Flags

'Flag within a Flag: Understanding the Ongoing Cultural Significance of the Union Jack in the Australian Flag' by Tracey Mee in (2024) 48(3) Journal of Australian Studies 365-379 comments 

In Australia, social scientists have long understood the importance of national symbols and the role they play in both the construction and maintenance of the nation, but in-depth analysis of the national flag has been overlooked. In particular, the cultural significance of the British flag that sits within the Australian national flag warrants focused consideration, as it symbolises the moment Australia became a British possession in multifarious ways. In this article, a critical analysis of the Australian flag demonstrates how the primary symbol of the nation can heighten White privilege through its official point of honour. Vexillology and Indigenist Standpoint Pedagogy provide a framework from which to deconstruct the Australian flag. This article conducts a critical examination of the social, institutional and historical frameworks that support the flag to argue that it is an ongoing signifier of White cultural power. ... 

The Australian national flag is a symbol that communicates both explicit and implicit messages to its citizens as a collective and as individuals. This article draws from and furthers my PhD research, which critically examines the Australian nation through an investigation of the national flag.Footnote1 Analysis of the flag’s history and its applications across a range of sites reveals the cultural significance of the Australian flag, which carries the British flag as its official point of honour. My research demonstrates that discussions about the Australian national flag remain framed by Anglocentric history, sentiment and traditions. Furthermore, I argue that when non-Indigenous Australians engage in debate about the national flag, they routinely fail to foreground or incorporate Indigenous Australian perspectives.Footnote2 What is missing from these discussions is critical analysis of the flag and its capacity to operate as a symbol of White cultural power that is reinforced by the enduring authority of the Union Jack. The task at hand, therefore, is to reveal the pedagogical influence of the flag. This article begins with a background discussion that engages with various symbols of Australian national identity and highlights some of the rhetorical strategies deployed in their defence. Following this, I turn my attention to the historical development of Australia’s national flag before investigating various dynamics encoded in a national flag. Finally, I use the principles of meta-vexillological reflection alongside Indigenist Standpoint Pedagogy (ISP) to examine how the historical, institutional and social structures of Australian society work together to reinforce the legitimacy of the flag and the messages that it transmits.

Sovereignty Signifiers

'Symbolic Decolonization and Postal Politics: Sovereignty, Secession and the Stamps of Pseudo-States in Sub-Saharan Africa, c.1960-1979' by Gary Baines in (2024) 2(26) Monde(s) 113-134 comments 

Since its inception, the Universal Postal Union (UPU) has designated its members as “countries” and “territories”. Historically, stamp-issuing members have included non-self-governing entities such as colonies, protectorates, and mandates that were controlled by an imperial or metropolitan power [1]. Following decolonization, the UPU’s membership swelled with the admission of a slew of newly independent nation states. Yet, contrary to the conventions of international relations in the post-colonial world, the UPU has avoided describing its members as “states”. This is arguably a manoeuvre designed to allow the agency to sidestep politically sensitive disputes regarding sovereignty. Taking its cue from United Nations (UN), the UPU has seldom admitted secessionist or self-proclaimed independent states as members. But such states have issued stamps in order to assert their sovereignty so as to further their claims to international recognition in the comity of nations. However, stamps are only fully invested with sovereign power if they are accepted as valid receipts for prepayment for postage on a reciprocal basis with other states [2]. In the case of secessionist or unilaterally independent states in 1960s Sub-Saharan Africa, the UPU refused to recognize their stamps and subjected their mail to sanctions. These measures challenged their sovereign claims. 

Sovereignty is a discursive claim rather than a factual description of realities on the ground [3]. As such, it is contested and contingent [4]. The struggle for sovereignty occurs not only in the political sphere but also in the realm of symbolism. The creation and adoption of new national symbols such as flags and anthems were a critical part of the decolonizing process in former sub-Saharan African colonies which had previously been denied sovereignty. Kenrick refers to efforts to establish the trappings of new sovereign states as symbolic decolonization [5]. His study of the repertoire of symbols created by Rhodesia after its Unilateral Declaration of Independence (UDI) is instructive but makes no reference to stamps. However, Brownell has authored an excellent essay on how the visual rhetoric of Rhodesian stamps projected the white settler state’s claims to sovereignty [6]. Hammet explains how South Africa’s “Bantustans” with their “constrained sovereignty” used stamps to express their nationhood via the tropes of territoriality, identity, and political authority [7]. And Inyang shows that Biafra employed similar signifiers on its stamps to invoke the promise of sovereignty [8]. This paper will suggest that stamps issued by Katanga, Biafra, and Rhodesia to commemorate independence signalled to the world that they had achieved statehood. However, the sovereign claims of the three would-be states were rejected on the grounds that they were not entitled to exercise authority within their territories nor act independently of outside authorities. 

While diplomatic recognition is the prerogative of individual states, collective non-recognition went a long way in determining whether states were accepted in the family of nations. Katanga, Biafra, and Rhodesia were never accorded recognition by the international community. They were not admitted as members of the UN and consequently enjoyed no standing in the UPU. Exclusion of these pseudo-states from the UPU meant disputes over matters such as the franking of stamps and the delivery of mail, and the disruption of international postal services. Much against its better judgment, the UPU’s Directorate became party to the politicization of these services. This much was apparent from the imposition of postal sanctions designed to prevent the reciprocal exchange of mail with these pseudo-states. This paper demonstrates that the contestation over the validity of the pseudo-states’ stamps and the distribution of their mail was part and parcel of their struggle for sovereignty.

'The Shibboleth of Sovereignty' by Martin Loughlin and Stephen Tierney in (2018) Modern Law Review comments 

The legal doctrine of parliamentary sovereignty is such a fundamental tenet of constitutional belief that we commonly assume it to be of ancient provenance. In reality, it is a late-nineteenth century creation. Its author, the Victorian jurist Albert Venn Dicey, presented it as the central element of a work that sought to shift the basis of British constitutional thought. Noting that hitherto the constitution had been treated as a historical phenomenon, he argued that constitutional scholars, having been seduced by speculative ideas, had been drawn into a ‘maze in which the wanderer is perplexed by unreality …, by antiquarianism, and by conventionalism’.  Criticizing those who regarded the constitution as an object of veneration, he maintained that the scholar’s duty must not be to eulogise but merely to analyse and expound. 

Dicey argued that a scientific explanation could be advanced only by establishing a new and autonomous field, that of ‘the law of the constitution’. Noting that Blackstone in his influential Commentaries on the Laws of England of 1765 nowhere uses the term ‘constitutional law’, Dicey claimed to have discovered a new branch of legal knowledge. Deploying a legal positivist method, he defined this new subject as one concerned to analyse ‘all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state’. Having re-orientated the object of study towards the rule order of the British state, Dicey confidently asserted that the basic rule of the constitution is expressed in ‘the doctrine of parliamentary sovereignty’. This is the rule that the Crown-in-Parliament ‘has, under the English constitution, the right to make or unmake any law whatsoever; and, further, that no person or body is recognised ... as having the right to override or set aside the legislation of Parliament’. This foundational doctrine was presented as an objective and technical rule about the relative authority of sources of law. 

Dicey’s great achievement is to have been the first to apply a rigorous juristic method to the study of the British constitution. This provided subsequent generations of lawyers with a clear and relatively simple framework of analysis. But that is not all: his discovery of the ‘law of the constitution’ also caused subsequent generations of lawyers, despite continuing to pay lip service to the evolutionary character of the British constitution, to regard the underlying basic law as of timeless authority. Notwithstanding developments since the late-nineteenth century which have transformed the character of modern government, lawyers continued to uphold his account of the basic rule. 

Continuing adherence to Dicey’s account, we argue, is now creating a ‘hopeless confusion both of language and of thought’ which flows from a failure to distinguish between the particularity of Dicey’s legal doctrine and the general concept of sovereignty. And the failure to recognise that his legal doctrine is inextricably tied to a particular political belief about authority is causing constitutional lawyers to become ‘perplexed by unreality’. 

We aim to substantiate these claims by differentiating Dicey’s legal doctrine from the general concept of sovereignty (sections III and IV) and then examining the contemporary consequences of this conflation (section V). But the political basis of the legal doctrine must first be explained (section II). Our key point is that no sooner had Dicey finished criticizing those who eulogise rather than analyse than he revealed that his fundamental legal doctrine rested its authority on a particular political belief, one which he treated as an article of faith. He hinted at this when noting that ‘the omnipotence or undisputed supremacy throughout the whole country of the central government’ is a feature that has ‘at all times since the Norman Conquest characterised the political institutions of England’. But it came more clearly into view when, within a year of publishing The Law of the Constitution, he published the first of his three books opposing home rule in Ireland. In this work Dicey invoked sovereignty not as a legal doctrine but explicitly as a political precept. Here he argued that home rule, which evidently does not undermine the legal doctrine of parliamentary sovereignty, is nevertheless ‘a plan for revolutionising the constitution of the United Kingdom’. This type of claim can only stem from a political belief of the necessity of maintaining untrammelled authority at the centre. ‘Each successive generation from the reign of Edward I onwards’, he later explained, ‘has laboured to produce that complete political unity which is represented by the absolute sovereignty of the Parliament now sitting at Westminster’. This ‘political unity’ expresses what he called the ‘instinctive policy of English constitutionalists’. Sovereignty is here not being expressed as a formal doctrine; it is a political conviction about the need for an unrestricted central power. 

Notwithstanding his claim to be dispassionately presenting the law of the constitution, Dicey was making a politico-legal argument about sovereignty. His formal legal doctrine is inextricably tied to a substantive political conviction. And it is this politico-legal conception, we argue, that rapidly acquires the status of an article of faith among the British governing class. In blending the political and legal aspects of sovereignty in such an inchoate manner, Dicey presented as ‘the very key-stone of the law of the constitution’ a thoroughly ambiguous conception of sovereignty. Subsequent changes in the conditions of governing might cause us to question those political assumptions and in turn to qualify the meaning and status of the legal doctrine. But this has not happened; Dicey’s unacknowledged and highly particular conception of sovereignty is now preventing the British from thinking creatively about constitutional matters.

Marks and Judicial Signifiers

'Albrecht Durer's Enforcement Actions: A Trademark Origin Story' by Peter Karol in 25 Vanderbilt Journal of Entertainment and Technology Law (forthcoming) comments 

This article offers a reappraisal of a pair of remarkably contemporary enforcement actions brought by the Northern Renaissance artist Albrecht Dürer (1471-1528) against copyists of his work. These cases have long been debated by art, cultural and copyright historians insofar as they appear to reject Dürer’s demand for proto-copyright protection for his prints. But surprisingly little attention has been paid by trademark scholars to the companion holdings—in the same cases—that affirm Dürer’s right to prevent use of his monogram on unauthorized reproductions. 

This article seeks to fill that gap by analyzing Dürer’s cases through the lens of contemporary trademark theory. It argues that, properly contextualized and understood, these cases provide the first complete record we have of tribunals enjoining the unsanctioned use of a famous mark in commerce both to protect consumers from purchasing mislabeled goods and preserve the source-associative power of that sign. In so doing, they show us a path towards recentralizing the role of artists and authors as a core aspect of trademark law’s otherwise industrial legal history.

In Choi v Secretary, Department of Communities and Justice [2022] NSWCA 170 - one of many judgments and tribunal decisions involving Ms Choi - the Court considered claims regarding denial of natural justice, defective procedure, conspiracy and invalidity such as a supposed requirement for the wearing of wigs.

The judgment states -

Appeal Ground 2 – Natural justice was not offered 

129. Ms Choi has raised various complaints as to the events on 21 July 2021: in summary, that the primary judge did not robe and did not wear a wig (which she contends was a breach of the Court Attire Policy); that there was a private hearing held in her absence (or that the primary judge had already started the hearing with the respondent in her absence); that the primary judge allowed his associate to email the respondent, without copying Ms Choi into the correspondence during the hearing; that the primary judge was making orders “while being instructed” by a third party (Ms Choi says the third party can only be Ms Kaban, who is alleged to have instructed the primary judge through Bluetooth); that there was a refusal to give audio recording files and written reasons for the orders; and that one ground on which she had consented to determine the matter on the papers conditionally was that his Honour said he had to go on leave and needed to hand the decision down by the end of 2021 but did not hand the judgment down until far later on 9 March 2022; and that the judgment “is not accountable”. As noted, Ms Choi has contended that there was a difference between the official transcript of the oral hearing and her transcript (taken from the unauthorised sound recording). 

130. Ms Choi says that: ... at 10:15 AM, I entered the Virtual courtroom. Two men wearing a jacket with no tie had bee [sic] talking about a tortured history of the proceedings since 2018 and the CourtBook [sic]. The courtroom was filmed in a zoom-in and I could see only an [sic] portrait of Justice Bellew who did not robe with no wig. No opening remark. In short, there was a private hearing in my absence. Also, the Associate emailed the Respondent during the hearing. I requested the Associate to send me that email. However, the Chamber ignored my request . A huge difference between the official Transcript and my Transcript. (the big font and cross-out in the Transcript are different). His Honour was being instructed when giving the oral Judgment. I am curious if one man wearing a brown jacket with no tie was his Honour. 

131. Ms Choi argues that wigs and robes are symbols of tradition and justice; and complains that the conduct of this matter “did not reach the Court’s expectations and cheap enough to reject my request to provide a sound recording and a full-version transcript including reasons for orders”. 

Respondent’s submissions as to the above complaints 

132. The respondent accepts that there was a brief conversation (recorded on the transcript) prior to Ms Choi becoming connected to the virtual courtroom but disputes that this amounts to a denial of natural justice. Insofar as Ms Choi raises issues as to the primary judge not being robed or wearing a wig, the respondent says that the customs relating to the wearing of judicial dress in New South Wales probably originated from the Judges’ Rules of 1635 promulgated by the Judges of King’s Bench; and that the Judges’ Rules did not have force of law and so were not received from England as part of the law of New South Wales. The respondent says that there has been no subsequent legislative intervention and the Supreme Court’s Court Attire Policy, insofar as it relates to robes and wigs, is directed at barristers.  … 

134. As to the suggestion that there was a denial of procedural fairness by reference to the fact that the primary judge was not robed or wearing a wig (or the contention that the primary judge was wearing a brown jacket), even apart from the fact that the Court Attire Policy governs the manner in which barristers are to appear before the Court, it cannot seriously be suggested that the wearing of robes or wigs is an requirement of natural justice or that a failure to do so is contrary to the rule of law. There are indeed many Courts in this country in which wigs are not worn in court hearings (including in recent years the High Court).  … 

Respondent’s submissions as to the above complaints 

149. As to the principal reasons articulated by Bellew J for declining to grant an extension of time in which to file the summons seeking leave, the respondent contends that Ms Choi is an experienced litigant (pointing to the fact that she has, since 2017, commenced approximately 30 sets of proceedings against (among others) the NSW Ombudsman, the Legal Aid Commission of NSW, the Commissioner of NSW Police and the University of Technology, Sydney before the Tribunal, in the Supreme Court and in the High Court) (annexing a list of those proceedings to the respondent’s submissions) and reiterates its position that this was simply a proposed re-litigation of matters previously disputed. ... 

213. What is clear, however, is that one looks to the nature and character of the function that is exercised in order to characterise it as either judicial or administrative: it is undoubtedly a matter of substance rather than form (or, as here suggested by Ms Choi, attire). Thus, whether or not the primary judge was wearing a wig says nothing about whether he was exercising judicial power. (Indeed, as may become apparent if Ms Choi pursues her foreshadowed application for special leave to the High Court, the judges of our ultimate appellate court do not wear wigs; but it would surely not be suggested that in hearing appeals and determining litigious controversies in the High Court without wearing wigs their Honours were exercising administrative rather than judicial functions.) Similarly, what colour suit the primary judge may have worn (Ms Choi expressing the opinion that judges wear black) or whether his Honour was wearing a tie, says nothing about the functions there being exercised. ... 

223. The features which make this a clear case for making [a Teoh] order are the quantity of proceedings commenced by Ms Choi, the disproportionality between the number of those proceedings and the matters in issue, the thousands of pages of material which regularly accompanies them (to none of which was this Court taken on the present applications) and the seriousness of the allegations made in circumstances where, if they were made by a legal practitioner, there would be a clear breach of the applicable professional rules. Among other things, Ms Choi has made allegations that: the Supreme Court issued a “fraudulent official transcript” of the hearing before Bellew J on 21 July 2021; there has been manipulation and/or removal by the Registry of part of the White Folder; the primary judge is in contempt; there has been a breach of the Privacy and Personal Information Protection Act 1998 (NSW) by the Registrar who provided assistance to Ms Choi by drafting a notice of change of address for service; and the primary judge has made orders under instructions from a third party. It is clear that Ms Choi has no compunction in making very serious allegations of fraud and corruption against any number of persons involved in the proceedings (without the necessary detail required to make such serious allegations). 

224. Moreover, following the hearing, Ms Choi has continued to inundate chambers with email correspondence making serious allegations against parties to the proceedings and inappropriate requests of the Court and the other parties. This has the inevitable result that Court time has been occupied in dealing with the matters and the respondents’ time and costs have been expended in responding to them. 

225. In addition, there is the absence of any place of address in New South Wales at which Ms Choi may be served, and against which, if necessary, execution can be levied. We do not express a view as to whether there has been conduct which amounts to either or both of a serious contempt of court and a serious breach of the Court Security Act by what has been published on YouTube, but the potential criminality as well as the practical difficulties in enforcing the costs orders that regularly accompany Ms Choi’s unsuccessful applications make the absence of the local address required by UCPR r 4.5 more than a merely technical breach. 

226. In short, all persons enjoy an important right to invoke the jurisdiction of this Court. However, that right comes with concomitant responsibilities, and it must not be thought that this Court is powerless to prevent its processes from being abused. It is appropriate in those circumstances and having regard to case management principles and the overriding purpose mandated by s 56 of the Civil Procedure Act to make such a direction in the present case.

Language

'Taken as Read: Linguistic (in)equality in Hong Kong’s Jurisprudence' by Stuart Hargreaves in (2023) Michigan State University International Law Review (Forthcoming) comments 

 Colonial Hong Kong was characterized by diglossia: the use of Cantonese for the ‘low’ functions of daily life and the use of English for the ‘high’ functions of law and government. This paper shows that significant linguistic inequality persists at the top end of the legal hierarchy a full quarter-century after the transition to Chinese sovereignty. By reviewing the output of Court of Final Appeal since 1997, this paper demonstrates that not only has the Court failed to develop a fully bilingual jurisprudence, the availability of Chinese-language translations of its decisions is in fact declining over time. This means that roughly two-thirds to three-quarters of the population is unable to read for themselves the decisions of the Region’s apex court despite being fluent in an official language. The paper argues that beyond instrumental arguments (such as fairness to monolingual self-represented litigants), linguistic equality in the Court’s output is justified in normative terms. It is an assertion of the dignity of monolingual Chinese speakers within the community; a statement that they deserve equal access to the output of the Court given the significant role it plays. The paper concludes by arguing for an amendment to the relevant law in order to guarantee linguistic equality in the Court’s output and provision of the necessary resources to accomplish it. The problem is solvable with political will and a relatively small amount of money.

Regulation and Interpretation

Lee J at [22] in LCM Funding Pty Ltd v Stanwell Corporation Limited [2022] FCAFC 103 comments 

The conclusion that these types of litigation funding arrangements are not managed investment schemes may be thought by some as meaning such arrangements are “unregulated” and hence dangerous. But the spectre of their operation in some sort of Bir Tawil zone where no laws apply can be dismissed. Overwhelmingly, litigation resulting from such funding arrangements adopts the form of a class action. At all stages during the currency of such litigation, the Court is required to adopt a close protective and supervisory role, be alive to the interests of group members and to take steps to ensure that any class action is conducted in a way which best facilitates the just resolution of the disputes according to law and as quickly, inexpensively and efficiently as possible. Relatedly, the Court is also obliged to protect group members and manage the class action recognising that conflicts of interest, or conflicts of duty and interest, between and among representatives, group members, funders and solicitors can arise. When this is understood and appreciated, any criticism that litigation funding arrangements are “unregulated” is put into proper context. 

 In Alexander v Minister for Home Affairs [2022] HCA 19 Edelman J states 

[180] There are four questions raised by this special case. First, is s 36B of the Australian Citizenship Act supported by a head of Commonwealth legislative power? Secondly and thirdly, is s 36B inconsistent with two asserted implied limitations upon the Commonwealth legislative power under s 51(xix) of the Constitution? Fourthly, does s 36B repose in the Minister "the exclusively judicial function of punishing criminal guilt"? 

[181] As to the first question, the only head of power relied upon by the defendants to support s 36B is the power over "naturalization and aliens" in s 51(xix) of the Constitution. This raises the question of how the meaning of "alien" – a foreigner to the political community – is to be applied. On the approach of the defendants, all dual citizens fall within the aliens power. Therefore, there is power to pass a law such as s 36B of the Australian Citizenship Act simply because all the people to whom it applies are dual citizens. That would mean that, subject to any separate implied limits, the Commonwealth Parliament would have the power to strip persons like Mr Alexander of their citizenship solely because they are dual citizens. The defendants also argued that s 36B is a valid law because the Commonwealth has power in circumstances described as "repudiation of allegiance" to make non‑aliens into aliens. 

182 The application of the essential meaning of "alien" that was urged by the defendants has the likely consequence that potentially half of the permanent population of Australia are aliens, being dual (or more) citizens, being born overseas, or having at least one parent who does not hold Australian citizenship. Almost by definition, something must have gone wrong in the application by this Court of the meaning of the Constitution for it to be concluded that the Commonwealth Parliament has power to legislate on the premise that potentially half of the people of the Commonwealth of Australia are foreigners to the political community of the Commonwealth of Australia. 

[183] Nevertheless, the defendants' approach was only an incremental extension of the present state of the law concerning the application of the aliens power. That approach is the result of the compounding effect of a series of decisions of this Court. Those decisions have seen an imperial march of the application of the aliens power, extending it far beyond any ordinary understanding, capturing more and more members of the permanent population of the Commonwealth of Australia. At some point it will become necessary to confront the correctness of those decisions rather than tip‑toeing around them, carefully confining them by tiny exceptions, or restricting their scope by recognising implied constitutional constraints such as those raised by the second and third questions in this special case. It is not necessary to do so in this case because none of the decisions was challenged. 

[184] The compounding effect of the decisions of this Court began in 1982, when this Court first held that persons who had been unconditionally absorbed into the Australian political community were still within the reach of the aliens power. From that premise, and case by case, the application of the essential meaning of "alien" – a foreigner to the Australian political community – was extended further and further to apply to persons who had less and less "foreign" connection. It might seem like only another small, incremental step to conclude that Mr Alexander is a foreigner to the Australian political community, despite his birth in Australia to two permanent members of the Australian body politic. But, with an appreciation that the decisions of this Court may have already stretched the application of alien beyond breaking point, that is a step that should not now be taken. 

[185] Although s 36B cannot validly apply to persons simply on the basis that they are dual citizens, and would not have applied to Mr Alexander at the time of his birth, the aliens power does permit the Commonwealth Parliament to legislate, as it did in s 36B of the Australian Citizenship Act, in relation to non‑aliens who act in a manner that has been described as a repudiation of their allegiance to Australia. The aliens power permits the Commonwealth Parliament to legislate in relation to some people who were not aliens in extreme cases where circumstances or conduct are capable of making them into aliens. One such circumstance is where a person's conduct is so wrongful and extreme that it can be judged to be inconsistent with continuing membership of the political community. That is the effect of s 36B, so, subject to any other constitutional limits, s 36B would therefore be valid. ... 

[187] It has been suggested that the aliens power resembles legislative powers conferred by the Constitution on the Commonwealth Parliament to make laws with respect to a legal status, such as bankruptcy, trade marks, and marriage, rather than resembling legislative powers conferred by the Constitution with respect to physical things, like lighthouses, lightships, beacons, and buoys. There are grave difficulties with the creation of separate constitutional principles within s 51 according to those classes concerned with physical things and those concerned with legal status on the basis that the former "are fixed by external nature" and "cannot well be extended". 

[188] All of the powers in s 51 are expressed by words which convey meaning, with the meaning anchored in its essence, at the appropriate level of generality, by the contemporary understanding at Federation. That meaning is ideational. It is not confined to categories of physical things or legal status. Indeed, numerous powers might even derive the essence of their meaning from both. For instance, fisheries in Australian waters beyond territorial limits are concerned with both physical things and legal status. So are bills of exchange or promissory notes. The custody and guardianship of infants concerns both people and legal status, and so does "the influx of criminals". Further, just as the application of the essential meaning of words that describe a legal status can change, so too a power that appears limited to purely physical things, such as a lighthouse, lightship, beacon, or buoy, might arguably extend to things never contemplated in 1900 but which are within the same concept, fulfilling the same purpose, such as global positioning system software for seafarers. 

[189] Although there is no warrant for creating new and separate constitutional categories within s 51, the character of a s 51 power can still influence the interpretation of the power, particularly where the character reveals a purpose of the power. But one matter must be common in the interpretation of every power in s 51. It is an axiom of constitutional law in Australia that "[t]he validity of a law ... cannot be made to depend on the opinion of the law‑maker": "a stream cannot rise higher than its source". Hence, no power in s 51 of the Constitution, whether in relation to legal status or not, is with respect to a subject matter that is determined by the opinion of the Commonwealth Parliament. The Parliament is not empowered to make laws based solely on the criterion that, in its opinion, the law is with respect to a status of bankruptcy, trade marks, or marriage. 

[190] In the context of bankruptcy, the legislative power is ample but it extends only "to regulate all matters which fairly fall within that subject". The power is constrained by reference to the "essential feature ... that provision is made for the appropriation of the assets of the debtor and their equitable distribution amongst [their] creditors, and for the discharge of the debtor from future liability for [their] existing debts". 

[191] In the context of trade marks, it has been emphasised that "[i]f the thing is not of itself within the meaning, an Act of Parliament cannot make it so". If the Parliament were to enact legislation dealing with a matter which did not have the "essential qualities" or "common attributes" of a trade mark, it would not be "in essence a species within the language of the legislative powers" and would "amount to an attempt to amend the Constitution by a process not sanctioned by the Charter". 

[192] In relation to passing laws dealing with the personal relationships that are the consequences of the marriage power, it has been observed that, "[s]o far as they can be regulated by law without impairing the essence of marriage", laws about the consequences of marriage, such as cohabitation, would "properly be called laws with respect to marriage". The power "does not support a law which so regulates the incidents of marriage as to impair the essence of marriage". In other words, "[t]he term marriage bears its own limitations and Parliament cannot enlarge its meaning". An exercise of "constitutional interpretation of the marriage power would be an exercise in hopeless circularity if the Parliament could itself define the nature and incidents of marriage by laws enacted in purported pursuance of the power". ... 

Avoiding absurdity 

[196] In an apparently innocuous statement in the joint judgment in Chetcuti v The Commonwealth, four members of this Court said that it was a "settled understanding" that "the aliens power encompasses both power to determine who is and who is not to have the legal status of an alien and power to attach consequences to that status". If read literally, that statement would be a radical new theory of interpretation of constitutional heads of power. 

[197] If the statement in Chetcuti were read literally and without qualification, it might support an assumption that a constitutional alien is no more than the antonym of a statutory citizen. If that were true, then s 51(xix) would confer an unconstrained power on the Parliament to choose its own criteria for citizenship and thereby determine who is an alien and attach consequences to that alienage. Applied to other powers, this reasoning would mean that the Parliament could make laws to divest the assets of Croesus among his creditors on the basis that the Parliament determined for itself the meaning of bankruptcy, irrespective of the essential features inherent in the constitutional meaning of bankruptcy. The Parliament could "define 'trade mark' as including a will, and enact that no will shall be valid unless registered as a trade mark", contrary to "universal agreement in the laws of every part of the British Empire" at the time of Federation concerning "certain essentials founded in the origin and very nature of a trade mark". Or the Parliament could pass laws in relation to the merger of corporations, or forced, non‑consensual unions, on the basis of its own determination of what a marriage is, thus enlarging that meaning beyond its constitutional essence as "a consensual union formed between natural persons in accordance with legally prescribed requirements" and bearing certain characteristics. 

[198] The statement quoted above from the joint judgment in Chetcuti should not be read as rejecting a century of hornbook constitutional law. Rather, and consistently with the acknowledgement in the previous paragraph in Chetcuti that a law of the Parliament might need to be disapplied to the extent of "constitutional overreach" by treating "all non‑citizens as aliens", the statement in Chetcuti should be understood as saying no more than that the Commonwealth Parliament has power to set the criteria for who will, and who will not, be a statutory alien and the consequences of that, provided always that the exercise of that power is within the boundaries of the constitutional concept of "alien". In oral submissions, the defendants quite correctly accepted that position, conceding that the aliens power "cannot be used to treat, as an alien, someone who cannot answer that description on the ordinary understanding of the word". 

[199] The ordinary understanding of the word "alien" – its essential meaning – is simple and well‑established in this Court. At a reasonably high level of generality, which recognises the state of flux at lower levels of generality of the common law of alienage at the time of Federation[, an alien is a foreigner or outsider to the political community of the Australian body politic. The difficult question is how that ordinary understanding of "alien" is to be applied. 

[200] On the submission of the defendants, the application of alien extends to people who have any of the following characteristics, each of which involves some "foreign" element: (i) the person has dual citizenship; (ii) the person was not born in Australia; or (iii) at birth, the person had one or more parents who were not an Australian citizen. It is likely that these slight foreign connections describe more than half of the Australian population; the first criterion alone involves close to half of the Australian population and the second and third criteria together likely involve a similar proportion. On the defendants' submission, therefore, potentially half of the Australian population are aliens within the meaning of the Constitution and can therefore be treated in that way by legislation. 

[201] It is not to the point that it might be thought to be extremely unlikely that the Parliament would ever legislate to impose the consequences of alienage, potentially including deportation, upon half of Australia's population. The identification of the extreme reach of the power on the submissions of the defendants is not to propose an absurd or distorting possibility. Rather, the extreme reach of the power, over more than half of the population of Australia, and the infinite range of possible laws over those persons, or groups of them, which would be within the scope of the power illustrate the difficulties with the proposed interpretation. 

[202] The submission of the defendants was, nevertheless, a carefully devised formulation of the application of the essential meaning of "alien" which respected a line of authority in this Court since 1982. The extreme effect of the submission is only an incremental extension of a series of problematic decisions in this Court. Those decisions have developed the law to a point where the question that is asked of s 51(xix) is no longer which people are aliens. The question that is now asked is usually couched in the euphemism of "the Pochi limit to the aliens power". But that "limit" is not some outer extreme within which Parliament has free rein. Rather, it is an absolutely orthodox requirement that the aliens power be applied in accordance with its meaning. As the application of the aliens power has strayed further and further from its essential meaning, the question has become how to identify which categories or groups of people are not aliens. And as the groups of people who are not aliens have come to be treated as diminishingly smaller, the answer to that question has not been readily forthcoming. 

[203] This case is not the appropriate vehicle to consider the extent to which it is possible to unwind some, or all, of the arguable errors in the decisions of this Court. But, in order to address the submissions of the parties on the first issue in this special case, it is necessary to identify where potential missteps may have occurred in order to explain why the aliens power should not extend any further to dual citizens born in the same circumstances as Mr Alexander.

Statutory Interpretation

Edelman J in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 addresses 'The duty of courts in the exercise of statutory interpretation', stating 

The duty of courts is to give effect to the meaning of statutory words as intended by Parliament. In common with how all speech acts are understood, the meaning is that which a reasonable person would understand to have been intended by the words used in their context. One presumption, or inference based on common experience of legislative acts, is that when Parliament uses words with a common or ordinary meaning then the words are intended to bear that ordinary meaning. That presumption also reflects the expressed goal of parliamentary drafting for clarity and familiarity in order to ensure the transparency and intelligibility of statute law. That presumption can be further reinforced by another presumption, that words repeated in a statute are used with the same meaning.  

 

Nevertheless, even when Parliament does not provide a specific definition of particular statutory words there are instances where Parliament will be understood not to have intended that those undefined statutory words should bear their ordinary meaning. For instance, the more that the ordinary meaning of the words would impair common law rights, and the more fundamental are those rights, the less likely it is that the words will be understood to have been intended to bear their ordinary meaning and the more unusual the meaning of the words that can be countenanced as having been intended. More unusual meanings of words can also be countenanced in a range of more common circumstances, and will be likely to be so countenanced where several of these circumstances exist in combination: where the ordinary meaning of the words is contrary to the scheme of the legislation; where the ordinary meaning of the words runs contrary to the legislative history; and where the ordinary meaning of the words is inconsistent with the expressed understanding of the legislative operation in extrinsic materials. None of these matters of context has any greater a priori weight than any other. 

 

Consistently with this approach, courts have sometimes interpreted statutory words in a manner contrary to their ordinary meaning in order to give effect to parliamentary intention. For instance, the Privy Council, dismissing an appeal from this Court, held that the word "arrangement" in the former s 260 of the Income Tax and Social Services Contribution Assessment Act 1936 (Cth) does not bear the ordinary meaning of an initial plan but includes "all the transactions by which [the plan] is carried into effect". This Court held that the word "interview" in former s 570D of the Criminal Code (WA) does not bear the ordinary meaning of a formal or structured meeting but means "any conversation between a member of the Police Force and a suspect", including an informal conversation initiated by the suspect. And this Court held that the words "otherwise mutilates" in s 45(1)(a) of the Crimes Act 1900 (NSW) do not bear the ordinary meaning of injury or damage that is more than superficial112 but instead have an open-textured meaning of engaging, otherwise, in the undefined practice of female genital mutilation. 

 

The ultimate question in every case is the meaning of the words, in all their context, as they were intended by Parliament. Of course, the prolific references by courts to parliamentary intention are not to a subjective intention of any or all of the members of Parliament. Rather, they are shorthand to describe the same general approach that people take to the understanding of language. Words of a statute are not a secret code for lawyers. They are enacted to be read and understood by reasonable, informed people using their everyday tools of language. This involves considering what was intended by the speaker, here the construct of Parliament. Consideration of a speaker's intention requires the speaker's purpose and the context of the spoken words to be considered at the same time as their "ordinary meaning". So too with the interpretation of words enacted by a Parliament. Ordinary meaning, and usage of words in the legislation with consistent meaning, are therefore only two indicia, albeit usually very powerful indicia, of the intention of the Parliament

Hart

'HLA Hart’s secondary rules: what do ‘officials’ really think?' by David Howarth and Shona Wilson Stark in (2018) 14(1) International Journal of Law in Context 61-86 comments

The impact of HLA Hart’s The Concept of Law on modern legal thinking is undisputed. But does it reflect the reality of the way British institutions work? In Concept, Hart argued, amongst other things, that one of two ‘minimum conditions necessary and sufficient for the existence of a legal system’ was that ‘its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials’. In this paper, we begin the process of testing that statement empirically. Specifically, we ask whether non-judicial UK officials have a uniform view of what the rules of recognition, change and adjudication are, and whether they uniformly take an internal point of view towards them (ie whether they accept the rules and do not merely obey them). By way of a pilot study, thirty non-judicial UK officials were interviewed. Those officials comprised currently serving and retired senior civil servants, senior military officials, chief constables and local authority chief executives. The findings of the pilot study are presented in this paper. They allow us to deduce that Hart’s statement might well be an inaccurate and incomplete description of the modern British constitution, and to comment on the implications of that conclusion.

Emojis

'Surveying the Law of Emojis' (Santa Clara University Legal Studies Research Paper, 8-17) by Eric Goldman comments

Everyone loves emojis! It’s easy to see why. Historically, most online communications have emphasized text, and emojis add much-needed emotional content to text-driven communications—and often help people express themselves more precisely. Due to the enthusiastic embrace of emojis, we are witnessing a historic change in how we communicate online. 

This article surveys three significant ways the emoji revolution will impact the law. 

First, questions about what emojis mean will arise in a wide range of legal doctrines, from criminal law to contracts. Our standard interpretative tools generally can handle new communicative technologies, but several aspects of emojis will require careful consideration. Most significantly, senders and receivers will unexpectedly see different versions of an emoji due to technological intermediation, leading them to make reasonable—but different—interpretations of the same communication, with potentially adverse consequences for one or both parties. The article will explore some steps that would reduce the risks of these misunderstandings. 

Second, emojis will often qualify for copyright and trademark protection. However, IP protection encourages platforms to differentiate their emoji implementations, which exacerbates the risks of miscommunications and misunderstandings. To mitigate this outcome, IP protections for emojis should be interpreted narrowly. 

Third, emojis create some issues for judicial operations, including if and how judges will display emojis in their opinions, if emojis in court opinions will be searchable, and how best to present emojis as evidence to fact-finders.

Hermeneutics

'The Hermeneutics of Law: An Analytical Model for a Complex General Account' by Ralf Poscher in Michael Forster and Kristin Gjesdal (eds) The Cambridge Companion to Hermeneutics comments 

In contrast to monistic conceptions of hermeneutics as interpretation, legal hermeneutics has always been acutely aware of the complexity of our hermeneutic practices. The legal tradition thus speaks in favor a complex conception of hermeneutics that identifies the different activities involved. The essay tries to show that such diverse activities as interpretation, rule-following, construction, association, the exercise of discretion, and judgments on significance can all be involved in the application of the law. All of these distinct practices involve distinct theoretical issues, most of which can be linked to particular debates in analytic philosophy. To prove the point that this complex conception of hermeneutics is not specific to the law, but applies to hermeneutics in general, some parallels in the field of the hermeneutics of art are drawn. In theoretically following up on the distinctions inherent in legal doctrine and methods, hermeneutics in general can live up to Gadamer’s observation that there is something to be learned from looking at the law.

Sets

The fascinating 'Legal Sets' by Jeremy N. Sheff proposes that

legal reasoning and analysis are best understood as being primarily concerned, not with rules or propositions, but with sets. The distinction is important to the work of lawyers, judges, and legal scholars, but is not currently well understood. This Article develops a formal model of the role of sets in a common-law system defined by a recursive relationship between cases and rules. In doing so it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure of many so-called “hard cases,” and help organize the available options for resolving them according to their form. This set-theoretic model can also help to cut through ambiguities and clarify debates in other areas of legal theory—such as in the distinction between rules and standards, in the study of interpretation, and in the theory of precedent. Finally, it suggests that recurring substantive concerns in legal theory—particularly the problem of discretion—are actually emergent structural properties of a system that is composed of “sets all the way down.”

Sheff comments

The model developed in this paper will be useful to legal educators and law students, as a guide to the types of analytical moves that are part of “thinking like a lawyer.” And the tools of set theory are also of use to the practicing lawyer or judge—who must navigate and deploy the strategies discussed herein as part of the practice of their profession. But these insights may be intuitively grasped without resort to the formal architecture of symbolic logic. The key payoff of the set-theoretic model I will develop here engages legal theory, where heated substantive debates often leave important formal ambiguities unexamined. Not only can the set- theoretic model help cut through those ambiguities, it shows how some of these substantive debates are actually over inescapable structural features of law. 

The Article proceeds in four stages. Part I provides a brief overview of naïve set theory for those unfamiliar with it, introducing the terminology and concepts that will be deployed in the analysis that follows; those who feel comfortable with the concepts and notation systems of set theory and predicate logic may skim or skip this section. Parts II and III build the scaffolding of a set-theoretic model of law, and as I have warned they require some patience to see through. Part II demonstrates how the tools of set theory can be deployed to analyze the relationship between rules and cases, and to show how more complex legal doctrines build on set-theoretic concepts. Part III demonstrates more complex interactions of rules and cases, focusing on “hard cases” in which multiple applicable legal rules appear to contradict one another. This Part provides a more thorough description of the aforementioned strategies legal actors can use to negotiate such doctrinal conflicts at various levels of formal structure. Part IV discusses some implications and limitations of a set-theoretic understanding of legal doctrine, including its interaction with other aspects of legal theory. In particular, it shows how a set-theoretic understanding of legal practice cuts through ambiguities in the debate over the relative merits of rules and standards, in general jurisprudence and associated theories of interpretation, and in the theory of precedent.

Sumptuary Regulation

"Beyond Sumptuary: Constitutionalism, Clothes and Bodies in Anglo-American Law, 1215-1789' by Ruthann Robson in (2013) 2(2) British Journal American Legal Studies 478 notes that

Current scholarship is peppered with casual references to “sumptuary laws” whenever regulations of clothing or bodies are at issue. Too often, these references are incorrect, or at best incomplete. This Article is a careful consideration of the various regulations of attire and bodily markings from the Magna Carta in 1215 to the adoption of the United States Constitution in 1789. This Article situates bodily regulation within Anglo-American constitutionalism, including nascent constitutional Tudor-era struggles between the monarch and Parliament, the status of colonial laws, the American Revolution, pre-constitutional slavery, and the formation of the Constitution, including a proposed “Sumptuary Clause.” 

Robson comments that

 It has become common to link current regulation of attire or grooming with former practices known as sumptuary laws. The classic definition of a sumptuary law is one directed at excess consumption. Such a law was arguably in the service of religious or ethical conceptions of the “good life,” and often, but not necessarily, the conceptions of excess varied by status. 

Yet we recognize that even medieval regulations of dress were rarely solely sumptuary. Mixed motive regulations contained proscriptions of excess, even as they addressed trade imbalances or other economic concerns. Moreover, many laws governing apparel, as well as regulations of hairstyles and bodily markings, were not directed at consumption. Instead, such laws policed other hierarchies, such as those involving sexuality, gender, poverty, criminality, and slavery. Additionally, they served the interests of nationalism and empire in both economic and political ways. 

Thus, all laws governing dress or grooming, whether solely sumptuary or not, implicate constitutionalism with regard to individual rights as well as the structures of governments. This Article centers the constitutional and nascent constitutionalism surrounding regulations of attire, grooming, and bodily markings, beginning with the Magna Carta in 1215 and ending with the creation of the United States Constitution in 1789. Section One begins with the regulation of textiles in the Magna Carta and continues through the Tudor era, describing the various provisions and their purposes. Section Two continues a focus on the Tudor era, arguing that disputes regarding the regulation of attire implicate nascent constitutionalism and democracy. The third section explores how the English used the regulation of dress, hair, and textiles as a method of national definition. Section Four moves to the American colonies, looking at laws and literature that structured society through the regulation of attire and the practice of branding, including in the important pre-Constitutional 1736 case of Rex v. Mellichamp and its relationship to slavery. Finally, Section Five examines the role of textiles in Revolutionary War rhetoric and politics and the rejected Sumptuary Clause of the United States Constitution. At the heart of these examinations and explorations is the intertwinement of the regulation of appearance with matters of democracy, sexuality, and hierarchy.

In discussing economic incentives and social regulation Robson notes that

a 1666 Act entitled “An Act for Burying in Wool Only” prohibited the burial shirt, shift, or sheet to be made of anything other than wool, and similarly prohibited the coffin from being lined with anything other than wool. While this may be called a sumptuary law, the stated rationale was not excess in apparel or over-consumption, but the encouragement of woolen manufacturers of the kingdom and the prevention of spending money on the importation of linen. Importantly, it applied uniformly across classes; the only exception was if the person had died of the plague.

An earlier and more well-known law was the Elizabethan Cap Act. A serious decline in employment for “cappers” and other wool workers was the stated motivation for the “Act for the making of Cappes,” passed by Parliament in 1571 during the reign of Elizabeth I. The Act’s remedy for the decline in the wool trades was to require “every person” above the age of six years to wear a cap upon Sabbath and Holy Days. However, although the Act recited that the wearing of the caps was decent and comely for all estates and degrees, the Act specifically exempted “Maydens Ladyes and Gentlewomen,” as well as those who were noble personages, Lords, Knights, and Gentlemen of possession of twenty marks land by the year, as well as their heirs.” Thus, the Act essentially mandated the cap as a marker for lower class status.

A similar marking of the lower classes occurred by the practice of “badging” the poor, prompted by economic interests of a different sort. Beggars were required to wear badges indicating their eligibility for alms in some English parishes and towns since the reign of Henry VIII, and the famous Elizabethan poor law of 1563 required licenses for those receiving poor relief in some cases. However, the “badging” requirement imposed by a Parliamentary statute of the realm in 1697 provided that every person receiving relief, including the wife and children of such person, shall

upon the Shoulder of the right Sleeve of the uppermost Garment of every such Person in an open and visible manner weare such Badge or Mark as is herein after mentioned and expressed that is to say a large Roman P, together with the first Letter of the Name of the Parish or Place whereof such poor Person is an Inhabitant cutt either in red or blew Cloth as by the Churchwardens and Overseers of the Poor it shall be directed.

The impoverished were subject not only to badging, but also to branding, which might be considered a permanent type of attire. During the brief reign of Edward VI, Parliament in 1547 passed An Act for the Punishment of Vagabonds and for the Relief of the Poor, providing that the punishment for both male and female loiterers who did not apply themselves to honest labor was to be marked with a hot iron in the breast with the letter V and to serve as a “slave” for two years to the person who captured him or her. If the vagabond attempted to run away, he or she would be branded again, this time with the letter S on the forehead or ball of the cheek and would then be a slave forever. A second attempted escape would result in the death penalty. Indeed, branding was not an especially harsh punishment, especially in comparison with an earlier statute under Henry VIII that provided the punishment of being tied to the end of a cart naked and beaten with whips throughout the town until the “Body be blody” or standing on the pillory and having an ear cut off. Slavery, however, was extreme, and soon repealed, although vagabond children over the age of 5 were allowed to be “taken into service.”A series of vagabond statutes throughout the Tudor era criminalized the impoverished, migratory laborers, and those who “refused” to work in an era that witnessed the end of feudalism, the plague, and the beginnings of manufacturing. 

In addition to economic hierarchies, statutes of attire addressed gendered ones, although often less explicitly. Most notably, the English acts of apparel were directed primarily at males, with the 1510 statute specifically exempting women (as well as, among others, minstrel players). Perhaps this was because males were more preoccupied by clothes than women, or perhaps it was because males in the targeted classes were more visible than women, or perhaps men were deemed to be citizens worthy of regulation while women were subsumed into their male-headed households. However, the statutes of apparel implicitly and at times explicitly presume a gendered division of attire, even if their regulatory focus was otherwise. 

The acts of apparel occasionally address sexuality. For example, in 1463 the Parliament of Edward IV criminalized men’s sexually revealing attire. It prohibited the wearing of any gown, jacket, or coat, “unless it be of such Length that the same may cover his privy Members and Buttocks.” The act applied to Knights who were less than Lords, Esquires, and Gentlemen, as well as other persons, and extended the prohibition to tailors who made garments of this short length. Women’s sexuality was also subject to attire regulations, although not in the major acts of apparel. The Parliament of Scotland passed a law in 1458 that regulated silk and furs in a familiar hierarchical manner, and provided that “no labourers or husbands wear any colour except grey or white on work days; and on holy days only light blue, green or red,” but also contained a specific prohibition for women: “no woman come to church nor market with her face hidden or muffled so that she may not be known, under pain of escheat of the cap.” More than a century later, the sumptuary laws were augmented with a moralistic imperative for women expressed in an exceedingly terse statute: “it be lawful for no women to wear above their estate except whores.”

ROFLMVFAO

Tony Abbott mortifies his flesh with a cilice. I do bad things to my head by reading postmodern texts such as Peter Hulm's 'Baudrillard's Bastards: 'Pataphysics After the Orgy - Some Lessons for Journalists' [PDF], which appears in III Semiophagy (2010), "a non-profit journal, composed and published entirely by volunteers".

Semiophagy (perhaps Coprophagy was so so yesterday) is

an interdisciplinary forum for scholars, artists, and activists to engage in semiotics, broadly construed. More than abstractly saying what signs are generally, Semiophagy pushes the concept of the sign toward questions of praxis. Instead of asking 'what' a sign is, it questions 'how' we discover and interpret signs in the first place.

Semiophagy aims to trace the being of signs from their phenomenological emergence to their existential significance, asserting that insofar as all signs must be interpreted, the search for every sign’s meaning is a creative urge expressed as art. This includes but is not restricted to philosophical and critical inquiries, visual works, pataphysical experiments, manifestos, comics, spoof ads and articles, dada, ethical treatises, as well as the history and myth of semiotics itself.

The same site promotes The Tupperware Blitzkrieg, elsewhere commended as -

Simultaneously his most accessible and his most extreme book, Anthony Metivier's The Tupperware Blitzkrieg is a powerful concoction of sexual excess, self-deification and terminal violence. In this hallucinatory novel, plastic surgery, psychoanalysis and the pornography of American politics provide the hellish tableau in which Doctor Umbilico, founder of 'People for the Advancement of Lying' turned PCP swilling nightmare priest of the surgical ward, executes biomorphical atrocities culminating in the capture and radical transformation of an eerily Bush-like apocalyptic president. Multiple characters tell the story of this twisted visionary as he careens forward with his own maniacal pitch for world domination. As The Tupperware Blitzkrieg hurtles toward its unforgettable conclusion, Metivier depicts the most sordid aspects of contemporary commercial life in a complex, obsessive, often poetic and disquieting chronicle of aesthetic anomie, erotic entropy and the 'slurrealistic" threat of cosmetic inefficiency. No reader of Metivier's most inflammatory work to date will emerge unscathed.

Hulm more modestly announces that

From his earliest writings Jean Baudrillard has been a media provocateur of such Nietzschean brilliance that it has blinded many theorists to the depth and originality of his critique of the news business and television in the DisInformation Age.

In addition to smarting at his accurate and aphoristic barbs about current affairs production, mainstream media feels even stronger resentment at his dismissal of the industry’s claims to be a major force in shaping public consciousness. For Baudrillard, scientific jargon, Wall Street, disaster movies and pornography have deeper impact on our imaginations than the news industry. Television and written media, he wrote in 1970, have become narcotic and tranquilizing for consumers in their daily servings of scary news and celebrity fantasies. Only 9/11, he later declared with his usual withering acerbity, has been able to break through the nonevent barrier erected by media to the world.

In a Baudrillardian pomoland presumably terms such as 'smarting', 'resentment' and 'accurate' presumably don't need to mean what one might think they mean or indeed mean anything at all.

Public faces in eastern places

I'm reading Marc Nichanian's The Historiographic Perversion (Columbia Uni Press, 2009) on responses to the Armenian Genocide after scooting through Paul Bailey's Censoring Sexuality (Seagull Books 2007) and an article by Christos Zagkos, Argyris Kyridis, Ifigenia Vamvakidou and Nikos Fotopoulos on 'The Banknote as a Figure of Nationhood in the Balkan Countries' in 23(9) Applied Semiotics 5-27. The latter is similar to Dennis Altman's delicious Paper Ambassadors: The Politics of Stamps (Angus and Robertson 1991).

Bailey's book is a slim, elegant personal reflection on censorship - self-censorship, use of the death penalty in contemporary Iran, and otherwise - of homosexual activity and affection. It supplemented by a collection of extracts from literature and reports of repression, notably an account by a gay man in the kleptocracy known as Egypt and accounts of what it's like to be gay (or merely perceived as gay) in places contested by Fatah and Hamas.

Zagkos et al explain that

Money is the foundation of any national economy, but also the mark of national sovereignty, reflecting the state which issues it. Its symbolic role is one of its essential characteristics, and the name of the currency its salient feature. Policymakers recognize that currencies can act as important carriers of nationalist imagery, particularly if its supply is monopolized. Money would indeed seem a perfect locus on which a state can construct an ‘ordinary nationalism’ that is all the more powerful for being part of the seemingly unremarkable fabric of daily life. In this paper, using a semiotic methodology, we shall analyse the symbols of the state produced banknotes of Albania, Turkey, the Former Yugoslav Republic of Macedonia and Bulgaria, in an attempt to read the underlying meanings of the symbolisms selected by each state, in the geographical area of Balkans that is synonymous with nationalism, since the foundation of the modern nation-states on the region.

Altman comments that

For most people, stamps are objects that are bought after queuing at the post office, used, and discarded. Apart from stamp collectors few people really look at stamps, although almost everyone who is literate will make frequent use of them. Every recognised state -- and quite a few unrecognised ones -- produces stamps, increasingly far more than are necessary for purely postal purposes. In 1890, a few hundred stamps were issued worldwide; these were small, dignified and sombre in appearance. In 1990 almost 10,000 stamps will be issued, many of them large, garish and multicoloured. ...

"There is nothing in the world as invisible as monuments" wrote the German author Robert Musil, and in a sense stamps are monuments writ small. Almost no subject is too obscure to appear on stamps. Yet they are both miniature art works and pieces of government propaganda: they can be used to promote sovereignty, celebrate achievement, define national, racial, religious or linguistic identity, portray messages or exhort certain behaviour. Even the most seemingly bland design -- one depicting roses, say, or domestic animals -- has been deliberately issued by a particular government for a particular purpose.

It is true that it is difficult to read messages into certain designs, those just displaying a numerical value, for example, or those produced by a number of countries using astrological symbols. (Even though the latter would hardly be acceptable to certain orthodoxies, either Christian or Marxist.) But often what appears to be just a pretty picture has a deep significance in the local culture. Stamps of shells -- very common from Pacific Island countries -- draw on traditional associations; this design from Fiji, for example, shows shells widely used for currency. ...

It is the assertion of this book that even if you have never collected stamps in your life, to start really looking at them is ... to start seeing things anew. What appears on stamps is a message. It is the purpose of this book to decode these messages, and to show how that often ignored piece of coloured paper on the edge of an envelope is part of a picture of the world that governments seek quite consciously to create. In this sense, stamps make up part of what the Australian political scientist Donald Horne has termed "the public culture", namely that set of images and values which are propagated as the taken-for-granted picture of the world.