14 August 2013

Migration and Loyalty Oaths

'Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy' by Liav Orgad in (2014) Canadian Journal of Law and Jurisprudence (Forthcoming) -
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 concerns 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.
Orgad comments
The Article explores one manifestation of loyalty in liberal philosophy and political practice—loyalty oaths for immigrants. In many democratic states, immigrants seeking to become citizens must take a loyalty oath. Although the content and form of the oath varies, its common feature is that it is mandatory—a prerequisite for citizenship. Loyalty oaths are particularly interesting because they are a unique platform to examine the interrelationship between constitutional law and immigration law. Oaths serve as a means for an immigrant to subscribe to the tenets of the community. However, before imposing an oath on newcomers, the community must define its tenets. The substance of the oath we demand of them is about us. Immigration policy, thus, echoes constitutional identity by mirroring not only the qualities that we value in others but also by reflecting what defines us. 
At first glance, citizenship oaths do not raise serious problems of political philosophy. After all, an oath only entails reciting a few words in a public ceremony. However, a closer review reveals forceful reasons against the use of loyalty oaths in liberal societies. First, the duty of loyalty, imposed on naturalized persons, seeks to influence one's character traits, emotional attitudes, and internal beliefs; it requires more than just the liberal duty of conformity to the law. Second, the obligation to take a loyalty oath in order to secure citizenship may be seen to limit individual liberties of the oath-takers, infringe upon their freedom of conscience, and in fact discriminate against naturalized citizens compared to natural-born citizens, who never must take the oath. In spite of these strong claims against loyalty oats, the institution of the oath remains an understudied topic. 
The Article argues that the use of loyalty oaths is a symptom of a genuine problem in the liberal theory. In some forms, liberalism means to obey the law and otherwise be left alone. But stronger forms of liberalism further require belief in liberal values and institutions. The justification for requiring it is grounded on liberal itself—its being essential for upholding individual liberties.  The challenge has always been how to preserve liberal values and institutions without crossing the liberal line into ‘indoctrination.’ However, when the benchmark of loyalty becomes belief rather than behavior, when it is faith rather than action, it gets close to the point of not being liberal, even if its goal is to keep liberalism alive. The more loyalty liberal democracies demand, the less liberal they become. When liberal democracies appeal to "loyalty to the law" (allegiance)—and not just "conformity with the law" (obedience)—they challenge liberalism itself. The Article concludes that loyalty oaths yield high costs but have low benefits and suggests abandoning them as a legal institution. 
The Article proceeds as follows: Part I reveals a global trend in comparative immigration law—the growing appeal to loyalty oaths. Part II shows that modern law still embraces a duty of allegiance in addition to the general duty of obedience and explores the differences between them. Part III traces the functions of loyalty oaths and demonstrates that, regardless of the oath's historical purposes—being a form of social contract, political test, and nation-building symbol— its modern purpose is vague. Part IV presents three liberal problems raised by loyalty oaths: 1) they infringe upon the rule of law; 2) they violate freedom of conscience; and 3) they discriminate against naturalized citizens compared to natural-born citizens. Part V concludes.