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How liberal are citizenship tests?

Other views: The Ethics of Citizenship Tests, by Jan-Werner Mueller

Read the full article on Project Syndicate

Kickoff contribution by Christian Joppke

January 6, 2010

The heartland of liberalism, the United States, has long practiced citizenship tests. So, one must be astonished that their recent introduction in Europe has raised controversy, and that there is doubt about their “liberal” credentials. This may stem from the European tests’ origin in the “civic integration” policy for immigrants (see Joppke 2007), which the—still liberal—Netherlands pioneered in the late 1990s but that quickly turned into a nationalist imposition of ill-defined “Dutch norms and values” on (Muslim) immigrants, with increasingly punitive and exclusionary connotations. But not all European countries went quite as far as the Netherlands did. It is one thing if no test materials are provided by the government, on the note that “one cannot learn to feel Dutch”; if the test is costly and demanding; and if you can try only three times, which has made the Dutch citizenship test a serious hurdle to citizenship acquisition. And it is quite another thing if test materials can be bought cheaply or even downloaded free from the internet, if the answers are provided in the test materials, if the costs are low, and if you can try as many times as you want, which is by and large the British or German procedure. In a nutshell, the devil is in the detail, and a fast-handed debunking of the entire genre is mistaken.

With respect of the contents of the citizenship test, to ask for host-society language competence and knowledge of the principles and procedures of liberal democracies is an incontrovertibly legitimate core component of all citizenship tests in Europe and other Western states. And few would doubt that asking for knowledge of historical key events in a country’s road to becoming a liberal democracy, along with knowledge of liberal democracy’s peculiar institutional form in the respective country, is equally legitimate. In a sensible discussion, Liav Orgad (2010) has called this “national constitutionalism”. The controversy starts with respect to cultural knowledge, which is unconnected to political principles or history. So Orgad criticizes (variants of) the German citizenship test for including questions about German car makers and composers, or what Germans do at Easter. And he finds the British citizenship test wanting for including (multiple choice) questions of the type, “what would you do if someone spills beer over your shirt in a pub”. To this I respond that all countries are historically specific formations, and asking for some knowledge of, even experience with this specificity is not as such an unreasonable expectation. As inconspicuously liberal philosopher Samuel Scheffler (2007:111) argued, the state “cannot avoid coercing citizens into preserving a national culture of some kind”. One must further consider that citizenship applicants are already legal permanent residents, who enjoy rights that approximate citizen rights in all domains except the narrowly political ones. And the expectation is merely cognitive: the respective information can be learned (and unlearned), and—like learning a new language—it is capacity-enhancing, it does not deprive the individual of anything, least their “identity”. Note, finally, that the German federal citizenship test, introduced in fall 2008 after heated discussions, abstains from demanding immersion into the German Kulturnation, such as asking for the “central motif” in a Caspar David Friedrich painting that shows a landscape on the Baltic island of Rügen (and that an earlier incarnation of the citizenship test in the Land of Hesse had at first included). To the degree that there is still “culture” in the final version, it is “culture” in the anthropological sense of everyday experience, which notably may include “differences and communalities in the context of migration” [1].

I would set the threshold of the impermissible from a liberal point of view higher than including culture, however high- or low-brow the latter might be. Instead, I propose to define this threshold by means of the Kantian distinction between “morality” and “legality”. A test that is inquisitional about the “true” values or beliefs of an individual, even if they pertain to the rules of liberal democracy, is pernicious from a liberal point of view. An infamous example is the so-called Gesprächsleitfaden (Interview Guideline) [2], which was issued by the Land government of Baden-Württemberg in September 2005 to aid its naturalization officers in September 2005, and which kicked off the German evolution toward the federal citizenship test introduced three years later. Its professed purpose was to check whether a citizenship applicant’s written “declaration of loyalty” (Bekenntnis) to the Constitution, which is a component of the German naturalization procedure since 2000, also corresponded to the applicant’s actual beliefs or “inner disposition”. The Interview Guideline was questionable in two respects. First, it originally applied only to citizenship applicants from member states of the Islamic League, thus discriminating against Muslim applicants for citizenship. In fact, the guideline, which consisted of 30 questions about applicants’ views on parental authority, religion, homosexuality, gender equality, terrorism, and other issues, construed the “liberal democratic order primarily as one that is contrary to the presumed values of a specific group”, Muslims (Wolfrum and Röben 2006:15). But perhaps even more importantly, in touching the intimate sphere of the person, the guideline violated the liberty rights of the Constitution, especially the freedom of opinion and conscience. As the legal critics Wolfrum and Röben explicate the constitutional status quo, ‘the mere holding of an opinion is no threat to the liberal democratic order, if it is not expressed in concrete actions that are directed against this order” (ibid., p.16). While it was appropriately condemned for its discriminatory, inquisitive morality test, the CDU-ruled Land government amazingly refused to backtrack, even after the introduction of the nation-wide citizenship test in 2008. This, indeed, is “repressive liberalism” (see Joppke 2007:14-18), the illiberal potential of a liberalism that transmutes into an identity, an ethical way of life that everyone is expected to be conformant with, and which is brought forward with an unabashedly exclusionary intention against liberalism’s presumed Other, Islam and Muslims.

Whenever the new citizenship tests are informed by the notion that the liberal state is one only for liberal people, the threshold of the illiberal is passed. Because this is a profoundly illiberal idea, casting people into a standard mold and robbing them of the possibility to decide for themselves who they want to be. Ever since Kant, it is a key precept of liberalism that law and public policy can regulate only the external behavior of people, not their inner motivations. And this is not just philosophical wish but hard legal fact in the constitutional state, which in Germany was established in the famous decision of the German Constitutional Court on “Jehovah’s Witnesses”. In this decision, the court held that citizens (and legal residents) are “legally not required to personally share the values of the Constitution” [3]. All that, say, religious dissenters can be expected to do is to respect in their behavior the priority of the secular legal order, and not to harm the constitutional rights of third parties. Accordingly, an exacting loyalty requirement, which aims at “an inner disposition, a mindset (Gesinnung), not an external behavior”, has been deemed contrary to the Basic Law. This is no late modern invention of the German court. As early as 1944, a U.S. appellate court had ruled that “patriotism is not a condition of naturalization; that attachment is not addressed to the heart, demands no affection for or even approval for a democratic system of government, but merely acceptance of the fundamental political habits and attitudes which here prevail, and a willingness to obey the laws” (quoted in Gordon 2007:371). David Miller articulates the operative principle in the American and German court rules: “Liberal states do not require their citizens to believe liberal principles, since they tolerate communists, anarchists, fascists, and so forth. What they require is that citizens should conform to liberal principles in practice and accept as legitimate policies that are pursued in the name of such principles, while they are left free to advocate alternative arrangements” (Miller 2004:14).

Returning to the new citizenship tests, the mainstream variants that ask for factual knowledge about a country’s history, culture and institutions are unproblematic in this respect, because such matter is merely cognitive: it can be learned and mechanically reproduced. Moving from knowledge to values, even a signed loyalty declaration or an oath to the Constitution does not raise eyebrows, because it consists of an external behavior that, moreover, only actualizes the contractual underpinnings of liberal citizenship. However, a citizenship test that scrutinizes a candidate’s “inner disposition” does raise eyebrows, precisely for transgressing the thin line that separates the regulation of behavior from the control of beliefs.

The German federal citizenship test of fall 2008 repudiated not only cultural nationalism, in response to the Hesse practice, but also “matters of conscience”, in response to the widespread criticism brought against Baden-Württemberg’s morality test [4]. The section on “History and Responsibility” even comes close to the “constitutional nationalism” that Liav Orgad (2010) considers apposite in the liberal state: “Every state has a constitutional uniqueness reflecting its history, development, traditions and contextual background”. Asking the citizenship applicant for knowledge about its particular road to democracy realizes the fact that she seeks entry not in any but in this political community. It is, according to Orgad, next to language, the one particularism that the liberal state may legitimately impose on citizenship applicants. In this sense, asking for the meaning of the photograph showing Chancellor Willy Brandt’s famous Kniefall (kneeling) at the monument commemorating the victims of the Warsaw Ghetto, which is one of the 300 possible federal citizenship test questions, is not like asking what Germans do at Christmas or Easter (however läppisch the latter may be). Instead, knowledge of this event refers to Germany’s unique story of becoming a liberal democracy. In its intrinsic linkage to universalistic liberal-democratic values, this type of question differs from asking for knowledge about German composers, car-makers, or painters—all entries of the heavily criticized yet never-practiced Hesse proposal, which had endorsed a cultural particularism that is unrelated to the precepts of liberal democracy.

Next to the occasional morality inquisition, a second source of illiberalism in current citizenship practices is a trend toward imposing virtuosity in terms of active collectivity- oriented behavior. While having deep roots in the Occidental tradition, in terms of Republicanism from Aristotle to Rousseau, virtuous citizenship had so far been a privilege of the former Communist states, which expected its “citizens” to work for the common (socialist) good or face the risk of being expatriated for the lack thereof [5]. If one brackets the strange duty to vote in some states like Australia or Belgium, most liberal states generally have abstained from an active participation requirement. Contrary to this, resource-starved, post-welfare states have devolved responsibilities to active citizens. But only for citizenship applicants has this recently hardened into a legal obligation. Accordingly, applicants for Danish citizenship now must sign a declaration that obliges them to “become active citizens in Danish society” (though the imposed activities are limited to respecting the legal minimum, such as becoming “self-supporting” and respecting that “men and women have equal rights” and “freedom of speech and religion”). Britain, in its recent introduction of “earned citizenship”, went a step further (see my discussion in Joppke 2010:59-60). It includes the new scheme of “probationary citizenship”, which is a limbo period of one to three years, during which citizenship-bound immigrants have to prove that they are in work and law-abiding. Crucially, and emblematic to the logo of “earned citizenship” for the new citizenship construct, the minimum period of one year and three years for proceeding from probationary citizenship to citizenship proper or permanent residence, respectively, is possible only if the probationary citizen shows the extra effort of “active citizenship”. This consists of “civic activities” through which immigrants “benefit the local community” and demonstrate their “commitment to the UK”. Certainly, “active citizenship” thus conceived is still a voluntary shortcut to citizenship or permanent residence, but it may well become a compulsive “requirement” in the next round. The obvious novelty, troubling from a liberal point of view, is making virtuous citizenship a condition for legal citizenship.

In my view, the flagged illiberal possibilities in some citizenship tests and rules are just that—possibilities and exceptions from the liberal norm. It is certainly unwarranted to put the new citizenship tests under the Generalverdacht of being illiberal. In fact, the very fact of standardization and formalization may well be a net win in liberality: it increases the naturalization procedure’s calculability on the part of citizenship applicants, who are no longer subject to an open-ended, individual interview procedure and the involved state agent’s unfathomable discretion.

Notes

[1] Verordnung zu Einbürgerungstest und Einbürgerungskurs (5 August 2008), BGBl. 1 S.1649, Anlage 2 (quote on p.171).
[2] Interior Ministry of Baden-Württemberg, Gesprächsleitfaden für die Einbürgerungsbehörden ((Az.: 5-1012.4/12, September 2005).
[3] BVerfGE 102, 370 (Decision of German Constitutional Court on “Jehovah’s Witnesses”, 10 December 2000).
[4] “Germany to introduce controversial new citizenship test”, Spiegel Online 11 June 2008.
[5] See the famous case of East German songwriter Wolf Biermann, who was expatriated in 1976, after a concert in Cologne, because of a “gross violation of citizenship duties” (grobe Verletzung staatsbürgerlicher Pflichten).

Cited Literature

Gordon, Susan M. 2007. “Integrating Immigrants: morality and loyalty in US naturalization practice”, Citizenship Studies 11(4), 367-382.
Joppke, Christian. 2007. “Beyond national models: civic integration policies for immigrants in Western Europe”, West European Politics 30(1), 1-22.
Joppke, Christian. 2010. Citizenship and Immigration. Cambridge: Polity.
Miller, David. 2004. Immigrants, Nations, and Citizenship. Paper presented at the conference on Migrants, Nations, and Citizenship, New Hall, Cambridge, 5-6 July.
Orgad, Liav. 2010. “Illiberal Liberalism”, American Journal of Comparative Law 58, 53-106.
Scheffler, Samuel. 2007. “Immigration and the significance of culture”, Philosophy and Public Affairs 35(2), 93-125.
Wofrum, Rüdiger and Volker Röben. 2006. Gutachten zur Vereinbarkeit des Gesprächsleitfaden für die Einbürgerungsbehörden des Landes Baden-Württemberg mit Völkerrecht. Heidelberg, March (typescript).