The pledge of allegiance in the United States, recited by millions of schoolchildren on a daily basis has once again caught the public’s attention. Unlike those who take issue with the pledge’s “one nation, under God” phrasing, one ten year named Will Phillips objects to standing up at the appointed time and participate in a collective and daily rote recitation of the pledge in his fifth grade class. However, he does so for other reasons. In Will’s own words: “I really don’t feel that there’s currently liberty and justice for all.” This is in connection with discriminatory laws that prohibit gays and lesbians from entering same-sex marriages or the ability to adopt in Arkansas as well as other states in the union.
During the week of October 5th, when Will began his refusal to stand up and take the pledge, he had a rather terse and open confrontation with a substitute teacher. The confrontation resulted in Will respectfully advising the substitute teacher that she could “go jump off a bridge” after she admonished that Will’s mother and grandmother would not be pleased by his persistent refusal to recite the pledge. For Will’s “insubordination” he was dispatched to the principal’s office. The principal instructed Will to look up information on the flag and what it represents, although it seems rather clear that Will already had a sense of what he felt it meant at present and what it ought to mean.
For Will’s continued refusal, he has received support not only from his parents but some colleagues at school. However, he has also been the target of bullying and epithets for his defiance. Still he remains steadfast and resolute in his positions and interpretations about what liberty and justice for all ought to mean.
What can these circumstances tell us about the nature of law and legal subjectivity? Well for one, there are more than just one legal order or source of law at play here. Clearly, there are the laws mandated by the government and state actors. However, as scholars of legal pluralism have noted, there are multiple normative legal orders that operate outside of the state that impact upon the lives and decisions of those whom they touch. Then there are the rules and values espoused by Will’s family. Furthermore, there are those norms that operate within Will’s peer group that exact punishment on those who fail to conform.
What is in play here are a clash of these multiple normative legal orders – each of which, Will experiences on some level. First, there is Will’s family that openly espouses the right to equality and justice for the gay community as part of a larger vision of equality and equal protection. In his mother’s words – “We raised him to be aware of what’s right, what’s wrong, and what’s fair.” Second, there is the state that mandates the recitation of the pledge of allegiance and the values that are ascribed to it while it denies a specific community some of the very concepts that are supposedly inherent in its recitation. Its agent in this respect was the substitute teacher who attempted to coerce Will to join in and participate against his wishes. Third, there is his peer group which includes those who support his decision but also others who attempt to coerce and bully Will into conformity.
Like all human beings, Will is impacted and influenced by the various legal orders that he is exposed to. However, equally, he is not a mere object upon whom law is simply imposed by these various legal regimes. Will has agency and the capacity to interpret legal norms for himself. As McGill University Faculty of Law professor, Rod MacDonald once asserted, “non-conforming behaviour in any particular regime is not simply a failure of enforcement or civil disobedience. It may be the reflexion of an alternative conception of legal normativity.”
Therefore, for Will (who states: “I’ve always tried to analyze things because I want to be lawyer”), his continuous refusal to recite the pledge of allegiance is not merely an act of stubborn disobedience with respect to the norms of the state or the peer group that ostracize and denigrate him. It is also the manifestation of a legal mind at work seeking to interpret what is right and fair and to take a firm stand, in light of the normative legal structure that he has allowed to influence him the most – his family, and particularly, the values of equality and human dignity they espouse.
John Brummett, “Hey, kid, you’d better make that pledge” Arkansas News (15 October 2009), online: Arkansas News .
David Koon, “A boy and his flag” The Arkansas Times (11 November 2009), online: Arkansas Times .
Roderick A. MacDonald, “Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism” (1998) 15 Ariz. J. Int’l & Comp. L. 69 at 79.