Menu Close

Racism of rigid legalism greets asylum seekers and their kind

We rightly celebrate living in a society where law and order prevail. Being able to follow established rules allows for the smooth operation of the many necessary transactions of everyday life. Yet it is one of the paradoxes of life in general that if we obey too strictly the rules that govern our interaction, society will be dysfunctional. Life cannot be as predictable as laws and rules would like it to be; one has to improvise.

This is not the same thing as being lawless. The rule of law, among other things, guarantees that we as citizens can access certain goods and services by right rather than at the whim of someone who is in a position of power over us.

As those of us who have lived in societies where law and order is minimal know, even a small transaction like getting a driver’s licence can be socially and psychologically exhausting. It’s a circus of going up and down buildings, begging people, explaining to them what should be obvious, having to pay a bribe to have a paper stamped, seeing people who have come after you being served before you because they know so and so etc.

The law homogenises very different kind of individuals. We like to live by the mantra that “everyone is equal before the law”. In real life, though, we are always faced with situations where we have to step outside the law and the rules to cater for particular people and situations.

Trade unionists, for example, know this only too well. This is why work-to-rule is considered a form of industrial action. To work exactly “by the book” and “according to the law” slows everything down such as it puts into question the viability of an enterprise, making it dysfunctional.

The same goes for society. Not only is “too much law and order” perceived as socially dysfunctional, it is perceived as unhealthy. The individuals who are seen to follow the rules too rigidly can be seen as inflexible and anti-social.

In Western liberal nations we pathologise societies that are excessively driven by law and order and social control. We associate such societies with dictatorships and we see them as producing overly rigid individuals whose sense of freedom and creativity has been repressed.

This is why our liberal education involves a continual attempt at finding a balance between making students follow certain rules and allowing them a bit of room to be unruly, whether in terms of behaviour or in terms of how to think. This is considered crucial for encouraging participation and fostering creativity.

Humanity requires give and take

Individuals who stick to the rules too rigidly are not only judged as “anti-social” they are sometimes perceived as “immoral”. Recently, a woman who was holding one child in her arm and was pushing another in a pram asked a bus driver to leave his driver’s seat and help her climb on the bus. He refused and said that it was not part of his job.

The woman looked shocked; she felt entitled to have him break the rules for her. He noticed and immediately followed his refusal by saying that, in fact, he wasn’t allowed to do so. The driver was most probably “working by the book” and “within his rights” but most of the people on the bus were outraged and many jumped to help the woman while giving the driver looks of disapproval.

This incident shows that even when we are wholeheartedly for law and order, we instinctively know that it is an intrinsic part of our humanity to extend to others a space “outside the law”. This allows for a bit of “give and take”, a bit of flexibility with laws and rules, when necessary.

But, as the example of the bus driver shows, we are very much able to act “inhumanly” when we want to. We can refuse to be supple, denying others this space of flexibility that caters for their particular needs.

Whether we do it to be purposefully mean or because we can‘t be bothered, it is often the case that when we do so, we take refuge in the law for doing it: “I am only doing my job”, “This is how things are done here”, “It can’t be helped”, “It’s the law”. We hide behind a façade of excessive legality.

A history of two sets of rules

While this excessive legality is often random and erratic, it takes a more regular and structural form when we examine the history of Western colonialism and racism. Here we find a recurring and even systematic history of social interactions in which Westerners require from those they racialise an exact obedience to the letter of the law. It is an obedience they do not require in interactions among themselves.

Airport security is perhaps today the most obvious space where this can be observed, whether in the checking of papers or in the notorious “random” but extra-meticulous search to which some people are subjected.

We also still have the equally classical occurrence observed in many government departments where a racialised person is told that a document she has forgotten is “absolutely necessary” to have a transaction finished. Another person can get away with a simple “Sorry, I forgot this paper”.

Revelations of racial profiling for the purpose of airport security are a clear illustration of rules being applied most rigidly to people identified as ‘others’. EPA/Michael Reynolds

These little moments of excessive legality add up to an insidious form of racism that is among the hardest to fight, precisely because “nothing illegal has been done here”. Its effect, however, can be as detrimental as any racism. Just as work-to-rule makes a factory dysfunctional, this excessive legality can make the racialised live in a world that has been made dysfunctional and even unbearable, especially for them.

It is the case that since 9/11 the space for give and take outside the laws and rules of bureaucratic control has shrunk for everyone. Going by the book is increasingly perceived by the state as a security-driven necessity in many domains of life. Nonetheless, a space for some laxity and flexibility with the law still exists.

Racialised people are very often denied this flexibility. Each Western country engages in this racist “excessive legality” with their own cultural particularity.

France does it with its exceptional capacity to generate procedural claustrophobia. The UK persists with its quasi-eternal colonial mode of being racist while affecting to believe that it is shocking that something like this can happen. The Americans have the unique capacity for doing it as if nothing of the sort is happening.

An inviolable ‘queue’

As for Australians, the usual dose of “island logic” gives the whole process a particular paranoid intensity. But everywhere the refrain is the same: we’re only applying the law, following the rules etc. The idea of asylum seekers “jumping the queue” is the latest instalment in this history of excessive legality.

Is not the insistence on a “queue” for asylum seekers the ultimate example of the imagined state of “pure” law and order? Even if there were such a mythical queue, since when do we force people to stay in a queue when they are needy or weak?

As we have already seen, being flexible with rules is part of the way we express our humanity. We know all too well that if an old frail person asks if they can jump the queue at a post office, we do not tell them: Go to hell, you cannot jump the sacrosanct queue.

We let people jump the queue all the time if we think they need it. We let them do so except when we want to be vicious. And this is what racism as excessive legalism is: a long history of colonial racist viciousness.

Asylum seekers are trying to snatch from us despite ourselves the space of “give and take” that we are refusing to offer. But we refuse to yield.

And, as usual, we engage in this viciousness towards them in two ways. Either we argue that we are completely justified in not being flexible since, somehow we conveniently convince ourselves, they are not really in need of it, or we hide behind “we need to enforce the law and the rules” as so many colonialist racists have done before us.

We’re only protecting the queue. For the queue needs protecting; somebody is about to jump it … unheard of.

Want to write?

Write an article and join a growing community of more than 139,700 academics and researchers from 4,246 institutions.

Register now