29 January 2011


Now that we're over Australia Day - the annual festival of beer, sunburn, burnouts and cheap nationalism - I'm reading 'A Fetishised Gift: The Legal Status of Flags' by Graeme Orr in 19 (3) Griffith Law Review (2010) 504-526. [Orr's lucid The Law of Politics: Elections, Parties and Money in Australia (Leichhardt: Federation Press 2010) is commended]

Orr comments that -
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.
He goes on to argue that -
The legal act of designating an official flag – unlike the law governing other national symbols and currencies – is intended to encourage its proliferation, rather than create a monopoly. A flag is not an official symbol in the sense of representing a formal, even distant, governmentality. A flag is inevitably a cipher, and hence a site for contested values. As a result, although the state desires to encourage honour and respect for the flag, and hence the state’s symbolic self, the law is equivocal about punishing flagdestruction, let alone constraining flag use.

Ultimately, if the flag is to maintain its place as something gifted to a people, it relies for its relevance on its reproducibility and organic proliferation. It needs to be valued, indeed fetishised, by flag-wavers and flag-burners alike. Like most fetishes, flag fetishism bestows an arational power upon a common object. An otherwise empty, geodesic design on a piece of fabric is invested not just with the ability to symbolise, even bind, otherwise disparate people within a fractious liberal legal order: it comes to possess such emotional power that its mere sight inspires some to tears and others to jeers.
The article features a nuanced discussion of regulation and flag burning in Australia and New Zealand.