Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

The stars in the sky look down where He lay… Refugee law and the Nativity

Over Christmas, there was a fair amount of online chatter about what we could learn from the Nativity about refugee policy.  On the one hand, there were people who were adamant that the Nativity should inform our imaginations about refugee policy.  On the other hand, there were those who were adamant that the Nativity had nothing to do with refugee policy.  With all these experts and opinions, however could we ordinary humans possibly know whether the Nativity tells us something interesting about refugee policy?

Because this is my glorious blog, you know that my answer is going to be something along the lines of ‘Everybody else is wrong and only I, Mark, have the correct opinion.’  And you’d not be wrong.  As per usual, I think the problem is the quality of the question we are asking.

Let’s start somewhere else entirely.  Imagine you are walking along the street and you see a fox kill a rabbit.  In a moment of reflexion, you might think to yourself: ‘Aha!  This is the way of nature.  The strong prey upon the weak.’  In that moment, it doesn’t matter if you’re correct or not.  The scientific reality of ecosystems does not impress itself even slightly upon your musings.

I spend a lot of time thinking about how we develop legal intuitions.  The vast majority of us know (perhaps ‘know’) what crimes are even without read the Crimes Act.  We might not know specifically anything about the crimes, and our intuitions about criminal law might be really off, but we are fairly sure that we intuit the broad strokes.  Why?

A big factor is popular culture.  Take something as weird as A Game of Thrones.  Among the fantastic elements like dragons and ice zombies and shoulder pads, it has something that looks like law.  People get punished for things — not always perfectly and there are power imbalances in those punishments — but there’s sentencing, courts, prisons, even executions.  Although a lot of A Game of Thrones suggests a morality-based criminal code (‘You did something morally bad, therefore you will be punished for it’) there is a lot of procedural justice and code.  Ned Stark executes the deserter from the Night’s Watch, for example, not because of moral intuitions about desertion, but because there’s some code which criminalises this conduct.  Tyrion is accused of something or other and opts for a trial by combat; even if he is morally culpable, the trial means he cannot be punished for it.

And that brings us neatly to the Nativity.  Here is a scene that is entirely fictional.  Even if you believe that there was an individual who more-or-less fits the description of the Gospels, the presentation of the Nativity — a family of Caucasians, healthy and extremely Catholic — is fictionalised to suit particular ideological (and, cough, racist) tastes.  What makes the Nativity important is not its accuracy but its meaning and how it shapes people’s understanding of their world.

For example, we can (and should) discuss whether the Nativity erases the Middle East from its narrative, presenting the Holy Family in a mythical variant of Bethlehem which had a postcode in common with Avalon and Narnia.  When they flee to Egypt, it’s not Egypt Egypt, but some fantasy Egypt that excites Orientalist fantasy.

And, in exactly the same way that we can engage in that discussion, we can engage in a discussion about what lessons the Nativity might teach us about all kinds of things related to our political, economic, and legal world.  Here was a family in need, moved around due to administrative necessity, but forced (according to St Luke) to stay in a stable.  It is obvious why this image excites the imagination, especially with regard to the treatment of those in need.

What is not helpful here is to explain the technicality of refugee law.  Who cares?  Just as we do not explain the technicalities of just war theory when people have intuitions about A Game of Thrones, it doesn’t matter whether the Holy Family would need to qualify for refugee status in order to entertain the folk exegesis of the Nativity.

The people who really wanted to get law nerdy about the technicalities seemed to be those people who were standing on the side of treating the destitute like shit.  It was as if the Nativity was the one weakness in their terrible scheme: if the Nativity really did say that we needed to be kinder to asylum seekers, maybe our processing framework is legally wrong?

Which is, of course, a category error.  Neither the lawfulness nor the prudence of a government policy in 2017 is grounded on the facts surrounding a mythological event.  It’d be like arguing with your doctor over your recommended treatment because of your interpretation of the myth of Asclepius (‘I demand that the surgeon bring a snake into the theatre!’).

What became weird in the discussion was the pivot from the Nativity to the flight into Egypt.  Both ‘sides’ of this nonsense debate had voices stating that the Nativity wasn’t the ‘right’ vehicle for discussing refugees (even though, as shown above, it is), and that we should instead discuss the flight of the Holy Family into Egypt to escape Herod.  Thus began many tortured threads about how to apply the Refugees Convention to the scenario presented in Matthew.  One particularly weird discussion was about the requirement for a person to be ‘outside the country of his nationality’, and was Egypt outside the country of Jesus’ nationality, and what even was the status of Egypt at the time in relation to Israel, and so on and so on and so kill me oh god it wouldn’t stop.

It’s nothing short of weird to attempt to apply to the whole of human history a Convention that was written for a particular time in human history.  Worse, it is bizarre to think that the Refugees Convention should be the totality of our thinking about what our policies should be with regard to asylum seekers.  Australia, for example, provides protection to people who do not meet the definition of a refugee (complementary protection).  The Convention should not limit our capacity to help those in need.  So when we’re talking about the flight to Egypt, who cares what the Convention says?  Nobody was asked to do a status determination on the Holy Family.  Whichever way you answer the question about whether the Holy Family met the threshold required for the Refugees Convention, you don’t tell us anything meaningful about how people use the infancy of Jesus to think about those who are in need of our aid.

In these instances, they were legal questions of a kind with ‘Did Dumbledore commit war crimes when he failed to prevent children from fighting in a civil war?’

The point of having a law degree is not to bog down society with trivial nerdery or pedantry about the technicalities of law.  We speak the language of power and we should use that language to help society to have better, more constructive debates.  Here, the lawyers would have been better silent, as the debate about the meaning of the Nativity did not require legal precision of any kind.

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