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The Spirit of the law


“If the law supposes that then the law is an ass” so said Mr Bumble in Charles Dickens’ Oliver Twist. Few would sympathise with the cruel Bumble who runs the poor house which so poorly treats Oliver but there are many cases when the law may prove to be exactly an ass.

I have encountered an interesting historical example where it is not the letter of the law but rather more the unfair spirit in which the law is applied which makes it so pernicious in its effect. This is again from The Sweet Spot, a book my mother gave me which has provided some very interesting content.

It relates to the Immigration Restriction Act of 1901 (the legislative cornerstone of the notorious White Australia immigration policy which sought principally to exclude the Chinese). This law was based on one arising from the apartheid system in South Africa. Called the Natal formula it gave a literacy test to new migrants. This appeared on the surface to be neutral but as Peter Hartcher explains it was anything but:

Ostensibly a neutral rule that tested only for linguistic skill, it didn’t actually mention the Chinese or any other race. Instead, it defined a “prohibited immigrant” as “any person who when asked to do so by an officer fails to write out at dictation and sign in the presence of an officer a passage of fifty words in length in an [a] European language directed by the officer”. After Japan objected, even the reference to “European language” was later changed to any “prescribed language”. The law on the face of it was racially neutral. It was not the statute but its application that guaranteed a White Australia. British applicants were not tested at all. A Chinese applicant, even if he spoke English would be tested in Gaelic or some other impossibly obscure tongue.




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