Bringing the mountain to Mohammed

The long way round will work if the short way doesn’t

The phrase in the title was coined, not by a Muslim but by a Christian, Francis Bacon, who lived between 1561 and 1626. Bacon is regarded as one of England’s greatest lawyers, thinkers and writers. The saying has really got nothing at all to do with Mohammed. Here it is in full: if the mountain won’t come to Mohammed, then Mohammed must go to the mountain. It means if something one wishes to be done cannot be commanded to be done, one must find another way to achieve one’s goal.

Speed limits

If you read a recent post of mine about speed limits, you can see that bringing the mountain to Mohammed is nonetheless a regular occurrence. The expedient of painting white lines to protect an unmarked crossing near to where I live was rejected in favour of reducing the speed limit on the major road. So the dangerous crossing remains, but its danger is reduced by slowing down the traffic. That’s if they slow down: traffic exceeds speed limits more often than it fails to stop at stop signs. But reducing the speed limit falls within a general nationwide Belgian policy of reducing speed limits passim. I would argue that painting a white line is Mohammed going to the mountain. Reducing the speed limit is the mountain going to Mohammed.

Guns

The point I was trying to illustrate in that post was that banning guns is like trying to take a mountain to Mohammed. Some people say it’s like trying to ban cars because cars cause deaths. But with regard to the danger posed by a car—which is an ordinarily harmless but potentially harmful object—such that it could cause injury, that danger is covered by insurance. So, why not institute insurance for gun owners to cover the potential harm that their guns—which are ordinarily harmless but potentially harmful objects—might cause if discharged inappropriately?

Discrimination

Let’s suppose there are two countries, country A and country B. Both A and B have laws controlling gun ownership. They both have laws against inappropriate discharge of firearms and laws against murder and personal injury. Country B, however, starts a campaign of oppression against a group of its nationals known as the C group: the B government uses its guns to kill members of the C group.

Members of the general public in country A observe these acts and say to themselves, “If we, citizens of country A, were to carry out acts similar to those being carried out by country B against its C citizens, we would be breaking the law of our own country, country A. So, as a result, we are moved to oppose country B’s acts against its C citizens. We shall protest against country B.”

And, off they go to protest. But the government of country A tells its own citizens that protesting against the acts of country B constitutes an act of discrimination, which is prohibited under the laws of country A (similar, lest the parallel not be patently apparent, to Suella Braverman opposing pro-Palestine marches in London).

A’s citizens are confused: “If we protest against acts in another country that would be contrary to the law of our own country, we are engaging in discrimination?” “Yes,” says A’s government, and orders its police to arrest the protestors. So, why is it against the law of country A to protest against acts by country B that would fall foul of the laws of country A if they were carried out there?

One of the main functions of nationality is defence: the line drawn across the map differentiates between them and us, and that makes them different from us, and discriminating between them and us is in fact one of the core functions of nationality.

Nationality allows you to treat two identical people in identical situations with identical abilities and identical education and identical incomes … differently. It is one classic characteristic that can be legitimately used as a ground for discrimination. It is used to refuse entry into a country, to require people to leave a country after a certain time, to restrict whether they can work and what work they can do, where they can live, how they are schooled, or what sights they may visit as tourists, etc. Not all discrimination, therefore, is unlawful.

Unlawful discrimination involves aspects such as disability, race and skin colour, sexual orientation, or union membership. The laws against discrimination apply only in certain areas, like employment, housing, public administration, education and the like. But, if I don’t like white South Africans and I run a bar, I can lawfully exclude white South Africans from my bar, based upon the privity of contract: I can lawfully contract (to sell drinks) or not contract with whomever I want to or don’t want to.

So, why is it that protests in country A can be deemed discrimination against country B, if nationality is a lawful ground for discrimination?

Antisemitism

This is something that the state of Israel itself elides over, leaving critics and supporters alike in a grey zone: for instance, there is no such thing as an Israeli passport. Israel’s passports describe the holders as Jews, not as Israelis. Now, for a French or British Jew, that is obviously a nonsense. However, Brits and Frenchmen can apply for Israeli citizenship, and the hurdles are low, or so I understand. That means that Jews born outside Israel can apply to Israel to become ... Jews.

If I’m to take this absurdity at face value, there is no comparison to the Israeli situation anywhere else in the world: if you criticise a Scot, you criticise a Scot, and not Scotland, regardless of where the Scot is or lives or what new nationalities he has acquired. But even if you imply, by criticising this Scot, that all Scots are mean, or all Scots eat only mince and tatties, or all Scots get married in Gretna Green, and thereby express your anti-Scotticism, that is something you are free to do. It isn’t nice (because, I can assure you, Scots are wonderful people), but I can’t stop you having an irrational hatred of the greatest nation in the world.

But, if you criticise Israel, whose entire passport-holding population are Jews, you are deemed to be criticising all Jews worldwide. And, if you criticise a Jew, regardless of whether they live in America or France or on the moon, you are deemed to criticise Israel, because Israelis are Jews and, if you do that, you are ripe for condemnation as an antisemite, because the citizens of Israel are Jews, and Judaism is not just a nationality, it is also a religion. You will be called antisemitic.

So, what is an antisemite? Its definition is one thing in terms of the concept of religious discrimination, another in terms of the concept of national discrimination, and yet another in terms of the law of the place where you are situated; and it is yet something else in the putative tertiary victim’s (Israel’s) opinion. That is the nub of the grey zone. That’s what Israel argues: if you criticise a Jew in Australia, you are engaging in an act as an enemy of the Israeli state, which will seek vengeance against you, regardless of what the attacked person does; even if they are attacked for supporting Israel in its commission of acts that qualify as a criminal offence under the law of where the Jew is located.

Philadelphia

In the 1993 movie Philadelphia, actor Tom Hanks plays Andy Beckett, a young lawyer who is infected with acquired immuno-deficiency syndrome (AIDS). The virus that causes AIDS (which is a syndrome, and not a disease) is human immuno-deficiency virus (there are several—HIV). Nowadays, in wealthy western countries, AIDS is thankfully rare: the means to combat HIV have developed such that we are now able to control it, although not to cure it. We use the helpful abbreviation of U=U, meaning undetectable means untransmissible, which allows us to have an active, sexually fulfilling life without posing a danger to our fellow man or woman. But, in 1993, things were different. Contracting AIDS was as good as a death sentence (although you may be interested by the book Roger’s Recovery by Dr Bob Owen (how one man defeated the dread disease)).

In the film, Andy Beckett works for a top flight law firm, but gets fired, he says, as a result of a machination that stitches him up as a bad lawyer to cover up discrimination against his gay lifestyle and the fact he contracted AIDS. He raises a court action seeking damages for wrongful dismissal. He wins (the film mirrors the facts of a real case).

During the course of his search for counsel to represent him (which proves to be far from easy), he has a discussion in a research library with Joe Miller, the lawyer who will ultimately plead his case (played by actor Denzel Washington). Beckett shows Miller a text that could be a real legal text or simply made up for the purposes of the film—I’m not sure which, and it doesn’t matter which, because it resounds in the ears as being good sense and, if it is law, good law:

The Federal Vocational Rehabilitation Act of 1973 prohibits discrimination against otherwise qualified handicapped persons who are able to perform the duties required by their employment. Although the ruling did not address the specific issue of HIV/AIDS discrimination, subsequent decisions have held that AIDS is protected as a handicap under law not only because of the physical limitations it imposes but because the prejudice surrounding AIDS exacts a social death which precedes the actual physical one. This is the essence of discrimination: formulating opinions about others not based on their individual merits but rather on their membership in a group with assumed characteristics.

Here’s a clip of the scene, spliced at the relevant moment.

There will be some among you, I’m sure, who feel a chill in the spine when they read and hear these inspiring words. There may be others among you whom they leave cold. Perhaps because formulating opinions based on membership in a group with assumed characteristics is the essence, not only of discrimination but also of epidemiology, of detective work generally. And, given that diametric opposite, the question arises, what is then so wrong with discrimination?

What’s wrong with discrimination?

The division of discrimination into that which is unlawful and that which is lawful is the product of our pursuit of social policy. Clearly a paraplegic could not function efficiently as a frontline soldier in a war. For that, we need our fittest, youngest, most agile, most belligerent men with bulging muscles and a good dose of derring-do. (The fact the war may reduce these Greek gods to paraplegics is … a tragic consequence of inevitable warfare …) So discrimination between the disabled and the able-bodied is lawful in some regards. The text above makes it clear: discrimination against otherwise qualified handicapped persons who are able to perform the duties required by their employment is unlawful. And equally unlawful is discrimination based on religion.

Put into simple terms, racial discrimination is where one race discriminates against another race. The actress Whoopi Goldberg, who is a presenter on an American TV show called The View, was at one time reprimanded for implying that Judaism is not a race (she apologised and was later reinstated after a period of suspension). But, for discrimination purposes (in terms of employment, at least), there’s not much difference between racial and religious discrimination: they have the same consequences: non-employment, and a valid cause of action against the non-employer. And that is precisely a conclusion that Israel seeks to uphold in the minds of the general public, because it seeks to make discrimination against the Israeli nationality equivalent to discrimination against a person’s race or religion (or, in this case, both).

What Israel has done is conflate its predominant religion with its national identity. Well, Arthur Balfour did it, actually, by wanting to create a homeland (i.e. a nationality) for the Jews (i.e. a religion, or, if you prefer, race). Race, sexual orientation, disability, philosophical outlook, biological sex, religion and so on: these are the classic prohibitions for discrimination. But you can discriminate on grounds of nationality: that’s not a problem. So, Israel makes its nationality a religion, and religion cannot be discriminated against. Ergo you’re a bigot if you criticise Israel, because criticising Israel is automatically to criticise its religion, and that is an act, not of national discrimination but of religious bigotry.

There is no other country in the world that is so protected against discrimination. Not even America’s famous exceptionalism, with its anti-flag-burning laws, gives it that kind of anti-discrimination protection.

So, why can’t the Scots have that protection as well? Well, because it sounds ludicrous and it appears ludicrous and, ultimately, it is ludicrous.