Circumcision judgment tackles the nuances of cultural justification
RITE AND REASON:IN A recent article, Dr Kenneth Houston lauded a regional German court for “standing up unambiguously against” male circumcision on behalf of “secular liberal values and ideas of religious freedom”.
The Cologne case is in danger of becoming another data point in the “law vs culture” debates. The truth of the judgment is rather less dramatic, and the legal compromise with religious tradition rather more careful and difficult than such bombast allows.
The controversial “K1” judgment concerned the circumcision of a 4-year-old Muslim boy of Tunisian origin, Ali Al-Akbar. He was circumcised by Dr Omar Kezze under local anaesthetic at his parents’ request. There was no suggestion of negligence. The Cologne prosecution service charged the doctor with the offence of causing bodily harm using a dangerous instrument. The court focused on consent. It held that such a young boy must lack the capacity to consent to an elective circumcision. His parents’ consent could not replace his.
Because Ali was so young, their decisions for him must be judged against the “best interests” standard. This is more taxing than a standard of social acceptability, so it was irrelevant that the practice of circumcision was “socially inconspicuous, generally accepted and historically approved”.
The most important factors to be considered were Ali’s rights to self-determination and bodily integrity. The damage to these rights caused by allowing the circumcision was significant, because circumcision would permanently change his body.
The court found the countervailing interests were minor. Circumcision without consent was a disproportionately high price to pay for access to a religious community, or for the fulfilment of Ali’s parents’ rights to raise their child in their faith.
A better compromise, the court said, would have been to wait until Ali could decide his religious affiliation independently.
The court does not actually take issue with elective circumcision whether of children, or for religious motivations or otherwise. It objects only to circumcision of infants and very young children. Neither does the court entirely dismiss the religious freedom of parents. Rather, it suggests that parents’ right to raise their child in their faith is confined to a process of dialogue and persuasion; that they must think about their child’s rights, and hope he will choose to follow tradition when the time comes.
This is a laudable standard. However, the claim that a child will be able to arrive at that decision “independently” is troublesome. Young people will be subject to parental influence and, in some cases, control, at least until they leave home.
The development and exercise of “religious freedom” cannot be broken down into simple tropes of interference and individual choice. A better judgment would recognise that children are raised by families and communities. Their formation cannot be put on ice. Rather than setting the unmarked child on one side of the balance of interests, and his religious parents on the other, the court might have considered how it could support the child’s religious development, understood as self-determination within a cultural context.
The trump card for the court is the permanency of circumcision. This is problematic, not only because it opens a distinction between religions which require a bodily rite of passage and those which do not, but because the court employs a “trump” at all. Some German Muslims see in the circumcision ban another in a series of European intrusions on cultural practice. In this context, there is a great deal to be said for respectful, informed judicial engagement with the nuances of cultural justification.
This judgment gives the lie to pseudo-liberal fantasies of protecting vulnerable babies from “cynical holy men”. Multicultural negotiations are troublesome, multifaceted and imperfect.
Máiréad Enright is a lecturer in law at the University of Kent, and a blogger at www.humanrights.ie