A Fetishised Gift: The Legal Status of Flags

Griffith Law Review, Vol. 19, No. 3, pp. 504-526, 2010

University of Queensland TC Beirne School of Law Research Paper No. 10-02

23 Pages Posted: 25 Jan 2011

See all articles by Graeme D. Orr

Graeme D. Orr

The University of Queensland - T.C. Beirne School of Law

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 studiesʼ insight into nationalism and its symbolics, and the flagʼs 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 ʻwavingʼ 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 ʻbanal nationalismʼ. As a cipher for the whole, a particular flagʼs 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 flagʼs 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 flagʼs use, let alone define its meaning.

Analysis of laws governing flag designation, observance and ʻdesecrationʼ reveals that the law accords the flag distinct status yet only equivocal protection. While the state may crave its citizensʼ fealty, a flag is not a symbol of some distant governmentality. Rather, it is gifted to ʻthe peopleʼ 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.

Keywords: Legal Theory, Flags, State Symbols, Nationalism, Flag Desecration, Freedom of Speech

Suggested Citation

Orr, Graeme, A Fetishised Gift: The Legal Status of Flags. Griffith Law Review, Vol. 19, No. 3, pp. 504-526, 2010, University of Queensland TC Beirne School of Law Research Paper No. 10-02, Available at SSRN: https://ssrn.com/abstract=1746542

Graeme Orr (Contact Author)

The University of Queensland - T.C. Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

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