Description 

There’s an odd saying that can cause some confusion when you start to think about it a bit. You might have encountered someone saying something along the lines of: “Well, that is just the exception that proves the rule”. What is usually meant with this phrase is that just because someone or something gives an exception to an existing rule, that does not mean this rule is therefore faulty. Instead, the exception only proves the rule is there and works. It is quite odd a rule would need an exception in order to function properly, is it not? But, more importantly, is this what the saying actually implies?

If it implies a rule needs an exception in order to be proven, we can come to some strange conclusions. Take, for instance, the following example: If we say that there exists a rule that states that every swan is white, and, someone has found a black swan somewhere in the corner of a pond, which then would be the exception to the rule, then this black swan would therefore prove the rule is that all swans are black.

There are, however, a couple of interpretations of this saying that would, in fact, allow such a strange saying to be correct. Henry Watson Fowler famously gave a few interpretations of this phrase in his “Dictionary of Modern English Usage”. One interpretation is that of proving the existence of the rule. This meaning shows that the exception’s existence proves that there must be a rule to which the exception applies. Apart from that, there is also proving the validity of a rule of thumb for the meaning of a phrase. This means that the exception highlights or confirms a rule because the exception is so rare and unusual, it shows how almost obvious the rule was to begin with. Thus, the rule has been proven by the rarity of the exception that occurred, which then reminds us that in normal circumstances, the rule prevails. This is also closely related to how David Hume explained exceptions to rules.

Hume proposed in his “An Enquiry concerning Human Understanding” that, as a general rule, all our ideas are derived from impressions. However, these impressions are always inferior to perceptions. But he also proposed an exception to this rule. If we place a series of shades of blue so that we have a range of subtle gradations, if we remove a shade he has not seen, would they be able to imagine this shade? According to Hume, he would. The conclusion is that this incident does not disprove his theory because the instance is so singular that it is scarcely worth observing. The rule, therefore, is not an absolute rule without exceptions. It is merely a general pattern in most cases, but not all. Exceptions are allowed to be there. However, one may wonder how many exceptions a rule can allow for it to still be considered a rule.

Both Hume and Fowler explain that rules are allowed to have exceptions as long as they are rare. It is because these exceptions are so rare that it actually strengthen the rule to begin with. One might wonder as to how many exceptions a rule can allow before it does not make sense anymore to even call it a rule.

A possible solution to this can be found in an analogy made by G.K. Chesterton. He also believes that the exception does not disprove the rule and viewed the rule as a sort of wall. The gates in the wall can be called exceptions. A city with all gates cannot be, and similarly, a house without windows is also strange.  So, too, a law cannot consist of a lot of liberties or too few. This analogy can help imagining just how many exceptions could be permitted for the rule to work properly. Not too many, not too few.

Before we dive into the application part of this chapter, it might be good to wonder why it matters whether we call something a rule or not and why it is good to know whether rules can have exceptions. Let’s start by making a clear distinction between rules and laws. They both share the aim of creating a sense of order, equality and safety. They differ in the way they are created, to whom they apply and the seriousness of its consequences. Whereas rules are usually made on a much more local level, say a teacher having a rule in place that prohibits phones during class, laws are specifically made and enforced by a government and can apply to all its citizens. Just like rules, laws can also have exceptions. For example, it is illegal to drive through red traffic lights. However, cops and ambulances are permitted to do so anyway if they need to. In this way, there is a general law that prohibits drivers from driving through red lights, and there is another law that gives an exception to the general law. Laws themselves can thus be exceptions as well. And sometimes those exceptions can have their own exceptions. In essence, exceptions to rules, or laws, can help create a system which allows for flexibility and adaptability. A rule or law in itself can provide a structure and guidance, but might be too restrictive if it does not take into account some unique situations or circumstances. The rest of this chapter will focus on a law posing as as an exception to a different law and is placed within the context of the saying: the exception that proves the rule.

Application of the Tool to the Kinderpardon

Introduction

For a while in 2011, Dutch newspaper headlines were occupied with the case of the Angolan Mauro. At the time, he was 18 years old and had been living in the Netherlands for quite some time. However, as an asylum seeker, he was still waiting to receive his residence permit so he could remain in the Netherlands and not be sent back. After this was denied, a huge media uproar was caused, leading to a lot of back and forth from the government as to whether he could remain or not. Eventually, in 2013, he received notice that an exception had been made in his case. This was because the then current government introduced the kinderpardon which enabled children who have resided in the Netherlands for a period of five years before their 18th birthday may be granted an exception to stay. One could argue that although the kinderpardon was a law, it was still considered to be an exception to a different law, this of course being the one that made Mauro have to go back to his country of origin. For a period of time, there was an exception to the rule in this matter. In 2019 it was announced that they would continue having this exception in place for just a short period of time longer, after which it would be discontinued. The law now thus lacks this specific exception. The question I will try to answer is whether or not this removal of the exception violates the saying of the rule that makes the exception. What follows is a brief explanation of the kinderpardon followed by an analysis of whether or not there is a violation of the exception that proves the rule.

The Kinderpardon

In the Netherlands, we used to have a policy that enabled children with immigrant status living in the Netherlands to receive a residence permit if they fulfilled the right conditions. These are, among others, that the permit seeker is younger than 19 years old, has resided in the Netherlands for over five years, and has not been out of sight of the IND for a period of more than three months. If these conditions were met, not only the child but also his or her family was able to be granted a residence permit. This policy, however, was retracted in 2019 after much political debate as to whether this kind of policy was desirable because the then-current government wanted to be more strict on immigration and wanted to make sure the process of such permit requests would be quickened so as not to have children become rooted in the country anymore. As a result, the government did grant 600 to 700 cases to be reviewed once more in order to see whether they might be granted a residence permit after all. After that, children who have stayed in the Netherlands for over five years do not have a way to appeal their case anymore.

However, it also used to be the case that the secretary of state of Justice & Security, formerly Mark Harbers, had discretionary authority to grant residence permits to special cases in which the individual would otherwise be inhumanely affected by the ruling. This discretionary authority was then moved to the head of the IND. It is thus still possible for special cases to receive an exception to that rule, which would have otherwise denied them a residence permit. These exceptions can be made for circumstances such as gender-related aspects, traumatic events that occurred in the Netherlands, or if there are serious medical problems with them or their family members. The ruling occurs on a case-to-case basis, and it should be mentioned that these exceptions are not easily made by the head of the IND and are commonly viewed as being arbitrary because the cases he does rule on are not based on strict criteria like it was formally the case with the kinderpardon.

Interaction between Tool and Application

The way in which this law interacts with the tool, that being the exception that proves the rule, can be explained as follows. The kinderpardon acted as an exception to the rule which orders immigrants or children without resident permits to move back to their country of origin. As stated, this exception was later removed and changed to a discretionary ruling which was a much more arbitrary and difficult to appeal to exception. This thus leaves us with the following question: is the removal of the kinderpardon a problem for the law it was an exception of if we follow Hume’s and Fowler’s reading of the saying: the exception that proves the rule?

As stated, Hume and Fowler allow exceptions to rules for as long as they are a rarity. When that is the case, the exception more or less proves or highlights the rule which would otherwise have been rather obvious. Exceptions more or less remind us that under normal circumstances, the rule prevails, as stated by Fowler. If we follow this reading, the rule under which migrants have to return to their country of origin is the prevailing rule whereas the kinderpardon would serve as an exception to that ruling. Under normal circumstances they would have to be sent back, but if they meet certain conditions they can stay anyway because of the kinderpardon. In practice, it meant that about 1540 migrant children were able to stay in 2013 because of the kinderpardon. When that was changed in 2019 to the discretionary authority of the head of the IND, there have been only 10 cases in which they were able to appeal to this ruling. Though one might argue whether or not the cases with the kinderpardon were a rarity, it really seems to be the case with the discretionary authority. Following Hume’s and Fowler’s reading of the saying ‘the exception that proves the rule’, then we would probably have to argue that through the discretionary authority the rarity of the rule has been shown because it occurs on only rare occasions as opposed to the kinderpardon where there were much more exceptions made. Therefore, it is fine that the exception to the rule has been limited, as it should be a rare occurrence.

However, one might argue that we could have a different outcome when we look at the analogy of G.K. Chesterton. If we view a rule like a wall, we might argue that one gate, or exception, was closed and got replaced with a much smaller one. And while this does not necessarily mean that the rule is therefore flawed, considering the amount of people who want to make use of the exception to the rule you can imagine a big line in front of that new gate. All of them just waiting to get in and in fear of being sent back.

But, one might wonder, why does it matter whether the kinderpardon or the discretionary decision is seen as an exception? As we have seen, the fact that the exception to the rule becomes more restrictive more or less works in favour of the rule. The discretionary decision being so limiting in giving exceptions proves that it is a rarity that there is a deviation from the prevailing rule. One could write a thesis on when we should consider something to be rare and perhaps the analogy of G.K. Chesterton helps a little bit with visualizing exceptions, but that should not really be the point here. Perhaps it would help if we did not view exceptions from this point of view. Perhaps we should instead view the exceptions that could be made through something like a kinderpardon from a moral point of view. As there are many children currently waiting and hoping for an exception to be made in their case so that they can stay, is does not really matter what Hume or Fowler or any old philosopher has to say on the account of exceptions of rules, does it? Sometimes we should open more gates because the people outside are desperate to come in. I, at least, think we should.

Philosophical Exercises

1. Imagine a rule and try to come up with different exceptions to. At what point do you think the rule has become meaningless?
2. Reflect on some rules you live by every day. Do you have any exceptions to these rules? For example, I do not smoke as a rule. However, whenever I go to gatherings for a drink, I make an exception.

References

• Fowler, H. W. (2015). Fowler’s Dictionary of Modern English Usage. Oxford University Press, USA.
• Hume, D. (1748). An enquiry concerning human understanding. Courier Corporation.
• NPOkennis. (2019, 29 januari). Wat is het kinderpardon? NPOkennis.nl. Geraadpleegd op 19 januari 2024, van https://npokennis.nl/longread/7942/wat-is-het-kinderpardon
• NOS. (2023, 3 februari). Procedures IND voor asielkinderen nog steeds te lang. NOS.nl, Geraadpleegd op 19 januari 2024 https://nos.nl/nieuwsuur/artikel/2462288-procedures-ind-voor-asielkinderen-nog-steeds-te-lang
• Ministerie van Volksgezondheid, Welzijn en Sport. (2019, 1 mei). IND mag voortaan beoordelen of sprake is van schrijnende situatie, Huiselijkgeweld.nl, Geraadpleegd op 19 januari 2024,https://www.huiselijkgeweld.nl/actueel/nieuws/2019/05/01/ind-mag-voortaan-beoordelen-of-sprake-is-van-schrijnende-situatie#:~:text=De%20discretionaire%20bevoegdheid%20van%20de,is%20van%20een%20schrijnende%20situatie.