1

THE LOYALTY DILEMMA:

TO PLEDGE OR NOT TO PLEDGE?

Almost every immigrant in the Western world must take a loyalty

oath as a prerequisite for citizenship. Yet, the oath is a relic of

another era, dating back to ancient Greece. This Article explores the

wisdom and legality of loyalty oaths and presents three concerns

about loyalty oaths: one is a concern about the duty of loyalty, the

other is about loyalty oath, and the third about specific contents and

forms of loyalty oaths. It is unclear what loyalty is, why it is justified,

and why it is legitimate to require loyalty, as distinct from the duty to

obey the law of the land. Nor is it clear what normative purpose do

loyalty oaths serve, or what empirical evidence exists to support the

idea that the oath rationally serves a legitimate purpose. In light of

the human rights violations caused by loyalty oathsin terms of

equality, the rule of law, liberty, and freedom of consciencethe

Article concludes that loyalty oaths generate costs with little benefits.

INTRODUCTION I. THE REVIVAL OF LOYALTY OATHS A. An Oath for All Seasons

B. Canada: Monarchy Lover

C. The United States: Constitutional Idolatry

D. Israel: Jewish Obsession

II. THE DUTY OF LOYALTY A. Allegiance and Obedience

B. Essentials

C. Legitimacy

D. Justification

III. THE FUNCTION OF LOYALTY OATHS A. Contract

B. Political Test

C. Nation-Building

D. Empirical Puzzle

IV. THREE CONCERNS ABOUT LOYALTY OATHS A. The Rule of Law

B. Freedom of Conscience

C. Equal Protection

CONCLUSION: TIME TO SAY GOODBYE

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INTRODUCTION

The puzzle of political loyalty has dominated Western philosophy for centuries. And yet, the concept of loyalty is a conundrum. The law contains no commonly-accepted definition of what it means to be loyal and generally does not offer clear standards to measure loyalty or criteria to determine its essence. Constitutional provisions and statutes do not attempt to clarify political loyalty. Rather, legal documents seek to define disloyalty: treason, espionage, and other related crimes. Loyalty remains a vague legal concept.

This Article explores one case of loyaltyloyalty oaths for immigrants. In many democratic states, every immigrant seeking to become a citizen must take a loyalty oath. The content and form of the oath varies between states, but the common feature is that it is mandatorya prerequisite for citizenship. At first glance, oaths seemingly raise no problem. After all, oaths only entail reciting a few words in a public ceremony. Yet, a closer review reveals deep concerns. The first is related to duty of loyalty, regardless of the oath. The duty of loyalty, imposed on every citizen, natural-born or naturalized, requires more than conformity to the law; it seeks to influence one's character traits, emotional attitudes, and internal beliefs. The second relate to the loyalty oath as a manifestation of the duty of loyalty. Loyalty oaths limit basic liberties of the oath-taker, infringe upon freedom of conscience, and discriminate against noncitizens by demanding a higher level of conformity compared to that required of natural-born citizens. Nevertheless, in spite of these concerns, loyalty oaths for immigrants remain an understudied topic.1 This is surprising in light of their growing use and peculiar content and form.

Loyalty oaths serve as a means in which the oath-taker subscribes to the tenets of the community through creedal affirmation. Before imposing this duty on newcomers, however, the community should first define its own tenets. Immigration law, thus, mirrors constitutional faith by reflecting not only on who "we" think "we" are, and what kind of nation "we" want to be, but also functions as a mirror to reflect the qualities that "we" value in others. Yet, loyalty oaths are just one step in the path to citizenship. In order to evaluate their wisdom and legitimacy, we first need to present our own theory of citizenship by examining the ultimate goals of the naturalization process.2

The Article proceeds as follows: Part I presents a global survey of loyalty oaths in the democratic world. It reveals a recent trend in comparative law: the growing appeal of loyalty oaths in citizenship laws. It also demonstrates the complex legal issues surrounding loyalty oaths. Part II critically examines the duty of loyalty and discusses the differences between allegiance and obedience. It shows that, historically, there was a fundamental distinction between allegiance and obedience, yet this distinction was blurred by the American Revolution. Nonetheless, this blurring has not completely erased. Modern law still embraces of a duty of loyalty in addition to the duty to obey the law. Part II then investigates whether the added value of loyalty can be justified by providing three views of loyaltycharacter traits, emotional state, and conformityand examines their justifications. It shows that even the strongest explanation, under which loyalty is required to secure freedom, is flawed. It then explores whether the duty of loyalty can be justified by

1 For analysis of the history of the U.S. Oath of Allegiance, see generally NOAH PICKUS,

TRUE FAITH AND ALLEGIANCE: IMMIGRATION AND AMERICAN CIVIC NATIONALISM (2005). 2 See Liav Orgad, Illiberal Liberalism: Cultural Restrictions on Migration and Access to

Citizenship in Europe, 58(1) AMER. J. COMP. L. 53 (2010).

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other theoriescontent, friendship, and gratitudeand explains why all fail a scrutiny test. The justifications for the added value of loyalty are thus weak.

Even if the duty of loyalty is justified, there is a need to further justify the oath as an external manifestation of it. Part III, therefore, traces the functions of loyalty oaths. Whatever the purposes of loyalty oaths weresome options are contract, political test, and nation-building symbolit is unclear what legitimate purposes they serve today. In addition, there is no evidence to support the conclusion that loyalty oaths rationally serve a legitimate purpose.

Regardless if loyalty oaths are justified, their specific content and form must be justified. Hence, Part IV discusses three concerns raised by the content and form of loyalty oaths: 1) they infringe upon the rule of law; 2) they discriminate against noncitizens; and 3) they violate freedom of conscience. Loyalty oaths are not just words. Nor they are just a ceremony. They have far-reaching legal implications. And they affect future behavior of naturalized citizens by imposing new limitations, which are not required from natural-born citizens and exposing them to sanctions, among other things, the option of denaturalization. Loyalty oaths, thus, yield cost. Part V concludes.3

I. THE REVIVAL OF LOYALTY OATHS

For various reasonsinter alia, subjective concerns that the national identity is being eroded due to the corrosive effects of globalization on the one hand and by immigrants and minorities demanding political recognition on the other handloyalty oaths have recently been returned to the forefront of legal discussion. Through a qualitative analysis of loyalty oaths in different stateswith special emphasis on Canada, the United States, and Israelthis part highlights a recent trend in comparative immigration law: the increasing use of loyalty demands in contemporary citizenship discourses. The aim is not to compare between states but to present the growing interest in loyalty oaths, their complexity, and the legal issues involved in taking a loyalty oath.

A. AN OATH FOR ALL SEASONS

What is a "loyalty oath" for immigrants? In formal terms, the oathin which the immigrant acknowledges a duty of loyaltyis a statement taken by an immigrant before officially becoming a citizen. It is usually called an Oath of Allegiance or an Oath of Citizenship, although other titles exist.4 In most cases, the oath is taken during a public ceremony. Technically, stating "I swear" or similar words (pledge, affirm, vow, promise, etc.) constitutes taking of an oath. Alongside a formal classification, it is possible to identify a substantive oath through its content. In substantive terms, the oath does not require participation in a public ceremony, and the immigrant is not even required to pronounce the words "I swear" or similar words. However, she acknowledges her duty of loyalty by other means, such as by signing immigration documents that specify, explicitly or implicitly, a duty of loyalty.

Analysis of loyalty oaths in different democratic states reveals the following findings. First, loyalty oaths are a popular instrument. Second,

3 The Article offers no alternatives for loyalty oaths because it is its thesis that no alternative

is needed, and because a discussion on alternatives requires a preliminary inquiry whether loyalty is a virtue or a sin, and whether immigration law is the right platform for its promotion.

4 The Article refers to "loyalty oaths" as an umbrella category for oaths taken in the immigration context. Unless otherwise mentioned, it focuses on formal loyalty oaths.

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loyalty oaths are generally the last step in the naturalization processbefore receiving citizenship. Democratic states do not demand a formal oath as a prerequisite for entry, though some states require signing an "integration pact," which can be seen as a substantive oath, as a prerequisite for entry.5 Third, except for rare exemptions based upon mental disability, religious belief, and age, loyalty oaths apply to all types of immigrants, including family members and refugees. Fourth, the object of the oath is diverseloyalty is required to the Queen, Constitution, democratic principles, human rights, interests of the Republic, territorial integrity, and the national culture.

Finally, the content of loyalty is diverse. While most states require loyalty, very few actually define loyalty. In addition, some states impose broader obligations. In Austria, for instance, the immigrant has three obligations: "be a loyal citizen of the Republic," "conscientiously abide[s] by the laws," and "avoid[s] everything that might harm the interests and the reputation of the Republic."6 In Ireland, the immigrant must declare "fidelity to the Irish Nation" and "loyalty to the State."7 In Latvia, the immigrant should pledge to "defend the independence of the State of Latvia, live and work honestly in order to augment the prosperity of the State and the People of Latvia."8 In Lithuania, the immigrant should pledge loyalty to the Constitution, as well as to "protect the territorial integrity of the State . . . respect the state language of Lithuania, its culture and customs, and to strengthen the democratic Lithuanian State."9 In Hungary, the immigrant should be loyal to the Republic, "consider Hungary my country . . . honor and observe the Constitution and laws."10 In Georgia, the immigrant should "recognize Georgian as a state language of Georgia and undertake to respect Georgian culture and national traditions."11 In other countries, such as the United States, the oath requires not only being loyal to the host-country but also renouncing loyalty to the fatherland country or other foreign entities.12 An interesting oath is the Pledge of Commitment in Australia, which states:13

From this time forward under God I pledge my loyalty to Australia and its people whose democratic beliefs I share whose rights and liberties I respect, and whose laws I will uphold and obey.

In Britain, there are currently two loyalty oaths. The traditional Oath of

Allegiance requires every immigrant to "be faithful and bear true allegiance to her Majesty Queen Elizabeth the Second, Her Heirs and Successors."14

5 Orgad, supra note 2, at 66, 80-82. 6 Cited in Dilek Cinar, Country Report: Austria, EUDO CITIZENSHIP 17 (2010) (emphasis

added), available at http://eudo-citizenship.eu/docs/CountryReports/Austria.pdf. 7 See Section 15(1(e) of the Irish Nationality and Citizenship Acts 1956 (emphasis added),

available at http://www.inis.gov.ie/en/INIS/consolidationINCA.pdf/Files/consolidationINCA.pdf. 8 See art. 18 of the Citizenship Law (emphasis added), available at http://unpan1.un.org/intradoc/groups/public/documents/untc/unpan018407.pdf. 9 See art. 15 of the Law on Citizenship, available at http://www.litlex.lt/Litlex/eng/Frames/Laws/Documents/55.HTM. 10 See Section 7(4) of the Act LV of 1993 on Hungarian Citizenship, available at

http://www.mfa.gov.hu/kulkepviselet/US/en/en_Konzuliinfo/en_ki_magyarallampolgarsag.htm. 11 See 29 of the Organic Law of Georgia on Citizenship of Georgia, available at

http://www.unhcr.org/refworld/pdfid/44ab816f4.pdf. 12 8 U.S.C. 1448. 13 See art. 15 of the Australian Citizenship Act of 2007 (emphasis added), available at

http://www.citizenship.gov.au/ceremonies/pledge/. 14 See art. 2 of the Promissory Oaths Act 1868, available at

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From 2004 on, every immigrant must also take a Pledge of Loyalty, which provides: "I will give my loyalty to the United Kingdom and respect its rights and freedoms. I will uphold its democratic values. I will observe its laws faithfully and fulfill my duties and obligations as a British citizen."15 Recently, as part of the debate on the meaning of Britishness, a government committee headed by Lord Goldsmith suggested adopting a third oath, an American-style of the Pledge of Allegiance in public schools. The committee found that there has been a diminution in national identity.16 To foster social unity, it turned back to the old means of the oath. The committee believed the Queen to be the bond to rebind the British together.17 Obviously, this social bond is seen in a completely different manner by Scots and Catholic Irish, who consider an oath to the Queen as a source of division rather than unity.18

In France, a new revision to the Civil Code requires candidates for citizenship to sign a Charter of Rights and Responsibilities.19 As of January 1, 2012, the new regulations further require that every naturalized French "adherence to the principles, values, and symbols of French democracy," and be loyal to "French values."20 These rules were adopted after President Nicolas Sarkozy denounced multiculturalism as a failure and expressed hope that an oath of allegiance to French values will strengthen French identity: "If you come to France, you accept to melt into a single community, which is the national community . . . we have been too busy with the identity of those who arrived and not enough with the identity of the country that accepted them."21

While many countries place great importance on loyalty oaths, and subject their immigrants to many different versions, there is no underlying theory directing them. Loyalty oaths are like a "potluck dinner," everything seems to be present: their diverse objectives, content, and form present a wide range of legal issues. Focusing on three statesCanada, the United States, and Israel, I illustrate the current immigration debates surrounding the oath.

B. CANADA: MONARCHY LOVER

Thousands of new Canadian citizens every year should swear allegiance to Queen Elizabeth II as a prerequisite for citizenship. The current oath states:

I, [name], do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and

http://www.legislation.gov.uk/ukpga/Vict/31-32/72/body. 15 See schedule 5 of the British Nationality Act 1981 (amended 2004) (emphasis added),

available at http://www.legislation.gov.uk/ukpga/1981/61/schedule/5. 16 See Citizenship: Our Common Bond 84 (2008). 17 Id. at 97-98. 18 See Alan Travis, How to Feel More British: Oath of Allegiance and a Special Day, THE

GUARDIAN, Mar. 12 2008. Minister Nick Herbert calls this proposal "synthetic patriotism." See Pupils to Take Allegiance Oath, BBC NEWS, Mar. 11, 2008.

19 See French Civil Code, book I, title I, Ch. III, Sec. I 3 Art. 21-24, available at http://www.legifrance.gouv.fr/affichCodeArticle.do?cidTexte=LEGITEXT000006070721&idArticle=LEGIARTI000024197100&dateTexte=20111207. In 2011, this revision was sustained by the Le Conseil Constitutionnel, available at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2011/2011-631-dc/decision-n-2011-631-dc-du-09-juin-2011.97377.html

20 The Charter (la charte des droits et devoirs du citoyen franais), drafted by France's High Council for Integration, is available at http://www.lefigaro.fr/assets/pdf/droitsetdevoirs.pdf.

21 See Nicolas Sarkozy Joins David Cameron and Angela Merkel View that Multiculturalism has Failed, MALN ONLINE, Feb. 11, 2011.

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Successors, and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen.22 The oath of citizenship demands more than to be an obedient citizen. It

requires to be "faithful and bear true allegiance" to the Queen, the Head of the Church of England, and extends to her heirs and successors. Obedience alone does not fulfill the requirement; rather, the law must be observed "faithfully."

Not every immigrant is willing to taking such an oath. Charles Roach is an example. Roach was legally admitted into Canada in 1955 to study at the University of Saskatchewan. Soon after graduation, he began his legal studies at the University of Toronto and was admitted to the Bar in 1963. Roach is a human rights activist.23 He pays taxes and fulfills all other responsibilities as a citizen. Yet Roach is not a citizen. He did everything necessary to become a citizen but his application has been denied for 57 years. The reason is simple. Roach refuses to take the Oath of Citizenship to Queen Elizabeth II because he objects to swearing allegiance to a monarchy. Born in Trinidad, a previous British colony enslaved by the Crown, he asserts that swearing allegiance to the Queen is tantamount to self-deception and betrayal of his principles. He notes that it is similar to asking a Holocaust survivor to take an oath to a descendant of Hitler.24 But it is not just Queen Elizabeth II. It's not personal; it is against his conscience and religion to swear allegiance to any living person.

In 1992, Roach went to court. He claimed that the oath to the Queen violates the Canadian Charter of Rights and Freedoms. It infringes upon freedom of conscience because it forces him to choose between citizenship and conscience. And it discriminates against noncitizens, who must swear allegiance, while citizens are exempt. Roach's petition was rejected.25 His appeal was dismissed.26 But Roach did not give up. He appealed to the Supreme Court but his application was denied.27 It took him a few more years to find the way back to court, this time, as a class action. In 2007, Roach's action was firstly heard on the merits28 but finally rejected in the appeal.29 No court was willing to invalidate the oath of citizenship, or any of its portions.

The grounds for rejecting Roach's claims are interesting. First, the Court ruled that the monarchy is part of Canada's constitutional identity. The subject of the oath is required to "express agreement with the fundamental structure of our country as it is," and "be bound in conscience to perform an act or to hold an ideal faithfully and truly."30 Apparently, the Court did not find a compulsory conscience-based oath to the Queen as infringing upon

22 See the Citizenship Act, R.S.C. 1985, c. C-29, s. 24, schedule 1. 23 See, e.g., Francine Kopun, He Says Nay to the Queen, THE STAR, May 11, 2007. 24 See, e.g., Mark Steyn, Windsor Hassle; What Kind of Country Will We End up with if

New Canadians are Allowed to Explicitly Reject the Constitutional Order? WESTERN STANDARD 54, June 4, 2007.

25 See Roach v. Canada (Minister of State for Multiculturalism and Culture) [1992] 2 F.C. 173 (T.D.) (henceforth: Roach I).

26 See Roach v. Canada (Minister of State for Multiculturalism and Culture) (FCA) [1994] 2 F.C. 406 (C.A.) (henceforth: Roach II).

27 See Roach v. Minister of State for Multiculturalism and Culture [1994] 113 D.L.R. 67. 28 See Roach v. Canada (Secretary of State) 2007 CanLII 17373 (ON SC) (noting that "there

is a plausible argument that this requirement violates the Charter of Rights and Freedoms."). 29 See Roach v. Canada (Attorney General), 2009 WL 459764 (Ont. S.C.J.). The Ontario

Superior Court of Justice dismissed the motion to certify the action as a class action as it failed to meet statutory requirements. The court did not rule on the merits of the constitutional claims.

30 Roach II, supra note 26, at para 4, 36 (MacGuigan J.A. and Linden J.A.). Interestingly, Roach pledged allegiance to the Queen when he joined the Canadian Armed Forces and, again, when admitted to the Bar. See Roach v. Canada (Attorney General), 2009 CanLII 7178 (Sup. Ct. J.) at para 17.

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freedom of conscience. Next, the Court held that the oath is not to Queen Elizabeth II, as a person, but rather, to her legal capacity as the Head of the State.31 This capacity, the Court ruled, is religiously-neutral. The Queen is the Head of the Church of England, a Christian Protestant Church, yet, the Court said, the head of the State could be anyone: "a Muslim, or an Atheist . . . [or] someone picked at random from a 6/49 kind of lottery."32 As a result, there is no violation of freedom of religion. The Court did not explain how this statement fits the simple fact that the Queen must be Christian and can only marry a Christian. Furthermore, the Court pointed out that the oath-taker can legally act to change Canada's constitutional structure once he receives the status of citizenship. Accordingly, there is no infringement upon of freedom of speech.33 The Court did not explain how one can act to replace the system of monarchy, yet remain loyal to the Queen.34 Finally, the Court found that exemption of natural-born citizens is not discriminatory because it is meaningless. Natural-born citizens are indeed exempt from the oath, yet not from its obligations; they, too, should be faithful and bear true allegiance.35

Roach lost in court. But the last word on this issue is yet to come. During recent years, there have been many attempts to modify the citizenship oath to accommodate those objecting to the monarchy.36 The legal discussion on the future of the oath is just part of a fierce debate on the future of Canada. The Federal Court was aware that underscoring the pure legal debate on the oath there was a hot potato. It observes it by noting that "what our country may come to be . . . is for millions of Canadian citizens to work out over time"; thus, Roach "cannot use his dream of a republican Constitution as a legal basis for denying the legitimacy of the present form of government."37 The oath is "not a matter to be taken lightly."38 It is a "solemn intention to adhere to the symbolic keystone of the Canadian Constitution . . . [and] an acceptance of the whole of our Constitution and national life."39 Acceptance "relies on the individual's inner sense . . . [the] conscience of the taker of the oath."40 But while the majority opinion found the oath to be valid, the dissenting opinion held that the demand of "loyalty to a particular political theory" contrasts "the very heart of democracy" and should be struck down.41

C. THE UNITED STATES: CONSTITUTIONAL IDOLATRY

In one of its first acts, the Naturalization Act of 1790, Congress required every newcomer to the new World to take an Oath of Allegiance "to support

31 Roach II, supra note 26, at para 4 (MacGuigan J.A.). 32 Roach I, supra note 25, at para 17 (Jayal J.). See also Roach II, supra note 26 ("the oath

requires no statement of allegiance to Anglicanism nor to the Queen in relation to her role in the Church of England.").

33 Roach II, supra note 26, at para 7 (MacGuigan J.A.). 34 Id. at 56 (Linden J.A.) ("If the oath of loyalty permits one to demonstrate that loyalty to

the Crown by advocating its abolition, what is the point of that oath? Is that loyalty or is it disloyalty? Is the oath merely a meaningless formality? . . . If all the oath of allegiance achieves is to get someone to promise not to violate the criminal law and to avoid subversive and illegal political methods, something they are already obligated to do, is it of any value?").

35 Id. at para 13-14 (MacGuigan J.A.). 36 See Bryce Edwards, Let Your Yea be Yea: The Citizenship Oath, the Charter, and the

Conscientious Objector, 60 U. TORONTO L. REV. 39, 60-64 (2002). For more recent bills, see http://www.canadian-republic.ca/media_releases.html.

37 Roach II, supra note 26 (MacGuigan J.A.). 38 Id. at para 42 (Linden J.A.). 39 Id. at para 20 (Linden, J.A.) (emphasis added). 40 Id. 41 Id. (MacGuigan J.A. & Linden J.A.).

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the Constitution of the United States."42 The Naturalization Act of 1795 added the pledge to "defend the Constitution and laws of the United States against all enemies . . . [and] bear true faith and allegiance to the same," as well as the requirement to be attached to the principles of the Constitution.43

The debates in the First Congress on the bill establishing a uniform rule of naturalization reveal that members of Congress were suspicious of loyalty oaths. In referring to the idea of eternal loyalty, Congressman Elias Boudinot stated: "The word forever implied that these people were not at liberty to return home, and reassume their allegiance to their own country." "What," he wondered, "if the United States were to become a tyrannical Government? Were people not to have the liberty of leaving it?"44 Some members of the First Congress found the idea of an oath disturbing. Congressman Boudinot pointed out the absurdity "to enact oaths which the very makers of the law could not agree about the meaning of."45 He asserted that he "always had considered oaths of allegiance as an imposition. They might keep away men who had scruples, because they had principles; others would swear, and break off, when it suited them."46 Congressman Hartley was noted to have found oaths to be false since they are not effective to secure loyalty.47 Similar views were shared by other members of Congress.48 The First Congress distrusted oaths, yet the bill was eventually passed with no special discussion on the reasons for the oath. The oath has essentially remained the same ever since.49

In 1997, the U.S. Commission on Immigration Reform found the oath to be archaicthe language uses words such as "potentate" and "abjure"and offered revising it to be solemn and meaningful. The Commission provided no theory to base the oath of allegiance, nor did it specify its aims, yet suggested to revising the oath to include the essence of Americanism. In the proposed oath, the immigrant: a) renounces all "former political allegiances"; b) gives "sole political fidelity and allegiance from this day forward" to "the United States of America"; c) supports and respects the U.S. Constitution and laws (in the current oath, the requirement is to "support and defend" the Constitution); and d) defend the Constitution against all enemies by military or civilian services.50 While the U.S. Commission suggested changes to the oath, it saw no problem with the concept of an oath or its proposed content.51

In September 2003, the Homeland Security Department (HSD) accepted the majority of the Commissions recommendations, with slight differences

42 See Naturalization Act of 1790, ch.3, 1, 1 Stat. 103. 43 See Naturalization Act of 1795, ch.20, 1, 1 Stat. 414. 44 See Annals of Cong. of the United States, Jan. 1795, 1061. 45 Id. 46 Id. James Madison, likewise, warned that "It [is] hard to make a man swear that he

prefer[s] the Constitution of the United States, or to give any general opinion, because he may, in his own private judgment, think Monarchy or Aristocracy better and yet be honestly determined to support this Government as he finds it. See 4 Annals of Cong. of the United States, 1022-23, Dec. 26, 1794. See also Harrison Otis: "A Frenchman is a Frenchman everywhere . . . [t]hough he may take his naturalization oath in this country, it does not alter his character." See 8 Annals of Cong. of the United States, 2064-65.

47 See Annals of Cong. of the United States, 1st Cong., Feb. 1790, 1147. 48 Id. at 1004, 1149. 49 See 316(f)(2) to the Immigration and Naturalization Act [INA]. For the current oath, see

8 C.F.R. 337.1(a) (2010). In current oath, the immigrant should: (a) support for the Constitution; (b) renounce prior allegiance; (c) defend of the Constitution against all enemies; (d) bear true faith and allegiance; and (e) bear arms or perform noncombatant service when required. See also Adjudicator's Field Manual, U.S. Citizenship and Immigration Services, 2011, ch. 75.

50 See U.S. Comm'n on Immigration Reform, Becoming an American: Immigration and Immigrant Policy 50-51 (1997) (emphasis added).

51 Supra note 40.

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the immigrant must "support, honor, and be loyal to the United States, its Constitution, and its laws."52 The HSD did not explain how an immigrant can (or should) "honor" the Constitution; how this requirement is different than the requirement to "support" the Constitution; or what is the distinction between a duty of loyalty to the Constitution, the laws, and the United States.

The American debate regarding the oath is still going in Congress53 and is obviously different than the one in Canada. Nevertheless, there are at least three common features. First, in both countries, some are calling to modify the language of the oath to accommodate social changes that have been occurred since its adoption. In Canada the oath dates back to 1870; in the United States, it was first adopted in 1790. Second, in both countries the oath itself is not being challenged. Third, in both countries, the oath focuses on constitutional identity. In Canada the immigrant pledge allegiance to a constitutional monarchy. In the United States, the immigrant must support, bear true faith, and allegiance to the Constitution, reflecting the American philosophy of constitutional nationalism. American identity, asserts Sanford Levinson, is based upon constitutional faith.54 One is expected to adhere, support, and venerate the Constitution. The recent revival of "constitutional idolatry," followed by calls for constitutional pledges and ceremonies, is rooted in a long history.55 The oath mirrors this dedication to the Constitution.

D. ISRAEL: JEWISH OBSESSION

In 2009, Avigdor Lieberman, Israel's Minister of Foreign Affairs and the head of the right-wing party, Yisrael Beiteinu, submitted a bill to impose a loyalty oath on citizens and noncitizens alike. The present oath upon naturalization is minimalnon-Jewish immigrants swear to be loyal to the State of Israel.56 However, the bill proposed that every potential immigrant swear loyalty to Israel as a Jewish and democratic State, a Zionist state, the flag, and the anthem.57 Since Israel is a Jewish and democratic state, Lieberman did not understand why asking a non-Jewish immigrant to swear loyalty to a Jewish and democratic State raises problems. Thus, Lieberman wonders, if the nature of the state as Jewish and democratic is protected by the Basic Law, why is it wrong to request pledging loyalty to these concepts?

Following much criticism, the bill, approved by the Israeli Government, was modified by requiring only noncitizens to swear loyalty to Israel as a Jewish and democratic state. Prime Minister Netanyahu noted that being a Jewish and democratic State is the raison d'etre of Israel and new immigrants must accept it.58 Netanyahu may be correct, but this is not what the bill is about. Immigrants are not asked to accept the legitimacy of a Jewish state, nor the right of the Jewish people to live in its own state. Instead, immigrants are asked to swear loyalty to a Jewish state. Swearing loyalty to a certain ideology or religion is not the same as accepting it as the law of the land.

52 See John J. Miller, Oath on Ice, NATIONAL REVIEW, Sept. 15, 2003. 53 See, e.g., "To Prescribe the Oath of Renunciation and Allegiance for Purposes of the

Immigration and Nationality Act," House Judiciary, Subcommittee on Immigration, Border Security, and Claims, 108th Congress, Apr. 1, 2004.

54 See, generally, SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988). 55 Cited in Lexington, The Perils of Constitution-Worship, THE ECONOMIST, 23 Sept., 2010. 56 See art. 5(c) to the Nationality Law of 1952. 57 See the Population Registration Bill (Amendment: Loyalty Declaration to the State, Flag,

and Anthem), 2009, 811/18 [Hebrew]. 58 See Meeting 74 of the 32 Government, 10 Oct., 2010, "Approval of the Amendment to

art. 5(c) to the Nationality Law of 1952" [Hebrew].

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Even those who recognize Israels legitimacy may have a problem to swear loyalty to it. In Israel, even an oath to the Basic Laws might pose difficulties. It is not only because the Basic Laws define Israel as a Jewish and democratic state,59 but also because they include other controversial issues, such as Basic Law: Jerusalem, Capital of Israel that provides that the unified city, including East Jerusalem, is an Israeli territory.60 Israel's Basic Laws, like constitutions in other nation-states, is exclusionary. It asks non-members of the majority group to pledge allegiance to the majority's beliefs. And it includes clauses that prevent candidates or parties to participate in the national election if their objects negate the existence of Israel as a Jewish and democratic State.61

The idea of being loyal to a Jewish and democratic state may be difficult for at least two minority groups. Ultra-Orthodox Jewish immigrants may have great difficulty swearing loyalty to democracy and the rule of law, and non-Jewish immigrants, especially of Palestinian descent, may have great difficulty swearing loyalty to a Jewish state. However, since the bill only applies to non-Jewish immigrants, ultra-Orthodox immigrants will not be affected. Indeed, even in the current law, Jewish immigrants requesting Israeli citizenship are exempted from taking the oath. This discrepancy raises a troubling question. If `loyalty is attached to citizenship, and noncitizens are presumed to be non-loyal, why should Jewish immigrants be exempt? It may be that loyalty is based on ethnicity, rather than on citizenship and, further, that the purpose of the Israeli oath is to exclude non-Jewish immigrants. In Israel, as in Canada, the oath debate reflects a fierce debate on constitutional identity. Due to various reasonsamong others subjective concerns that the Jewish state is jeopardizedthere is a recent obsession with Israel's Jewish character, with the loyalty oath providing a tool to strengthen Israel's identity.

The brief survey of loyalty oaths in Canada, the United States, and Israel shows three tales of nations that require immigrantsor intend to require themto swear loyalty to the fundamental structure of the society: a monarchy, a constitution, or a Jewish state. Yet, the fact that nations require loyalty to an object, and not just legal obedience, implies that a difference exists between allegiance and obedience. If such a difference exists, what does allegiance mean? It is essential to discuss the legitimacy of loyalty, regardless of the loyalty oath, before exploring the legitimacy of oaths, or of a specific oath, because the oath presupposes the existence of a duty of loyalty.

II. THE DUTY OF LOYALTY

Loyalty oaths are one manifestation of the duty of loyalty that is expected from citizens. But what is loyalty? What is the added value of allegiance to obedience? Is it legitimate for democracies to demand loyalty? This part examines these issues. It analyzes the distinction between allegiance and obedience, offers possible meanings of loyalty, and explores its justifications.

A. ALLEGIANCE AND OBEDIENCE

In order to understand the split between allegiance and obedience, we must go back to medieval England. In common law, one had to be loyal to the

59 See art. 1a of the Basic Law: Human Dignity and Liberty; art. 2 of the Basic Law:

Freedom of Occupation. 60 See art. 1 of the Basic Law: JerusalemCapital of Israel, 5740-1980, 34 LSI 209 (1980). 61 See art. 7a of the Basic Law: The Knesset. XXX

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King and obey acts of Parliament. There were differences between allegiance and obedience. One difference was that allegiance was a natural duty "due from all men born within the king's dominions immediately upon their birth."62 Subjects owed a permanent and perpetual allegiance to the King.63 The tie of allegiance was absolute and indelible. Conversely, the duty to obey the law was not natural but legal and could be relinquished. This distinction is not semantic. If allegiance is indelible, rebellion against the King might be treason, even when the King violates his trust. However, if the duty to obey the law is not indelible, the subjects will obey the law as long as the ruler rules them according to law. If the ruler becomes a tyrant, the subjects are not only permitted but obligated to rebel.64 Another difference was related to the added value of allegiance. Allegiance was "a true and faithful obedience of the subject due to his Sovereign."65 Allegiance thus was about faithfulness. It was a broader requirement than obedience. One had to legally obey the law of Parliament yet show faithful devotion to the law and order of the lord King, that is, to be attached to the King, right and wrong, for better and for worse.

English distinction between allegiance and obedience was more theoretical than practical. In reality, allegiance to the King meant obeying acts of Parliament, and opposing acts of Parliament meant breaching the duty of allegiance to the King. Until the American Revolution, English law had succeeded in avoiding confrontation with the simple fact that the theories of indelible allegiance and legal obedience were somehow overlapping. Yet, the American colonies broke away from three fundamental premises of loyalty.

First, the colonists demonstrated that one cannot be loyal to the King while disavowing the authority of Parliament. Loyalists and patriots alike knew that, in reality, "it would not be possible to renounce allegiance to Parliament without breaking the bond of loyalty to the King."66 The King and the Parliament were separate entities yet breaching the duty to one of them, allegiance of obedience respectfully, meant breaching the duty to the other. The American Revolution blurred the distinction between these two concepts. Indeed, the American interpretation of loyalty was incorporated into the U.S. Oath of Allegiance. Every naturalized American should take an oath to "support and defend the Constitution and laws of the United States" and "bear true faith and allegiance to the same."67 There is no split in the object of loyalty and legal obedience. Yet, the old interpretation of loyalty still exists until this day. In Canada, for instance, naturalized citizens must pledge not only to obey the law but also to be loyal to Queen Elizabeth II. This formula creates a potential conflict between allegiance and obedience. If, to take an extreme example, there would be a war between Canada and Great Britain, a Canadian citizen must obey Canadian law yet be loyal to Queen Elizabeth II, who is nominally the Commander-in-Chief of the British Army.68 It is a peculiar case of distinct sovereign states that share loyalty to the same entity.

Second, the American Revolution put an end to the doctrine of allegiance to the King in his natural capacity and replaced it with a theory of allegiance to the legal entity called the King. Being loyal to the King does not mean

62 See WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 357, 369-70

(1765). 63 See John. W. Salmond, Citizenship and Allegiance, 18 L. Q. REV. 49, 50 (1902). 64 See Thomas S. Martin, Nemo Potest Exuere Partiam: Indelibility of Allegiance and the

American Revolution, 35(2) AMER. J. LEG. HIST. 205, 208-09 (1991). 65 See Calvin's Case 7 Coke Report 1a, 77 ER 377, 382 (emphasis added). 66 Id. at 210. 67 8 C.F.R. part 337 (2010) (emphasis added). 68 See art. 15 to the Constitution Act, 1867, 30 & 31 Victoria, c.3. XXX

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loyalty to a specific person, but loyalty to the King-in-Parliament. Loyalty is not owed to a natural person but rather to a "corporate person" representing the eternal interests of the Crown.69 Indeed, the American rebels claimed allegiance to eternal interests of the common law. This historical lesson indicates that one should never be loyal to a specific person or entity; rather, loyalty is owed to eternal interests represented by a legal entity.70 The United States recognizes this principle in its preamble by according sovereignty to "the People," a legal entity that exists, regardless of a specific time and place.

Finally, the American Revolution grounded allegiance in contract law theories, not on indelible natural law. Loyalty is a contractual obligation. It is defined by the law and can be changed or ended by the law.71 The idea that allegiance is conditioned was recognized long before.72 The pledge of allegiance of subjects of the King of Aragon signified it: "We, who are as good as you, swear to you, who are not better than we, to accept you as our Kind and sovereign lord, provided that you observe all our liberties and laws; but if not, then not."73 In Ancient Greece, a mutual oath was the foundation of the Spartan monarchy. Even the King had to take an oath of allegiance as an expression of a mutual bond. The King swore "I will exercise my kingship in accordance with established laws of the state"; the people of Sparta swore: "so long he [the king] shall abide by his oath we will not suffer his kingship to be shaken."74 The American rebels adopted this idea. In fact, the breach of the mutual bond of loyalty is what the American Revolution was all about.75

The concept of allegiance, then, has changed: from a natural duty to a legal duty, toward a legal entity rather than a specific living person, and based on a mutual rather than a one-sided relationship. Nevertheless, it would not be completely accurate to imply symmetry between allegiance and obedience. Allegiance is different from obedience in at least two senses. It is broader, because it requires commitment even when there is no legal duty to follow a certain principle or entity. In this regard, loyalty imposes broader obligations than that which is imposed by the law. In addition, loyalty is narrower than obedience, because loyalty, in some of its meanings, calls for identification; it seeks to assure not only compliance with the law but also commitment to it. "Faith only, and inward sincerity," John Locke has long found, "are the things that procure acceptance."76 For instance, if one pays taxes not because one believes that paying taxes is just, but only because it is a legal obligation followed by a legal sanction, one has no loyalty to the norm of paying taxes.

The American Revolution has blurred the differences between allegiance and obedience, yet modern law still includes them. The differences can be shown by the fact that citizens and noncitizens alike must obey the law, yet

69 See DONALD W. HANSON, FROM KINGDOM TO COMMONWEALTH: THE DEVELOPMENT

OF CIVIC CONSCIOUSNESS IN ENGLISH POLITICAL THOUGHT 62 (1970). 70 Martin, supra note 64, at 211. 71 See Queen's Bench Division 1886 XVII 54, 55-56, 62. 72 Reciprocity in the theory of loyalty existed in common law, yet was not grounded on

contract law but on natural law. See Calvin's Case, supra nota 65, at 382 ("for as the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his subjects . . . ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; and he is called their liege lord, because he should maintain and defend them.").

73 See MORTON GRODZINS, THE LOYAL AND THE DISLOYAL: SOCIAL BOUNDARIES OF PATRIOTISM AND TREASON ii (1956).

74 See JOSEPH PLESCIA, THE OATH AND PERJURY IN ANCIENT GREECE 22 (1970). 75 The U.S. Declaration of Independence explains that the reasons for absolving from all

allegiance to the Crown are rooted, inter alia, in the breach of loyalty of King George III. 76 See JOHN LOCKE, A LETTER CONCERNING TOLERATION 22 (2007).

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only citizens must also be loyal. Had allegiance and obedience been the same, what would be left of the distinction? Modern law indicates that the duty to be loyal demands more than just obeying the law. It has an added value. What this value really means depends on the meaning of loyalty. To this I turn now.

B. ESSENTIALS

What do we require by a duty of loyalty? At least three explanations exist. Firstly, in psychology, loyalty may be a character trait. A person is loyal in the same as he or she may be brave, gentle, or jealous. Loyalty means holding a certain disposition of characterwhat exactly is it is disputed in psychologyand disloyalty is the absence of this trait, or holding a contrary trait.77 Thus, not everyone can be loyal as not everyone can be brave. One has the disposition to be loyal, or just the capacity to develop such a disposition.

Secondly, in sociology, loyalty may be an emotional state. A person is loyal when he or she feels some emotional devotions to some principles.78 It was the German sociologist Ferdinand Tnnies who introduced two types of human associations: Gemeinschaft, which is based upon sentimental values and whose members share common beliefs, and Gesellschaf, which has no sentimental values and whose membership is based upon pure self-interest.79 Gemeinschaft loyalty means sharing sentiment; disloyalty is either the absence of this sentiment, or a holding a conflicting sentiment.80 To evaluate loyalty means to test the intensity of the emotional tone of the loyalist to the object; in its highest form, it means patriotism and the love of one's country.

Thirdly, in social psychology, loyalty may be conformity. A person is loyal when he or she unquestionably follows some patterns of behavior, or avoids following them. A loyal person conforms to rules without inquiring into their wisdom and morality; a disloyal person is one who is unwilling to show conformity, or acts in the opposite direction. The requirement of loyalty is "easily satisfied. For it wants not intellectual conviction or spiritual conquest but mere outward conformity."81 It is satisfied with the flag salute regardless of one's feelings toward the flag. It is merely a matter of behavior.

Whatever the meaning of loyalty ischaracter trait, emotional state, and conformitypeople are loyal to an object: be it a person, an institute, an ideal, or a cause. Loyalty implies a subjectobject relationship. Robert Wolff argues that loyalty can be naturalarisen out of human relationships (a son to his father, a clansman to his clan, etc.)or contractualoriginated from an act of commitment (a vassal to the lord, a citizen to the state, etc.).82

It is also important to bear in mind that loyalty is a relative concept and often the level of loyalty of X to Z is defined in the relationship of X toward W. X may be seen as less loyal to Z because an expression of loyalty or disloyalty toward W, a competitor or ally of Z. Thomas More's last words on

77 See Robert P. Wolff, An Analysis of the Concept of Political Loyalty, in POLITICAL MAN

AND SOCIAL MAN: READINGS IN POLITICAL PHILOSOPHY 218, 219-20, 229-30 (Robert P. Wolff ed., 1966) (henceforth: READINGS IN POLITICAL PHILOSOPHY).

78 Id. at 222-23. See also JAMES CONNOR, THE SOCIOLOGY OF LOYALTY 9-34 (2007). 79 See, generally, FERDINAND TNNIES, COMMUNITY AND CIVIL SOCIETY (Jose Harris ed.,

Margaret Hollis trans., 2001). 80 See John Schaar, The Psychology of Loyalty, in READINGS IN POLITICAL PHILOSOPHY,

supra note 77, at 149, 164. 81 See HENRY S. COMMAGER, FREEDOM, LOYALTY, DISSENT 141-42 (1954). 82 Id. at 225-28.

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the scaffold were "I die as the King's good servant but God's first."83 His mere disloyalty to King Henry VIII was his greater loyalty to God. Hence, the boundaries of loyalty are often set up in the relationship between three actors.

Loyalty, then, is a complex concept having different meanings and forms. So, what do we require by the duty of loyalty? In the field of naturalization law, it is possible to find a mixture of each of these characteristics of loyalty. U.S. immigration law, for example, may examine loyalty as a character trait by the requirement of "good moral character."84 It may evaluate loyalty as an emotion by the requirement of "attachment to the principles of the U.S. Constitution,"85 or by the requirement to take an oath of allegiance to "bear true faith and allegiance" to the U.S. Constitution.86 By the same oath, U.S. law can assess the level of conformity, or potential degree of conformity, by the immigrant's willingness to "perform noncombatant service in the Armed Forces of the United States" and to "perform work of national importance."87

C. LEGITIMACY

The duty of loyalty may have an added value to the duty to obey the law: the requirement of character trait (good citizens), emotional state (patriotic citizens), and conformity (devoted citizens). This value is usually not imposed by law reports; no country, for example, has an explicit legal duty to be patriotic or of love of the country. Why, then, is it legitimate for democratic states to require loyalty, as distinct from the duty to obey the law?

One possible explanation for the legitimacy of loyalty relies on individual freedom. A popular claim in the literature finds the justification for loyalty in its connection with freedom. In Liberal Loyalty, Anna Stilz makes such a claim. Her argument is three-fold. The first premise is that the existence of just/legitimate states is morally relevant; it is a prerequisite for the existence of freedom. Only just/legitimate states can define and enforce conditions in which freedom is realized.88 The second premise is that some level of loyalty is essential for the existence of just/legitimate states.89 The third premise is that loyalty must have a particular meaning within the boundary of a particular state.90 The conclusion, then, is that some level of a particular state-based loyalty is justified as a means of guaranteeing freedom. The minimum level is controversial: some insist on shared political values, others on common culture. But whatever it is, there must be a minimum bond to which everyone is loyal. The legitimacy of loyalty is instrumental; it is a means to an end. Loyalty stands only to the extent that it is essential to secure freedom.

The claim of the connection between freedom and loyalty is persuasive, yet is not sensitive to the changing meaning of loyalty. If, for example, loyalty is a character trait, liberal states cannot legitimately require people to be loyal since it is less legitimate to forge one's personality traits by a legal

83 See Lacey B. Smith, English Treason Trials and Confessions in the Sixteenth Century,

15(4) J. HIST. OF IDEAS 471, 481 (1954). 84 See INA, 101(f) & 316(d)& (e). 85 See INA, 316(a). For the attachment requirement, see In re Shanin, 278 Fed. 739, 740-

41 (D.C. Mass, 1922) (Attachment refers to "the mental attitude of the petitioner toward this country."); In re Siem, 284 Fed. 868 (D.C. 1922) ("Attached in reference to principles, by all standard authorities, means having regard and affection for and sustaining by moral force.").

86 See INA, 316(f)(2). 87 See 8 C.F.R. part 337 (2010). 88 See ANNE STILZ, LIBERAL LOYALTY: FREEDOM, OBLIGATION, AND THE STATE 27-64

(2009). 89 Id. at 64-84. 90 Id. at 113-36.

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order.91 Direct imposition of loyalty is a sign of dictatorshipas was the case in Nazi Germany, when all soldiers were forced to swear allegiance to Hitler. In democratic states, duties of loyalty are indirect. They are encouraged through loyalties to sub-state groups, such as families and clubs, and are implemented by using indirect means, such as education systems, national holidays and symbols and, often, crises such as wars.92 Thus, if loyalty is a character trait, liberal states cannot directly impose it, let alone sanction not having it. To do it would undermine the very freedom states seek to achieve. Similarly, if loyalty is an emotional attitude, liberal states cannot legitimately order people to be loyal as no liberal state can seriously command people to love X or hate Y. Emotions are evolved, not ordered.93 On the other hand, if loyalty is conformity, liberal states may demand some of its manifestations, such as paying taxes and serving in the armed forces. Conformity does not seek to interfere with one's belief, nor does it seek acceptance or rejection of some dogmas and creeds. Rather, it focuses on external acts, or on the avoidance of some external acts. As long as some external acts are legitimate, there exists no inherent moral problem in demanding that they be observed.

The legitimacy of loyalty thus depends on various factors: the meaning of loyalty, its form, and whether loyalty is an end, or just a means to an end, and the value of this end. Some duties of loyalty are legitimate; others do not. It is at least doubtful whether the duty of loyalty can be justified in all of its meanings. To justify the duty of loyalty, one must show a justification and, further, that it justifies a specific meaning of the duty of loyalty. To be clear: I do not claim that loyalty is illegitimate, or that it is illegitimate to foster a sense of loyalty. My claim focuses on the duty of loyalty given the proposition that this duty implies some additional burden to legal obedience.

D. JUSTIFICATION

When the duty of loyalty is legitimate, there is a reason to comply with it. Yet it may be justified to impose a duty of loyalty even when this duty (or some of its meanings) is considered illegitimate based on other justifications. The question of obedience even to some illegitimate duties is not unique to loyalty. It always emerges in the broader discussion on legal obedience. I briefly present three possible justifications, and explain why all of them fail.

The first justification is consent. We have a duty to be loyal when, and only when, we consent to be loyal, expressly or tacitly, directly or through the authority of an elected government. Express consent is demonstrated in cases of contractual loyalty, as in the case of loyalty oaths. Tacit consent is implied by continued residence in the host state, or holding its citizenship.94 Yet this proposition fails. First, the idea of tacit consent by mere continued residence is false.95 English doctrine asserted that allegiance was indelible, nemo potest exuere partiamonce a subject, always a subject. Thus, until roughly the end of the Nineteenth Century, every English subject owed irrevocable allegiance to the Crown. Although English law has been changed since, there are states in which voluntary loss of citizenship is still difficult if at all possiblein Israel, for instance, a person cannot give up citizenship without the approval

91 Wolff, supra note 77, at 218, 232. 92 GRODZINS, supra note 73, at 69. The boundary of direct and indirect loyalty is blurred. 93 Wolff, supra note 77, at 218, 232, 237-38. 94 See JOHN LOCKE, TWO TREATISES OF GOVERNMENT 348 (Peter Laslett ed., 1689, 1988). 95 See Leslie Green, Law and Obligations, in THE OXFORD HANDBOOK OF JURISPRUDENCE

AND PHILOSOPHY OF LAW 514, 528 (Joles Coleman et al eds., 2002).

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of the Minister of the Interior96and, as a result, there is no legal way to opt out of loyalty. When the duty of loyalty is not based upon free choice, its foundation is less justified. Third, often, there is no practical way to opt out. People may be willing to leave their country, and change their allegiance, yet emigration requires more than social conditions and economic resources. Fourth, the theory of consent may justify the principle of loyalty, but it says nothing about its scope; the boundary of the consent remains vague. And finally, there are issues in which consent may not be sufficient. If loyalty implies emotions, X can agree to love Z but a mere contract ensures no love.

The second justification is based upon friendship. We should be loyal toward friends and other like-minded relationships.97 The virtue of friendship received considerable attention in Aristotle's writings. In its high form, friendship contributes to one's personality and happiness.98 It rests, in its essence, on loyalty. To create loyalty, people should share history and experience; they must have "eaten salt" together.99 Loyalty cannot be created by consent. Loyalty is not based on ethics (it is just) or utilitarianism (it is cost-effective) but on personal relationshipit is mine: my country, my son, my people.100 Thus, although there may be utilitarian explanations why a parent should not be more loyal to his son than to a stranger's son, choosing to save one's son and not a more talented yet stranger's son when the two children are drowning is likely to be justified on the simple fact that it is my son. The children are equally in need, and the stranger's son can make a greater contribution to society, and yet, most people will choose to save their son because he is theirs.101 The focal point is personal relationship. However, the shortcoming of the friendship theory appears in the fact that friendship theory might justify loyalty, but cannot equally justify a duty to be loyal.102

The third justification is related to gratitude. We have a duty to be loyal in return for something. Duties of gratitude are not the strict form of indebtedness, as in a legal duty to repay for a good, but rather acts that we are morally expected to perform in return to benefits received.103 Loyalty, explained William Blackstone, is "a debt of gratitude; which cannot be forfeited, canceled, or altered, by any change of time, place, or circumstance."104 A person lives in a certain community in which he receives protection and welfare and, in return, he must express gratitude. The classic example appears in Plato's Crito. The dialog refers to the discussion of Socrates and his wealthy friend Crito. Socrates is found guilty of subversive teaching and must choose whether to escape from prison, using Crito's financial support, or to submit to the death sentence rendered against him. Socrates decides to stay in Athens. The story illustrates a radical example of obedience, but it also reveals a deep theory of loyalty as gratitude. Socrates explains to Crito that if he were to flee, "the laws and Constitution of Athens

96 See art. 10 of Israel's Nationality Law [1952]. 97 Green, supra note 95, at 528. 98 See ARISTOTLE THE NICOMACHEAN ETHICS 207, 238-47 (J. L. Ackrill & J. O. Urmson

eds., David Ross trans., 1998). 99 Id. at 197. 100 See GEORGE P. FLETCHER, LOYALTY: AN ESSAY ON THE MORALITY OF RELATIONSHIPS

3-24 (1993). 101 Id. at 61; Andrew Oldenquist, Loyalties, 79 J. PHIL. 173, 186 (1982). 102 Locke, supra note 94, at 314. 103 See SIMON KELLER, THE LIMITS OF LOYALTY 101-15 (2007). For the distinction

between a debt of gratitude and a duty to repay back, see Robert E. Ewin, Loyalty and Virtues, 42 PHI. Q. 407-08 (1992).

104 BLACKSTONE, supra note 62, at 357.

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would come and confront" him demanding explanations for his disloyalty:105 Socrates could have left Athens, but his stay indicated his satisfaction with its law. But the dialog is not only about consent. Athenian laws required loyalty as an act of gratitude in return for their aid for Socrates birth, education, and personality.106 The theory of gratitude, however, fails, because there are many ways to express gratitudesuch as paying taxes and serving in the armed forcesand loyalty may only be one of them. In addition, if loyalty depends on what the beneficiary received, the theory of gratitude may lead to the conclusion that persons who suffered historical wrongs should not be forced to be loyal since they have nothing substantial for which to express gratitude.

To sum up, historically, there was a real difference between the duty of loyalty and the duty to obey the law. This difference had been blurred by the American Revolution. Modern law, however, sustains the old difference, thereby raises the question about the essence of loyalty and its added value. As noted, loyalty may have three additional burdens related to one's character trait, emotional attitude, and level of conformity. In order to maintain these burdens, democratic states should ground them on a legitimate cause, or offer other theories that may justify a duty of loyalty. This part briefly shows that common justifications of loyalty largely fail to justify a duty of loyalty.107 For the sake of convenience, I assume that some duties of loyalty are justified. I ask now whether the duty to take a loyalty oath can be justified. The next part investigates its possible benefits. The last part examines its generated costs.

III. THE FUNCTION OF LOYALTY OATHS

Given that a duty of loyalty exists as distinct from a duty to obey the law, that it is somehow justified, and that it applies to every citizen, natural born or naturalizedthree disputed propositionsone may ask why do we need an oath as a manifestation of it? What is the added value of the oath? Why not having a presumption that every citizen, natural-born or naturalized, is presumed to be loyal without an oath? The fact that states require an oath, and require it only from naturalized citizens, indicates that the oath has (or should have) a specific purpose. This part explores different purposes of the oath by tracing the history of the oath: first, ancient oaths, which demonstrate the function of the oath as a contract; then, reformation oaths, which present the oath as a political test; and, finally, American oaths, which illustrate the oath as a nation-building symbol. Although these functions can apply together, they are analyzed separately. On the whole, this part shows that loyalty oaths have no solid purpose and, even if they have one, there is no evidence to indicate that the oath rationally serves it. This part questions what the point of loyalty oaths for immigrants is. It demonstrates that the oath has little benefit.

A. CONTRACT

Oaths can be viewed as an ancient form of a contract. The origin of the oath is rooted in a pre-religious era in which people believed they possessed a magic power. The oath was deemed to be an effective tool that could have a magical effect by the power of words alone: mere words could kill or heal

105 See PLATO, CRITO 13 (C. Emlyn Jones author, 2010). 106 Fletcher, supra note 100, at 55-57. 107 It does not mean that states cannot outlaw or sanction disloyal acts. Yet, as long as

loyalty is an independence legal institution, its added burden should be justified separately.

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people. Much before religion gained power, oaths were a "self-curse . . . utilized as a means of guaranteeing that a promise would be performed."108 The oath's power relied on faith in its magic. When religion gained power, "the curse ceased to exist as an independent being and gods became the tools whereby the oath was caused to operate."109 The oath became a promise followed by a divine punishment for its breach. The expression "so help me God" is the invocation of God as a partner to the oath.110 A legal sanction was not essential because perjury was seen as a crime against God itself.111 Often, oaths included a "curse clause" to indicate the expected harm for violating the pact, and a "blessing clause" to mark the expected gain for its fulfillment.112

In the ancient world, loyalty oaths were popular.113 In Ancient Athens, there were three types of oaths: in public life, judicial life, and international arena.114 The oaths in public life divided into oaths for citizens and oaths for officials. Oaths of the citizensa "citizen" did not include women, slaves, and childrenprovided a framework for the social contract. In order to receive the civic status of a citizen, every child had to enroll into a unit called the "phratry."115 The father had to present his child and swear that it was his legitimate child.116 When the child reached the age of eighteen, and before entering the military service, the child had to take the "ephebic oath."117 Only then he became an Athenian citizen.118 There was no legal penalty. Breaching the oath was tantamount to breaking a contract with the gods.119 The function of the oath had later been legalized in Rome. The prevalent belief was that the gods punish all lieswhether based on oaths, or not. Thus, the oath "added nothing to the fear of retribution, and declined in importance."120 This was the historical moment in which a divine oath was replaced by a legal institution.

The function of the oath as a contract raises a fundamental problem. The fact the oath-taker calls God to become a partner to his vows does not make God a partner in the contract. Nor does it mean that God will impose a sanction on the oath-taker upon breaking the promise, or punish for perjury. God "does not need us to draw His attention to our words, or to the secrets of our hearts; He does not need our permission to punish, should we dare to utter with our lips, what our conscience knows to be wrong."121 The function of the oath, thus, might be different: "To show that we are not calling the attention of God to man, but the attention of man to God,that we are not calling upon Him to punish the wrong-doer, but on man to remember, that He will."122 This view sees the oath as a contract between the oath-taker and the citizenry.

108 See Helen Silving, The Oath: I, 68(7) YALE L.J. 1329, 1330 (1959). 109 Id. at 1331. For religious oaths' history, see Omichund v. Barker , S.C. 1 Atk. 21 (1744). 110 See Edward B. Tyler, Ordeals and Oaths, 9 POPULAR SCIENCE 307, 318 (1876). 111 Silving, supra note 108, at 1334. 112 See Moshe Weinfeld, The Loyalty Oath in the Ancient Near East, 8 UGARIT FORSCH

387, 398-99 (1976). 113 Id. at 383. 114 See, generally, PLESCIA, supra note 74. 115 Id. at 15-16. 116 See id., at 16, for the text of the oath. 117 See id., at 16-17. For the ephebic oath, see also John W. Taylor, The Athenian Oath,

13(7) THE CLASSIC JOURNAL 495 (1916); Oscar W. Reinmuth, The Genesis of the Athenian Ephebia, 83 TRANS. PROC. AM. PHILOL. ASSOC. 34 (1952).

118 PLESCIA, supra note 11, at 74. 119 Id. at 88. 120 Silving, supra note 108, at 1337. 121 See JAMES E. TYLER, OATHS: THEIR ORIGIN, NATURE, AND HISTORY 14 (1834). 122 Id.

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The function of the oath as a social contract may explain why the oath is required. Membership in a community may require agreement of some rules. While existing-members are presumed to agree to the rules by tacit consent, foreign members seeking to join an existing community are often required, as a matter of fact (regardless if it is just or not), to express an explicit consent to the rules of the community or its tenets. A possible analogy is conversion to Judaism. Those who are born Jewish do not need to prove their Jewishness. Yet, non-Jewish persons seeking to be part of the Jewish community should undertake a formal process of conversion to prove their Jewishness. In this analogy, acquiring new citizenship is tantamount to converting into a new religion. New members must explicitly consent or undergo some procedures.

The contractual nature of the oath may also be an act of specification of a general legal obligation. At some law schools, there is a practice of obliging students to sign a contract before taking an exam. The student should sign a form in which he or she is aware of the rules of ethics and promise to obey them during the exam. The main purpose of such contracts is to increase the student's awareness to the code of conduct during exams. One may ask what the contract adds to the students' general obligations, which are written in any event in the student regulations. For example, is a student, who committed a disciplinary offence by cheating in an exam after signing the contract, guiltier than a student who committed the same offence without signing the contract? Will (or should) he or she be punished differently? Or perhaps the contract does not affect the legal responsibility, but intends to have psychological effects that deter fraud? Is this the right analogy of the loyalty oath? If yes, the content of most loyalty oaths should have been different since they do not just specify general legal obligations, which are written anyway in the law, but mainly add new contractual requirements that are not written in the law.

The function of the oath as a social contract is problematic. At first, if the purpose is a contract, why is it necessary to oblige people to say the words rather than to sign a legal document? One may be willing to sign a contract yet find it difficult to declare the words. Insisting on an oral instead of a written contract may indicate that the real purpose of the oath is different. If the oath is a contract, it can also be a legal document that one must sign in the immigration interview, the same as happens when one opens a bank account. This is not a fundamental problem with the function of the oath as a social contract but rather with its form. In addition, the duties of loyalty taken by naturalized citizens in the oath, namely, their "social contract," are broader than those presumed regarding natural-born citizens.123 It leads to different classes of contracts and of duties of loyalty. This, too, is not a fundamental problem with the function of the oath as a contract but rather with its terms.

B. POLITICAL TEST

A second view of the oath is as a political test. The oath is a marker for the oath-takerit marks her new identity and identificationand for the communityit delimits the borders of a community by stating its essentials. Oaths are a bond of trust; taking an oath shows that the oath-taker wroth trust.

The modern concept of allegiance was developed in medieval England. In the feudal system, there was a personal tie of fealty between the vassal and the lord.124 Fealty was the obligation of fidelity that vassals owed to their lord

123 Comparing the content of oaths reveals that loyalty oaths required of naturalized citizens

set a stricter standard than do loyalty oaths required of officials, judges, and even presidents. 124 See WILLIAM S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 73 (3rd ed, vol. 9, 1944).

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in return for protection. Allegiance was the obligation that subjects owed to the King, the supreme lord of the land, in return for his protection.125 Modern oaths of allegiance derive from the old English oath of fealty.126 The incorporation of the oath of fealty into the public sphere was made in 1534 when Henry VIII's hopes of reconciliation with Rome were exhausted. Henry passed The Act for Establishment of the King's Succession,127 whose subjects had to recognize the validity of his marriage to Anne Boleyn. Henry invoked the oath as a defensive means against the Catholic Church. He wanted to assure that the political loyalty of his subjects is owed to the new head of the Church of England, and not to the Pope. He also knew that the subjects may have doubts about the validity of his marriage to Anne Boleyn, which consequently could have undermined the validity of the throne. The oath thus was a political mechanism forcing the subjects to recognize the marriage.128

Ye shall swere to beare faith truth and obedyence alonely to the Kynges Majestye and to his heires of his body of his moost dere and entierly belovyd laufull wyfe Quene Anne begotten or to be begotten, And further to the heires of oure said the Soveraign Lorde accordyng to the lymytacion in the Statute. Two years after the end of his marriage with Anne Boleyn, Henry passed

a new actthe Act for the Establishment of the Succession of the Imperial Crown of this Realm

129which replaced the previous oath with a new oath of allegiance and substituted Henry's new wife, Jane Seymour, for his previous wife, Anne Boleyn.130 This time, the Act provided that a refusal to take the oath would be considered high treason.131 In 1544, the oath was replaced once more, and, again, a refusal to take the oath was deemed high treason:132

I, A. B., having now the veil of darkness of the usurped power authority and jurisdiction of the see and Bishop of Rome clearly taken away from mine eyes, do utterly testify and declare in my conscience that neither the see nor the Bishop of Rome nor any foreign potentate hate nor ought to have any jurisdiction power or authority within this realm neither by God's law nor by any other just law or means . . . I shall bear faith truth and true allegiance to the King's Majesty and to his heirs and successors. These oaths were developed in a moment of instability in English history

resulting from the break with the Catholic Church. Oaths were a mechanism to test loyalty to the Crown by obliging people to renounce loyalty to the Pope, who was mocked as the Bishop of Rome, and recognize the superiority of the King as the only governor of the realm (an Oath of Supremacy), pledge loyalty to the King (an Oath of Allegiance), accept the Protestant faith and

125 BLACKSTONE, supra note 62, at 354-55. The King's duty to protect "was meant to fulfill

the most immediate needs of ordinary people: minimal security against conquest, civil war, anarchy, and private violence." See Judith Shklar, American Citizenship: The Quest for Inclusion, in THE TANNER LECTURES ON HUMAN VALUES XI 385, 391 (Grethe B. Peterson ed., 1990)

126 See FREDERICK POLLOCK, ESSAYS IN JURISPRUDENCE AND ETHICS 179 (1882). 127 25 H. VIII. C. 22. 128 26 H. VIII c. 2 (for the full, much longer version of the oath see, id). 129 28 H. VIII. c. 7. 130 POLLOCK, supra note 126, at 182. 131 Id. 132 35 H. VIII. c.1 (for the full, much longer version of the oath see, id).

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declare against transubstantiation (an Oath of Abjuration).133 The Gunpowder Plot of 1605 provoked an outbreak of panic and hysteria and yielded a strict policy of surveillance on Popish recusants.134 The Popish Recusants Act, passed by the Jacobean Parliament, established a new oath, which included "a promise to bear allegiance to the Crown notwithstanding any Papal sentence of excommunication or deprivation."135 This oath added the words "upon the true faith of a Christian," which later became an issue for Jewish subjects.136

The emergence of oaths of allegiance continued after the Restoration. After the Revolution of 1688, however, the previous forms of the oath were abolished, and a concise form of oath to King William and Queen Marry was adopted.137 In 1701, following the death of King James II., and in the last days of William III., a new Act was passed, imposing, again, very long oaths of allegiance, supremacy, and abjuration, which remained in force for nearly a century.138 Finally, the Promissory Oaths Act of 1868 cut down the oath of allegiance to its current form.139 Frederick Pollock, who offered a detailed historical account of oaths of allegiance in England, explains the reason for the current modest oath by saying that "we no longer stand in fear of Pope or Pretender."140 Pollock ends up with the conclusion that "every clause and almost every word in the statutory oaths of allegiance . . . was directed against a distinct and specific political danger."141 Loyalty Oaths, he indicates, were a "repressive legislation against mere speculative opinions."142

Oaths of allegiance were essential cargo that traveled with Englishmen to the New World in America.143 In 1640, Massachusetts was the first colony to depart from the English royal oath of allegiance and replaced it with a new Puritan oath.144 The new oath did not impose any requirement of loyalty to a specific king or a church. But don't be mistaken: emulating practices at home, the colonies invoked oaths as a political weapon. Nevertheless, many Founding Fathers knew that loyalty oaths were a fallacy. There was no better proof for that than the American Revolution itself. Some of the Founding Fathers swore loyalty to King George II yet rebelled against him. Thomas Jones commented that oaths "were become mere farces. The loyalists laughed at them, the rebels despised them, and by both they were held in contempt"; Benjamin Franklin noted that "there could be no reliance on their oaths" as they are "the last recourse of liars"; and James Wilson wrote: "a good government did not need them [the loyalty oaths], and a bad government

133 See, e.g., respectfully, 5 Eliz. c. 1 (1562), 7 Jac. 1, c. 6 (1609), and 30 Car. II, Stat. 2, c. 1

(1678). 134 See Marcy L. North, Anonymity's Subject: James I and the Debate over the Oath of

Allegiance, 33(2) NEW LITERARY HISTORY 215 (2002). 135 POLLOCK, supra note 126, at 185-86. The function of the oath as a test can be seen by

the title of the ActThe Test Act of 1673, 25 Car. II. c. 2. 136 Id. at 187-88, 193-94. A well-known example is the story of Lionel de Rothschild, who

was elected a few times to the House of Commons yet refused to swear allegiance upon the true faith of Christian. See STANLEY WEINTRAUB CHARLOTTE AND LIONEL: A ROTHSCHILD LOVE STORY, 125-50 (2003).

137 For the full text of the oath see id., at 189. 138 For the very detailed text of the oath see, id., at. 189-91. See also 1 Geo. I., st. 2, c. 13. 139 31 & 32 Vict. c. 72. 140 POLLOCK, supra note, at 126. 141 Id. at 196-97. 142 Id. at 197. For oaths in England see also FREDERIC W. MAITLAND, THE CONSTITUTION

HISTORY OF ENGLAND, 115-18, 364-67 (1931). 143 See HAROLD M. HYMAN, TO TRY MEN'S SOULS: LOYALTY TESTS IN AMERICAN

HISTORY 1-22 (1959). It was only natural that the first item printed when the first printing press had brought to the colonies was the loyalty oath. For the full text of the oath see id., at 15.

144 Id. at 21-23.

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could not or ought not be supported"145 The wisdom of loyalty oaths was not clear. In the most detailed review of loyalty oaths in America, Harold Hyman shows that, in an attempt to secure loyalty, loyalty oaths provoked disloyalty. "Never in America's history have loyalty tests provided security," he says.146

Interestingly, the most stringent attack on loyalty oaths came from Noah Webster. "Ten thousand oaths" could not create a faithful subject, he argued; oaths of allegiance are a "badge of folly, borrowed from the dark ages of bigotry."147 Webster, the very incarnation of Americanism, asserted that oaths are un-Americans. In referring to their quality to test political loyalty, he said:

I pray God to enlighten the minds of the Americans. I wish they would shake off every badge of tyranny. Americans!The best way to make men honest, is to let them enjoy equal rights and privileges; never suspect a set of men will be rogues, and make laws proclaiming that suspicion . . . No man will commence enemy to a government which givs him as many privileges as his neighbors enjoy.148 The history of the oath is a history of fear. Oaths were a sign of

weakness. They have been used by a side who perceived that it was under threat. "No loyalty oath is required when loyalty is not in question," Cass Sunstein observed.149 Loyalty oaths thus try to restore conventions that have ceased to exist, or have been seriously jeopardized. In fact, the preponderance of loyalty oaths mirrors exactly the opposite. It reflects a decline of loyalty and its being undermined because it shows the need to protect it. The words of the oath are needed precisely because they have been called into question.

C. NATION-BUILDING

Loyalty oaths have historically been seen as one of the greatest forces of society. "The oath," says Lycurgus, the great Athenian orator of the 4th Century B.C., "is the power that holds democracy together."150 Loyalty oaths were a socio-religious force aimed at uniting people together. They were seen as a nation-building symbol, similar to the national flag and national anthem. "No country can subsist a twelve-month where an oath is not thought binding; for the want of it must necessarily dissolve society," ruled the New Jersey Supreme Court.151 Montesquieu attributing the strength of the Romans to their use of oaths: "the oath had so much force among these people that nothing attached them more to the laws. In order to observe an oath, they often did what they would never have done for glory or for the homeland."152

145 Id. at 113-15. 146 Id. at 343 (describing oaths of allegiance as a political test during the Colonial Era, the

Civil War. World War I, World War II, and the Cold War). 147 See Noah Webster, On Test Laws, Oaths of Allegiance and Abjuration, and Partial

Exclusion from Office, in A COLLECTION OF ESSAYS AND FUGITIV WRITINGS ON MORAL, HISTORICAL, POLITICAL AND LITERARY SUBJECTS 151-53 (1790, 1977). Webster preferred a country that generates loyalty through what it has to offer, rather than by a coerced statement. For Webster, "a good Constitution, and good laws, make good subjects." Id.

148 Id.

149 See Cass R. Sunstein, Unity and Plurality: The Case of Compulsory Oaths, 2 YALE J.L. & HUMAN. 101, 102-03 (1990).

150 PLESCIA, supra note 74, at XXX. 151 See Imbrie v. Marsh, 3 N.J. 578, 581 (1950), cited Omychund v. Barker , 1 Atk. 21, 34

(Ch. 1744). 152 See CHARLES D. MONTESQUIEU, THE SPIRIT OF THE LAWS 122 (Anne M. Cohler et al

eds., 1989).

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The idea of nation-building symbols was developed by Rousseau. In order to maintain a particular legitimate state, there is a need to put together a particular society. To this end, citizens must share a particular bond, which is based not only upon rational self-interest in having freedom but also upon developing irrational attachments by appealing to national myths, festivals, and rites.153 National identity should be developed. For Rousseau, public rites are a nation-building instrument to secure freedom since they trigger loyalty.

Viewing oaths of allegiance under this lens indicates another function of that oath. The oath is not merely aimed at creating in-groups and out-groups but at unifying an in-group together.154 The important element of the oath is not its content but its form. The oath may be useless without the rite. Signing a few words on a piece of paper would not produce the required sentiment of unity. The ritual function of the oath is its essence. Immigrants should take the oath in a dramatic momentusually, in a public ceremony or in a court of law. The ceremony often includes patriotic rituals, such as saluting the flag, reciting the words of the oath in public, and sometimes swearing on the Bible.

The function of the oath of allegiance as a nation-building symbol is not clear-cut. To begin with, aside from anecdotal evidence, there is no empirical evidence to indicate that prating words of loyalty foster social cohesion. On the contrary: it may be possible that a person who recites the Pledge of Allegiance each morning in a public school would feel negative rather than positive feelings toward the objects of loyalty. Think about a man who asks his spouse to declare her love every morning. After a year, would she love him more or less? At the end, as the U.S. Supreme Court held regarding the flag salute, "a person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn."155 Next, even if loyalty oaths are an effective means to achieve social cohesion, their efficiency obviously depends on their content. Forcing a Scotsman to swear allegiance to Queen Elizabeth II, a non-Jewish immigrant to pledge loyalty to a Jewish State, or an objector to monarchy to swear loyalty to the Crown may exacerbate social divisions rather than create social unity. Moreover, if the form of the oath (i.e., the ceremony) serves more the purpose of the oath as a nation-building symbol than its content, the effectiveness of the oath in the immigration context is, at least, unclear. Unlike pledges of allegiance in public schools, which are repeated every day, the immigration oath is a one-time event that is held for just a few minutes. It is nave to assume that these few minutes have such a great impact on newcomers' identity and identification. Civic integration and the development of national identity is usually a product of a long process, not necessary a one-time event. To be clear: the claim is not against the importance of nation-building symbolsI accept the proposition that states must maintain a minimum "bond" to hold people together in order to survivebut rather against the nexus between the oath, especially a one-time oath, and the national identity.

It may be possible that the oath is not a legal institution but a symbolic statement whose virtue is to be found in the ceremony. After all, the fact the one makes promises does not mean one makes a contract. Oaths can be a type of a moral promise, which, even if it has a moral force, is not legally binding. Think about wedding vows. The bride and the groom promise to be faithful partners, and love one another from this day until death. Nobody really goes

153 STILZ, supra note 88, at 117-30. 154 See Sanford Levinson, Constituting Communities through Words that Bind: Reflections

on Loyalty Oaths, 84 MICH. L. REV. 1440 (1986); Sunstein, supra note 149, at 102. 155 See West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632-33 (1943).

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to court to seek a remedy because her partner does not love her anymore, even though he promised to love her until death "does us a part." Such a vow is a moral statement, not a legal contract. If the analogy of oaths to wedding vows stands, the oath should not have legal sanctions when a person breaches a promise. The fact that it is not the case, and that the oath is not a moral but a legal promise, indicates that the analogy of the oath to a wedding vow fails.

D. EMPIRICAL PUZZLE

Social science and political psychology provide some evidence to support the proposition that some individuals and groups are more prone than others to be loyal or disloyal. It further offers two ways to identify these individuals and groups. The first way is relative; it touches upon character traits. Some people are more likely to be loyal than others due to their traits. The second way is situational; it defines a social structure in which people are generally prone to be more loyal, such as the level of satisfaction and dissatisfaction of individuals and groups.156 Loyalty is a mixture of