Competing Oaths: Part II Niqabs and the Canadian Citizenship Oath

Competing Oaths: Part II Niqabs and the Canadian Citizenship Oath

by

Howard Adelman

I never did finish writing the second part of my discussion of Cliff Orwin’s opposition to Prime Minster Stephen Harper’s critique of wearing the niqab when taking the oath of citizenship. I said that Cliff’s critique was correct as far as it went, but that it did not go far enough in unpacking the deeper issue. While he discussed the issue in terms of constitutional protection of religious freedoms, which went further than the Supreme Court’s ruling against the Harper government which upheld Zunera Ishaq’s complaint, not on the basis of religious freedom, but because a requirement of administrative law – the government could not mandate a judge’s ruling – the issue in dispute went deeper than simply religious rights under the constitution. While I reviewed the case in detail in my previous blog, I now want to explore it at a deeper level.

First, I need to make clear the character of an oath has a long religious history, much longer than the practice of wearing a niqab. That is why taking an oath of citizenship in not simply a final ritual performance that simply publicly states what has already been put in writing, but is, in reality, the most important part of a ceremony. You can promise yourself or another person that you will do something, but a promise has only as much weight as the degree of commitment attached to it. You can even go further and indicate the depth of that commitment by turning a promise into a vow, as Prime Minister Harper did when he vowed to appeal the federal court decision supporting Zunera Ishaq’s right to wear a niqab when taking her oath of citizenship.

But an oath is of a different order again. When you take an oath of office or an oath of citizenship, it has a higher status that a promise or even a vow. For oaths, in making a personal commitment or cursing another, imply policing by a higher power. Traditionally, it was a deity, but in more secular societies taking an oath suggests making a public vow to be observed and monitored by at least society as a whole and sometimes by all of humanity.

This reference is clear in the Canadian oath of citizenship. The oath states: “I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.” The individual pledges not only to uphold Canadian law, but also to be faithful and “bear true allegiance” to the Queen of Canada. Without getting into the legal and constitutional quagmire of this reference, it is quite clear that the reference is to a higher power to which you have pledged your liege, but that it is a higher power that goes far beyond the corporeal personage of the Queen as a natural person to refer to a non-corporeal entity that underpins the constitution itself, the corporate entity and legal personality of Canada itself.

Thus, when and if Zunera Ishaq takes her oath of citizenship, she will be vowing before all Canadians that she will uphold the Canadian constitution and its laws, wedding herself to uphold women’s equality among other fundamental principles of Canadian contemporary society. She will also, and, I believe, even more importantly, be taking an oath not only before but to the incorporeal underpinning of our society and committing her loyalty to that entity such that, in cases of conflict with other loyalties, it will be prior to and occupy the trump position.

Ironically, in refusing to remove her niqab when taking the oath, the Court ruled that she was indeed doing so according to Canadian law. In contrast, Prime Minister Harper and the allegedly 80% of Canadians who found it so offensive that she chose to wear the niqab when taking the oath were against the law in believing to this commitment as the highest priority and that the stance she took was against the law. However, they were not against the law for being offended, but only in trying to translate their feeling offended into a legal dictum. She was closer to upholding our rights and freedoms as Canadians than Harper, his minions and presumably the majority of Canadians.

Nevertheless, Harper et al in taking offence were attuned to a deeper underlying issue. When taking an oath to become a Canadian citizen you make a commitment not only to follow the Canadian constitution and Canadian law, but also that those laws will be the highest laws governing one’s behaviour. If any norms that one follows contravene the Canadian constitution and Canada as a collective corporate but non-corporeal entity, it is the Canadian constitution and Canada as a corporate entity that will be in the trump position. Harper et al, I suspect, think that Zunera in taking her oath may not be sincere. She perhaps does not support the principle of women’s equality and wearing the niqab may be such a symbol.

Two clarifications. The constitution of Canada does not require Canadians to believe men and women are equal, but only that men and women are treated as equals before the law and in all matters governed by that law where applicable. So it is not about attitudes, but about behaviour, and behaviour in a restricted, even if enormous, sphere. Second, just as the law presumes we are innocent until proven guilty, when taking an oath, the implicit assumption is that the person taking the oath is sincere. Unless evidence is brought before a tribunal or court to prove that Zunera is insincere when and if she takes the oath, the assumption is made that Zunera truly does intend to uphold the Canadian constitution and swear allegiance to the Queen of Canada.

An analysis of the notion of sincerity will help unpack the deeper issue beyond religious rights and the requirements of administrative law. In 1971, Lionel Trilling published his slim volume, Sincerity and Authenticity based on a series of lectures he gave at Harvard the year before. The book sketches the concept and development of the concept of sincerity over the previous 500 years and contrasts it with the concept of authenticity that seems to have displaced sincerity since WWII. The latter requires only that a person remain true to oneself. The former insists that being true to oneself can only be carried out by being true to others in a very public and social way. In our modern and somewhat cynical age when authenticity has upstaged sincerity, the ruling adage views sincerity as bad faith depicting it as simply the “honesty of people who cannot be honest with themselves.”

So we have to go back to a period in which sincerity reigned supreme and not authenticity, In Trilling’s exposition, sincerity is “a congruence between avowal and actual feeling.” As Polonius advises Laertes in Hamlet, “above all: to thine own self be true, And it doth follow, as the night the day Thou canst not then be false to any man.” Being true to oneself is not an end in itself, as in authenticity, but a means of ensuring truth to others. Without the psychological premise of sincerity, oaths make no sense. Whether it is the primacy of Socrates’ “know thyself” or of Shakespeare’s “to thine own self be true” abstracted from what follows, sincerity has stood in opposition to the adequacy of narcissistic inward self-gazing as an adequate ground for a polity. Sincerity emphasizes the public orientation of our fundamental attitudes.

Authenticity emphasizes the autonomous self in opposition to the self as an interpersonal political persona with a public face and role. With the primacy of the latter, oaths become solemn events that depend upon the primacy of sincerity as a prestigious and lofty ethical conception. Without it, we are reduced to the ironic spectator view of human relations and social entities, including political ones like nation-states. Harper, ironically, in refusing to accept Zunera Ishaq’s pledge at face value unless she shows her face, undercuts the concept of both sincerity and oaths that are even more basic foundation stones of our society than even the Canadian constitution. Instead of standing for a true conservative position, in allowing skepticism to become a ruling norm, Harper opens the floodgates to a post-modern despair at the whole political enterprise, feeding the cynicism and alienation of many of our youth from the political process.

Once you begin traveling down that path, the very convention of an oath taken of allegiance to one’s sovereign itself becomes suspect. Further, it feeds into what initially appears to be its opposite – detachment and an openness to a transcendent ideal detached from the context of community and politics. These are the dual and complementary threats to our polity. Harper in appearing to stand for inherited values and the importance of the oath, in reality undermines its most fundamental characteristic. While recognizing that language can be empty, that it may not express what is in one’s soul, that language is often ritualistic in a way that empties it of meaning, it is very different than insisting that language must be suspect.

But does language not become suspect when the linguistic expression is not given a face, when the professor of the oath hides behind a niqab? Does sincerity entail coming face to face with other members of the public, especially when one is taking an oath to the corporate but incorporeal body of those members? Do the conventions which both value and evaluate sincerity require the person unveil her face, that the person come face to face to those whom she pledges to join in upholding a set of values, what Harper called the Canadian family?

I, like Chris Orwin, do not believe it does, but I insist this is the deeper issue. For the oath is not just about the constitution and individual rights, it is also about the responsibility to the community one is joining. In that regard, I could be wrong. It could be that, to assess sincerity, one has to see a person’s full face, not just an official, but the public. In that case, oath taking may require removing the veil. I do not believe it does, but I do believe that a genuine and sincere argument can be made upholding that principle.

However, as long as the opposition is simply based on what appalls people instead of an in-depth exploration of conventions and the impact on sincerity, on oaths and the incorporeal corporate being of Canada, as long as sincerity is dismissed simply on the basis of a wholly subjective and affective response of others and not on a public evaluative process, I will accept the Federal Court ruling, even if only grounded in administrative law, for I fundamentally believe that sincerity itself and the value of oaths is undermined when attacked simply by those who are appalled or offended. Until then, the question of whether the conventions which value and evaluate expressions of sincerity require the face to be unveiled remains an open possibility, but oaths and sincerity until then should be taken at face value.

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