Wednesday, June 27, 2012


An interesting recent ruling from Germany:

Germany’s Jewish and Muslim communities responded with outrage today to a highly controversial court ruling which stipulated that the circumcision of young boys on religious grounds caused bodily harm and infringed a child’s right to physical integrity.

The divisive verdict, delivered by an appeals court in Cologne, involved the case of a Muslim boy who became seriously ill after undergoing the procedure, and ruled that the individual rights of the child took legal precedence over the religious rights of its parents.

The judges concluded that “circumcision contravenes the interests of the child to decide later on in life about his religious beliefs” and “the fundamental right of the child to bodily integrity outweighs the fundamental rights of the parents”.

Male circumcision is not illegal in Germany, but until the court ruling it had inhabited a legal ‘grey area’ which had allowed doctors to carry out the operation. Some medical organisations advise doctors to draw up a contract with their patients before performing the operation to guard against possible legal action.

(Circumcision is still possible; the decision simply sets a precedent according to which those who perform it are more likely to be prosecuted.) I read somewhere something praising this decision because the court showed that it did not care that the decision might be regarded as anti-Semitic. It's certainly true that no court that was afraid to look anti-Semitic could render this decision. I'm not convinced that German courts suggesting that Judaism and Islam are contrary to fundamental human rights is an admirable thing, though.

ADDED LATER: Samuel Goldman puts his finger on a key part of the problem here:

There’s no indication of specific hostility to Judaism here. Nevertheless, the ruling is the logical consequence of a concept of religion implied by Protestantism and articulated philosophically by Benedict Spinoza and John Locke.

According to that view, religion is rooted in private belief. Associations and rituals are legitimate only to the extent that they are submitted to voluntarily by consenting adults, who can withdraw their consent at any time. And religious obligations can never trump the civil law.

There are good reasons that this position was appealing in the 17th and 18th centuries. Trouble is, we’ve forgotten not only that it doesn’t fit many older traditions, including Judaism and Roman Catholicism, but that it was specifically designed to exclude them. The understanding of religion’s legitimate sphere that informed the Cologne court’s ruling, in other words, is not theologico-politically neutral. It was, and remains, a polemical concept that elevates state over church, individual over community, consent over continuity in ways that traditional Catholics and Jews find hard to accept.

ADDED LATER II: Gilbert at "The Last Conformer" discusses the matter more specifically. (ht)

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