Excessive legality can make the racialised live in a world that has been slowed down, made dysfunctional and even unbearable.
We rightly celebrate that we live in a society where law and order prevail. The capacity to follow established rules allows for the smooth operation of the many necessary transactions that make up our everyday life. And the 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, without law and order, even a small transaction like getting a driver’s license can become socially and psychologically exhausting: a circus of going up and down buildings, begging people, explaining to them what should be obvious, seeing people who have come after you being served before you because they know so and so, having to pay a bribe to have a paper stamped, etc…
Yet it is one of the paradoxes of life in general that if we live only and too much by the rule of law and obey too strictly the rules which govern our interaction, society will be dysfunctional. This is because life cannot be as predictable as laws and rules would like it to be and one has to always improvise. Likewise, the law homogenises very different kinds of individuals and though we like to live by the mantra that ‘everyone is equal before the law’, in real life we are always faced with situations where we have to step outside the law and the rules to cater for the particularities of certain people and certain situations. Trade unionists, for example, know this only too well. This is why ‘work-to-rule’ is considered a form of industrial action. It acknowledges that 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. Indeed, 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.
Individuals who stick to the rules too much are not only judged as ‘anti-social’ they are sometimes perceived as ‘immoral’. Recently at a bus stop, 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 with a sense that 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 the majority of people on the bus were outraged and many jumped to help the woman while giving the driver looks of disapproval. It 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’ that 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 and to offer 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.
But while this excessive legality is often random and erratic and contingent on many social and psychological variables that define a situation, it takes a more regular and structural allure when we are examining the history of western colonialism and racism. Here we find a recurring and even systematic history of social interactions where Westerners require from those they racialise an exact obedience of the letter of the law such they do not require it in interactions among themselves. Airports are perhaps today the most obvious space where this can be observed, whether in the checking of papers or in the famous ‘random’ but extra-meticulous search some people are subjected to by airport security. We also still have with us, the equally classical occurrence noted in many government departments where a racialised person is told that a document she has forgotten is ‘absolutely necessary’ to have a transaction finished when another person can get away with a simple ‘sorry I forgot this paper’. These little moments of excessive legality add up to make for a 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 the ‘work to rule’ form of industrial action slows down a factory and makes it dysfunctional, this excessive legality can make the racialised live in a world that has been slowed down, 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. And 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 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 with their unique capacity for doing it as if in fact nothing of the sort is happening, and the Australians with the usual dose of ‘island logic’ that 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…
And is not the idea of asylum seekers ‘jumping the queue’ the final installment in this history of excessive legality? Aren’t queues the ultimate example of the imagined state of ‘pure’ law and order? Even if there was 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 by arguing that we are completely justified in not being flexible, since, somehow we conveniently convince ourselves, they are not really in need of it, or by hiding behind ‘we need to follow 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.
Ghassan Hage is Future Generation Professor of Anthropolgy and Social Theory at the University of Melbourne. He is the author of White Nation (1998) and Against Paranoid Nationalism (2003).