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Circumcision (2)

Things got a little awkward in the comments section of my earlier circumcision post today, because commenter Jade pointed out a rather glaring, embarrassing and altogether unforgivable shortcoming in my argument. The problem doesn’t concern the ruling of the court in Cologne, but rather the constitutionality of a law that would potentially undo this judgement, as proposed by Mrs. Merkel. (Prof. Hans Michael Heinig suggested an actual text on the Verfassungsblog here.)

Specifically, she reminded me that art. 2(2) GG, which recognises the right to physical integrity, explicitly recognises that interference with this right is possible, as long as it is done pursuant to a law. Given that her comments also served as a powerful reminder of the fact that I am in no way an expert on German constitutional law, I am going to limit myself to making a moral/philosophical point instead:

It should certainly be possible to make vaccinations and blood-alcohol tests mandatory. However, I don’t think the legislature should be able to authorise a horizontal interference with the right to physical integrity as well. If someone needs to be lawfully “assaulted”, this should be done by agents of the state, not by one citizen to another. (As an analogy, and nothing more, I would offer the rule of art. 33(4) GG: some things cannot be privatised.) In that sense, I think authorising persons of category X to harm the body of persons of category Y in a given way assuming circumstances A, B and C is one step further than authorising the police to take someone’s blood against their will in certain circumstances. Then again, maybe the problem is simply that I can’t think of any good examples. (All examples that come to mind of one person doing something to the body of another involve the consent of the latter, which by assumption does not apply here.) If anyone can think of an example of the legislature authorising otherwise right-violating behaviour of one private person to another, especially to the body or liberty of the latter, please let me know in the comments.

Now let’s stick with this assumption of the absence of consent for a moment. The reason why I assumed that just now is that the parents’ consent, which usually suffices, is deemed to be insufficient here. As someone pointed out somewhere recently (since I’m travelling, I have no idea where I saw this argument, and as a result no link), one way of phrasing why this is the case is that parental consent is sufficient only when it is plausibly in the best interest of the child. (“Plausibly” because it is a good rule, codified in art. 6(2) GG, that tie-breakers go to the parents. In dubio pro reo, etc.) So all we need to refute the argument I laid out last week, as well as the argument of the court in Cologne, is a sufficiently broad reading of the term “best interest of the child”, i.e. a reading that includes not only the child’s medical interests, but also their socio-cultural interest. (Let’s, please, avoid the argument that circumcision is in the best interest of the child because it will help him avoid going to hell. And yes, I know that in Judaism the concept of hell is a tricky one, to say the least.) What is circumcision is necessary in order for the child to find full acceptance in his community, to be properly raised in his culture, etc.

The first most obvious problem with this approach is that all of this is true for female genital mutilation (FGM) as well. So unless one wants to enact a law that explicitly discriminates against men (or against women, depending on your point of view), that is the end of that already. But maybe the problem is simply that I don’t get the full substance of the argument here. After all, I am sufficiently autistic that I don’t get the logic of most of the guest posts by religion & law professors on the Verfassungsblog on this topic either. (Cf. this post by Paz in English, and German-language posts by Heinig, by Neureither and by Steinbeis himself.) For example, when Neureither writes this:

Nach nicht gänzlich unbestrittener, doch nahezu einhelliger Auslegung wird [aus 1 Mose 17, 9–14] das zwingende Gebot abgeleitet, männliche Nachkommen am achten Tag ihres Lebens zu beschneiden. Durch das Urteil des LG Köln wird nun die Ausübung eines schlechthin konstituierenden religiösen Gebots für eine gesamte Religionsgemeinschaft ausgeschlossen. Den Blick nicht auf diese Auswirkungen gerichtet zu haben, macht die Entscheidung des LG unangemessen und damit verfassungswidrig.

I can read it only as an argument that relies on a collective rights theory, specifically the right of the Jewish and Muslim communities to exist, to be Jewish and Muslim in a manner consistent with their understanding of scripture, etc. Much as I sympathise with this view – I really do – the mode of reasoning simply cannot be transferred to an individual rights based system of government, and that sinks it as far as I’m concerned. What can I say, I spend a lot of time with (fellow) economists and with engineers.

There is a different way to approach this possibility, though. We can wonder whether art. 2(2) GG generally allows for the notion of parental consent for reasons other than the medical (i.e. physical and psychological) well-being of the child. There is no question that the laws contemplated in the final sentence can be for any legitimate purpose whatever, as long as proportionality is observed. Likewise, there is no question that consent is not normally questioned, unless of course the person does sufficient harm to themselves to warrant institutionalisation. However, that last point makes it at least plausible that parental consent, which one might like to question at least occasionally, should be linked to the physical integrity of the subject as well. After all, that is what we’re talking about here: an application of art. 6(2) GG to the circumstances contemplated in art. 2(2) GG.

However, on reflection I don’t think this is a reasonable interpretation. The language of art. 6(2) GG is simply too broad for this, and in general – outside the specific context of German constitutional law – I also think it is a needlessly restrictive approach. Parents should have more freedom than that.

Which brings me to a final question. What about parents who have their daughters’ ears pierced? When the child is old enough to ask to have their ears pierced, there wouldn’t be a problem. The court in Cologne expressly contemplated circumcision at a later age, when the child would be able to consent at least to a limited degree. Something similar goes for piercing the ears of an 8- or 10-year old. But there are parents who have the ears pierced of children who are much younger than that. Is that now illegal too? Or is it OK because the ears can grow shut again? Or can it be saved through some kind of de minimis reasoning?

4 Responses to Circumcision (2)

  1. avatar Jade says:

    Archimedes felt that given a long enough lever and a fulcum, he could move the earth. We moderns have not abandoned that belief, only changed its referent.

    In the debate over the “circumcision verdict” by a court of first appeal in Germany, many believe that planting their feet firmly on the spot marked “infliction of bodily harm is forbidden” relieves them of the need to engage in any balancing of fundamental rights.

    Germany’s constitution contains no Archimedean point, however (except for the broad assertion of the inviolability of the dignity of man). It represents the best efforts of the men and women who drafted it to reconcile a multiplicity of norms that do not always neatly line up with one another. Hence your insistence on an “individual rights based system of government” to the exclusion of the protection afforded to religious expression and the parental right to raise the child in their faith is too simplistic.

    If you find the arguments made by the writers on too impenetrable, then try this analysis from lawblogger Oliver Garcia. After a brief description of the cultural context in which the controversy is taking place (Germany has become a majority-irreligious country, atheists are flexing their muscles and hoping to show the religious who’s the boss), Garcia points out that the Grundgesetz does not tolerate religion or defines it as subsidiary, it positively affirms it.

    He then argues persuasively that the verdict erred in asserting an interest of the child in not having his religion determined and in not being precluded from deciding on his religious affiliation at a later point in time. First, Germany does expressly grant parents the right to raise children in their faith. And second, in addition to being facially absurd (no religion refuses circumcised converts), there is no “right to freedom from religion” for children. The court’s argument is telling in that it betrays an atheistic ideological bent.

    On to “infliction of bodily harm” as an Archimedean point. The notion that only agents of the state may overstep the prohibition is wrong. To give an idea of the extent of the concept of Körperverletzung (infliction of bodily harm), under German law not only is the drawing of blood technically an infliction of bodily harm. it even extends to the blood after it’s been extracted from your body. If a practitioner tells you that he is going to test your blood for Hepatitis B and he then also tests it for HIV, you can sue him for infliction of bodily harm!

    Leaving aside exemptions granted to the state (for example, the legal “shoot to kill” policy of police to eliminate kidnappers whose victims are in mortal danger), every little pinprick performed by a medical care practitioner requires the consent of the person being operated on (exception for unconscious people in emergencies). For children, parental consent replaces the person’s consent. But it’s always “infliction of bodily harm”, only sometimes with express or implied consent (legal) and sometimes without consent (illegal).

    Since 2007, German health insurance covers the cost of vaccination against some HPV viruses for girls aged between 12 and 17. Because the girls are minors, parental consent is required. HPV vaccination of girls is of course “infliction of bodily harm” but it’s o.k. with parental consent. Not only that, the child’s body is “permanently and irreparably” (the wording used in the verdict) altered: the immune system will never be the same again. And as with any vaccination there are risks (up to and including death in very rare cases).

    Yet the law has never troubled itself with HPV vaccinations and likely never will. In any case I believe I have shown that “infliction of bodily harm” is not the Archimedean point that so many people think it is.

    It is also odd that the court referred to section 1631 (2.1) of the civil code (“Children have a right to non-violent upbringing”) as though male circumcision were on a par with corporal punishment. Parents circumcising their boy for religious reasons do not have punishment or violence in mind, they believe themselves to be acting in the best interest of their child, and it is not asking too much of a court to at least attempt to step in their shoes and view things from their perspective.

    Garcia notes that never during the time in which first the Reichsstrafgesetzbuch (enacted in 1872) and subsequently the Strafgesetzbuch criminal codes were in force has male circumcision been incriminated in a court of law. I would go back further and note the bitter irony that Cologne is the town in Germany with the earliest documented mention of Jewish settlement (in the 4th century) and now also the town where religious circumcision has been declared illegal.

    But does Garcia believe that male infant circumcision must forever be exempt from legal regulation? No, and he agrees that German lawmakers may revise the law to account for changed societal mores. However, a court (especially a low-ranking court of first appeal) is overstepping its prerogatives if it assigns to itself what is properly the province of the legislature only.

    Apart from Garcia and the verfassungsblog lawbloggers, other scholars have also criticized the Cologne verdict in harsh terms. The latest to do so was Hansjürgen Papier, former President of the Bundesverfassungsgericht (Federal Constitutional Court). However, the verdict is unappealable and so there will come a circumcision law which, despite all the safeguards that lawmakers try to write into it, may open a Pandora’s box for practices that have no grounding in European civilization.

  2. avatar Jade says:

    I posted a lengthy comment earlier today, did it get stuck in the spam filter? There was only one URL in it…

  3. avatar Jade says:

    O dear. Truly sorry about the formating mishap. In my defense, I followed the instructions below the comment box to the letter.

    Next time I will know to write out the URL and not mess with fancy codes :)

  4. Pingback: Die Idee mit dem Beschneidungsverbot « De legibus-Blog

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