Criminalizing Circumcision: The Unkindest Cut of All
by NORMAN SIMMS
July 24, 2012
When a district court in Cologne, Germany ruled a few weeks ago that there was criminal liability for the parents and in doctors who in the future would circumcise children, the immediate case had to do with Muslim parents and the doctor they gave permission to perform the operation, but it also implies prosecution in the future for Jewish parents, mohelim and secular doctors. The argument took the politically correct route of saying that the physical and thereby the psychological integrity of the child forced to undergo the ritual took precedence over the wishes of the parents, the religious identity of the family, and the professional competence of the physician or religious functionary carrying out the circumcision.
In effect, among other more abstract moral and spiritual considerations, this ruling means that neither observant Muslims nor practicing Jews can continue to live in Germany. Already many German hospitals have advised parents that they cannot undertake circumcisions because of the criminal liability attached to the decision of the court. Such a situation would be intolerable and force Jews and Muslims to leave the country. It would in effect deprive them of their citizenship and rights to live as equals in the body politic.
For by criminalizing circumcision of minors, the Cologne tribunal sets a legal precedent for the rest of Germany, and it is likely that this will ruling will serve as an example to other jurisdictions in Europe and elsewhere that have from time to time in recent years toyed with the idea of banning this and similar religious performances. Circumcision is not in the same spiritual or moral category as head-coverings or sartorial style, types of magic underwear or degrees of modesty in female apparel.
The placing of the child's rights above that of the parents is also a manner of debasing the group of and historical rights of the religions involved, at the same time as it makes the courts-and the state-the main guardians of infants and children, with the parents and their constituent groups incapable of maintaining their historical religious duties. The court does not recognize that each religion has for centuries regulated the practices, monitored the specialists, and revised the rules to match changing social circumstances. It also fails to credit the ancient meanings of the rites which are constantly under review and interpreted so as to keep them relevant.
The justification includes statements that show that the judges involved do not have the competence to distinguish between genital mutilation, as in the case of clitorectomy, and circumcision. They put aside all evidence that shows that infant circumcision serves hygienic health and poses no danger to sexual pleasures. Like those courts elsewhere that attempt to ban ritual slaughtering of beasts under halal or kosher supervision, the tribunals seek to rationalize their intolerance of historical identities in religious communities by hiding behind politically correct concerns for animal welfare, citing only partial or prejudiced claims that such means of butchering inflicts inhumane and sustained pain on the animals.
The question at the centre is not to find an argument that can persuade non-Jews or non-Muslims as to the importance of ritual circumcision as an act of religious duty mandated by a revealed scripture, since such arguments have no place in modern secular states. What is important, rather, is the question of whether pluralistic nations can accept the validity of group definitions of identity based on belief systems and historical traditions. This is not a matter of recognizing a state within a state, with separate laws and institutions in conflict with the constitutional norms of the larger entity, but of accepting differences within the larger parameters.
Toleration of differences has its limits, such as forbidding public actions which impinge on the rights of other individuals and groups that interfere with the normal workings of the state itself. Minor inconveniences do not constitute infringement of rights. I am personally offended by many things that other people do but that does not give me the right to impose my will on them-it disgusts me to see adolescents with multiple tattoos or rings and globes attached to various parts of their body and it makes me uncomfortable to hear about sexual promiscuity treated as entertainment and I abhor the clattering, screeching sounds that are supposed to be popular music, but I can look away, turn off the radio or television, and merely grumble to myself as any self-respecting curmudgeonly old man should. My private likes and dislikes are simply my own business. I do not define myself by my tastes in such matters.
The larger questions here in regard to the circumcision issue are not only to do with the way in which state institutions-and the State itself-manages minority groups and their customs, beliefs and morals, which is something that John Stuart Mill discussed in terms of European, nineteenth-century liberalism (which is not what most Americans mean by this term). That is a matter of tolerance, itself a word that began in a passive and almost negative sense, of the way a larger organism adjusts itself to living with an invasive disease or smaller organism; rather than the way the concept has developed in more recent generations, meaning now a positive, active embrace (or celebration!) of difference itself as the essential marker of a "liberal" society.
If we think that modernity (or post-modernity, which has been described as the modernism of those who never encountered the exciting, subversive and innovative books, paintings, musical compositions, ideas of the post-Romantic period following the French Revolution) imbues urban and secular society with a desire to be constantly renewing itself and moving ahead progressively towards greater inclusion of otherness and difference, then the decision by the German court to criminalize circumcision of minors for religious purposes seems regressive, a major interference with the rights of parents and small communities to define themselves by collective decisions, educate their children to carry on belief systems, and validate their deepest beliefs by symbolic acts. J.S. Mill saw the only limits to these "liberal" steps in the harm they might cause other individuals and groups in the performance of their own actions and beliefs. He was not talking about some people's peculiarities of orthography or manner of dancing.
In a sense then, the tension expands from the minority in relation to the majority to the tension between various groups of individuals who jockey for position within the larger, inclusive society, that society itself ideally seeking to impose as little formal restrictions on behaviour and belief as possible. The limits of the possible imposed by its need to protect the safety, health and economic freedom of all the constituent individuals and small communities. The act of making circumcision purports to place the rights of a minor child above that of its parents, in the belief that only a mature individual can make the choice as to whether or not it should adhere to the customs and faith of its parents and their community, and that somehow the family or the small communal group is itself only a congeries of neutral individualities temporarily supervised and protected by the adults. This is a great leap of faith.
If the parental decision is to withhold blood transfusions because of religious belief, the state may interfere on the grounds of health and safety, assuming that the life of the child outweighs the adults' concerns for the spiritual integrity of their offspring. But in most jurisdictions, such interference with private beliefs is carried out on a case by case by need not by a sweeping injunction or criminalization of the parental beliefs. The recent legal decision by the Cologne judge and its likely extension to other areas of Germany and beyond goes beyond the particular circumstances of one child and one set of parents and stigmatizes all persons, groups and religions that carry on such rituals. We have not yet reached a stage in history where the political, moral and philosophical tendencies of one influential set of authorities can automatically impose their will on other groups because of their difference in outlook on how the world works.
Moreover, as many religious commentators have observed in this matter, from the Chief Rabbi of England through various Islamic authorities in Germany, and including a number of Protestant theologians elsewhere in Europe, it is rather rich for a judge in Germany to make a ruling that reverberates with the most unpleasant of memories of the Third Reich. The history of the Holocaust and the Final Solution, fuelled by a completely irrational hatred of Jews and Judaism, should be a constant reminder of where such seemingly limited decrees can go in a very short space of time.
Norman Simms is the author of Alfred Dreyfus: Man, Milieu, Mentality and Midrash (Academic Studies Press, 2011). The second volume in the series, Alfred Dreyfus: In the Context of His Times: Alfred Dreyfus as Lover, Intellectual, Poet and Jew (also by Academic Studies Press) was published in July 2013; and the third Alfred and Lucie Dreyfus in the Phantasmagoria (Cambridge Scholars Publisher, UK) in September 2013.