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.