The United States isn’t the only country seeking to restrict religious liberty. A German court has ruled that circumcision is illegal unless done out of medical necessity, calling it a “severe and irreversible interference into physical integrity.” I wonder if abortion is an interference into physical integrity.
A German legal scholar praised court’s boldness:
“As opposed to many politicians, the court was not deterred by fears of being criticized for anti-Semitism or hostility toward religion,” he said. “This decision could not only influence future jurisdiction, it could also lead the relevant religions to change their attitude with respect to the fundamental nature of children’s rights.”
Another commentator has this to say:
Ultimately, this is not about circumcision and bodily injury. It is about the question whether in contemporary society it is still possible to bring up children in the context of any particular cultural or religious tradition, be it Christian, Jewish, or Muslim, or whether any such education must be put off until the day when the child, at age 14 or 18, is old enough “to decide for itself.” But what can it decide itself for, if until that age it is not allowed to get acquainted with any such cultural heritage?
June 27th, 2012 | 11:01 am
I think the decision of the German court is at least debatable. We do not hesitate to condemn female circumcision. Religious freedom, as we must keep reminding ourselves, is not absolute. Aside from foreskin, what other body part would we defend the removal of on the grounds of religious freedom? What about an ear? Just because a practice is thousands of years old does not mean it is justifiable.
There was a recent case in Australia in which a judge overrode the decision of Jehovah’s Witness parents who were refusing to permit a life-saving blood transfusion for their 4-year-old daughter. This was certainly a restriction of the parents’ religious liberty. How many people here object?
If male circumcision had never been practiced, a religion who proposed it as a religious ritual would probably never be able to get it legally accepted as a routine religious right to be performed on newborns.
June 27th, 2012 | 11:50 am
I’m not in favor of male circumcision, and indeed would argue against it. (We didn’t choose it for our boys.) Of course, I personally find it rather creepy when parents get their infant girl’s ears pierced.
But overall, the harm done is fairly minor, and claims of religious liberty seem pretty credible.
On the other hand, the large majority of various practices collectively called “female circumcision” seem to go well past ‘minor’ harm. At that point, it sure seems to me that claims of ‘religious liberty’ are outweighed by other concerns – namely, concern for, yes, the integrity of the child in question.
(I’m minded of General Charles Napier, on a encountering plans of some Indians to engage in the religious ritual of Sati: “This burning of widows is your custom; prepare the funeral pile. But my nation has also a custom. When men burn women alive we hang them, and confiscate all their property. My carpenters shall therefore erect gibbets on which to hang all concerned when the widow is consumed. Let us all act according to national customs.”)
June 27th, 2012 | 11:51 am
David,
This is not about the removal of body parts. This is about the state’s and the medical profession’s claims of protecting children from their parents. Adults in the US, and I assume Germany, can pay a doctor to remove body parts at will with very few restrictions. Any cosmetic surgeon will remove skin — and a foreskin is just that, skin. It is not an ear. Sex reassignment surgery is common today as well, and that is far more severe than male circumcision. Perhaps you even know of Body Integrity Identity Disorder and the ethical debate over treating it by amputation?
The underlying question here seems to be “why is religion special?” I suggest that today it is for primarily pragmatic reasons, although there used to be theological justifications within liberalism back before liberalism became anti-religious (except in France where it has always been anti-religious). Religion is special because it is a comprehensive worldview that calls its adherents to an authority higher than that of the state. If the state refuses to abide it, then the state is demanding that religious people to divide their loyalties. If this goes far enough, the legitimacy of the state (at least the liberal state) and the sustainability of religion are both threatened.
I am open to an argument which asks me to support liberalism as a modus vivendi. Stanley Fish, Alasdair MacIntyre and John Milbank have convinced me that arguments for liberalism on the grounds of justice and rationality fail utterly.
June 27th, 2012 | 12:11 pm
Certainly judges use reason when reaching their decision. As the social science literature on the subject amply demonstrates, they also rely on personal ideology, political values, and calculation of strategic interest. This is particularly the case in non-routine matters such as the one we have before us in this thread.
I appreciate Ray’s story about Gen. Napier for it shows that, when we get to the very bottom of things political, force ultimately decides. And in liberal societies, judges command quite a lot of that force.
June 27th, 2012 | 12:33 pm
“This decision could not only influence future jurisdiction, it could also lead the relevant religions to change their attitude with respect to the fundamental nature of children’s rights.”
I don’t think I will ever understand why some people think they can legislate changes in culture. Such absurd hubris. Oh yeah, sure. Judaism and Islam will change because a German judge has said that they must.
The only explanation I can think of is that, to some people, it is completely incomprehensible that some people do not see the State as the highest authority in moral matters.
June 27th, 2012 | 12:41 pm
What about the elephant in the room here. Is anyone else creeped out by Germany (of all places) ruling negatively on something that impacts Jewish religious practice?
Haven’t we seen this movie before? It doesn’t turn out well.
June 27th, 2012 | 12:50 pm
Darel wrote
“Adults in the US, and I assume Germany, can pay a doctor to remove body parts at will with very few restrictions…”
Most European codes follow the Code Napoléon in declaring that
“There may be no invasion of the integrity of the human body except in case of medical necessity [for the person or exceptionally in the therapeutic interest of others]
The consent of the person concerned must be obtained previously except when his state necessitates a therapeutic intervention to which he is not able to assent.”
The words in square brackets are a modern addition to allow the donation of a kidney, bone marrow or blood and the like. Consent alone is not a sufficient justification.
That said, “medical necessity” is generously construed and would include the relief of psychological distress through cosmetic procedures &c.
Following the Roman law, the code declares that “The human body, its elements and its products may not form the subject of a patrimonial right” and ” Agreements that have the effect of bestowing a patrimonial value to the human body, its elements or products are
void” One cannot sell one’s blood, for example. People do sell their hair, but I doubt if one could sue for the price. The idea that one owns one’s body is utterly alien to the Civil Law tradition.
Against that background, it is a question of weighing the high value set on bodily integrity against the fundamental right “either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance,” itself subject “only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
I think the German court is wrong, but I can see why they decided as they did.
June 27th, 2012 | 1:45 pm
Darel –
True, and that force should be applied as gently as possibly – which is why I think this case was wrongly decided. But we must be wary of the opposite error, the idea that force is never necessary. I’m fine with forcing a blood transfusion on a dying four-year-old girl to save her life, even over the objections of her parents.
June 27th, 2012 | 1:49 pm
This is not about the removal of body parts. This is about the state’s and the medical profession’s claims of protecting children from their parents.
Darel,
So was the Australian judge wrong to order a blood transfusion for the 4-year-old Jehovah’s Witness child?
If we could do away with classical liberalism, would there be no justification at all for the state protecting children from parents who wish to do harm? If we give parents absolute authority over children (the way Roman fathers had), what grounds would there be for intervening in the case of child abuse? What would be the argument against abortion even everyone acknowledged personhood began at conception?
I am curious what the modern state would be like if it were “cleansed” of classical liberalism.
By the way, by far the most heated online discussion I was ever involved in was a debate on circumcision. I don’t think religious prejudice has anything to do with it in most cases, but there are some people (most of them uncircumcised men, no doubt) who are perfectly appalled at the idea of cutting off the foreskin. Many people regard circumcision as mutilation, and we all probably would if someone were suggesting it for the first time.
June 27th, 2012 | 2:11 pm
MichaelPS,
Thank you for this information. As we see in the United States re abortion, “medical necessity” is a legal loophole large enough to drive a truck through.
I suppose everything turns on the definition of ‘bodily integrity’. The skin is a rather unique part of the human body. It is our largest organ, visible and thus inherently social, and rather plastic allowing it to be transformed in a myriad of ways without serious damage to the organ itself much less to the body as a whole. Witness: tattooing, piercing, face lifts, tummy tucks, and yes, male circumcision. Why are some bits of skin essential to “physical integrity” while others are not? Or are the German courts going to go after all the plastic surgeons next?
It would be interesting is to see what medical professionals in Germany think about the case. One possibility is that the state is in collusion with medical professionals. The state recognizes a particular medical board as the only legitimate authority on all ‘medical’ matters which now includes male circumcision (thus delegitimizing at least the Central Council of Jews and probably others) and the board gets the state to use physical force to apply its authority.
However, when a similar question came up in San Francisco last year, it wasn’t clear that medical professionals really wanted this authority in the first place. Instead it was liberals outside the medical profession who wanted to co-opt the authority of doctors for their own cultural project. Perhaps something similar is going on in Cologne.
June 27th, 2012 | 2:27 pm
David,
Some of my answers to your points are in my post responding to MichaelPS.
I stand by my claim that this case is not really about ‘bodily integrity’ since that is violated all the time through cosmetic surgery and sex reassignment surgery (among other procedures I am sure). It is about the state’s claim over children. I think you do not dispute my claim?
Thus it really comes down to drawing the line on parental authority over children. Every society draws such lines, even ancient Rome. Where should those lines be drawn? A most relevant question. At ‘bodily integrity’? First we need an argument as to why some particular bit of skin is essential to bodily integrity. Then we need an argument as to why bodily (or really, skin) integrity is more important than religious liberty, or in this case more accurately, the preservation of group identity. Note that some other summaries of the case discuss the judge’s argument that parents have no right to pass on their religious faith to their children, either. This strikes me as a radical liberal (i.e. individualist) ideology posing as reasoned judgement.
June 27th, 2012 | 2:37 pm
Why are some bits of skin essential to “physical integrity” while others are not? Or are the German courts going to go after all the plastic surgeons next?
Darel,
Why was it an important question in early Christianity whether or not Gentile converts had to be circumcised? It was just a piece of skin. A small price to pay, wouldn’t you say, for being a Christian?
June 27th, 2012 | 3:26 pm
I stand by my claim that this case is not really about ‘bodily integrity’ since that is violated all the time through cosmetic surgery and sex reassignment surgery (among other procedures I am sure). It is about the state’s claim over children. I think you do not dispute my claim?
Darel,
Yes, I do dispute your claim. Mind you, I am not necessarily siding with the court. I am saying there are two sides to the issue.
First, what adults may do or have done to themselves (plastic surgery) is a different matter than what they may do to permanently alter their children’s bodies.
In the United States, parents do not have absolute control over their children’s bodies. For example, many states do not allow children to be tattooed, even with parental permission. Historically, there are things that parents did to (for?) children (such as foot binding in China) that we find abhorrent. I have already mentioned female circumcision, which most people find abhorrent but is widely practiced and defended on the grounds of religious and cultural freedom. Parents volunteering their children as, say, kidney donors presents serious legal and ethical questions. Children and children’s bodies do not belong to parents. Once again, I can’t think of any healthy, living tissue other than a foreskin that we would countenance the removal of for a religious ritual. We may approve of parents authorizing cosmetic surgery for kids with overly large noses or protruding ears, but I don’t think anyone would be willing to permit deeply religious parents who thought their little girl was too pretty to have the child’s face disfigured (using St. Rose of Lima as an example).
I think you are too quick to see things from one perspective. Concern for a child’s bodily integrity does not have to be about liberals trying to usurp parental authority just for the fun of having the power. Concern for children and their bodies may very well be inspired by concern for children and their bodies.
June 27th, 2012 | 3:28 pm
For the record, there are many Jews who are opposed to circumcision, and feel it is time for a symbolic replacement.
Jews Speak Out in Favor of Banning Circumcision on Minors
http://www.intactnews.org/node/103/1311885181/jews-speak-out-favor-banning-circumcision-minors
21st Century Judaism, the Foreskin, and Human Rights | Part 1.
http://www.intactnews.org/node/104/1311886091/jewish-voices-current-judaic-movement-end-circumcision-part-1
21st Century Judaism, the Foreskin, and Human Rights | Part 2.
http://www.intactnews.org/node/105/1311886372/jewish-voices-current-judaic-movement-end-circumcision-part-2
21st Century Judaism, the Foreskin, and Human Rights | Part 3.
http://www.intactnews.org/node/112/1313862929/jewish-voices-current-judaic-movement-end-circumcision-part-3
Progressive Rabbis On Creating A Jewish Covenant Without Circumcision
http://intactnews.org/node/142/1327690351/progressive-rabbis-creating-jewish-covenant-without-circumcision
June 27th, 2012 | 3:29 pm
David,
Are you suggesting that liberalism is a theology disguised? Or perhaps better said in John Milbank’s words, an “anti-theology in disguise”?
If you are, then maybe you and I agree more than either of us suspected …
June 27th, 2012 | 3:34 pm
Even if circumcision is outlawed, won’t Jews just go to back-alley circumcisers and it will become a much more risky procedure? Shouldn’t this be a reason for it to remain legal?
June 27th, 2012 | 5:27 pm
Are you suggesting that liberalism is a theology disguised?
Darel,
I find it fascinating to read people who renounce classical liberalism and the Enlightenment, but I have never quite figured out what the “big picture” would look like if they had their way—for example, what kind of country they would have the United States turn into. If you recommend a book along the lines of What the United States Could and Should Be if We Can Just Get Past Classical Liberalism, I would be likely to read it. It is much more interesting to read something as an alternative to Classical Liberalism than it is to read about conservatism versus (small L) liberalism.
June 27th, 2012 | 7:30 pm
David,
First off, I think you are painting me as far more extreme than I have already shown myself to be. I already admitted there are legitimate restrictions on parents’ rights over their children’s bodies, as, of course, everyone would. I am not calling for a Roman right as pater familias.
In your 3:26pm posting, I think you actually do agree with me that the issue is parental authority, not “bodily integrity”, in that the issue is all about children’s bodies, not bodies in general. But, of course, the issue is even more than simply about children’s bodies, but about their souls as well in that the German judge ruled as he did because parents do not have the right (this seems to be the only word we can use in liberal society) to pass on their religious faith to their children, either.
I think the first problem with the case at hand is the definition of “bodily integrity” — or perhaps the non-definition, since I don’t know what the judge has said and no one here has offered one, either. The second problem is the assertion by the judge that parents may not meaningfully alter their children’s bodies nor souls, which is of course nonsense since all parents do this whether they intend to or not. The third problem is that we have here another case of liberalism masquerading as a neutral frame to which all can (and should) consent when in fact it is an ideology, a “comprehensive doctrine” of its own, using force to have its way.
As far as alternatives go, I’m not quite there yet. That being said, neither am I an idealist who thinks that societies are created first in the mind and then realized in the material world. Thus the relevance of imagining utopias a la Thomas More or Immanuel Kant is of little interest to me. That being said, critics of contemporary liberalism such as MacIntyre have one alternative; religious classical liberals like the ones who write for First Things have another. If you are tired of discussing critique already with me, then perhaps you can argue with them.
June 27th, 2012 | 9:57 pm
David said, “If male circumcision had never been practiced, a religion who proposed it as a religious ritual would probably never be able to get it legally accepted as a routine religious right to be performed on newborns.”
Maybe, maybe not. There are health benefits to circumcision, and little negative health effects. I would think it could be justified from a purely medical standpoint, although of course it’s not strictly necessary. “Physical integrity” seems like a pretty vague and thin justification, considering that doctors often remove tonsils and wisdom teeth even though that is not strictly necessary and done mostly out of convenience, and of course cutting one’s hair and nails is expected.
Even accepting physical integrity as an ideal, if circumcision had any serious side-effects then the case against it would be much stronger. It doesn’t; there is no inherent need for the foreskin. Indeed there are benefits from its removal. Therefore I’m not convinced that physical integrity is really being violated at all.
June 27th, 2012 | 10:12 pm
And also… you could turn that around and ask, if circumcision were not a religious practice, but assuming that some parents wanted it done for perceived health reasons, would the government make it illegal?
June 28th, 2012 | 9:03 am
On the question of physical integrity, suppose someone were to cut off a man’s foreskin against his will. I doubt that a libel for Demembration of the Lieges would be relevant, in fact, I am sure it would not.
So, would it be an Assault to his Permanent Impairment? Probably not. To his Severe Injury? Possibly. Permanent Disfigurement? Probably. To the Effusion of Blood (an aggravated assault)? Certainly. This only shows that the invasion of bodily integrity admits of degrees.
June 28th, 2012 | 10:49 am
1 Maccabees 1:60-63 recalls another time in history when a State attempted such a thing.
cf. http://www.usccb.org/bible/1mc/1
June 28th, 2012 | 11:24 am
This is about the state’s and the medical profession’s claims of protecting children from their parents
This is it in a nutshell.
So-called “secular humanist” government is an ideology that tolerates no rivals.
For a parent to bring up a child as Jewish, Christian, or Muslim is to do that child a harm.
In this case, it is the damage to the penis that is the problem. The penis is held to be sacred to humanists, because of the role sexual pleasure plays in their life.
Certainly you don’t see equal concern for “integrity” when parents are mutilating their children in ways consistent with humanist values – even when those mutilations are far more damaging. Parents are allowed to unabashedly experiment on their children – turning boys into girls and vice versa, or trying to raise them to be neither at all – and this is not held to be a violation of the child’s “integrity”. These same people who complain about “integrity” have no problems with tattoos, piercings, delayed adolescence, cosmetic surgeries, etc. They are increasingly arguing that it’s okay to kill a newborn baby – but you can’t circumcise that child.
This is because the “integrity” being spoken of is not bodily integrity, but rather the integrity of the humanist identity.
June 28th, 2012 | 1:50 pm
Blake – Thanks for sharing your
assertionsopinions. :)When I asked you for the ‘statements of belief’ of ‘humanists’, you were… somewhat evasive. I would dearly love for you to provide some evidence to back up that statement. :)
June 28th, 2012 | 5:40 pm
When I asked you for the ‘statements of belief’ of ‘humanists’, you were… somewhat evasive. I would dearly love for you to provide some evidence to back up that statement. :)
I repeat: I take my assertions from (a) the Unitarian Universalist creed and (b) the secular humanist association creed that I got from the Dover, PA “evolution trial” transcripts.
June 28th, 2012 | 5:47 pm
First, what adults may do or have done to themselves (plastic surgery) is a different matter than what they may do to permanently alter their children’s bodies.
This would be true if it were a simple matter of doing something vs. not doing something.
But it isn’t. It’s a zero-sum situation. SOMETHING is going to be amputated: this person’s foreskin, or this person’s ability to share the identity of his people.
You are welcome to believe that covenants with God are silly stuff, traditions are meaningless, and identity issues are only important when they’re, you know, people who matter (gays and feminists have the right to care about identity, while traditional religious groups are evil and bigoted for caring about their identity, if I am understanding today’s PC mentality correctly ?)
But the real question is, why should your beliefs carry more weight than the child’s parents?
That is why I believe the child’s probable consent should be anticipated – which means circumcision should be allowed in cases where a clear majority of the adult males actively value circumcision.
If you want to impose your will over this, you have to do more than simply take it as self-evident that an intact penis is obviously worth more than a covenant with God, a chance to belong to a close-knit tribe, continuity with a tradition that goes back thousands of years, or whatever it is that people who are pro-circumcision value so highly.
(I do agree that absent some reason why circumcision is valued highly, it should not be performed. But, then, that’s not really in dispute, is it, since people can and will use education far more effectively – the coercive force of the law is only necessary when people are actively pushing an ideological agenda on an unwilling populace.)
June 29th, 2012 | 9:37 am
Blake –
I, er, can’t find the word ‘penis’ in either. Let alone ‘sacred penis’.
June 29th, 2012 | 3:15 pm
Blake –
I repeat: I take my assertions from (a) the Unitarian Universalist creed and (b) the secular humanist association creed that I got from the Dover, PA “evolution trial” transcripts.
I, er, can’t find the word ‘penis’ in either. Let alone ‘sacred penis’.
That is in reference to the fact that the only argument I have heard in favor of circumcision is that it allegedly reduces sexual pleasure (which strikes me as unlikely, but that’s beside the point).
Perhaps not all humanists are making this argument, but all the people I have heard making this argument are humanists, it’s the only argument there is that is capable of suggesting circumcision to be harmful.
As far as humanists and sex, both the secular and the “religious” (Unitarian Universalist) branches as a group hold that sex is so important, that sexual freedom justifies killing human beings if those human beings interfere with the sense of freedom/unfettered access.
Humanists as a group combat sexual boundaries in every form. Even strongly-held social taboos such as pedophilia are not safe: humanists condemn pedophilia when priests do it*, but they crusade in favor of child sexuality, even giving out condoms to children in elementary school.
So, yes, I do think it’s fair to say that humanists have an unhealthy relationship with sex – I will let you choose the word, if you like: fetishize? Worship? Idolatry? Obsession? Whatever it is, the fact remains that humanism has a dysfunctional relationship with sex and genitals, and the loathing and hatred of circumcision makes no sense outside this context.
* * *
*but not when schoolteachers, who are statistically far more likely to molest children than priests. Humanists typically defend liberals who violate sexual boundaries involving age of consent. They support Planned Parenthood, which openly describes in its literature its dissent with the very concept of an “age of consent”. In European countries, children are taught to use sex toys in school. Humanists even widely defended Roman Polanski, and Hollywood liberals even circulated a petition arguing that his drugging and raping of a 12 year old girl should be treated as a non-crime.
June 29th, 2012 | 5:44 pm
Ray Ingles,
Don’t discourage Blake. His invention of humanists ranks in creativity with J. R. R. Tolkien’s invention of hobbits or Frank Herbert’s invention of Fremen.
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