Review: Incantations of Loyalty

Reviewed Work(s):Loyalty: An Essay on the Morality of Relationships by George P. Fletcher

B. Sharon Byrd

Law and Philosophy, Vol. 13, No. 2. (May, 1994), pp. 241-250.

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BOOK R E V I E W

INCANTATIONS OF LOYALTY

George P. Fletcher, Loyalty: An Essay on the Morality $Relationships (New York/Oxford: Oxford University Press, 1993), xii + 211 pp., $21.00. Immanuel Kant noted that the purpose of philosophy is to analyze the judgments of common reason.' Although George Fletcher begins Loyalty by casting doubt on Kant's purely universalistic ethics as a means of accommodating the special relationships central to loyalty, he certainly meets Kant's philosophical challenge to analyze the concept itself. Indeed the entire "Essay" reflects Fletcher's devotion to philosophical, and particularly Kantian, analysis.

Fletcher begins with a discussion of "The Historical Self" (Chapter 1) and the personal ties, for example to family, friends, nation, and religion, that bind and impart a definition of self. It is these ties that make us prefer one person or group to another and thus rule out the complete impartiality and egalitarianism character- istic of liberalism and Kantian morality. As Fletcher points out: "the ethic of loyalty takes relationships as logically prior to the individual, while liberal morality thinks of the individual, existing wholly formed, choosing to enter into relationships. For the former, the family and the nation define the individual; for the latter, the individual chooses to contribute to the identity of the family and the nation."

' Immanuel Kant, ReJlexionen zur Anthropologie, Akademie Ausgabe XV, No. 436, p. 180. Kant's works are cited according to the volume (Roman numeral) and page (Arabic number) of Kant's gesammelte Schrijen (Berlin: Kijniglich PreuBische Akademie der Wissenschaften, 1902 ff.).

Law and Philosophy 13: 241-250, 1994.

O 1994 Kluwer Academic Publishers. Printed in the Netherlands.

242 Book Review

Chapter 1 of Loyalty is particularly engaging since it offers the reader a plethora of "ah-ha!" effects. Fletcher carefully formulates what our own instincts tell us in an effort to give specific content to the concept of loyalty. Loyalty, for example, is the opposite of betrayal. It consequently requires at least a party of three, two of whom are in a special relationship and a third who is vying for the affections of one of those two. It is the refusal to be seduced by the third party that shows our loyalty to our partner. Consequently, loyalty cannot be felt by Robinson Crusoe and Friday, and, for lack of an ability to betray, not by animals either.

After considering "Three Dimensions of Loyalty" (Chapter 2), namely of love, to groups or nations, and to God, Fletcher moves on to a discussion of "Minimal Loyalty: 'Thou Shalt Not Betray Me'" (Chapter 3) and "Maximum Loyalty: 'Thou Shalt Be One with Me'" (Chapter 4). Here the Kantian in Fletcher surfaces once again. The obligations inherent to minimal loyalty - thou shalt not commit adultery, treason, or idolatry - are clear parallels to Kant's perfect duties, within what one could fairly call Fletcher's "Die Metaphysik der Loyalitat". Each of these obligations pro- hibits specific actions and thus can be "perfectly" fulfilled. Similarly, the obligations inherent to maximum loyalty - thou shalt love me, be patriotic to me, and worship me - are obvious parallels of Kant's imperfect duties. Instead of prohibiting conduct falling below a certain minimum, these obligations require one to engage in a particular type of conduct. Accordingly, they never cease demanding more effort in their fulfillment and, in contrast to the minimal duties of loyalty, can never be perfectly fulfilled.

The payoff for legal analysis begins in "Loyalty as Privacy" (Chapter 5). Respect for the loyalties shared by a group of at least two individuals now persuasively accounts for the prohibition against state intrusion into some spheres of private life. Spouses, for example, should not be required to breach their loyalty in marriage and testify in court against each other, a natural mother should not be required to breach her feeling of loyalty to her child and give it up under a surrogacy contract, and the religiously

243 Incantations of Loyalty

devout should not be required to violate the commands of God and, for example, salute the flag (Jehovah's Witnesses), send their children to public schools after the age of fourteen (the Amish), or work on Saturdays (Sabbatarians) or Sundays (Christians). At least with regard to the final issue of loyalty to God, as a

private realm deserving of state deference, we have now crossed the line from simple loyalty to tolerance, a natural companion- concept. And we are now again embedded in egalitarian principles (as between groups of the faithful) and liberalism. In the absence of egalitarianism as between groups of the faithful, there is no reason why loyalty to Christianity, for example, should not dictate teaching it as part of the state's agenda to nurture a common identity and unity of national purpose. Germany, although having incorpo- rated religious freedom in its constitution,* embeds Christianity in many aspects of public life. The state collects taxes for the Christian churches. School prayer is permitted3 and religious instruction is offered in the public schools, but in some German states only for the "leading" Christian churches. Public insti-tutions, such as courtrooms4 and schools,' are bedecked with Christian symbols. Even the current major political party in

Art. 4 of the Grundgesetz (Basic Law) provides: "Freedom of belief, con- science and the freedom of religion and ideological (weltanschaulich) confession is inviolable . . ." This article is read in combination with Art. 136-139, 141 of the Weimar Constitution, which also guarantees separation of church and state. See decision of the Bundesverfassungsgericht (Federal Constitutional

Court) 52, p. 223 et seq. (1979). The Federal Constitutional Court, however, has held that on direct

individual protest against having one's case tried in a courtroom containing a crucifix, the crucifix had to be removed: BVerfGE, 35, 366 et seq. (1973). The Federal Constitutional Court refused to issue interim measures

against the decision of the Bavarian Higher Administrative Court (BayVGH, Bay VBl. 1991, 751 et seq.) that the crucifix be removed from a public school classroom on parental complaint, see BVerfG, NVwZ 1992, 52-53.

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Germany incorporates Christianity in its name (Helmut Kohl's "Christian Democratic Union"). Yet this cannot be what Fletcher intends to encourage, even with

his rejection of pure egalitarianism in defining the virtue of loyalty. Instead, he seems to be favoring secularized loyalty to nation. In "Teaching Loyalty" (Chapter 6) he comments: "Pupils must not only speak the same language, they must come to rehearse the same books and poems, cherish the same national heroes and villains, and develop common sentiments toward their shared institutions. This is what it means to live in a common culture." Yet the so-called "secularized" approach can indeed lead to suppression of differences exhibited by a religious minority.

Fostering a common culture and national identity, for example, drove "five leftist intellectuals" in France to muster opposition to three Moslem teenage girls' wearing traditional head-veils in the public classroom. Fletcher gives credit to this position as "gener- ating a common culture and identity at the foundation of national political life" and with rooting public education in - also the words of the French leftists - the "authority of reason and expe- rience, accessible to all". Although the Conseil dYEtat upheld the girls' right of freedom of conscience, it left the decision as to whether wearing the veils had a disruptive influence on the class- room to the individual school headmaster. In practice, Fletcher tells us that the girls were required to abstain. It seems highly unlikely to me, however, that the French would also find female pupils' wearing a cross necklace as the symbol of Christianity to be disruptive in the public lassr room.^ In a country such as France where ninety-odd percent of the population is Christian,

The German courts have decided similar cases relating to the right of a believer in Bhagwan teaching to wear traditional red dress as a teacher in a public school. Both the Hamburg Higher Administrative Court, NVwZ 1986, 406 et seq. (1984), and the Munich Higher Administrative court, NVwZ 1986, 405-6 (1985) have held that teachers in public schools may not wear such dress, even though the crucifix can be displayed in Bavaria in the public classroom; see fn. 5.

Incantations of Loyalty

the common culture and identity generated will automatically be skewed toward Christianity. Although that fact in itself is obviously not negative, it does seem to be a problem when the practices of religious minorities are suppressed in the name of "secularization".

In "Rights, Duties, and the Flag" (Chapter 7), Fletcher devotes considerable attention to the history of cases in the U.S. on flag desecration and to the U.S. Supreme Court's more recent deci- sions regarding flag burning. In an effort to justify protection of the flag, Fletcher provides three theoretical strategies: "symbolic speech" as deserving less protection than the spoken or written word; "criminal harm" as resulting from some forms of symbolic speech but not to the same degree from the spoken or written word; and "reciprocal duties of respect" as requiring one to focus on com- munitarian duties rather than individualistic rights. Clearly favoring the last of the three, Fletcher concludes: "The way we speak, the way we formulate issues, lend a spin to our analysis. The preoc- cupation with individual rights leads invariably to decisions protecting rights against the shared interest in solidarity. Speaking the language of duties could generate a different spin, one that would elicit what we have in common as opposed to the rights that separate us?

"Enlightened Loyalty" (Chapter 8) considers the limits of loyalty to relationships. Here Fletcher attempts to accommodate both justice and neutral morality with the demands of loyalty to those with whom we share common roots. The intolerableness of nepotism in employment decisions or in a court of law indicates that loyalty cannot be extended too far before it runs rampant and ends in tyranny. After rejecting both "Kant's Utopianism" and Bentham's "Utilitarian Purity" as making "moral conduct virtu- ally unattainable" and failing to provide any framework whatsoever for our feelings of loyalty to those whom we love, Fletcher makes his case for rational discourse: "The challenge for our time is uniting the particularist leaning of loyalties with the demands, in some contexts, of impartial justice and the commitment, in all contexts, to rational discourse." Any argument worth making is worth making

Book Review

only if it has appeal independently of our personal loyalties to its proponent. We must be able to abstract ourselves from the biases generated by our membership in one group and "appreciate the intellectual tradition of neutral and universal discourse that has enabled us, in our time, to think of liberating groups to whom we owe no loyalty other than that dictated by the bond of common humanity."

One fascinating aspect about Fletcher's Loyalty is that it raises a number of questions that lawyers and philosophers can continue debating at length. What is the difference, for example, between jealousy and envy? O r between contractual obligations and obligations of loyalty? Why and when should loyalty oaths be administered? This last question, raised by Fletcher in Chapter 4, has given me considerable reason to reexamine my own views. I t is to a further analysis of this problem that I would like to turn now.

Fletcher distinguishes between the oath as part of a ritual and the oath as a means of probing loyalty. The ritual oath is admin- istered as part of a ceremony, when a judge assumes the bench, a new president is inaugurated, a witness testifies in court, or a new citizen becomes naturalized. This type of oath, so Fletcher, reminds one of the solemnity of the enterprise on which one is about to embark, and, as part of the ritual, is likely to be seen as an honor to take. In contrast, the loyalty oath is typically administered on the assumption of any form of government employment. Fletcher regards the loyalty oath with a great deal of disparagement. It smacks of 1950s McCarthyism, is "of dubious efficacy in isolating poten- tial traitors", and, most heinous of all, demands "without probable cause of disloyalty, that someone affirm his allegiance to the Constitution." "The wrong" according to Fletcher "is the insult of being treated, without grounds, as someone disloyal to his or her country."

Fletcher criticizes the United States Supreme Court's decision

247 Incantations of Loyalty

in Cole v. Richardson7 sustaining Boston State Hospital's authority to demand of all new employees that they take an oath to uphold and defend federal and state constitutions and oppose illegal efforts to overthrow the government. The problem with the Court's opinion, according to Fletcher, is that is compares the insult of being forced to take a loyalty oath with the honor of taking a ritual oath: "This casual assimilation of loyalty oaths to oaths taken by judges and other public officials reveals a deep confusion".

Although I am convinced by Fletcher's arguments that the loyalty oath is indeed an insult, I find no compelling reason for distin- guishing it from any other kind of oath, with the single exception of the oath taken on naturalization. This one exception can in fact be grounded in Fletcher's own reasoning. To explain my position, I would first like to consider what I previously found to be two anomalies of German legal provisions on the taking of oaths by witnesses at trial. These apparent anomalies can be resolved by an examination of Kant's moral philosophy and by Fletcher's own arguments regarding the taking of loyalty oaths. I shall then try to explain why naturalization, and naturalization only, is an exception to the appropriate rejection of all other oaths.

The first aspect of German legal provisions on courtroom oaths which has always struck me as odd is that a witness is not required to take an oath before, but instead after, testifjring.' The second feature of German oath-taking I found peculiar is that, where possible, the oath is avoided altogether. In German civil trials the administration of the oath is left entirely to the discretion of the presiding judge.9 Although statutorily the oath is mandatory for witnesses in criminal trials, this rule is subject to a number of excep- tions. One of these exceptions places administration of the oath in the judge's discretion on the agreement of the prosecutor, defense

' 405 U.S. 676 (1972). See 59 Code of Criminal Procedure (StPO) and 392 Code o j Civil

Procedure (ZPO). 391 ZPO.

Book Review

attorney, and defendant,'' and thus opens the door for avoiding the oath completely. In practice, the oath has become the excep- tion rather than the rule, even in criminal trials. Lying in court before one has taken an oath is punished as a misdemeanor in Germany," whereas lying or affirming previous false testimony under oath is punished as a felony.I2

In The Metaphysics of Morals, Kant provides a persuasive argument for the assertoric (subsequent) rather than promissory (prior) oath.13 The argument revolves around an oath taken by an official at the beginning of a term in ofice. Kant argues that if the oath is promis- sory, then the official can always excuse himself for breaching it with the claim that, at the beginning of the term, he could not have foreseen the difficulties which would later confront him. If the oath, however, were administered at the end of his term, then he would be swearing to what in fact did happen rather than to his good intentions. His conscience too would be more aroused since he would know that upon leaving office he would have to swear to all of his failures at one time.

This same argument can be applied to oaths taken before giving testimony at trial. When the witness is sworn in, she may have every intention of telling the truth. Yet at the time she takes the oath, she does not know what type of embarrassing question may confront her, which she may not want to answer truthfully. If called upon to take an oath after she has testified, then she will know whether in fact she has told the truth or not. If individuals are to be required to do something as extreme as swear (or affirm), it perhaps would make more sense to ask them to swear to what they already know rather than what they think might be in the future. Indeed Kant also points out that a promissory oath in a court

'O 5 61 ( 5 ) Criminal Code (StGB).

"Vergehen" with 3 months to five years imprisonment $ 153 StGB.

l 2 "Verbrechen" with not under one year imprisonment $ 154 StGB.

l 3 Immanuel Kant, Die Metaphysik der Sitten, Akademie Ausgabe VI, p. 305.

11

Incantations of Loyalty 249

of law involves a self-contradiction, since one cannot swear, but rather only wager, as to what one does not yet know.

Kant speaks of the coercion to take oaths as contrary to human freedom. This captures Fletcher's objection to loyalty oaths as involving an insult. It also explains why, perhaps, the Germans try to avoid the oath in the trial context. Why should doubt be cast on an individual's truthfulness any more than on his loyalty? And certainly Fletcher's argument that a loyalty oath will not deter a foreign agent from taking it and still attempting to overthrow the government applies with equal force to someone who intends to lie under oath or affirmation in court.

The possibility to "affirm" rather than "swear" when taking an oath expresses deference for those who feel uncomfortable about invoking the name of God to attest to their truthfulness or loyalty, either because they do not believe in God or, more significantly, because they do. Clearly Christian teaching opposes oath-taking, as it was labeled by Jesus in the Sermon on the Mount as proceeding from evil.'' Yet if the oath is separated from belief in God for those who do believe, then the affirmation has no greater signif- icance than a mere statement of the sort "Yes, I really mean it". Perhaps this added emphasis makes us feel better about turning our trust over to a judge or president on taking office or basing our legal decisions on witnesses' statements in court. But as Kant notes, it is somewhat bizarre that we have more confidence in ritualistic practices than in solemn declarations where what is most sacred to humanity, namely the right of humankind, is involved.''

Why then is the naturalization oath different? Perhaps with regard to the general aversion to invoking the name of God for secular

14 "But I say unto you, Swear not at all; neither by Jerusalem; for it is

the city of the great King. Neither shalt thou swear by thy head, because thou canst not make one hair white or black. But let your communica- tion be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil." Matt. 5: 33-37, King James version, Cambridge University Press. l5 Die Metaphysik der Sitten, op. cit. fn. 13, p. 304.

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matters it is not. On the other hand, naturalization, unlike taking office or testi@ing, is per definition a shifting of loyalty from one nation to another. We have every reason to doubt foreigners' loyalty to the United Sates, just as foreign nations would properly assume that United States citizens do not feel loyal to foreign governments. The oath taken on naturalization is the renunciation of formerly held loyalty toward one nation and the assumption of a new sense of loyalty to another. When a judge assumes the bench, he is not suddenly shifting his orientation from injustice to justice, nor is a president on taking office suddenly altering her commitments from overthrowing the constitution to upholding it. A witness is not modifying his former attitudes toward telling the truth when he appears in court to testify. But by taking the naturalization oath, a new citizen is engaged in exactly this type of shift. And since physical presence in the United States is not enough by itself to signify a shift in loyalty, we need some form of declaration, ceremony, or statement attesting to this modification.

The issue of oaths in general, and loyalty oaths in particular, is just one of a great variety of topics raised by George Fletcher in Loyal ty: A n Essay on the Morality of Relationships. The arguments in this essay are well worth considering in detail. Fletcher's final plea for reasoned discourse "across time, across space, and across culture" transcending our roots in loyal relationships is an invita- tion to do exactly that.

Department of Law and Language, B. SHARON BYRD

University of Augsburg,

86159 Augsburg,

Germany