conscience – Double Aspect

The Road to Serfdom at 75: Part II

Hayek’s proposals for resisting collectivism

In the last 10 days, I gave two talks ― one to the Runnymede Society chapter at the University of Victoria and one at the Université de Sherbrooke ― on Friedrich Hakey’s The Road to Serfdom. In yesterday’s post and in this one, I reproduce my notes for these talks. Yesterday’s post covered the context in which The Road to Serfdom was written and presented Hayek’s criticism of collectivism. This one reviews some of his proposed solutions. The page numbers refer to the 50th Anniversary Edition, which is the one I have in my possession.

What, then, is the alternative to collectivism? It is, naturally, individualism. Individualism, Hayek insists, is not selfishness. It is, rather, the “recognition of the individual as the ultimate judge of his ends, the belief that as far as possible his own views ought to govern his actions”. (66) The sovereignty of individual belief over individual action is, indeed, a burden as much as a right. Hayek reminds us “[t]hat life and health, beauty and virtue, honor and peace of mind, can often be preserved only at considerable material cost”, and “that we all are sometimes not prepared to make the material sacrifices necessary to protect those higher values”. (107) Individualism insists on “the right of choice, [which] inevitably also carries the risk and the responsibility of that right”. (112) But the alternative to making choices, however unpleasant, for ourselves is that others will make them for us.

Note that, from the insistence on the primacy of the individual follows naturally what Hayek calls “[t]he fundamental principle that in the ordering of our affairs we should make as much use as possible of the spontaneous forces of society, and resort as little as possible to coercion”. (21) Hayek is especially well known for his insistence on the importance of this principle in the economic realm, but it applies much more broadly, as we shall see. Between collectivism and individualism as fundamental organizing principles of society, between “the order governed by the impersonal discipline of the market or that directed by the will of a few individuals”, (219) Hayek sees no middle ground, no possibility of compromise. The methods of collectivism are such that individual liberty cannot be preserved once they are being thoroughly applied, regardless of the purpose to which they are put. From that, it follows “[t]hat democratic socialism, the great utopia of the last few generations, is not only unachievable, but that to strive for it produces something so utterly different that few of those who now wish it would be prepared to accept the consequences”. (36) It is the ruthless, rather than the sincere democrats, who are able and willing to impose their values on the rest of society.

So what is to be done to secure this fundamental principle, and the supremacy of the individual on which it rests? I will focus on Hayek’s suggestions in three areas: the law, not only because this is my area of expertise, but also because Hayek’s first degree was, in fact, in law, and he deserves to be much better appreciated than he is as a legal philosopher; the economy, because after all Hayek is usually thought of as an economist (though he was much more than that), and a Nobel Memorial Prize winning one at that; and the relationship between the individual and society, because, I think that this, if anything, even more important both to Hayek himself, and especially to us as readers in an age where the preoccupations of collectivism are, ostensibly, not only or even primarily, economic.

Let me begin, then, with the law. Hayek sees its function as that of “creating conditions under which the knowledge and initiative of individuals are given the best scope so that they can plan most successfully”. (40; emphasis Hayek’s.) A sound legal framework is what enables competition and markets to serve “as a means of co-ordinating human efforts” (41) and so to provide for the needs and wants of individuals. Hayek is no anarchist; he is not, like Thoreau, saying that that government is best which governs not at all. (Indeed, he claims, in The Road to Serfdom, that “[i]n no system that could be rationally defended would the state just do nothing. An effective competitive system needs an intelligently designed and continuously adjusted legal framework as much as any other.” (45) (In Law, Legislation and Liberty, Hayek’s views on the design of legal frameworks change quite dramatically.)

But government, if it is to respect the ability of individuals to be masters of their own lives, must not only create and sustain a legal framework, but also bind itself by rules. In other words―in words that are of central importance to Hayek―we need the Rule of Law. As Hayek defines this phrase, it “means that government in all its actions is bound by rules fixed and announced beforehand―rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of that knowledge”. (80) In this way, “the government is prevented from stultifying individual efforts by ad hoc action”. (81)

This means that the law must consist of “formal rules which do not aim at the wants and needs of particular people”, (81; emphasis Hayek’s) and are not meant to produce substantive justice, whether defined in terms of equality or of some conception of merit. An attempt to produce rules―whether laws or administrative rulings―aiming at modifying the lot of particular people means that the law “ceases to be a mere instrument to be used by the people and becomes instead an instrument used by the lawgiver upon the people and for his ends”. (85) Laws that are qualified “by reference to what is ‘fair’ or ‘reasonable’”, (86) which can only be applied on a case-by-case basis, are antithetical to the Rule of Law; they result in “increasing arbitrariness and uncertainty of, and consequent disrespect for, the law and the judicature, which in these circumstances could not but become an instrument of policy”. (87)

Relatedly, “the discretion left to the executive organs wielding coercive power should be reduced as much as possible”, (81) which has the added benefit of enabling democratic control over the exercise of this coercive power. Such control, Hayek argues, is only possible when the executive works towards ends determined by a democratic process―that is, ends on which political consensus can exist, rather than being manufactured by the executive itself―and in accordance with standards compliance with which can actually be assessed. In the absence of such standards, there is no Rule of Law, even if the executive is ostensibly authorized to act by vague and broad delegations of power. (91)

It is important to note that Hayek’s rejection of the pursuit of substantive equality by means of laws targeting particular groups or authorizing discretionary administrative decision-making does not proceed from a lack of interest in rights, or indeed equality. On the contrary, he endorses a substantive conception of the Rule of Law, which incorporates “limitations of the powers of legislation [that] imply the recognition of the inalienable right of the individual”. (93) He also warns that state control of the economy will be used “to pursue a policy of ruthless discrimination against national minorities” (96) or against otherwise unpopular groups or persons.

This brings me to the realm of economics. The Road to Serfdom emphasizes the importance of competition between producers―including both firms and workers. Competition is preferable to allocation of resources according to some pre-defined plan, or to the views of government decision-maker, “not only because it is in most circumstances the most efficient method known but even more because it is the only method by which our activities can be adjusted to each other without coercive or arbitrary intervention of authority”. (41) The world is so complex that no planner, whether an individual or a government agency, can embrace the whole picture of the resources available to a society, the needs and desires of individuals, the ideas they are generating.

Being left to pursue their interests and opportunities within a general framework of rules, individuals and firms will create more, not only in terms of material wealth, but also of innovation and opportunity, than if they worked at the direction of government. A bureaucracy attempting to direct them simply could not anticipate what possibilities might arise, and what prospects its orders might foreclose. It is worth pointing out that Hayek sees a role for regulation, whether to protect the rights of workers or even the environment. At least in The Road to Serfdom―his views on this become more uncompromising later―Hayek claims that “preservation of competition [is not] incompatible with an extensive system of social services―so long as the organization of these services is not designed in such a way as to make competition ineffective over wide fields”, (43) and they are, instead “provided for all outside of and supplementary to the market system”. (133)

On the other side―as consumers―a competitive economy leaves us choices that regulation or government control would take away. Hayek explains that “[o]ur freedom of choice in a competitive society rests on the fact that, if one person refuses to satisfy our wishes, we can turn to another. But if we face a monopolist we are at his mercy. And an authority directing the whole economic system would be the most powerful monopolist conceivable.” (102) While the market does not always provide us with as many opportunities as we would like, it at least leave us the choice of how to direct our limited resources, instead of leaving us dependent on others’ views “of what we ought to like or dislike” (103) or how we ought to value the different aims that we would like to pursue. (99) The market does not distribute wealth and resources “according to some absolute and universal standard of right”―which in any case does not exist―, but nor does it make distribution subject to “the will of a few persons”. (112) In a market economy, “who is to get what … depends at least partly on the ability and enterprise of the people concerned and partly on unforeseeable circumstances”. (112-113)

I turn, finally, to the question of the relationship of the free individual to a free polity. The commitment to individualism imposes significant burdens on both―or rather, on both the individual as a private agent and on the same individual as a citizen and member of a political community.

In politics, we must learn to recognize the reality of the constraints and limitations within which we make our choices: in particular, of economic constraints. We must accept that they are not the product of some sinister will, but of forces no less real for being impersonal. Hayek explains and warns that

[a] complex civilization like ours is necessarily based on the individual’s adjusting himself to changes whose cause and nature he cannot understand: why he should have more or less, why he should have to move to another occupation, why some things he wants should become more difficult to get than others, will always be connected with such a multitude of circumstances that no single mind will be able to grasp them; or, even worse, those affected will put all the blame on an obvious immediate and avoidable cause, while the more complex interrelationships which determine the change remain inevitably hidden from them. (223)

We must understand that while “[i]t may sound noble to say, ‘Damn economics, let us build up a decent world’”, this “is, in fact, merely irresponsible”. (230) The attempt to build up a decent world risks empowering the demagogues offering easy solutions that solve nothing, and destroy what we already have.

To resist them, we need also to accept that ends do not justify all means; that collectivist and a fortiori dictatorial instruments cannot be put in the service of the right ideals, or entrusted to the right people, without either corrupting them or being seized by the more ruthless and corrupt; that “power itself” is “the archdevil”, (159) and that power concentrated in the hands of the state “is … infinitely heightened” (159) in comparison with that wielded by private actors. Once again, the echoes of The Lord of Rings are unmistakable.

We need, moreover, to firmly reject “the presumption of any group of people to claim the right to determine what people ought to think or believe”. (180) Perhaps most controversially for our time, Hayek cautions against a loss of “belief in Western civilization” and “a readiness to break all cultural ties with the past and to stake everything on the success of a particular experiment”. (203) (It would perhaps not be superfluous to note that Hayek would later write an essay called “Why I Am Not a Conservative”; he always considered himself a liberal―in the European, not the American, sense of the word.)

Last but not least, we ought to remember that morality is not measured by the intensity of our “indignation about the inequities of the existing social order” (230) but “by standards [of] individual conduct, and on the seriousness with which we uphold moral principles against the expediencies and exigencies of social machinery”. (231) We are acting morally, in other words, not when we are engaged in virtue-signalling or being “unselfish at someone else’s expense”, or indeed “being unselfish if we have no choice”, (231) but when we choose to put our own self-interest on the line for our principles. On this point, it is worth emphasizing that voting, in particular, is no test of individual morality, since it requires no “sacrifice of those of [those] values [one] rates lower to those [one] puts higher”. (233)

It is in our private conduct that we ought to be unselfish, concerned with equality, and generally do what we think is right. We must recall, Hayek says, that “[r]esponsibility, not to a superior, but to one’s conscience, the awareness of a duty not exacted by compulsion, the necessity to decide which of the things one values are to be sacrificed to others, and to bear the consequences of one’s own decision, are the very essence of any morals which deserve the name”. (231-32) We ought also to practice actively those “individualist virtues” to which I already referred: willingness to stand up for our opinions also ability to respect for those who disagree with us; magnanimity not to punch down and courage not to kiss up; good humour and presumption of good faith. We need, in other―Abraham Lincoln’s―words, to act “with malice toward none, with charity for all, with firmness in the right as God gives us to see the right”. Importantly, Hayek reminds us that “these individualist virtues are at the same time eminently social virtues”, (163) in that they make a society where they are practiced a much more pleasant place to live than one where they are forgotten.

Firmness in the right as we are given to see the right is perhaps an especially important theme for Hayek, though unlike Lincoln, he writes of individual conscience as what gives us to see the right. He insists on the importance of “readiness to do what one thinks right … at the sacrifice of one’s own desires and perhaps in the face of hostile public opinion”, (232) “to back one’s own conviction against a majority”. (233) Related to this is the imperative to hold on to the “old meaning” of the word “truth” as “something to be found, with the individual conscience as the sole arbiter of whether in any particular instance the evidence (or the standing of those proclaiming it) warrants a belief”, (178-79) and not whatever the authorities want us to believe for the sake of maintaining social cohesion.

As an academic, I especially want to highlight the need to stand up to the tendency to put “the disciplines dealing directly with human affairs and therefore most immediately affecting political views, such as history, law, or economics”, in the service of “the vindication of the official views” rather than a search for truth. (176) We must not allow law schools, or history departments, to be made into “factories of the official myths which the rulers use to guide the minds and wills of their subjects”. (176) As Hayek wrote all these years ago, “contempt for intellectual liberty is not a thing which arises only once the totalitarian system is established but one which can be found everywhere among intellectuals who have embraced a collectivist faith”. (179) Runnymede is fighting the good fight in opposition to this contempt.

Let me conclude with a warning and an exhortation. The warning is that reading The Road to Serfdom will not fill you with joy. It is dispiriting to see just how much Hayek’s warnings about the dangers of collectivism are still applicable today, three quarters of a century after he wrote. It would be much easier to think of whatever problems we are facing in our time as temporary aberrations rather than as avatars of a long, perhaps a permanent, dark streak in human nature, which is what their persistence suggests they are.

But the exhortation is to pick up The Road to Serfdom regardless and, having read it, to do what you can to push back against the trends that it describes. As Hayek says, “[i]t is because nearly everybody wants it that we are moving in this direction. There are no objective facts which make it inevitable.” (7) As Gandalf points out in The Lord of the Rings, “all who live to see [evil] times” wish them away, “[b]ut that is not for them to decide. All we have to decide is what to do with the time that is given us.”

Ach, mein Sinn

Bach on the reasons for respecting freedom of conscience

I’m not at all religious; I found seeing a procession carrying a cross, and kneeling down to pray briefly outside my building in the centre of Auckland before continuing on their way rather bemusing. But I do like good music, very much including religious music from JS Bach to Dave Brubeck, and a rainy Good Friday seemed like a very good occasion to listen to a recording of the St John Passion without getting distracted.

This turned out, however, to be a more topical exercise than I expected. Pilate wondering “What is truth?” and the crowd insisting that “We have a law, and according to that law He should die” ― was Auden thinking of this when he wrote about “the loud angry crowd/ Very angry and very loud” claiming that “Law is We”? ― are just two examples of the very contemporary issues the Passion raises, quite from any belief that it holds eternal truths.

But it was another passage that struck me most, one that speaks to a truth that is, at least, as old as mankind but also, sadly, very relevant to Canadians in 2018: the aria “Ach, mein Sinn”.

Here is a translation:

Alas, my conscience,
where will you flee at last,
where shall I find refreshment?
Should I stay here,
or do I desire
mountain and hill at my back?
In all the world there is no counsel,
and in my heart
remains the pain
of my misdeed,
since the servant has denied the Lord.

As you’ve probably guessed, the words are Peter’s, after he denies being one of Jesus’ disciples. But the description of a conscience that is tormented by its own weakness, that wants to flee its predicament yet realizes that it cannot escape, and that cannot be helped, is one that ought to be recognizable to all human beings, regardless of their belief in, or indeed awareness of, the Gospel story. Whether Peter has denied the Lord or “only” a man he loved and admired is, I think, quite beside the point. Either way, he has given up his integrity, and he suffers as a result.

It is also beside the point whether Peter’s denial was voluntary, and his suffering, something he brought upon himself. Having followed Jesus, whom the High Priest’s men have arrested, to the High Priest’s palace, Peter is confronted by “One of the high priest’s servants, a friend of the man whose ear Peter had cut off”. He is no doubt afraid; he is probably right to be afraid. From an external perspective, his denial might be excusable; one shouldn’t be quick to boast that one would not have done the same in such circumstances. But for Peter himself such excuses are of no avail.

This reminder of why conscience is so important is most timely. The idea that Trinty Western University can just be made to abandon its homophobic and illiberal “covenant”, or that religious groups can be made to accept an “attestation” implying support for abortion rights, or that Ontario lawyers can be made to “promote” values regardless of their belief in them, ignores the suffering that these institutions and individuals would subject themselves to in complying with the state’s demands. Empathy for this sort of suffering, for the pain people when they lose their integrity, even if acting under the compulsion of the law and the threat of legal sanction, is the justification for respecting and protecting ― including by constitutional means ― the freedom of conscience.

The promoters and defenders of impositions on conscience feel no such empathy. Whether that is because they do not understand the plight of those whose obedience they demand, or because they are indifferent to it, I do not know. I suspect that a certain failure of imagination ― the inability or the refusal to admit that they might not always be the ones exacting obedience, and that they might instead find themselves in the position of would-be conscientious objectors ― is at least partly at issue. But, either as a warning about what they might themselves feel one day, or as an appeal for compassion, I hope that they take note of “Ach, mein Sinn”.

State v. Conscience

Freedom of conscience, state authority, and the case of the citizenship oath

As I had already mentioned, last week I spoke at a discussion on freedom of conscience that the Runnymede Society organized at McGill on Tuesday. It was a lot of fun, and as always at McGill there were some great questions from the students who came out. For those of my readers who weren’t there though, I thought I’d post my prepared remarks. I ended up moving a few things around in the presentation, but this is close enough to the substance of what I said. Those of you who have followed my posts on the citizenship oath probably won’t find much that’s new here, but if you’ve missed them, this is a flavour.

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The idea of freedom of conscience has been in conflict with state authority for as long as it existed, which is to say about 500 years. (Since it’s the Runnymede Society that has invited us here, I would have loved to say something about the Magna Carta ― but although freedom of the Church is the very first article of the Great Charter, there is nothing there about freedom of conscience, or for that matter about other “fundamental rights” protected by section 2 of its Canadian descendant. Indeed, the development of the very idea of conscience is associated with Aquinas, who was only born 10 years after the Magna Carta was issued.)

Lord Acton puts the idea of freedom of conscience beautifully and concisely. It is the belief that “the knowledge of good and evil is not the sublime prerogative of states, nations, and majorities. … Its action is to limit power by causing the sovereign voice within to be heard above the expressed will and settled custom of surrounding men.” Needless to say, the man or woman who seeks to live by his or her own lights is bound to clash with the state, which wants to reserve the prerogative of defining good and evil for itself, for reasons both righteous (of which Hobbes and Locke remind us) and corrupt, of which Lord Acton does: “The passion for power over others can never cease to threaten mankind, and it is always sure of finding new and unforeseen allies in continuing its martyrology.”

The conflict is ineradicable, but the weapons by which it is waged change. We have forced the state to abandon the executioner’s sword, and we have now at our disposal the instrument of judicial review of legislation. When Henry VIII became the first monarch to demand that all of his subjects swear allegiance to him (in his newfound capacity as the head of the Church of England), Sir Thomas Moore, who refused, was beheaded. When people who seek to become Canadian citizens refuse to swear that they will “be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors,” they are allowed to go to court and to challenge the requirement that they take the oath.

As some of you may know, recently a group of would-be Canadians did just that. They lost, however, both at the Superior Court of Justice and at the Court of Appeal for Ontario. The Supreme Court refused to hear their appeal. Still, we thought that it might be interesting to come back to this case, as an illustration of the conflict between the authority of the state and the conscience of individuals. The case, I should note, was litigated under the heading of freedom of expression, not freedom of conscience. But although I believe that the applicants should have prevailed on that claim too, I think that it fails to capture the really interesting and distinctive feature of the problem of the oath, which is the way in which it is tied up with conscience.

Originally, swearing an oath meant incurring a religious obligation, but the idea of an oath persists, even in a secular state, cut off from its religious roots. Any oath, as the Supreme Court has recognized, is an attempt to “get a hold” of the conscience of the person who swears it. Breaking an oath would be immoral, even if one doesn’t believe that it would result in damnation―and regardless of any criminal sanction that might follow. But an oath typically involves morality at another level as well, in that its performance is almost always a matter of moral judgment. This is not a conceptual truth―some oaths are not of that sort―but the law tends to require oaths in those situations where it cannot describe and therefore impose the obligations it would like to demand because they are vague, subjective, and ultimately appeal to the conscience of the person who is to perform them.

I’ll mention just one example other than the citizenship oath itself, drawn from the oath that you will swear when you are called to the bar. Those of you who will be called in Ontario, and perhaps in other provinces too, will swear, among other things, to “seek to ensure access to justice”. This is not a straightforward obligation. Discharging it will require you to think about just what your duties really are; a judgment that is no doubt partly intellectual, but also, to a considerable extent, moral. Ensuring access to justice is, for a single lawyer and for the profession as a whole, a matter of degree, and you must decide how far to go. Should you limit your fees? How much pro bono work should you do? Can you “ensure access to justice” while being a member of a state-enforced cartel whose raison d’être is to increase the cost of legal services? The oath does not answer these questions; there is no rule to guide you; you must figure these things out for yourselves, in conscience. What the oath does―if you take it seriously, and not just as an ancient ritual, which in fairness it might be―is it “gets a hold” of your conscience and directs you to ask yourselves some very hard questions.

Oaths of allegiance are similar in that they enlist the conscience of those who swear them; they require these persons to ask themselves what it means to be loyal to that to which they pledge allegiance, and what that duty of loyalty that they impose might require in various circumstances. The oath of allegiance is not reducible to those obligations that state imposes by law―for example with the provisions of the Criminal Code regarding treason. If it were, there would be no need for it. The reason an oath is required is that something more―namely, a moral commitment that goes beyond legal obligation―is thought to be necessary.

The people who challenged the citizenship oath―unlike, I suspect, most of those who swear it but regard it as a mere meaningless formality (myself included, I confess)―have thought about it would mean to “bear true allegiance to Elizabeth II, Queen of Canada.” They think that would mean being personally loyal to the monarch and politically loyal to the monarchy, both of which they regard as intolerable. And the courts that have passed on their claim implicitly agree that the state could not actually impose this sort of condition on acquiring Canadian citizenship. But, they have said, this is all a misunderstanding. Swearing allegiance to the Queen of Canada does not mean swearing allegiance to Elizabeth R. personally; nor does it mean endorsing the monarchy as a system of government. If only the people who are challenging the oath understood it correctly, they’d realize that it is not the sort of imposition that they imagine it to be.

Now, I take it from Philippe Lagassé, who spoke at McGill not long ago, that the courts are right as a matter of Crown law. The Queen of Canada to whom the oath refers is the personification of the Canadian state, and an entirely distinct entity from the head of the Church of England, for instance. But, I submit, the state―and keep in mind that the courts are a branch of the state―cannot have it both ways. It cannot ask people to swear an oath, and thus to work out for themselves, as a matter of conscience, what their obligations are, and then turn around and say that those who have done this exercise got the answer wrong. The state can impose legal obligations by statute, in which case people’s misunderstanding of the law cannot ground a constitutional challenge to it, as the Supreme Court has held in Khawaja. A statute merely tells you what to do or not to do; it does not have anything to do with your conscience. But if the state, instead of enacting a statute, exacts an oath, and thus appeals to conscience, must respect the conscientious judgment of the people whose morality it seeks to enlist. In this instance, it means that the courts should have recognized the burden on the persons who challenged the oath to the Queen, and required the state to justify the imposition of this burden under section 1 of the Charter.

I don’t have the time to go through the complete section 1 analysis, which is unfortunate because there is a lot to say there, both about the futility of loyalty oaths generally and about the defects of ours in particular. I’ve gone over that in more detail in an article. I will only make one point that has to do directly with freedom of conscience. At the last stage of the Oakes justification test, we have to consider the impact of the infringement on the claimant. If we think only of the oath’s infringement of freedom of expression, as the Ontario courts have done, that impact is very limited. But if we consider the oath as an enlistment of the conscience of those who swear it for the rest of their lives, it is, I believe a rather more serious business.

Ultimately, the Canadian state does not care very much about the oath it exacts from its new citizens. One of the people who had challenged the oath to the Queen withdrew from the proceedings, swore the oath, and became a citizen. He then proceeded to write to the government telling it that he recanted the oath he just swore. The government wrote back saying that this didn’t matter. Now imagine, for a second, that you are testifying in court, and decide to tell the judge that you recant your oath to tell the truth ― and the judge tells you that this is fine, and just go on. Still, it is a reminder of the conflict between conscience and authority ― even if authority may not be inclined, in this instance, to fight as hard as it once did.

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In case you want to see more of my thinking on the matter of the citizenship oath, the paper I mention above is here. As for the Lord Acton quotes, they are drawn from his magnificent Lectures on Modern History.

No Blurred Lines

Last week, I published a lament for the Charter challenge to the Canadian citizenship oath, which the Supreme Court refused to hear, over at the Policy Options blog. Philippe Lagassé has published a thoughtful response, arguing that contrary what I have been saying all along, the case really was about “the legitimacy of the Crown” as a part of the Canadian constitution, so that its rejection was a good thing, because it prevented this legitimacy from being undermined. In particular, prof. Lagassé argues that

[h]ad the courts found that the appellants’ individual interpretation of the oath should trump the constitutional sense, the line between personal views and legal fact would have been blurred. The Crown would no longer have any definitive meaning; instead of personifying the Canadian state, the Queen could plausibly be whatever anyone believes she might be. Suffice it to say, we would not accept this with respect to other public institutions. Individuals are not free to interpret parliamentary statutes in any way they want, for example. Similarly, we expect court rulings to be respected, notwithstanding our personal disagreements with their reasoning. It’s unclear why we shouldn’t afford the Crown the same standing, except for the fact that the monarchy is contentious. If the case had gone the other way, the Crown would arguably have become a lesser part of the constitution as compared to Parliament and the judiciary, one that can be disregarded if it clashes with our personal beliefs.

As I’ve already stated here, I am a monarchist myself, and have no wish to see the Crown a lesser part of the constitution. Fortunately, however, that would not have been the consequence of a judgment in favour of those challenging the oath.

Indeed, there are two ways of arguing this point. One is to say that the government coercing speech is, regardless of that speech’s content a violation of the freedom of expression, which must be justified under s. 1 of the Charter. I will not elaborate on this point here, partly because I am hoping that Ben Oliphant will do so over at Policy Options (no pressure!), and mostly because I think that, although legally correct and sufficient, this argument obscures what is really going on with the citizenship oath.

The other response to prof. Lagassé’s concerns, which I find more attractive, addresses instead of avoiding the content of the oath. Indeed, it focuses on what is really distinctive about it. As I argue in greater detail in a paper published last year, an oath requires the oath-taker to work out for him- or herself the precise nature of the obligations he or she subscribes as a result of taking it. The oath will typically describe those obligations in inherently terms ― such as “allegiance” in the case of citizenship oath ― which are not only inherently vague but also require moral judgment in order to applied to specific situations.

This is in contrast to statutory commands and judicial decisions, to which prof. Lagassé compares the citizenship oath. The contrast with judicial decisions is perhaps most obvious. Court orders tell those at whom they are aimed exactly what to do. Pay the plaintiff 10 000$. Stop dumping your factory’s waste into the river. Re-write the statute within a year or see it become unenforceable. Indeed, impossibility to formulate a precise order can be reason for a court to refuse to intervene in a dispute.

Statutory commands aren’t always as definitive, because they can use standards as well as bright-line rules, the standards used in statutes normally appeal to understandings that are widely shared and the subject of substantial agreement among those whose behaviour is regulated (whether the society at large or some specific group). Perfection in this regard is unattainable, but complete failures ― statutes that fail to guide behaviour to the point of not lending themselves to meaningful judicial debate ― can be declared unconstitutional. We may have to consult a lawyer to figure out the meaning of statute, but we need not consult our consciences.

Swearing the citizenship oath requires one (if one takes the oath seriously, which admittedly most of those who take it probably do not) to do just that. Indeed the oath would be quite unnecessary if it did not. A citizen is already bound by laws regarding treason and others which set out his or her legal obligations to the state (or to Her Majesty as its embodiment). If the oath ― not just the specific oath to the Queen, but any form of citizenship oath ― is not to become entirely redundant, it must be regarded as imposing not legal obligations, but conscientious ones.

Once this is understood, the response to prof. Lagassé’s concerns becomes clear. Our legal system does not impose its own understandings on people’s consciences. And sometimes ― though not always ― it makes exceptions to its own rules in order to accommodate people’s conscientious objections. This does not mean that the rules to which we make exceptions lack a definitive meaning, or have a lesser standing than others, or that we blur the line between personal views and legal fact.

Consider the case of a Sikh student who wants to wear a kirpan to school. Let’s say the school considers the kirpan to be a weapon. The student, however, considers it to be a religious object, and wearing it a religious duty. The school can have a general rule prohibiting weapons ― but, as the Supreme Court has decided in Multani v. Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6, it must still allow the student to bring his kirpan. Now in Multani, the general prohibition did not define a weapon. But what if had done so, and the kirpan clearly fell within that definition? Surely, it would ― and should ― have made no difference to the Court’s decision. That decision would not have meant that the definition was unclear or unimportant, or that the student’s views could replace the “legal fact” of its meaning. What it would have meant is that, because of the conflict between legal fact and conscientious belief, the state had to justify (under s. 1 of the Charter) its insistence on overriding such belief, and that in this particular case, the state’s justification was unpersuasive.

Similarly, in the case of citizenship oath, the question is not whether the Crown has a definitive meaning in Canadian law, but whether the state has sufficient justification to impose this legal meaning on people whose conscientious understanding of a duty of allegiance to that Crown differs from the legal one. To acknowledge that the state doesn’t have good reason to do so would not have compromised the position of the Crown in Canadian law.

What Does This Mean?

Those of you who have been following this blog for a while will recall that I take a lot of interest in oaths; especially, but not exclusively, citizenship oaths. A paper of mine arguing that the Canadian citizenship oath is unconstitutional as an unjustified infringement of the freedom of conscience came out in the last issue of the National Journal of Constitutional Law. The key move in my argument is to say that, since oaths generally implicate the conscience of the persons who take them, their subjective interpretations of the obligations oaths impose on them are determinative, in the same way as religious believers’ interpretations of the requirements of their faith are, and courts are not entitled to tell them that they simply mistaken about the duties they subscribe by swearing the oath. You will also recall that Canadian courts have not seen it fit to embrace that viewpoint. Both Ontario’s Superior Court and its Court of Appeal (as well as, once upon a time, the then-Appellate Division of the Federal Court) have found that the citizenship oath is constitutional, holding that the anti-monarchists who objected to taking it were wrong to understand it as preventing them from holding their beliefs or engaging in pro-republican activities.

So of course I found Orin Kerr’s recent post over at the Volokh Conspiracy about the meaning of an oath, required of U.S. federal employees, to “defend the Constitution of the United States against all enemies … and … bear true faith and allegiance” to it very interesting. Interesting, but also, to me, unsatisfying.

Prof. Kerr notes that

[o]n its face, it’s not totally clear what it means to “defend the Constitution” and “bear true faith” to it. For example, some people support a constitutional amendment to repeal Citizens United, which would cut back on First Amendment protections. If you took the oath, are you obligated to oppose that amendment in order to faithfully defend the Constitution? Or imagine you work in a federal building and there’s a Christmas display that you think violates the Establishment Clause. Does your oath obligate you to take steps to stop the violation, and if so, what steps?

The first of these questions, especially, mirrors the dilemma faced by republicans asked to swear allegiance to the “Queen of Canada,” who must ask themselves whether this allegiance prevents them from holding on to and working to promote their reformist views.

But prof. Kerr accepts, unquestioningly so far as I can tell, that there is a truth of the matter about these questions; and, further, that this truth can be established by reference to history. Now this history is very interesting. The current wording of the oath, prof. Kerr explains, goes back to the aftermath of the Civil War, when the oath in that form was only required of former Confederate soldiers. Others could swear a more general ― though no less vague ― oath to “support” the Constitution. This seems to provide evidence for Liav Orgad’s claim, made in his excellent paper on loyalty oaths, that “the history of the oath is a history of fear,” specifically a fear of disloyalty ― a claim that I endorse and develop in my article. Only later was the obligation to take the oath to defend the Constitution extended to other federal employees, though prof. Kerr does not explain why.

Prof. Kerr concludes that this “historical context suggests” that the oath does not require federal employees

to oppose constitutional amendments or to take down questionable Christmas displays … [It] is probably best understood in its historical context as a promise to oppose political reforms outside the Constitution. You have to stay loyal to the government that is based on the Constitution, and you can’t support a rebellion or overthrow of that government.

This is more or less what the Canadian courts have concluded regarding the meaning of our citizenship oath. But, as I explain in greater detail in my other posts, and in my paper, this approach ignores the distinctive character of an oath. An oath is not a statutory command (though it is of course prescribed by statute). It is an imposition of vague obligations, whose precise significance the oath-taker has to work out for him- or herself, as a matter of conscience. Statutes can and must be authoritatively interpreted by courts, possibly with reference to the historical context in which they were enacted. But no court, in a free society, can tell a person what his or her conscientious duty is, for conscience is an internal tribunal, not answerable to any external one. If a person wants to look to history, or to law, or to anything else, in working out the meaning, to him or her of the oath ― that is to say, his or her conscientious duties ― good and well. But that’s his or her choice, and not, in Lord Acton’s words, the “sublime prerogative assigned to states, or nations, or majorities” ― or to judges.

A Monarchist’s Lament

If you’ve read my bitter vituperations against the decisions of the Ontario courts upholding the constitutionality of the citizenship oath, which requires would-be Canadians to swear “true allegiance to Elizabeth II, Queen of Canada, her heirs and successors,” you might have concluded that I am a flaming republican. But I am, in fact, a monarchist; I believe that Lord Acton was quite right when he described (in his fabulous Lectures on the French Revolution) constitutional monarchy as “the richest and most flexible of political forms.” I oppose the citizenship oath nonetheless and, with respect, think those who are approve of it, including my fellow monarchists (such as Gabriel Grantstein over at Slaw, or Konrad Yakabuski in the Globe and Mail), as well as Justices Morgan and Weiler, miss the point of the challenge to its constitutionality.

Those who defend the oath think that the case it is about the concept of the “Queen” to which the oath refers. They insist that because the Queen symbolizes a political and constitutional system that honours equality, democracy, the Rule of Law, and even the freedom to dissent, the oath, far from disparaging or denying these ideals, honours them too. They argue that because those who refuse to take the oath misunderstand the history and the nature, both legal and political, of the Canadian Crown, their challenge must be rejected

But the key to understanding the challenge to the oath is not the notion of the “Queen”. It is the notion of an oath. An oath ― any oath ― is an appeal to the conscience of the person who swears it. It is an attempt both to make that person figure out what it is that his or her duty under the oath means, just as he or she does with any moral or conscientious duty (to love one’s neighbour, to give to each his own, etc.), and do to bind that person’s conscience actually do this duty. Because an oath is an appeal to conscience, it is not enough to say that those opposed to it misunderstand it. Understanding an oath and figuring out one’s duty arising out of swearing it is a matter of conscience, and as such, it is entitled to respect, be it ever so unreasonable.

(I would add, however, that some of the oath’s defenders, such as Mr. Yakabuski, would really do well to lose their contemptuous tone towards those who interpret it as a personal commitment to a person Mr. Yakabuski himself describes as “a tiny unelected octogenarian with a matching hat and purse.” Mr. Yakabuski asserts that “only … if you have no knowledge of our history … could you take the oath at face value and get hung up on its plain, or literal, meaning.” But he should spare a thought for those who rely on a guidebook produced by the Canadian government, which tells prospective citizens that “[i]n Canada, we profess our loyalty to a person who represents all Canadians and not to a document such as a constitution, a banner such as a flag, or a geopolitical entity such as a country” (2).)

The scope of our legal duties can and must be authoritatively settled by (judicial) authority. The law, whether provisions regarding treason and sedition or those relating to jury duty etc., already defines the responsibilities of citizenship. Courts can, if need be, enforce their interpretations of these duties against those who disagree. The oath, which the government itself seems to consider legally meaningless, adds nothing in this respect. What it does is attempt to go beyond the realm of law, and reach into consciences.

Yet if we wish to call ourselves free, our moral, conscientious duties must be for ourselves to work out. Monarchists do their ― and my ― cause no favours by supporting a legal requirement that people suppress their own moral opinions and blindly accept the judgment of authority as to the scope of their conscientious duties. The constitutional monarchy I believe in is, indeed, a form of government that embraces freedom, dissent, and diversity of views. It goes against these principles, and only gives ammunition to its opponents, when it fails to respect individual conscience.

True Allegiance

I have blogged at great length about the Canadian citizenship oath, which requires naturalized Canadians to swear “true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, [and] Her Heirs and Successors”. So I’m happy to report that all this blogging has led me to produce a (hopefully) scholarly paper, which I will be presenting at a conference on Emerging Issues in Canadian Public Law at the University of Ottawa exactly two weeks from today. I have posted the draft paper on SSRN, and would welcome any feedback. Here is the abstract:

Would-be Canadian citizens are required to swear an oath, which includes a promise of “true allegiance” to the Queen. For some, swearing allegiance to a what they regard as a person embodying inequality, colonialism, and oppression goes against their deeply-held republican or egalitarian values. However, Canadian courts have so far rejected Charter challenges to the citizenship oath.

This article argues that the oath is, nevertheless, unconstitutional, albeit on a basis different from that mostly canvassed by the courts which have considered it. Rather than an infringement of freedom of expression, the citizenship oath should be analyzed as a violation of the freedom of conscience of those required to take it. Like most oaths, it is an attempt not only to impress the importance of the obligation it imposes on those who take it, but also to enlist their sense of right and wrong ― that is to say, their conscience ― in the service of the state’s objectives.

Because the citizenship oath is a violation of freedom of conscience, it is irrelevant that those who object to it may be misunderstanding its true significance, or the real nature of “the Queen” in Canadian law. As in freedom of religion cases, courts must recognize their subjective conception of their conscientious obligations, and the extent to which taking the oath conflicts with them. With this in mind, it becomes apparent that the reasons advanced to justify the oath under s. 1 of the Charter cannot do so.

You can download the full paper here.

One of the excuses I give myself for spending so much time on this blog is that it will, one day, help my scholarship. Well, here’s the first evidence that this is not entirely wishful thinking. However, as I have now found out, there is quite a way to go between even a series of posts and an academic paper. It is certainly not a matter of stitching the posts together and sprinkling them with scholarly-looking footnotes. My thinking has changed somewhat in the process of writing, and there is, hopefully, more depth to the paper than to the blog posts that preceded it. (This is a lesson, also, for those who might be tempted to appraise blog posts as if they were mini-papers, and to criticize them for not living up to that standard. It is not a standard that blog posts, even relatively long and researched ones, such as many of mine, are meant to attain. The two media are really quite different.) Still, I know that I would never had written this paper if I hadn’t done the preliminary reading and thinking as part of my blogging, and the posts really were helpful in developing my ideas. On the whole, then, a positive experience.

Defying Shame

A number of institutions in Québec, notably Montreal’s Jewish General Hospital and the English Montreal School Board, have announced their intention to defy the Charter of Shame prohibiting their employees from displaying “conspicuous” religious symbols ― if, that is, the Charter is ever enacted. In other words, these institutions are threatening to engage in civil disobedience, in response to what they see as a law that goes against their core values. Although I fully agree, and have argued at length in previous posts too numerous to link to, that this law would be a great iniquity, I think that institutional civil disobedience in response to it would raise difficult questions, which have not so far been discussed.

Some of these questions are of the kind anyone who considers engaging in civil disobedience ought to address. The most general and fundamental one is what is it that justifies one in defying democratically enacted law. Of course, that question has been answered before ― perhaps most famously by Henry David Thoreau and Martin Luther King Jr. Interestingly, both Thoreau and King gave fairly elaborate (and quite different) explanations of what they regarded as the government’s proper role, in addition to saying why they thought the governments to which they were subject strayed so far from it as to justify disobedience. However vague, these explanations make it possible to judge their actions. As has been said on a grander but similar occasion, “a decent respect to the opinions of mankind requires that they should declare the causes which impel them” to take the positions they do.

But there is also a more specific question to be answered by those who would defy the Charter of Shame. Are they justified in engaging in civil disobedience in a situation where they can, instead, address themselves to the courts and have the law they intend to defy struck down? Thoreau’s differences with government of the United States were not of the justiciable kind; King faced a judiciary that was unwilling to give him the justice to which he was entitled under the U.S. Constitution. By contrast, there is every reason to believe that the The Charter of Shame will be invalidated by the courts. Why break the law, then, rather than use the procedure it puts at one’s disposal to obtain the result one seeks? It is a quicker way to that result, perhaps, but if one believes in the Rule of Law, must one not sometimes take the longer, but lawful road? It is one thing to engage in civil disobedience when that road is blocked; it is another one, and arguably subject to a heavier burden of justification, to do it when the road is wide open.

And then there questions which arise because those who now proclaim their intention to defy the Charter of Shame are not individuals, but organizations. Does it even make sense for an organization to engage in civil disobedience? Civil disobedience is closely linked to conscience ― and a organization might not have a conscience, as we are frequently reminded these days by those, on the American left, who angrily insist that corporations can have no right to free speech or free exercise of religion. Now, Thoreau at least had no doubts in this respect (though the point, I think, is rather tangential to his argument): “[i]t is truly enough said,” he wrote, “that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience,” and I am inclined to agree with him. However, this position is not entirely free from difficulties, some of them similar to those I discussed here. And note that my rhetorical move of speaking of limits on the government rather than individual rights, which I suggested as a solution to the corporate rights conundrum, does not work in the case of civil disobedience, which is very much an exercise of individual freedom, not the imposition of a limit on the government.

Perhaps more importantly, though, even if one concludes, as I think one should, that organizations ― Thoreau’s “corporations with a conscience” ― can, in abstracto, engage in civil disobedience, one should still think about their moral responsibilities in doing so. A person who engages in civil disobedience must be prepared to go to prison for it, as Thoreau and King were. But if such a person is indeed put to prison, the cost of his standing on his conscience is borne by him alone ― and maybe by his family. An organization such as the English Montreal School Board or the Jewish General Hospital cannot be imprisoned. But they can be deprived of funding, and perhaps even dissolved, both of which would hurt their employees whom they are trying to defend, and the people taking care of whom is their main job. As a quip in Soviet times had it, “Galileo’s neighbour scientist also knew that the Earth moved, but he had a family.” A principled stand that is commendable in a solitary individual like Thoreau, might not be for those with responsibilities to others, and especially for organizations with responsibilities to thousands of vulnerable people.

All that is not to say, conclusively, that the English Montreal School Board and the Jewish General are wrong ― only that their position raises questions worthy of serious thought. Of course, it may well be that this position is nothing but posturing, cost-less so long as the Charter of Shame is not enacted, which hopefully it never will be. But it might be, alas, and anyway, civil disobedience is a serious matter, which should not be threatened, I think, without having thought through its moral implications.

Say It Ain’t So

I wrote yesterday about the decision of the Superior Court of Ontario in McAteer v. Canada (Attorney General), 2013 ONSC 5895, which upheld the constitutionality of the reference to the Queen in the oath of allegiance which would-be Canadian citizens must take. As I said in that post, believe that the decision is wrong. Here is why.

Most of Justice Morgan’s opinion deals with the infringement of the applicants’ freedom of expression by having to make a statement which they do not wish to make, and which is indeed contrary to their sincerely held convictions. Although Justice Morgan recognizes the infringement, he holds that it is justified under s. 1 of the Charter as a reasonable limit acceptable in a free and democratic society. In my view, he goes wrong at just about every step of the way in his s. 1 analysis.

To begin with, his preliminary comments about the quality of the proof which the government must adduce under s. 1 are misguided. It is true, of course, that proof in the realm of policy might be different from proof of ordinary facts in private law litigation. But, contrary to Justice Morgan’s assertion, it is not the case that just because freedom from incarceration is not at issue, the rights infringement “need not, and probably could not, be ‘tuned with great precision to withstand judicial scrutiny’” (par. 36; quoting R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 at 776). The passage Justice Morgan quotes deals with “[l]egislative choices regarding alternative forms of business regulation [which] do not generally impinge on the values and provisions of the Charter,” not government action outside the criminal law context. The use he makes of it is misleading if not intellectually dishonest.

Justice Morgan’s acceptance of the government’s asserted objective of the citizenship oath is uncritical, which is perhaps unfortunate, given the doubts about such oaths which Liav Orgad raises in this article, about which I wrote here. However, since the applicants themselves accepted the idea of some form of citizenship oath, Justice Morgan probably could not have questioned it. In any case, this is the least important step of the analysis.

The next and more significant step is to ascertain the existence of a rational connection between the objective of the oath and the reference to the Queen. Justice Morgan claims that it would have been rational for Parliament to include a reference to any of the institutions of the Canadian constitution, of which the Queen is one, in the oath that is a public expression of commitment to that constitution. Really? Just imagine, for a moment, having to promise to “be faithful and bear true allegiance to” bilingualism or bijuridicalism. Would it make any sense? And if not, then how is the monarchy special? Philippe Lagassé, in a post commending Justice Morgan for his “clear understanding of the theory and nature of the Crown,” argues “that the Crown is the state and the source of all sovereign authority,” which does make it very special indeed, but that’s not Justice Morgan’s justification at the rational connection stage.

But it is at the next stage, that of minimal impairment, that Justice Morgan really goes badly astray. He says that the applicants overestimate the degree to which their freedom of expression is impaired because they misunderstand the nature and significance of the Crown in Canadian law. If they only understood that the Crown stands for the Rule of Law and equality, they’d realize that their freedom of expression is minimally impaired. One problem with this argument is that it avoids completely responding to the applicants’ point that Australia, where the position of the Crown is exactly the same as it is in Canada, avoids imposing making a reference to the Queen in its citizenship oath, which suggests that Canada has no need to do it either, and thus the Canadian oath is not as little impairing of freedom of expression as possible. But more importantly, there is something unfair, if not absurd, to expect laypersons to understand the subtleties of Crown law which, as prof. Lagassé notes, seem beyond the understanding even of some judges. The applicants’ understanding of the oath might be incorrect, but isn’t it incumbent on Parliament to produce an oath which doesn’t require a law degree to understand? If the reference to the Queen really stands for the Rule of Law and equality, then why doesn’t the citizenship oath say so? An oath that did might be minimally impairing; one that speaks in legal fictions is not.

Justice Morgan is similarly on the wrong track with his balancing of the deleterious and salutary effects of the citizenship oath. He dismisses the gravity of forcing people to state the oath contrary to their convictions because, he says, their convictions are “a fundamental misapprehension” (par. 80). This is wrong. Justice Morgan refers to Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, but still insists that what matters most is the “objective” weight of the statement the applicants are being compelled to make. Yet Amselem rejects the very notion of measuring objective burdens. Now there is a real difficulty here. Amselem was a case about freedom of religion. In the case of freedom of expression, the majority’s reasons in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, which held that forcing a person to make a statement of true facts regardless of his belief in those facts could be justified under s. 1 suggests that objective weight matters. However, I think that this case, although Justice Morgan approaches it only under the heading of freedom of expression, is more like Amselem. The statement the applicants are being forced to make is not one of fact. It is an oath, which is intended to implicate conscience, and thus requires belief. Therefore the Amselem rule that only subjective belief matters (provided that it is sincere) should apply. Justice Morgan also errs, I think, in describing the salutary effects of the oath. Even if there is any benefit to making a public commitment to a symbol of equality, the Rule of Law, and freedom of dissent, surely there would be an even greater benefit to making a public commitment to these things directly, and not to a symbol the meaning of which, however clear in law, is contested as a matter of politics.

I also want to say a few words about Justice Morgan’s take on the freedom of religion issue. Frankly, I find it bizarre. Justice Morgan claims that the assertion that swearing an oath to the Queen is a violation of an applicant’s religious freedom is an attempt to invoke the rights of that applicant to deny the rights of other Canadians, which the Queen symbolizes. But of course, again, the symbol is not the thing. I simply fail to see how removing the reference to the Queen from the citizenship oath would impair anybody’s rights. Does Justice Morgan mean to suggest that Parliament could not change the oath so that it doesn’t mention the Queen? Surely not. Furthermore, if this logic held true for freedom of religion, why doesn’t it for freedom of speech? Yet Justice Morgan accepts that there is an infringement of freedom of expression, and says nothing about any impairment of the rights of others under that heading.

Justice Morgan’s opinion isn’t all bad. He is right, in particular, to give short shrift to the government’s claim that since there is no “right” to citizenship, Parliament can impose whatever conditions it wants on accessing it. However, the core of his decision on s. 1 is rotten. It is wrong to require people to step over their conscience on the basis of a judicial say-so that many, and perhaps most, citizens would have a hard time understanding.

Swearwords

I have written at great length recently about a challenge, now before the Superior Court of Ontario, to the constitutionality of the requirement that would-be Canadian citizens swear an oath of allegiance to the Queen (my posts on the topic are all here). For those who want to read more on the topic, Liav Orgad’s recent paper called “Liberalism, Allegiance, and Obedience: the Inappropriateness of Loyalty Oaths in a Liberal Democracy” is both timely and very interesting. As the title suggests, Prof. Orgad argues that oaths of allegiance ― whether to the Queen, to the nation, or to the constitution ― are something liberal states should not be requiring of their new citizens (or anyone else). It is a rather more radical argument than that advanced by the applicants in the current challenge, and deserves careful consideration.

Prof. Orgad observes that the requirement of an oath of allegiance as a part of the process of naturalization is a widespread one, although the oaths themselves are quite varied. Yet it is not quite clear what the purpose of the oath is. It stands to reason that “the fact that nations require loyalty to an object implies that a difference exists between allegiance and obedience to the law. Both citizens and noncitizens must obey the law yet only citizens owe an additional duty of allegiance” (6). But both the meaning of the concept of allegiance and the significance of an oath in this context are not obvious. Prof. Orgad argues that allegiance means “devotion to the best interest of” as well as “identification” with its object; it involves treating its object as paramount over one’s other duties and interests. It is a very onerous duty. As for the oath, it can mean (and has historically been understood as) one of three things: an expression of a contractual undertaking; a “political test”; or a “symbol of nation-building.” Yet it is not particularly clear which of these meanings the modern oaths of allegiance have, and thus just what purpose they serve.

Furthermore, argues prof. Orgad, while the purpose and thus the benefits of the oaths are uncertain, their drawbacks are significant. First, they are problematic from a Rule of Law standpoint, because they are so vague that the oath-taker cannot really know what obligations he or she incurs as a consequence of taking one. Second, they infringe the oath-taker’s freedom of conscience. An oath is not just “a command what to do” but “a command what to believe” (30); it works not only in the realm of action (as a law’s prescriptions do) but also in the realm of morality. And third, oaths discriminate between naturalized and natural-born citizens, subjecting the thoughts and actions of the former to scrutiny which the latter avoid, with potentially dire consequences.

Prof. Orgad’s final verdict is, accordingly, damning:

It is not clear enough what loyalty is, why it is justified politically, and why it is legitimate to be burdened with a duty of loyalty as distinct from the duty to obey the law. Neither is it clear what moral goals loyalty oaths serve nor whether any empirical evidence supports the idea that oaths rationally serve their putative purpose. In light of that, it may be the right time to say goodbye to loyalty oaths as a legal institution. (34)

There is much that is interesting in this article; it would not have been possible for me to cover it all here, especially the rich historical details. (For those interested in the history of the use and abuse of the citizenship oath in the United States, I heartily recommend an excellent book that I ought to have mentioned earlier, The Sovereign Citizen by Patrick Weil. I should add, for transparency’s sake, that I know prof. Weil and have done some work for him, including a little ― very little ― for this book.)

I do have a couple of objections to prof. Orgad’s arguments. The first is that he seems to assume that, whatever its exact meaning, loyalty or allegiance is an onerous, momentous obligation. It might not be. As I explain in my prior posts, the majority of the Federal Court of Appeal in Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406, thought that the oath of allegiance to the Queen was little more that an acknowledgement of the current constitution, which did not prevent the person who took it to work for constitutional change. Prof. Orgad recognizes this possibility (31), but perhaps does not give it enough attention. Somewhat similarly, my second objection is that prof. Orgad seems to take it for granted that taking an oath of allegiance imposes an actual legal obligation, albeit one the contents of which is ill-defined. This has sometimes been the case, as in the American examples he invokes (and which prof. Weil discusses in greater detail), where citizens were “de-naturalized” for having been Communists, Nazis, or pacifists ― in contravention, it was said, to their oath of allegiance to the constitution of the United States. But, as prof. Weil explains, such de-naturalizations are no longer possible in the United States; nor are they possible in Canada. Any obligation one incurs as a result of taking an oath of allegiance might be symbolic, or at least conscientious, but not legal, which would undermine, at least to some extent, prof. Orgad’s arguments based on the Rule of Law and also on equality. In any case, despite these quibbles, prof. Orgad’s paper is most interesting, and his arguments based freedom of conscience are, in my view, very persuasive.

An interesting question is how they might affect the current challenge to the Canadian citizenship oath. Prof. Orgad’s paper will be published in the Canadian Journal of Law and Jurisprudence, and may well be read by judges deciding the case, especially if it makes its way to the Court of Appeal and the Supreme Court. The “problem” is that it proves rather more than the applicants want. They insist that they are fine with a citizenship oath, so long as the Queen is no part of it. This might seem like a prudent position ― it is usually best to make one’s arguments the least radical possible ― but Prof. Orgad shows that a court adopting it would be making an unprincipled compromise. At the same time, a court presumably cannot go further than the applicants ask and strike down the citizenship oath completely. I’m not quite sure what the way out of this conundrum is.

In any event, prof. Orgad’s paper shows, I think, that oaths of allegiance are like swearwords ― significant yet meaningless, and not something to be said in polite company.

H/T: Larry Solum