On that circumcision decision

You probably heard the news of a German court declaring circumcision illegal. As a German religion blogger blogging in English I probably should comment on that. So first I’ll explain what happened and then I’ll offer some commentary.

The abstract legal question has been under discussion for a while. The new part is not that a circumcision counts as bodily injury. German courts have always helt that basically every medical treatment is a “bodily injury” under section 223 of the criminal code. There are however legal justifications that make the act of bodily injury legal. The most important one is consent, which is why doctors are still in business.

Now the question is if parents can consent to their children’s circumcision. The general rule is that they can consent to medical procedures if they are in the child’s best  interest. What exactly counts as the child’s best interest is not defined by statute and basically left to the courts. Most German legal scholars think circumcision is in the  best interest of a child growing up in a religious setting that demands it, because in that context it’s an important part of socialization. A minority think it isn’t, because an irreversible damage is more important.

In this specific case a doctor had circumcised a four year old Muslim boy. Two days later there was some bleeding from the circumcision wound and the parents delivered the boy to a hospital. This wasn’t malpractice, it’s just something that can happen.

The doctor was prosecuted for bodily injury. In the first instance (the Amtsgericht) he was acquitted because the parent’s consent was deemed sufficient. The prosecution appealed. This part probably seams strange to American readers, but it’s entirely normal in the German legal system. On appeal (to the Cologne Landgericht) the doctor was acquitted again. But this time the reasoning was different. The court acquitted only because, this being a controversial legal question, the doctor couldn’t know he was committing a crime even with due diligence.  Objectively though, the court says his action was criminal.

This specific case won’t go to any higher court. The doctor can’t appeal his own acquittal and the prosecution gave up after loosing in two instances.

Unlike common law systems, the German legal system doesn’t officially have binding precedents. So no new law has been created and any other court or theoretically even the same one could find different in different cases. But this specific court has made its opinion known and presumably would find child circumcision criminal in other appeals from its district.

I am ashamed for my country. Obviously a statute in need of interpretation should be interpreted in the light of the constitutional guarantee of religious liberty. And I think it’s pretty obvious that circumcision wins for every religion prescribing it.

But in this case it’s especially bad because of our national history with the Jews. A German court declaring it a crime to practice the Jewish religion is even more heinous than it “just” failing to get religious freedom. A week ago I would have thought this impossible and people in other countries are fully justified in downgrading their opinion of Germany.

Still, please keep your sense of proportion in the extent of how far you downgrade your opinion of Germany. Idiotic court rulings happen in all countries and the principles of this one will not stand.

I haven’t heard any reaction from the post-communists yet, but politicians of all other parties represented in parliament have denounced the ruling.  Jewish organizations are now asking for a clarifying statute and I think they are fairly likely to get it.

And even if there is no legislative solution the judicial branch as a whole is quite capable of correcting itself. On cases of bodily injury the Landgericht is the last fact-finder, but if someone was actually convicted under their legal interpretation the question of law would be appealable to an even higher court (an Oberlandesgericht). Even if that court affirmed, there would still be the possibility of a complaint to the Federal Constitution Court (which does judicial review the other courts aren’t empowered with) and, after that, to the European Court for Human Rights.

So all in all, yes, this is a terrible decision, but no, it will not stand and Germany will almost certainly not end up outlawing Judaism.

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14 Responses to On that circumcision decision

  1. Dreamer says:

    So, just to be clear, are you defending the practice of restraining and cutting off part of the external genitalia of a non-consenting individual – which incidentally exposes the non-consenting individual to non-trivial risks such as death, infections, loss of the penis and impotence – when there is no medical need for such a procedure?


  2. God's foreskin says:

    So you also think that female circumcision would be “in the best interest of a child growing up in a religious setting that demands it, because in that context it’s an important part of socialization”…?

    • Gilbert says:

      I don’t think that comparison makes sense. Male and female circumcision don’t have much more than a name in common.

      By the way, you’re welcome to present your arguments here, but if so you will have to choose a new pseudonym. Anything further you post under the one you used above will be summarily deleted.

  3. (original pseudonym removed by blog admin; taunting variation of version above.) says:

    I didn’t make a comparison. I asked you a direct question arising from what you have written.

  4. William says:

    I come from Africa were it has been proven in medical trials supported by the world health organisation, that circumcision reduces HIV transmission by up to 60% !
    Yet in this religious argument ,this is overlooked .instead this backward German judge and the “I love foreskins” lobby harp on and human right abuses!
    Wake up .the one thing Americans have got right is routine post natal circumcision .
    As a parent my sons long term sexual health is my and my wife’s ,not his responsibility .it is a tedious operation to undergo as an adult.

  5. inoffensive username says:

    I am re-iterating my point under an inoffensive username as you have a serious question to answer.

    If you are unable to explain why female circumcision is unacceptable “in a religious setting that demands it [and where] it’s an important part of socialization” then you are clearly engaged in special pleading in the case of male circumcision and are transparently employing double standards.

    There are forms of ritual female circumcision that involve damaging a tiny amount of tissue and removing none: a far less serious operation than the ‘usual’ male procedure. Surely this at least is acceptable to you according to the argument you have made above?

    But if not, why not?

    • Gilbert says:

      As  a side note, upon looking it up, I notice the preferred English term for the female procedure is no longer circumcision but female genital mutilation (FGM). German usage is different,so I actually granted too much by saying the procedures have a name in common.

      On the actual point, and as I already said above, I don’t think the comparison makes much sense.

      While the variants you mention are nowadays sometimes employed or discussed as replacement procedures, they are not the traditional method anywhere. Basically they are replacements for the real thing. The male analogue to the least invasive variant actually common is equivalent to chopping off the glans and it gets much worse than that. And male circumcision actually has known benefits compensating for its disadvantages.

      Plus the cultural context is totally different with the female procedure being closely tied to the subjection of woman and not actually being a religious requirement.

      Offering such replacement procedures runs a real risk of legitimizing the real thing. I wouldn’t be particularly fond of  symbolic wife-beatings either

  6. inoffensiveusername says:

    Indeed. Male circumcision could also be described as male genital mutilation, and to object to such a description can only end in semantics or the continuation of special pleading by advocating its supposed benefits — or dismissing the function of what is cut off. Circumcision is not like immunisation.

    The question is whether or not you accept there is a principle involved, and that is why the precise nature or extent of the procedure is irrelevant. Should a healthy person have, in principle, the right to bodily integrity? Is it not right, in principle, that a healthy child’s genitals should not be surgically altered?

    This is a difficult subject for obvious reasons but even Maimonides questions circumcision severely. In my view the small groups of committed believers who positively reject circumcision from within religious-cultural groups that advocate its practice are heroic.

    • Gilbert says:

      Bodily integrity is a principle involved, but not the only one. Others include, for example, religious freedom, social development, and respect for cultural identity. All these principles must be balanced against each other and how that balancing goes clearly depends on how much they are affected. That makes “the precise nature or extent of the procedure” extremely relevant. And the fact of the matter is that the comparison is absurd.

  7. inoffensiveusername says:

    I suggest to you that bodily integrity is a greater principle than the others you mention and should be observed first. This is because none of the other principles you say should be balanced against the right to bodily integrity genuinely need to violate it in order to be properly upheld.

    • Gilbert says:

      That is obviously untrue. It’s easiest to see with religious freedom: circumcision is essential to two major world-religions and banning it is banning them, which is incompatible with properly upholding religious freedom. Some rare inside exceptions don’t change that at all, because the religious freedom of the overwhelmingly larger rest would still be obliterated. And frankly we’re talking about a lot more people here than the few circumcised men who would prefer to be uncircumcised and would be finding some other excuse to claim special victim status anyway.

      • inoffensiveusername says:

        I am not suggesting circumcision should be banned. However religious freedom in the modern age demands mature individual choice and this is what the covenant denies.

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