Is it possible to justify a Cologne court's ruling on the legality of circumcision on the basis of Germany's Basic Law? In this essay, Patrick Bahners takes a closer look at both the Basic Law and the ruling and concludes that the judges in Cologne must have made a serious error of judgement
Anyone who toils over his tax returns, painstakingly adding up write-offs and tax-free contributions, and finally comes to the conclusion that he can expect to receive a refund the size of the federal budget will instantly realize that the result cannot possibly be correct. Such obviously absurd conclusions also occur in the field of practical reason.
A ruling by a German regional court, which, if observed, would mean that all Jews would have to leave the country, cannot possibly be correct. Our human faculties of reason, better known as common sense, tell us so. This also explains the prompt and unequivocal reactions of leading politicians to the Cologne circumcision ruling. Their intuition is intact, which is certainly a relief.
Those who defend the Cologne ruling believe that the unedifying consequence of the judgement – namely that Jews are now faced with the choice of either rejecting the rite of circumcision or emigrating from Germany – cannot cast doubt on the regional court's deductions. Their argument is akin to a modern version Emperor Ferdinand I's motto, which would go something like this: let their be justice according to the principles of the Basic Law of the Federal Republic of Germany, though the Jewish world perish.
If we follow this point of view to its logical conclusion, in order to create just conditions, all kinds of morality that have developed down through history, but which would seem to defy reason in the eyes of the law, would have to be done away with. Ironically, this very idea comes from the realm of the religion whose institutions are now being put on trial: the cleansing fire is the apocalyptic concept of justice.
The welfare of the child in question
If legal positivism tries to enforce its arguments as absolute moral standards, it is not being true to itself. The fact that major areas of life are codified is actually meant to stimulate competition between different approaches to life. Germany's Basic Law, which is rightly understood to be a variable, human-made instrument stemming from 1949 onwards, did not create a new world; it is a reaction to human beings as they actually are, with all their ideals, prejudices and customs. A religion that has had communities in the Rhine and Main river valleys since the fourth century is not at home on German soil subject to its conformity to the Basic Law. Conversely, the written constitution is meant to be interpreted freely in the light of the moral traditions that are to be found among the Germans.
The purpose of the Basic Law is to ensure that Germans live together in peace despite their different beliefs and customs. It is unthinkable to insinuate that it might actually be intended to make future life in Germany impossible for its Jewish inhabitants. The Cologne judges must have made a miscalculation. And lo and behold, the error is not hard to find when reading through the reasoning behind the judgement. The regional court claims that an offence has been committed against the welfare of a child, without taking into account which child is actually involved in the case to be decided: the four-year-old natural son of two Muslim parents.
It is obvious that an Abrahamic fundamentalist would feel the full force of the law were he to kidnap a boy in order to give him the benefit of circumcision, like the Catholic servant girls who secretly baptised Jewish children in the nineteenth century. What the court completely neglects to consider is that the benefits and possible harm caused to children by the surgical intervention might be weighted differently in different families. In other words, the welfare of the child must always be the welfare of the child in question.
The right to be brought up by their parents
Instead, the court constructs a false conflict by setting the right of parents to bring up their children against the fundamental right of the child to physical integrity and self-determination. Parents are depicted here as aggressors whose despotism must be kept within bounds. However, the right of parents to bring up their children is not a privilege at the expense of the child; it is not an authority to dispose over him, like a tenant disposes over the property of his landlord. It is not a fundamental right at all, like the right to freedom of expression or profession, nor is it a right to self-fulfilment. In reality, the position protected by Basic Law is in fact the right of the child to be raised by its own parents. Parents who bring their son to be circumcised are acting in the best interest of the child.
In the Cologne case, the local court, the court of first instance, confirmed this view: the parents' decision "was appropriately based on the 'welfare of their child'". Circumcision namely serves "as a traditional ritual act documenting an individual's cultural and religious affiliation with the Muslim community", thereby counteracting "the risk of stigmatization of the child". The intolerable aspect of the opinion of the regional court that the parents' consent cannot justify the circumcision of their child is the harm it causes the child. What is the effect of the threat of punishment for those performing circumcisions? The boy is denied the sign of belonging, the certification in the circle of his family of his affiliation with his religious community. Right from the outset, his life is not to be allowed to unfold after the model of Abraham or the example set by the prophet.
What is at stake?
In a reply to Christopher Hitchens, who had characterized circumcision as sexual abuse, Leon Wieseltier wrote in 2009 in the New Republic that the most important criterion speaking in favour of the rite is membership: "I am a Jew and so my son is a Jew. Since I believe that it is an honour to be a Jew, I will not exempt my son from this honour. If I do not make him a Jew, he cannot later choose not to be a Jew, because he will not know what it is he is choosing for or against." The very same argument was recently cited by Robert Spaemann in Die Zeit. Wieseltier continues: "My child is free, but not yet. And this is not the only mark that I will leave upon him. Perhaps he will see the love and the pride in this mark. But he is not only his father's son, as I was not only my father's son. We are the sons of a people."
In recent times, there have been an increasing number of controversies about religious upbringing. What is at stake here is the children's right to grow up in a moral world. They must be able to rely on the fact that the state does not view their parents as their enemies and will only act as guardian in place of their parents in the most extreme emergencies, as in the case where the Federal Constitutional Court intervened in a case when a blood transfusion was refused by Jehovah's Witnesses. It is estimated that one third of the world's men are circumcised.
The influence of history on the debate
Whereas the local court pointed out that in English-speaking countries, medical reasons for circumcision are widely accepted, the regional court adopted the arguments that the Passau criminal law professor Holm Putzke has been promulgating since 2008 in a series of essays. In the small print of an article in Die Neue Juristische Wochenschrift, Putzke referred in passing to a 1921 law on the religious upbringing of children. "Back then", he wrote, "Protestants and Catholics made up the majority of the population. Strictly speaking, other religious denominations did not play a role in the reality of life." Strictly speaking! The colossal thoughtlessness of this sentence is characteristic of the unhistorical thinking behind the campaign against the circumcision of young boys. Putzke projects the result of Hitler's extermination policy back on the Weimar Republic and expatriates the Jews from national memory.
Counteracting such crudeness does not, however, mean that refraining from the ban on circumcision – which the parliamentary parties in the Bundestag would like to anchor in law – could be justified on the basis of the Germans' duty to remember its past history; it is instead a question of normal human rights. Any references to the ban on Holocaust denial or to the friendship with Israel, which the chancellor has declared an element of Germany's reason of state, are misleading. The reasons for acting swiftly in order to ensure that the legislator clarifies the matter and the reasons behind the law do not overlap.
An exercise in tact
If Germany's historically ordained respect for the Jews were the reason for not making circumcision punishable by law, its condoning of the practice would have to be characterized as an exception. And this would confirm the arguments of the anti-Semites who claim that Jewish rites cannot be excused by enlightened consciousness. The professor who put Putzke to work on the theme of circumcision back in his days as an assistant came upon the topic by reading Necla Kelek. Just like the critique of Islam, the debate about circumcision in Germany reveals a rabidly anti-religious zeitgeist, one that has fallen on fertile ground on the Internet. A tidal wave of approval for the Cologne ruling is flooding the opinion forums. With her comment, reported a few days ago, that Germany must not be allowed to become a "laughing stock", Angela Merkel revealed her admirable sense of how to communicate the delicate situation in which German politics thus finds itself. It was unbeatably concise and dry, just like the phrase "not helpful", which she used to describe the Sarrazin situation.
The chancellor's sarcasm is an exercise in tact. But her drastic warning distracts from the real danger: were Germany to go it alone with its ban on circumcision, the world would interpret this as a sign of a humanistically legitimized anti-Semitism based on a guilty conscience, the same wellspring behind the enthusiasm for the Palestinian cause. If it was not meant that way, then the lack of judgement demonstrated in the Cologne ruling should better be regarded as a grotesque faux pas, a miscalculation of astronomical proportions.
© Frankfurter Allgemeine Zeitung 2012
Translated from the German by Jennifer Taylor
Editor: Aingeal Flanagan/Qantara.de