Schwerpunkt  Die Beschneidungs-Debatte

The Cologne Circumcision Judgment: A Blow Against Liberal Legal Pluralism

By REUT YAEL PAZ

In his preface to Frantz Fanon’s The Wretched of the Earth, Jean Paul Sartre writes that violence against the colonized ‘seeks to dehumanize them. Everything will be done to wipe out their traditions, to substitute our language for theirs and to destroy their culture…’. Power and violence however depend on the legal language to appear rational, legitimate and systematic. The law in its turn relies on power in order to relate itself to competing normative orders that either strengthen and/or coexist with other social norms, moral convictions and religious belief system. Keeping this in mind, the recent court judgment by the Landgericht Cologne is problematic, to say the least. Arguably, the court – by employing the monopoly of state power – assists in canceling out normative orders beyond state law, namely Jewish and Muslim religious laws and traditions. Thus, the ruling can be read to suggest that the German legal order suppresses the rituals of its religious (and circumcised) minorities. Given that circumcision has perpetually been at the center of European anti-Semitic sentiments, the heated debates over the Cologne court ruling proves that the future of circumcision is not only closely linked to its past, it also demands from us to examine the extent to which western liberal legal pluralism can keep its promise in the future.

Legal pluralism encompasses, above all, a reconciliation of conflicting normative orders that is often obscured by the asymmetric distinction between the public (objective) and the private (emotional, subjective) spheres. Conceptually as well as practically, the public/private distinction is almost impossible to maintain: not only do the ‘public’ and ‘private’ constantly collapse into each other, they mean very little each on its own. The Cologne court decision formalized its preference: circumcision is no longer one’s private choice, but rather a matter of public and hence legal interference. The problem however remains that it is unclear what and/or who is the public that the court has in mind: Is it an irreligious and multi-ethnic society? Or is it a pseudo-secular society based on Christian images that the court relies on? Or better yet, does this judgment reflect remnants of the European colonial/civilizing project in its full glory because it is linked to racial discrimination and a strong Christian (strike out the Judeo-) religious bias?

Lest we be mistaken, circumcision is a serious matter. Clearly, foreskins are sociological facts that pose a challenge beyond religious practices per se. This is why it is at the center of contemporary anthropological, sociological and psychological debates all over the world. While according to Freud circumcision symbolizes castration that prompted much anti-Semitism, according to Claude Lévi-Strauss it is a rite that goes beyond social ‘structures’ and ‘behaviors’ and touches the heart of collective ‘thought’ processes that determine people’s realities. Being pro or contra circumcision mirrors a particular context’s reality, its social power and control. This is exactly why the future of foreskins should be discussed openly both as a matter of individual moral sentiments as well as a more general question of conflicting normative orders.

 Israeli Supreme Court vs. the Brith Milah (male circumcision)?

In this respect, it is most interesting to examine how the Israeli legal system dealt with similar questions when facing a very similar case in the late 1990’s.

In 1998 Ben Shalem, an Israeli Non-profit Organization Against Cutting Infant Genitals, petitioned the Israeli Supreme Court to issue conditional orders against several ministries with similar argumentation to that which the court in Cologne voiced. The appeal was first answered in 1998 by the Israeli Attorney’s Office. Based on this answer, the Israeli Supreme Court delivered its two-sentence rejection of issuing conditional orders on May 30, 1999.

The Attorney’s Office reply begins by placing significant emphasis on the importance of circumcision as a religious tradition/ceremony. It goes on to explain that according to Jewish sources, the circumcised penis symbolizes the brith (bond) between God and Abraham’s decedents. It explains furthermore that circumcising eight-day-old boys is a mitzvah (commandment) that is higher in importance than the entire commandments of the Torah put together and that the act itself represents the completion of the human body by human deeds. Here the Attorney’s Office quotes rabbi Aaron Levi from his Book on Education ‘the completion is hand made and is not complete in birth. The hint being, that physical and spiritual completion follows only by human actions’ (author’s translation).

The core of the Attorney’s Office answer to the accusations made by the plaintiff lies in the argument that the act of circumcision cannot possibly constitute a medical malpractice because the brith does not constitute a medical procedure to begin with, according to the laws regulating a medical procedure defined in Article 1 of Israel’s Medical Directives (1976). The brith is part and parcel of the Jewish Law and is therefore a religious/traditional ‘ceremony’ only. Either way, it falls short of requiring medical ‘healing’, ‘examination’ and/or ‘diagnosis’ and is not perceived according to medical categories that are legally specified. ‘This also reflects the common understanding of the brith in the Israeli society’, and indeed, for centuries circumcision has been carried out by a Mohel (a Jewish person trained in the practice of brith) and not a medical doctor.

Here we reach the limits of formal state law and it becomes apparent that the law heavily depends on its social context and its coexistence with other normative systems. The reply by the Attorney’s Office response spells this out explicitly: ‘the general sense of the law and those responsible for its enforcement, are to serve the society. The interpretation of the law and its enactment is carried out in light of social and national conceptions and in light of principles accepted by the collective of people subjugated to a concrete legal institution. The interpretation and application of legal acts is not a technical or formal deed. It is done always with reverence of both good and bad social attitudes. Terms like ‘physical completion’, ‘serious injury’ and ‘parental/adult responsibility for a minor’ are not ambiguous terms disconnected from their social context. This is particularly true for criminal responsibilities. Prohibitory norms reflect the social values of people at a given time (author’s translation).’

In contrast, the Cologne court ruling recognized that both the appellant and the defendant are of the Muslim faith – which means that these people belong to a particular socio-religious context – and yet continued to argue that because the change caused by circumcision will be irreversible which ‘conflicts with the child’s interest of later being able to make his own decision on his religious affiliation’, it should be criminalized as a medical procedure. Whereas it remains arguable whether a religious upbringing, whether it commands circumcision or not, can be reversible, without much deliberation, the court ruling necessarily assumes that the public preference is, or at the very least ought to be, the physical completion of infants. In other words, although this situation is a classic example of the need to resolve conflicts between normative orders that need to coexist in the same social field (i.e. the German Basic Law and Civil/Criminal Codes, the Jewish Law, Muslim Sharia Law and/or specific legal traditions) the court – without the necessary reflections in the court but also beyond – exclusively based its reasoning the German legal system, a system which in this case also coincides with the Christian understanding of the physical body.

Much ado about foreskins?

Much has been written and said about the judgment from Cologne. Perhaps expectedly, the private/emotional/political arguments supersede the rational/public and even legal ones. We reached a new unprecedented peak when an American Rabbi wrote a poem about the issue! On July 12, 2012, a debate entitled Individuelle Religionsfreiheit nach dem Beschneidungsurteil took place at the Humboldt University, Berlin. The auditorium was packed with people – many sat on the floor – and stayed for over two hours. Although I was taken by the German Green/leftist voice represented by Renate Künast who confronted the issue with much sensitivity but also assertiveness, the audiences’ reactions were of more interest. The panel but also the discussion would have gained much force had it included more Muslim voices. Many of the predominantly Jewish audience expressed their discontent: the need to discuss their circumcision rituals with non-Jews irritated them. Others resorted to superficial parallels with the Holocaust, while a few defensively argued that circumcision is also legitimate on medical grounds and continued by adding that if it is done medically it does not necessarily traumatize the infants. One man has even suggested that given the numbers of Jewish Nobel Prize winners, it might even be wise for others to circumcise their children! It might have been the same person who also reminded the audience that the Church on the Christian New Year traditionally also celebrates the Feast of The Circumcision of Christ (A feast highly treasured by Martin Luther; in Catholicism, it has formally been abolished in 1969, but is now again celebrated in the Extraordinary Form of the Roman-Catholic Rite). However passionate, these defensive arguments remain rather irrelevant and even counter productive. While citizens in pluralist societies should remain open to discuss their respective religious practices without feeling threatened by the state, the debate would have gained much had it at least acknowledged that the conflict is about normative pluralism instead of getting lost in universalizing individual moral judgments and preconceptions.

The importance of how the law works under conditions of normative pluralism, has not been properly discussed so far. After all it is not even the private – emotional, passionate and intuitive – voices arguing in favor of personal religious autonomy that managed to win over the public and/or legal debates. Instead it is the German-Jewish history that got the upper hand. Even Angela Merkel is quoted by the Bild daily to have said that she does not ‘want Germany to be the only country in the world where Jews cannot practice their rituals. Otherwise we will become a laughing stock’. Without mentioning the need for legal pluralism, let alone mentioning the approximately four million Muslims living in Germany today, the only legitimate reason for Germany to put a lid on this essential issue goes back to the horrific German Jewish history! And indeed, last Thursday, the Bundestag confirmed that a new law would be introduced to clear up the legal standing for religious circumcision during the autumn. Although this decision is clearly welcome, its legitimation is dubious and should trouble everyone equally.

Reut Yael Paz is a Alexander von Humboldt Stiftung/Foundation post‐doctorate fellow at the Law Faculty of Humboldt University of Berlin, Germany, and affiliated research fellow at the Erik Castrén Institute of International Law and Human Rights at University of Helsinki, Finland.







Reut Yael Paz
Reut Yael Paz
Reut Yael Paz is a Alexander von Humboldt Stiftung/Foundation post‐doctorate fellow at the Law Faculty of Humboldt University of Berlin, Germany, and affiliated research fellow at the Erik Castrén Institute of International Law and Human Rights at University of Helsinki, Finland.

16 Gedanken zu “The Cologne Circumcision Judgment: A Blow Against Liberal Legal Pluralism

  1. Bullshit. Forcing your own beliefs onto your children and making irreversible decisions in their name has nothing to do with “pluralism”. Everyone has the right to practice his religion but nobody has the right to make someone else – even his own children – the object of his religious practices. Shouldn’t be so hard to understand.

  2. If not being allowed to force your beliefs on your children was an accepted truism that governs this society as an irreligious space, shouldn’t then the court also forbid Christian upbringing? or at least forbid Baptizing until the age of 18? Arguably, the impositions of Christian belief-system could also be seen to have (mental)injurious effects on children.. And upholding physical completeness in contrast to mental health is a very problematic aspect of liberal societies ! In any case, if we go for a completely religious-free society it should apply to all! And I honestly love any comment that starts with ‘Bullshit’..

  3. Actually, I am in favour of not publishing any comment from people that have not learned to behave themselves and to express themselves in a civilized manner. This is not the “Spiegel” comment section, but a place to exchange opinions in a disciplined way, academic or not. So if you disagree with the author, use arguments and not your guts.

  4. @Reut Yael Paz:

    Educating your children in your ways is not the same thing as an irreversible modification of the body. And even as I think that it is wrong to baptize children, the same goes for pure symbolic acts that have no real consequences. For those who give something about it, there are even groups who practice de-baptizing. Such things are not irreversible. Circumcision is.

  5. “circumcision is no longer one’s private choice”

    It wasn’t *before* the Cologne judgement, but *after* it would be, and it should remain so.

  6. The problem here is that the author of this article sees children as the “property” of their parents and defends the parents rights to do with this “property” whatever they like.

    The “Grundgesetz” however, sees children as citizens and their parents as their legal guardians who have the right to make certain decisions in the name of their children *as long as* these decisions serve the well-being of the children.

  7. @Stormking
    >>The problem here is that the author of this article sees children as the “property” of their parents and defends the parents rights to do with this “property” whatever they like.

    I wonder whether you have actually read and understood what Reut Yael Paz has written…

    If I understand correctly, it is part of (an interpretation of) the Jewish religion that a male child shall be circumcised within seven days after his birth. If we are to respect this normative system, it is no use to allow circumcision only after one’s 18th birthday: it simply would be too late, and the boy concerned would never be able to comply with the requirements of his faith. This adds up to effectively prohibiting him the practice of a certain religion – which means a restriction on the religious freedom of just the boy which the prohibition is supposed to protect. So there surely is a conflict between fundamental rights (religious freedom and physical integrity) which cannot easily be swept aside. (In the case of female genital mutilation, it is easy to decide that conflict in favour of physical interity. But contrarily to FGM, male circumcision normally doesn’t produce lasting physical pain.)

    And once we accept circumcision as part of a religious education, it is of course not helpful to suggest that baptising can be “reverted” whereas circumcision can’t. The arguably traumatising consequences of a Christian education won’t just disappear because of a “debaptising” ceremony, nor does a circumcision restrain you from giving up your faith and becoming a (circumcised) atheist. The point is that any kind of religious education (including an atheistic one) is connected with the imposition of potentially traumatising belief-systems by the parents… but as long as we don’t know which is the “true” religion, I don’t see how the State could prohibit that.

  8. @ Manuel Müller: Atheism isnt a religion.

    And by the way: It surely is possible to become a jew after your 18th birthday. There are also jews which have never been “circumcised”.
    Why don´t let the individual person decide? Do you have such a weak faith in religion?

    My last point: There is a lot of inhuman and illiberal stuff in so called “holy” texts, which once was considered a “requirement of faith”. Nowadays it isnt anymore, for good reasons. Even religious people can learn. This discussion about “circumcision” is just another step in the process of adapting religion to the requirements of a democratic and liberal society which, accoording to its fundamental norms, should be centered on the dignity, freedom and “mündigkeit” of individuals.

  9. His post Reut Yael Paz
    contains is an instance of a severely fallacious Argument.

    The fist paragraph is an instance of the Guilt by Association fallacy. This fallacy is obvious so not explained.

    http://www.fallacyfiles.org/guiltbya.html

    The second paragraph is centered about the notion “circumcision is no longer one’s private choice, but rather a matter of public and hence legal interference.”
    Which has built in a fallacy of equivocation. By its formulation it suggest, that you are not free to decide for your self if you get circumcised. However this is wrong! You are not free do decide for an other person, even if it happens to be your child. You may not Marry your child, you man not mutilate it, you may not sell it, …

    After the third paragraph the Argument wanders of, to somewhere else …

  10. Pingback: Circumcision (2) | Martin Holterman

  11. Although I strongly believe in the future of the foreskin and I am not amused by the efforts of the German politicians to legalise religious circumcision, I think that this article is a very good contribution to the discussion. It is interesting to learn about the viewpoint of the Israeli supreme court and, yes, I think Angela Merkel was just embarassing when she failed to mention the 4 million Muslims in Germany.

    But after all, we have neither Jewish nor Christian nor Muslim law in Germany. The law is independent of religion. What we do have is a conflict between two basic rights: freedom of religion and physical integrity. Now you say that “physical integrity” is just a Christian thing while the Jewish equivalent is “physical integrity except the foreskin”. Does this mean that in Israel, there would be lighter punishment when I circumcise an adult against his will, compared to cutting of, say, part of his ear? Do not get me wrong: I am asking this as a serious question.

    About circumcision on an infant: we simply do not know the child’s view on physical integrity and so it is entirely logical that we are not allowed to perform the circumcision on him. For comparison: in the same way, Jehovah’s Witnesses in Germany do not have the right to deny a vital blood transfusion treatment on their children, although blood transfusion is against their religion.

  12. @hamburger:
    It is true – Atheism is not a religion; but in relation to Art 4 GG (base law in Germany; constitution of Germany) it is treated exactly the same way as religions are with respect to human rights.

    @topic:
    As for the whole discussion on different levels – that is in the light of law, philosophy and religion, society, even politics – I have read a lot of different articles and opinions in many different media – especially on FAZ.net and Spiegel Online (btw.: it is true: the forum of SPON is a bottomless pit spilling over with idiocy) -, and I had a lot of trouble making up my personal opinion for quite some time.

    Reason: The arguments in favor of the circumcision and the ones against it are strong and next to equally valid.

    That is why I checked on the “normative understanding” of the conflicting civil rights in the German base-law on this matter – on the one side the freedom to execute the religious beliefs of the parents’ and their right to educate their children, on the other side the different rights of the infant, which are freedom to execute ones beliefs, freedom to develop ones own personality, the right to live unharmed and the humans’ dignity.

    Now, the first thing I realized, was that the freedom or right to educate the own children is consumed or superseded by the freedom to express ones beliefs. So the position of the parents’ is basically only Art. 4 GG, which treats religious education as part of the expression of religious beliefs.
    On the side of the infant I came to the conclusion that circumcision won’t interfere with the child’s freedom to express its own religious beliefs, because at the age of 14 it is free to change its own religion, and the circumcision won’t forbid it; also the freedom to develop his own personality, as it is part of Art. 2 GG, is not really nullified by the circumcision as well. I concluded this especially because of the mere fact that infants and very young children simply are not able to create and express their own individual will and wishing, and they especially rely heavily on what their parents educate them; over the span of years, especially when becoming a young youth the children start to “kind of disconnect” from their parents and create their own beliefs, understanding of the world and opinions – but not before that.

    Therefore the childrens’ rights getting into conflict with the parents’ religious rights are on the one hand the protection of the integrity of their bodies (also Art. 2 GG) and on the other hand their individual dignity (Art. 1 GG).

    So the legal conflict on the level of the base law is about Art. 4 GG of the parents’ against Artt. 2, 1 GG of their childrens’. Getting deeper into it the legal system has to answer these questions:

    1. Is the ritual of circumcision, which is part of different religions, especially of the Jews and the Muslims, a real necessity to practice the religion?
    2. This ritual interferes with the bodily integrity of the child without question, therefore Art. 2 is basically harmed no matter how you look at it; but this needs to be understood and clarified in the light of the humans’ dignity of Art. 1 GG; therefore the question would be: Does the choice of the parents’ to let a Mohel or medical doctor practice the circumcision on the infant’s genitals reduce the human being of the child to a mere object of religious beliefs?

    Considering the high value of the humans’ dignity in the German basic law, which was established as the most fundamental right in the system of the basic law as a response to what was done during the Third Reich, we actually get into an interesting, especially philosophical, but also legal question: Is the fundamental right of humans’ dignity supposed to be stronger with regard to any people and religious or none-religious beliefs? Or is it to be considered less important, if it may interfere with peoples’ self-conception? The very nature of the fundamental rights in the basic law in Germany is that they protect the individual against the state and that they are the legal value system for any other legal situation in the society and in the territory of Germany since the famous Lueth-judgement of the constitutional court of Germany; these fundamental-rights are not meant to protect artificial persons, unless the core understanding of a certain right may be used on artificial persons as well (Art. 19 GG).

    Besides this very fundamental question another one is this: The religious rites of minorities in certain parts of the world (especially Northern Africa) who “circumcise” girls and/ or young women as well basically follows the same concept as the circumcision of boys; so the question here would be why circumcision of women is supposed to be a criminal act in Germany (and many other parts of the world), while the circumcision of boys is to be extracted from the legal system and be valued as a tradition or religious act?
    Also one needs to keep in mind that when circumcision of boys based on religious beliefs is to be treated as a legal act, would parents be treated equally if they express their will to get their sons circumcised because of their ideological or philosophical understanding of the world or their conscience? This question might be odd; but these things like ideology, philosophical understandings and conscience are equally treated and protected in terms of the Art 4 of basic law in Germany; so religious belief and conscience and ideology are to be treated absolutely equally, with no privilege to one of those.
    In other words: If circumcision of Jewish or Muslim boys is meant to be treated as a legal act, because it is the expression of religious beliefs, then why would it be treated as a criminal act, if parents without Jewish or Muslim beliefs wish their son to be circumcised based on their conscience or understanding of the world?

    Bottomline:
    Looking at it from the legal point of view I hold it as stronger and more valid to protect the infant or young boy until he is capable of expressing his own beliefs or understanding and agrees into the performance of the given rite.
    Especially since one Jewish father of a son and doctor practicing in Germany explained on FAZ.net, why there is no essential need to perform the circumcision within the first eight days of a boy’s life, I am convinced that there is no dire and absolute need to perform this ritual within the first eight days or the first years of life.
    Source:
    http://www.faz.net/aktuell/politik/inland/beschneidungsdebatte-unsere-seltsame-tradition-11827726.html

    Sorry; English is not my native language; I hope I was able to express my opinion about this topic well enough …

  13. Pingback: Verfassungsblog › Nacktes Recht, abgeschriebene Tradition. Anmerkungen zu Reut Paz und den Herausforderungen des Rechtspluralismus

  14. Pingback: Verfassungsblog › Naked Law, Lost Traditions. A Comment on Reut Paz and Legal Pluralism

  15. “nor does a circumcision restrain you from giving up your faith and becoming a (circumcised) atheist.”

    On the BBC Knowledge channel is a programme “Paul Merton in India”. In it, he visits naked sadhus, one of whom shows his devotion to Shiva by rolling his foreskin around a bamboo staff, holding it behind him, and getting another sadhu to stand on on the staff (without letting go of the staff, I hasten to add).

    Infant circumcision would have restrained him from doing this, and thereby deprived him of his freedom of religion.

Hinterlasse eine Antwort

Deine E-Mail-Adresse wird nicht veröffentlicht. Erforderliche Felder sind markiert *

Du kannst folgende HTML-Tags benutzen: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>