Academic

Orr on the Legal Status of Flags

By Lawrence Solum

Graeme D. Orr (University of Queensland Law School) has posted A Fetishised Gift: The Legal Status of Flags (Griffith Law Review, Vol. 19, No. 3, pp. 504-526, 2010) on SSRN. Here is the abstract:

Accounts of the relationship between flags and the law have focused on a narrow strain of contentions drawn from debates about political expression. This essay seeks to bridge the gap between cultural studies? insight into nationalism and its symbolics, and the flag?s legal status, to better understand the unique position occupied by national flags. In doing so it draws particularly on United States, Australian and New Zealand law and practice.

Flag ?waving? has become more prevalent in many liberal democracies. In such societies, flags occupy not a religious role, but a quiet and quotidian place in what Billig terms ?banal nationalism?. As a cipher for the whole, a particular flag?s design is relatively unimportant; what lends it power is a mix of the gravity bestowed by its official designation and the easy commodification lent by a flag?s easy reproducibility and portability. Unlike other state symbols such as the currency, coat of arms and honorifics, the state does not seek to monopolise the flag?s use, let alone define its meaning.

Analysis of laws governing flag designation, observance and ?desecration? reveals that the law accords the flag distinct status yet only equivocal protection. While the state may crave its citizens? fealty, a flag is not a symbol of some distant governmentality. Rather, it is gifted to ?the people? and relies for its relevance on its organic proliferation. As both object and image, people attribute a power to the flag - a power they recognise over themselves and others with whom they share a body politic. A key source of this fetishisation is its official, legal designation. Though it embodies no particular values, a flag is valued, even fetishised, by flag-wavers and flag-burners alike.

Full post as published by Legal Theory Blog on January 26, 2011 (boomark / email).