11 October 2022 – Online conversation
The scientific round-table discussion titled “Legal protection of state symbols” was organized by the Students’ Scientific Association for Jurisprudence at the Faculty of Law of Károli Gáspár University of the Reformed Church in Hungary and the Central European Academy, and was held at the Conference Room of the Faculty of Law of Károli Gáspár University (1042 Budapest, Viola utca 2-4.). Professors Iván Halász and Gábor Schweitzer were the invited participants of the discussion which was organised and moderated by Zoltán J. Tóth. Inter alia, the audience was provided with answers to the following questions:
– What is a symbol and what are the criteria of becoming a symbol?
– Why is it important for a state to have symbols?
– What is the difference between state and national symbols?
– In general, what are the symbols of states and what are the symbols of nations?
– How were the symbols of Hungary (the colours of the flag, the present-day coat of arms, and the anthem) developed?
– What other symbols does the Hungarian nation have?
– Are there any distinct characteristics or common elements regarding the approach of symbols that distinguish Eastern and Central Europe from Western states?
– Are there any differences between the countries of Eastern and Central Europe in that regard (or are there countries that drew their symbols from the symbols of other countries)?
– What legal regulations cover state symbols in Hungary and in other countries of Europe? Are those symbols regulated on a constitutional level or their existence is only addressed by customary law? Are acts violating symbols punishable? What happens if someone wishes to place a product with the depiction of the coat of arms on the market? Is it possible to display the flag (coat of arms) legally on one’s house? Is it possible to display the flag/coat of arms of another state?
– Are there any international customs that apply more or less uniformly everywhere? (What happens at diplomatic receptions or international sporting events, how is the integrity of symbols protected, and how is the equality of symbols ensured in international protocol?)
At the beginning of the event, Professor Tóth introduced the organizing partner Central European Academy. He mentioned that this new Hungarian organization coordinates the scientific cooperation in Central and Eastern Europe in various fields of jurisprudence. It aims to improve the comparative studies of the participants on various topics. Last year’s research topic concerned constitutional theory, specifically the interpretation of constitutional rights in the Central European region. This year one of the research topics is the legal protection of state and national symbols. This event was also organized in that framework.
Regarding the conceptual issues, Professor Halász explained that since ancient times, human communities have had the need for representation and ambition for integration. Within it, symbols play a specific role. A symbol can be either an object, or a sentence, a tune or any other similar entity suitable for symbolizing a given community. As for the purpose of symbols, those usually have two purposes – whether they are state symbols, or symbols of a sports club or a city. The first purpose is representation: a kind of self-image building to the outside world. The second one is integration. A well-chosen symbol can integrate a community, while a poorly chosen symbol has the potential to disintegrate. That is, internal integration and external representation are equally important functions of symbols. Professor Schweitzer added that human communities strive to represent themselves in the symbolic world. It is also important that, if possible, symbols should not be divisive. Ideally, a consensual symbol can provide external representation and internal integration to a community – whether it is a nation, a state or a smaller community. So various aspects must be reconciled in the case of symbols. As for state symbols, it is not sufficient to consider the classic, well-established symbols partially regulated by law, such as the state coat of arms, the state or national flag, or the national anthem. Several other symbolic phenomena may exist in relation to statehood. E.g., state maxims fulfil similar functions (integration and representation), or capitals can also acquire symbolic significance.
It is also important that the difference between state symbols and national symbols has always been paramount. As Professor Schweitzer stated, the national flag or banner is typically a combination of the national colours. But the legislature or the customs may decide to distinguish a state flag beside the national flag – particularly in the case of states or nations whose national colours are very similar to one another. In such a case, e.g. the state coat of arms can be placed somewhere on the national flag. So there are cases when the difference between a national symbol and a state symbol is very clearly manifested. Professor Halász claimed that when the modern nation states or similar entities were established in Western Europe, the adjectives “state” and “national” often meant the same, but they did not fully overlap. Due to that, they use the term “national” as the equivalent of the adjective “state”. Here in Central Europe, these two terms are more separated, since in Central and Eastern Europe, the territory of a state is more separated from the territory of a nation. This is not only true today, but it was also true during the era of the Austro-Hungarian Monarchy, just like in the case of Germany, for a while. This is one of the reasons why there is a confusion regarding these terms, and some constitutions use them one way, while others use it in another way. That said, in Hungary, especially in the 20th century, these two terms have been separated, with particular regard to Hungarians beyond our borders. The term “national” has a stronger communal character, while “state” has a more institutionalized one.
As regards the international law issues, it was discussed that while customary law has already been displaced in domestic legislation, it still plays a significant role in international law. Actually, there are several nations where symbols are not specified or not even mentioned in the constitution, but only accepted by a customary law consensus. A certain courtesy exists in international relations: if a foreign delegation is expected, it is customary to ask how to pay tribute to them. As a response, they, e.g. specify their anthem. The host state is not entitled to revise the answer: it accepts that the visiting state considers the given anthem its own. That is accepted based on customary law and courtesy. If we take a further look at the role of customs and conventions, legal regulation is a grey zone from many – albeit not all – aspects, so customs and conventions are significant. It is particularly true for the early periods: not even copyright existed in the 18th century. The British anthem came into being in the 18th century. It was so popular that it was involuntarily adopted by the continental states of Europe. They slightly amended the lyrics, but they did not waste a thought on the fact that it was related to a specific ruling house. It was melodious, they liked it and, therefore, adopted it. The Russian tsarist anthem also had the same tune as the British anthem. Except for God was “asked” to save the tsar, not the king. Similarly, the Slovak independence anthem has the same tune as the Polish anthem. Even nowadays, the anthem of Luxemburg has the same melody as the British (royal) anthem. It is not fobidden in the international (not even in the international customary) law.
In addition to other, very exciting topics, the punishabililty of the blasphemy of state or national symbols was also at stake during the round-table discussion. For instance, pursuant to the Hungarian Criminal Code, if the act did not result in a more serious criminal offense, the blasphemy of national symbol amounts to a misdemeanour. It extends not only to the flag, anthem and coat of arms of Hungary, but also to the Holy Crown which is a very unique stipulation among the similar criminal code regulations across Europe. It may seem paradox that the Holy Crown, which is not included in the list of official state and national symbols, is nonetheless subject to criminal law protection. It is true that from the regime change the Holy Crown has appeared in the coat of arms as a heraldic element. The legislature primarily considered the Holy Crown as a national relic when stipulating its protection in Act I of 2000. Perhaps, the Criminal Code also protects the Holy Crown as a national relic. Although the Fundamental Law does not specify the Holy Crown among the symbols, it attributes a symbolic significance to it, since in Hungary, the unity of the nation is embodied by the President of the Republic, as well as the Holy Crown. So although not specified in the article of the Fundamental Law addressing symbols, a symbolic significance is attributed to the Holy Crown by the National Avowal. The Holy Crown represents the unity of the nation and the continuity of Hungarian statehood.
In the end, we must mention, as a matter of the discussion, the interesting fact that Hungarian constitution lacked the stipulation on Hungarian anthem before 1989. During the regime change, there was a concordance on that the anthem should be added to the list of state and national symbols recognised by the constitution. Until then, the anthem was not included in that list, so a consensus only existed on the national colours as symbols, and obviously on the capital. The then Constitution had to be amended twice in 1990 in that regard; it was debated whether or not to include the state coat of arms in the white stripe of the tricolour – this proposal was then rejected, and only the national colours remained recognised as the state flag. Thus, a seemingly neutral or less problematic constitutional issue caused quite a stir in 1989-1990 in Hungary, particularly regarding the state coat of arms and the state or national flag. The anthem was effortlessly included in the constitution in the fall of 1989.
In sum, the participants discussed the above issues, as well as some similar issues for over an hour, explaining the theoretical and legal historical bases and constitutional aspects of the regulation related to state symbols, and their positive law significance.
