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Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy

Published online by Cambridge University Press:  20 July 2015

Liav Orgad
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Extract

The Article examines the wisdom of loyalty oaths as a legal institution in contemporary liberal democracies. First, using comparative analysis the Article highlights the growing global interest in loyalty oaths. Second, based upon historical evidence the Article explores the functions of loyalty oaths and assesses their role. Third, through using legal analysis the Article challenges the validity of loyalty oaths and identifies three fundamental problems related to their content and form: the rule of law, freedom of conscience, and equality.The Article reveals liberal concerns associated with the added value of the duty of “loyalty to the law” (allegiance), as distinct from the duty to “obey the law” (obedience). It presents an ongoing tension between loyalty and liberalism and argues that the more loyalty liberal democracies demand, the less liberal they become. The Article concludes that loyalty oaths yield high costs but have low benefits and suggests that liberal states should abandon them as a legal institution.

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Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 27 , Issue 1 , January 2014 , pp. 99 - 122
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2014 

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References

I am grateful to George Fletcher, Malachi Hacohen, Jeffrey Jowell, Christian Joppke, Avishai Margalit, Dora Kostakopoulou, Michele Manspeizer, Barak Medina, Noah Pickus, Amnon Rubinstein, Theodore Ruthizer, Peter Schuck, Adam Shinar, Anna Stilz, and Alexander Yakobson for thoughtful discussions and excellent comments on previous drafts. Special thanks are due to Richard Bronaugh for very helpful comments and suggestions as well as to Odette Simone Ansell for excellent editing work. Earlier versions of the Article were presented at the Kenan Institute for Ethics at Duke University, University of Miami School of Law, the Inaugural YCC Conference of the American Society of Comparative Law at George Washington University, Texas A&M University at Qatar, Bar-Ilan University, the Hebrew University, the Academic Center of Law & Business, and the College of Management Academic Studies; I thank participants and commentators for their comments. Thanks are also due to the Tikvah Center for Law & Jewish Civilization at NYU, Rothschild Foundation, and Fulbright Foundation for their scholarship, which made the research possible.

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2. The Article refers to “loyalty oaths” as an umbrella category for oaths taken in the naturalization process. Unless otherwise mentioned, it focuses on formal oaths.

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4. Irish Nationality and Citizenship Act, 1956, c3, s 15(1)(f) [emphasis added].

5. French Civil Code, art 21-24.

6. Australian Citizenship Act, 2007, ss 15 and 27 [emphasis added].

7. Promissory Oaths Act, 1868, s 2.

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59. See, e.g., 5 Eliz I, c 1, 7 Jac I, c 6, and 30 Car II Stat 2, c 1.

60. North, Marcy L, “Anonymity’s Subject: James I and the Debate over the Oath of Allegiance” (2002) 33 New Literary Hist 215 CrossRefGoogle Scholar; Pollock, supra note 53 at 185-86. The function of the oath as a test can be seen in the title of the Act—The Test Act, 25 Car II, c 2.

61. 31 & 32 Vict, c 72. For earlier oaths, see 1 Will & Mar, c 1, 13 & 14 Wm III, c 6, 1 Geo I stat 2, c 13, 10 Geo IV, c 7, 21 & 22 Vict, c 48.

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75. Grodzins, supra note 33 at 79-97; Bentham, Jeremy, Swear Not at All (London: Richard and Arthur Taylor, Shoe-Lane, 1917) at 1–16.Google Scholar

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84. Grodzins, supra note 33 at 75.

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86. 8 CFR 2010 § 316.11 [emphasis added].

87. Ibid.

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94. The more abstract the oath is, the less it violates freedom of conscience, because abstract terms allow discretion to individual interpretations. But the more abstract it is, the less legal meaning it has, since it is unclear what one’s duties are.

95. Steyn, Mark, “Windsor Hassle; What Kind of Country Will We End up with if New Canadians are Allowed to Explicitly Reject the Constitutional Order?” Western Standard (4 June 2007) 54 Google Scholar, online: Western Standard http://www.westernstandard.ca/website/article.php?id=2551&start=1.

96. Roach I, supra note 90 at para 17; Roach II, supra note 90.

97. (1940), 310 US 586 at 595-96.

98. Ibid at 600.

99. Ibid at 597.

100. West Virginia State Board of Education v Barnette (1943), 319 US 624 at 633.

101. Ibid at 641.

102. Ibid at 642. The Court did not rule that it is unconstitutional to require children to pledge allegiance but, rather, that a child has a protected right not to pledge if it offends one’s conscience.

103. In Baumgartner v United States (1944), 322 US 665 Google Scholar, for example, the American government asked the Court to denaturalize a citizen based upon what he wrote in his diary—that Hitler’s speeches are wonderful.

104. Stilz, supra note 1 at 27-64.

105. Ibid at 64-84.

106. Ibid at 113-36.

107. “PM’s Speech at Munich Security Conference” The Official Site of the British Prime Minister Office (5 February 2011)Google Scholar, online: The Official Site of the British Prime Minister Office https://www.gov.uk/government/speeches/pms-speech-at-munich-security-conference.

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110. Ibid.

111. Ibid at 6.

112. HLA Hart, The Concept of Law, 2nd ed by Bulloch, Penelope A & Raz, Joseph (Oxford: Oxford University Press, 1994) at 88-91Google Scholar.

113. Ibid at 198, 110-17, 255-56. Hart focuses on officials, who work within the legal system, and says little about private citizens. While officials must take an ‘internal point of view’ of the law—it is a prerequisite for a legal system to exist—citizens may take such a view. This is because officials work with the rules of recognition, and people in the citizen’s role do not. For that latter role, in order to achieve stability, citizens must obey or have seen a duty to obey. Ibid at 116.

114. Calvin’s Case, supra note 21 at 383. The option of naturalization was first created in 1350 by an act of Parliament. The Act, De Natus Ultra Mare, provided that an alien who becomes a subject of the Crown shall have similar rights to those of natural subjects. 25 Edw III Stat 1350.

115. Salmond, supra note 23; Martin, supra note 26.

116. Blackstone, supra note 22 at 356-57; Calvin’s Case, supra note 21 at 389.

117. Citizens, however, are required to take a loyalty oath on various occasions, including upon joining the military, taking on a governmental job, becoming a lawyer, and (in some countries) getting a passport.

118. Levinson, supra note 17 at 1454. See also Schneider v Rusk (1964), 377 US 163 at 168 (some distinctions between natural-born and naturalized citizens are invalid discrimination since they “proceed on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native born”).

119. (1946), 328 US 654 at 662-68.

120. Ibid at 671.

121. Ibid at 675-77.

122. Patrick Weil shows that in the United States a breach of the loyalty oath is no longer a ground for denaturalization. See Weil, Patrick, The Sovereign Citizen: Denaturalization and the Origins of the American Republic (Philadelphia: University of Pennsylvania Press, 2012)Google Scholar. While the practice has changed, formal law, however, remains the same.

123. In re Petition for Naturalization of Haesoon Kook Matz, [1969] 296 F Supp 927.Google Scholar

124. Ibid.

125. Tyler, supra note 42 at 321.

126. Webster, supra note 64 at 151-53.

127. Ibid.