13 July 2013


'Germany's Circumcision Indecision: Anti-Semitism or Legalism?' by Hendrik Pekárek (Humboldt University Law School) comments that
Male ritual circumcision is one of the most frequently conducted surgical procedures in the world and constitutes an important aspect of the Jewish and Muslim religion. Thus, when in May 2012 a German court in Cologne allegedly ‘banned’ the procedure, legal uncertainty in Germany set in and emotions worldwide ran high against the decision. In December 2012, the German parliament enacted a law explicitly granting parents the right to have their sons circumcised. This article revisits the complex and unique criminological, legal, dogmatic and constitutional debates and processes that shaped both the earlier court decision and the later legislation. It presents the actual case facts, explains the arguments pro and contra the procedure’s legality brought forward in the legal debate that preceded the court’s ruling, and then analyses the new law that will regulate the matter in the future.
Pekárek concludes -
The Cologne decision — and the debates that preceded and succeeded it — had it all. As Krüper has pointedly phrased it: “It’s an explosive mixture, that’s created when religion meets sanction, when the cultural traditions of a minority are confined to the legal conventions of the majority, thus when suddenly something is prohibited, which was always permitted”. Moreover, as Walter trenchantly pointed out, there is not one unified circumcision debate, but actually several separate underlying debates: “We argue about the scope of authority of parents in regard to their children; about whether Jews should have special legal privileges because of the Holocaust; about how far the Federal Republic should go in order to integrate Muslims, and finally about how much [gender] equality our society is in need of.”
Rarely did a case embrace all the key disciplines of law, rarely was there such a complex collision of legal and cultural values, rarely was there so much international media interest in a legal debate that originally started with haggling over technicalities. In this article I attempted to diffuse this explosive mixture by giving an overview of the full spectrum of the legal debate. By reviewing and explaining the criminal law and constitutional law arguments brought forward by the opponents and proponents of circumcision I have tried to present the perspective of both sides. I have addressed the actual case, the judgment and its initial impact. I have laid out the relevant law and the legal reasoning of both opponents and proponents of circumcision. I have explained the fundamental constitutional values that dominated the debate and have shown how the legislature attempted to unify those conflicting values within a new statutory solution.
For anyone familiar with German constitutional law and its basic rights doctrine, the compromise solution of the new legislation does not come as a surprise. In fact, it is almost exemplary for the application of a legal device, which is central to the German constitution’s conflict resolution mechanism. Time and again the Federal Constitutional Court stressed the concept that the Basic Law represents a unified structure of principles and values (Einheit der Verfassung). From this doctrine of constitutional unity arises the obligation to solve conflicts between constitutionally guaranteed individual basic rights through Praktische Konkordanz or in English ‘practical concordance’ or ‘principle of practical harmony’. As such, the doctrine constitutes a specialized application of the principle of proportionality. The aim of practical concordance is to balance out and harmonize the effects of the two basic rights that are in conflict with each other,  whereby the imaginative scale between the two rights should not tip too much towards either side. Therefore, even rights that are stated in absolute terms without a limitation clause (such as religious freedom) may not nullify competing rights with a limitation clause. Both rights shall be brought into a state of ‘concordance’ where under the prevalent circumstances they are able to come to maximum effect, while neither of the two rights is rendered ineffective. To achieve this, the scale balancing out the rights should be held level: the limitations applied to the one right must be equal or close to the limitations applied to the other right.
The doctrine of practical concordance has a number of advantages towards more resolute constitutional law conflict resolution mechanisms: One of the advantages of practical concordance is that there is no need for “the abstract evaluation or hierarchy of constitutional norms”. The Bill of Rights that opens the Basic Law does not contain any specific hierarchical order of the basic rights it guarantees, i.e. it does not decide whether freedom of speech is more important than equality, or religious freedom more important than personal freedom. The only right it lifts above all others is human dignity – from which all other rights derive in the first place.
The newly introduced section 1631 d (1) BGB is a result of the practical concordance doctrine and follows the guidelines set up by the Federal Constitutional Court. The legislator attempted to balance out the parents’ rights to religious and parental freedom against the child’s right to development of its own personality, health and bodily integrity, equally applying limitations to each side. When the law subtracts from the child's rights by granting the parents the permission to intervene into the health and body of their child, at the same time it takes away the parents’ complete discretion by setting up the requirements of professional performance, effective pain treatment, informed consent and the child's veto power. Thus, the independent rights of the parents and the independent rights of the child harmonize with each other. Both sides, as equal and independent bearers of basic rights, loose a limited amount of freedom in order to protect the other side, yet neither side’s basic rights are negated to the degree they would be made ineffective if an absolute decision in favor of one side for the other were taken.
In the light of the doctrine of practical concordance, the ‘mohel exception clause’ of section 1631 d (2) BGB hence is not a sign of favoritism of one particular religion either. A regulation without an exception for traditional circumcisers would have rendered the pertained religious group severely diminished in their right to freedom of religious practice, since a mohel is central to the traditional Jewish practice of brit milah on the eighth day. The introduced requirement of medical training and supervision, professional performance, effective pain treatment, informed consent, as well as the limitation of how long a traditional circumciser is allowed to conduct the procedure shows the active application of practical concordance. The new law subtracts from the parental and religious groups’ discretion in those matters in as much as it subtracts a part of the freedom of the child's right to personality and bodily integrity.
Yet, what conclusion is there to draw from half a year of debating the legality of ritual circumcision in Germany? To come back to the question raised by the subtitle of this article – anti-Semitism or Legalism – I suppose that conscious legalism plays a far bigger role in the legal debate than latent anti-Semitism or a clash of cultures. While this may not be equally true in respect to the wider debate that followed the judgement, the original Cologne decision is neither anti-Semitic nor anti-Muslim, for there is no evidence that it was deliberately aimed at harming these particular minorities. The Cologne court saw itself confronted with a technical matter of statutory law. As we have seen, the main criminal and civil law arguments are either questions about the meaning of individual criminal or civil norms or medical questions that are not conclusively clarified. Hence, especially the criminal law debate reflects the complex dogmatic structure of German criminal law. As such, the case illustrates the differences between the bipartite US system and, the tripartite continental system. The Cologne Regional Court had to make decisions on all these three stages. Granted, the arguments on each stage where highly complex and in the absence of previous decision, the court was not in an easy position.
However, the starting point seldom excuses the outcome. The Cologne decision suffered from a lack of in-dept legal reasoning and total ignorance of legal pluralism. The judgment leaves the sad impression that the judges were in fact totally unaware of the magnitude of the topic they were confronted with. Nowhere does the judgment address that a procedure was legal for centuries might need a little more to have its legality negated by expressing ‘legal disapproval’ than by stubbornly applying the wording of a law that has been in place for more than a hundred years, but has never been applied to this particular context. Whether one is in favor or against the parent’s right to consent into the circumcision of their boy, a decision on the legality of a ritual that is central to two major religious minorities is not to be taken lightly. Yet, a judgement whose central reasoning on parental consent spans merely two pages and only reflects a limited amount of the existent literature reflects a lack of understanding both of the actual matter and the implications it’s decisions have on the pluralistic society. Moreover, to negate the importance of basic rights and to refuse to strive for a compromise between the parent’s freedoms and the child’s rights, but instead to go for a ‘winner takes it all’ approach in favor of culturally defined bodily integrity, reflects a lack of understanding of the constitutional framework of the Federal Republic. Thus, the decision suffered from amnesia of the history, unfamiliarity with the present, and blindness for the future of Germany.
However, the shortcomings of the actual judgement do not mean that the whole debate was a failure, too. As shown, the original discussion in Germany primarily revolved around conflicting criminal law rules and constitutional rights and values. This side of the debate has opened up a number of really important issues in respect to human rights theory. To probe where the religious freedom of one individual ends and the rights of another individual begin in itself is a valid, but complex question.
The constitutional systems of the United States and Germany give distinct answers to this question. While both systems in general may share a lot of similarities — and the influence of the former on the later is undeniable — the circumcision debate highlights a fundamental difference between the two: The US constitution envisions a society centered on human liberty, while the German Basic Law envisions a society centered on human dignity. Whereas the American constitution evolved around a value-neutral concept of liberty, which is characterized by the notion “freedom from government” in order to allow individuals to pursue their interest (and the interest of their children) according to their own vision, its German counterpart evolved around a value-oriented concept of human dignity and free unfolding of personality, which is characterized by the protection of personal development and the physical integrity of the human body, as well as the notion “freedom with, not from government". The United States Declaration of Independence promotes “Life, Liberty and the pursuit of Happiness” and the 1st Amendment protects “Freedom of Religion, Press, Expression”, but it is silent in respect to rights and duties of parents and to direct personality rights. A specific protection of bodily integrity or a explicit limitation of parental freedom does not exist. Hence, it does not come as a surprise that in America the right of the parents to legally consent to alter the body of their child is rarely challenged.
In contrast to the US constitution, the much younger Basic Law’s Bill of Rights is more concrete and exhaustive, which is why the triangular relationship between personal-, parental and religious freedom forms the key aspect of the German circumcision controversy. Neither of these two constitutional visions of society must necessarily be better or worse, they are just different. Yet, the question where the religious freedom of one individual ends and the rights of another individual begin evokes more fundamental, legal philosophical questions. The primary purpose of any law and legal order is to serve society. Ideally, the law therefore reflects the morals and ideals of the particular society as a whole. Since these values may differentiate significantly even in a relatively homogeneous society, law typically accepts the position of the lowest common denominator. In a democracy, the rule of law serves as the only protection of the minority from the dictatorship of the majority, its functional role is to protect the weakest. There lies a crux of the circumcision controversy: Both sides claim the protection of the weaker party. While the opponents deem the boy to be in a weaker position vis-a-vis the power of his parents, the proponents see the Muslim and Jewish minority in the weaker position vis-a-vis the secular and Christian majority. Many opponents and proponents fail to recognize the fact that the weak position of one side does not necessarily disbands the weak position of the other. Thus, if anything, the epistemological conclusion of the debate must be the acceptance of the equilibrium of weaknesses of both sides. Once this realization sets in, the ground is prepared for a legal solution. Law and law making is a communicative process, an active engagement between the different sides to an argument. As such, compromise and understanding for the issues of the ‘other’ has proven time and again to be the more constructive framework to build a state of law upon than a partial solution.
Many legal theorists believe the renunciation of the ‘personality principle’, i.e. the abolition of judging individuals according to the specific religion they belong to. The advent of religious neutrality is regarded as one of the greatest innovations of the emancipated and enlightened state. The circumcision controversy shows the drawbacks of unequivocally accepting those beliefs. Ultimately, a democratic legal system cannot sustain its democratic nature without permitting a limited amount of legal pluralism. The famous German philosopher Jürgen Habermas has summarized the problem like this: “The universalist objective of the enlightenment only fulfills itself in the fair recognition of the particularistic claims to self-assertion of religious and cultural minorities”. A democratic society will have to accept the binding importance of a separate religious law on the followers of that religion and the collisions it may cause with the law of the land as an unavoidable necessity, unless that society deems the observance of those religious laws as unbearable for the society as a whole. The accomplishments of the enlightenment are not necessarily universal truisms and the law will never be the best tool to enforce allegedly enlightened concepts. In the end, I would like to give a positive outlook. I reckon it is safe to say that the German legal system and the academic landscape as a whole have handled the issue fairly well, considering the explosive nature of the topic. The intensity of the debate, but also the judgment and the new law, show that Germany is a viable Rechtsstaat and a stable, openminded democracy with a strong, functioning rule of law, whose jurisprudential science and legal practice are deeply interwoven. Members of the legal academia identified a disparity in the law, and legal practice reacted with the attempt to fix the disparity in correspondence with the law and the immediate information it had access to. Once it was established that the solution by the judiciary proved faulty and inadequate, the executive and legislative branch reacted swiftly and strove for a compromise solution based on ‘practical concordance’. The result — while not fully satisfying the extremes on both sides to the debate — will nonetheless be fit to keep the legal peace and balance out the religious interests of the parents with the non-negotiable interests of the child. For a society that is increasingly confronted by the challenges that go hand in hand with growing pluralism, this is the only way forward.