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

27 Pages Posted: 16 Jul 2013 Last revised: 25 Mar 2020

See all articles by Liav Orgad

Liav Orgad

Reichman University - Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS); WZB Berlin Social Science Center; Peking University School of Transnational Law

Date Written: July 16, 2013

Abstract

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 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.

Keywords: Loyalty, Allegiance, Obedience, Immigration Law, Oaths, Pledges, Conscience, Rule of Law, Equality, Human Rights

Suggested Citation

Orgad, Liav, Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy (July 16, 2013). 17(1) Canadian Journal of Law & Jurisprudence 99 (2014), Available at SSRN: https://ssrn.com/abstract=2294342

Liav Orgad (Contact Author)

Reichman University - Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS) ( email )

Villa La Fonte, via delle Fontanelle 18
50016 San Domenico di Fiesole
Florence, Florence 50014
Italy

HOME PAGE: http://https://www.liavorgad.com

WZB Berlin Social Science Center ( email )

Reichpietschufer 50
Berlin, 10785
Germany

Peking University School of Transnational Law ( email )

Shenzhen
China

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