyalty are good for
Native-born citizens typically have to take oaths of loyalty towards the state on two occasions: when they are sworn into important public offices, such as that of judge or juror, member of parliament, minister or president, and when they start their military service. The purpose of the former kind of oaths is to signal to citizens who hold such public offices that they bear a special responsibility for the common good of the polity. In the republican view that I cited above, this rationale may also apply to ordinary citizens. Herman van Gunsteren argued in the late 1990s that citizenship itself should be regarded as a public office rather than merely a bundle of rights bestowed on individuals from above by the liberal state. This view would not object to a mandatory oath for all citizens at the age of majority, as proposed by David Owen in this forum. Yet requiring it from those who take up public office as a profession still serves a specific goal: it makes it possible to hold them accountable, including through criminal law, for a breach of their professional duties in a way that liberal states cannot hold accountable ordinary citizens for failing to perform their civic duties.
The main occasion when the latter are asked to swear loyalty is when they are drafted into the army or voluntarily serve in a country’s military forces. Where the state’s institutions can claim democratic legitimacy, the task to defend them against violent aggression may not only be imposed on citizens by law but should also be highlighted as their democratic duty. What they are defending in this case, as the case of Ukraine so vividly demonstrates, is their capacity for collective self-government. This is what a suitably worded public oath taken by soldiers should signal.
Why not extend this practice also to the defence of democracy against its internal enemies to which all citizens should commit? There are again liberal reasons for distinguishing the tasks of soldiers from those of ordinary citizens. Liberal constitutions must be firmly grounded in universal values such as the equal moral worth of individuals and spell out their implications for non-discrimination, equality of basic freedoms and the state’s duty to protect the lives and basic needs of all who live in its territory.
But this very commitment also entails freedom of thought, speech and association for those who reject liberal worldviews, as long as they do not undermine liberal democracy through their actions. It is one thing to educate children and adults about the country’s constitution and its values, which is important for defending it against internal attacks. It is quite another thing to ask all citizens to take an oath that they are committed to a detailed list of liberal values and rights, as they are often spelled out in democratic constitutions. Doing so risks violating at least one of these rights – freedom of conscience and is likely to turn public oath-taking into a forced exercise in hypocrisy. This is not a definitive objection against the idea of introducing public oaths also for native citizens, but merely against making their content too thick.
An oath of affiliation for new citizens
How does this help to answer the question raised in this forum, which is about mandatory oaths for naturalising immigrants? If citizens-by-birth were asked to swear an oath at a citizenship ceremony, which could be held to celebrate their enfranchisement, it would be entirely appropriate to ask immigrants to take a similar oath when they are admitted to full citizenship. The open question is whether it is still justifiable to impose such a requirement on naturalising immigrants if and as long as those who have acquired their membership status at birth are not asked to take such an oath.
In contrast to most contributors to this forum my answer is a conditional yes. The main reason is that a naturalisation oath serves an additional function that is absent in the oaths for citizens discussed so far. It affirms a change of membership status and proclaims inclusion in a new political community.
Here I differ from Lenard who regards a promise of obedience to the law as the core content of a thin liberal oath. As pointed out by Lior Erez, Ashwini Vasankathumar, Daniel Sharp and Christine Hobden, citizens as well as noncitizen immigrants have reasons to obey the law and making it a requirement only for naturalising immigrants to give such a formal promise puts an extra burden on them and can serve to make their legal status more precarious when they are found to break the law.
The value component of a liberal oath is, or ought to be, universalistic in asking immigrants only to affirm those values that could also be included in a general oath for all citizens without violating their freedom of conscience, rather than any particularistic values spelled out in the country’s constitution or associated with its religious and ethical traditions. The membership component is, however, necessarily particularistic. It asks immigrants to affirm their new affiliation to this particular state. This affirmation need not be spelled out explicitly, since it is anyhow implied in a naturalisation oath. The membership component may therefore be expressed performatively through the very act of taking an oath. This does not mean that the membership element of the oath is insignificant or thin. It marks the acquisition of a new citizenship as a rite of passage. As argued by Tine Damsholt, a naturalisation oath is also “a step towards the emotionalisation of citizenship, in order to ensure cohesion, unity, and a sense of belonging, since the emotional significance of citizenship is considered to be a guarantee for loyalty and the desired civil awareness.”
There are, once again important liberal constraints on what immigrants can be asked to proclaim in this regard. As pointed out by Helen Irving, the notion of allegiance is treacherous in this context, as it calls for obedience, “tying both conduct and belief to the commands of the state or sovereign.” It is also hard to square with state recognition of migrants’ transnational ties to countries of origin and destination and the global trend towards acceptance of dual citizenship.
A liberal naturalisation oath ought to be worded and interpreted therefore as a proclamation of affiliation rather than allegiance. It should emphasize, on the one hand, the consensual nature of membership acquisition grounded in the fact that the immigrant was invited but not forced to become a citizen and, on the other hand, a mutual responsibility of the new citizens for the common good of the state and of the state for protecting the new members and their rights inside and outside the territory. Such an oath would not require the new citizens to renounce their citizenship in or their emotional connections to a country of origin.
This particularistic membership component is made explicit in a liberal naturalisation oath but remains implicit for citizens by birth, even if they were asked at the age of majority to publicly commit to universal values and defend democracy.
Immigrants’ admission to birthright communities
The consensual nature of naturalisation should not blind us to the fact that membership in political communities is not, and cannot be, consensual in the sense of voluntary association. David Owen rightly invokes John Locke as the most consistent social contract theorist in this regard. Yet no state, whether liberal democratic or autocratic has taken up Locke’s idea that citizenship can only be acquired through express consent at the age of majority.
Since citizenship in independent states is firmly grounded in automatic birthright, the only way that immigrants can acquire it without upsetting this arrangement is through applying for admission and being individually granted membership. Asymmetry between citizens by birth and by naturalisation has been the focus of critique by most contributions in this forum. However, asymmetry in the sense of a distinction between automatic and consensual acquisition of citizenship does not prevent equal citizenship thereafter and is both inevitable and justified.
Political theorists who criticize this asymmetry should consider again the question with which I started this comment. What rules for determining membership could enable democratic self-government to survive in a world divided into independent territorial jurisdictions if cross-border mobility is steeply on the rise and democracies are under attack from internal and external enemies? Birthright citizenship provides intergenerational stability of membership in bounded political communities. This does not devalue the critique of the “birthright lottery” and the undeserved allocation of opportunities it entails in a deeply unequal world. But it points towards the need for other solutions for rectifying global injustice than abolishing birthright citizenship.
Lenard builds her argument partly on the fact that naturalisation is a voluntary choice. If citizenship oaths could in principle also be required from citizens by birth, then voluntary choice does not seem to be a necessary condition for justifying the practice of mandatory oath-taking. However, this objection only applies to the universalistic value component of the oath. Lenard’s argument still holds with regard to the particularistic membership component. If naturalisation were mandatory, as Ruth Rubio Marín, Lea Ypi and Helder de Schutter have advocated, requiring that immigrants affirm under oath a new affiliation imposed on them would add insult to injury.
Naturalisation oaths as signalling devices
Of course, if voluntary naturalisation under fair requirements is a necessary condition for a mandatory oath the content of which meets the conditions spelled out above, it does not follow that it is also a sufficient one for justifying it. So let me conclude by discussing conditions that could make this practice legitimate and prudentially useful, even if certainly not required in the sense that all liberal democracies should introduce it – which Lenard has not argued for anyway.
Unlike oaths taken by those holding public office, a liberal naturalisation oath must not serve as a quasi-contract, the breach of which leads to being deprived of the office or of membership. Since in liberal democracies immigrants join a birthright community that reproduces itself without political control over its composition, such states should have only minimal powers to deprive individuals of their citizenship. Any distinction between birthright and naturalised citizens in this respect is discriminatory and downgrades the latter to a second-class membership. The danger of abusing an oath in this way are clearly spelled out in Hobden’s discussion of South African practices.
A naturalisation oath is not a promise or contract but a signal. It tells immigrants that from now on they are full members of the polity and ought to support its universal values and defend it when needed. Where naturalisation oaths are taken at public ceremonies they also address a wider audience of citizens by telling them that they should trust the new members to be good citizens. Hobden argues that in a hostile context mandatory oaths will be used against naturalised immigrants. However, in democracies that are under attack from anti-migrant political parties and movements, a liberal version of a naturalisation oath may also have the opposite effect. Sharp and Owen are right that empirical evidence is needed to find out whether and how the signalling effect works towards the broader public. My hunch is that positive effects will depend not just on the wording of the oath but also on the government’s and society’s general attitude towards migrants. Finally, Lenard is right to point out that by accepting a naturalisation application it is also the state that expresses a commitment towards its new members. It makes this commitment public through staging naturalisation ceremonies. By welcoming them on this occasion it promises to protect them and their rights.
The combination of and balance between these three signals is crucial for justifying naturalisation oaths. Where they put all the emphasis on the new citizens’ allegiance they can serve to support jingoistic patriotism and to put immigrants under suspicion. Where they merely ask for commitment to the same universal values that could also be included in a general oath for citizens and affirm immigrants’ new affiliation, they could be productive. Several contributors to our debate have endorsed a voluntary ceremony and oath as a better alternative. However, as Sharp acknowledges, there is a risk that voluntary oaths create a distinction between “oath takers and oath shirkers” and send a problematic signal that some of the new citizens have not accepted the duties of membership.
Whether it is ultimately recommendable to introduce a mandatory ceremony and oath in order to send the positive signals depends, in my view, also on the broader background context. In a peaceful world of stable liberal democracies, it may be preferable to turn down the volume and emphasize instead that naturalisation is an individual entitlement of long-term resident immigrants that ought to be handled by bureaucrats like any other legal procedure rather than an occasion for public ceremonies and oath swearing. In a world where democracy is embattled, there may be good reasons for a different approach.