'Limits of Enlightenment and the Law - On the Legality of Ritual Male Circumcision in Europe Today' by Mark Swatek-Evenstein in (2013) 29(77)
Merkourios 42
comments that
The legality of ritual circumcision of male infants is a subject not regularly discussed under European or international Human Rights Law, let alone national law. In Germany, this changed dramatically in 2012, when a regional court declared ritual circumcision of a male infant illegal, even if performed at the parents' request and according to current medical standards. After a fierce public discussion, the German parliament voted towards the end of the year in favour of a bill that explicitly permits male infant circumcision. The discussion on whether this new law is in line with European human rights law and international law is expected to continue.
This paper takes no position on whether infant male circumcision should be legal and takes no position on the medical questions attached to the subject. It argues for the legality of infant male circumcision in Western democracies like Germany for historic reasons: Jewish emancipation in the 18th and 19th century throughout Europe meant an incorporation of Jewish laws and customs into the legal fabric of European countries. Taking into account the relatively wide acceptance of the practice of infant male circumcision in communities worldwide, the paper suggests that arguments from international human rights law make simple equations difficult to sustain. Gender and children's rights-based approaches may be utilized to develop a deeper sensibility for the issues related to circumcision, but must not obscure the fact that minority rights sometimes rightfully allow a minority to do things the majority does not understand.
Swatek-Evenstein argues that
The legal framework for any opinion on the legality of ritual male circumcision is provided not by a subjective reading of
applicable legal provisions, no matter how “objective” such an interpretation may claim to be, but it is the result of a specific
legal tradition. In the case of Europe, the recent discussion on whether or not to include a reference to God in the preamble
of the Charter of Fundamental Rights of the European Union, shows that the relationship between religious foundations
and legal institutions is far from over. While the Charter only makes reference to the “spiritual and moral heritage” of the
European Union, it is clear that Europe (and with it, European law) today is based on a predominantly Christian European
(religious) experience and development. Guarantees of religious freedom for other denominations therefore always contain
aspects of minority protection. As shown for the case of Germany, ritual male circumcision, while never widespread in predominantly
Christian Germany, evolved within the state’s legal tradition. The guarantee of religious freedom here returns to
its origin in human rights as minority rights: For in the Jewish and Muslim traditions, membership to the respective groups
(or religions) is not the result of a faith-based choice, as the Cologne court implied in its reasoning based on a Christian
understanding of religion, but of heritage. Born to a Jewish mother, any male infant is considered Jewish and as circumcision
is considered a requirement by most readings of Judaism, it may make sense to speak of a “right to be circumcised”,
that is, to be welcomed into the Jewish tradition as this tradition requires. The situation in Islam is similar. Claims of an
implicit incompatibility of this right with European (human rights) rules construct a dichotomy between the substance
of the European legal system and, in particular, Judaism, which given the recent re-affirmation of Europe’s “spiritual and
moral heritage” and “the diversity of the cultures and traditions of the peoples of Europe” in the preamble of the Charter of
Fundamental Rights of the European Union, hardly represents a step forward. Instead, such claims re-affirm the construction
of the Jews (and the Muslims) as Europe’s “Other”.
Statements on the freedom of religion in its legal dimension often come with certain limitations. For example, according to
Art. 18 of the International Covenant on Civil and Political Rights (ICCP), the freedom to “manifest one’s religion or beliefs
may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or
morals or the fundamental rights and freedoms of others”. In similar fashion, as described above, Article 9 of the Convention
contains an almost identical limitation. In this context, the re-evaluation of the (legal) relationship between children and
their parents of the recent decades becomes relevant. Children are no longer the “property” of their parents, but individual
bearers of rights. The “best interests” of the child, rather than the wishes of the parents, have become the legal focus (see Art.
3 UNCRC and Art. 24 (2) and (3) of the Charter of Fundamental Rights of the European Union). From this perspective,
it might make sense to question whether “the excision of healthy tissue from a child unable to express his consent for no
demonstrable medical benefit” should be a private matter of parental choice. But the increased emphasis on children’s rights
alone does not allow for excluding such a decision from the realm of valid (legal) parental choices. Pretending to interpret
children’s rights according to one “objective” definition of the “best interests” of the child and deciding against circumcision
for its lack of medical benefit is akin to devaluing traditions which decide in favour of circumcision for other reasons. It
also separates children and their rights from their “natural” environment, that is to say, it strengthens children’s rights at
the expense of the protection of the family as an organic unit. Thus this arguably runs counter to the aim of the United
Nations Convention on the Rights of the Child, which is to provide the best protection for the child that, as the preamble clearly states, “should grow up in a family environment”. In other words, the UNCRC seeks to balance the rights of children and parents to preserve a strong pro-family ethic. While it cannot be denied that there can be situations within the family that require state intervention, it must be asked whether the practice of ritual male circumcision, which has been known
in Europe for centuries, can by default be considered such a situation, as critics of the ritual seem to suggest. As long as it
can be demonstrated that legal regimes of Europe and international human rights law have developed with the inclusion of
such traditions, using these regimes to pass judgement on those traditions decontextualizes the law from its social origins.
As Didi Herman has shown, reducing these traditions to “purely religious” traditions – implicitly defining “the hegemonic
Christianness” of most of Europe as secular – negates their origin in cultural traditions and their importance for questions of
identity, and is informed by an implicit Christian normativity: “In the case of circumcision, a secularised, modern ‘healthcare’
argument can thus be read as racialising, orientalist and Christian, as can the related argument that circumcision is, at root,
a barbaric ritual having no place in a civilised society, made by European enlightenment rationalists over 200 years ago.”
If chronology is everything and cannot be reversed, then ritual male circumcision is, in principle, legal under current
European Human Rights law. That does not mean that the practice needs to remain legal, but it does mean that it is not for
the courts to decide whether or not the legal situation should or will change. The Cologne court’s decision may not have
violated the European nullum crimen-principle as defined by Art. 7 of the Convention, since no “penalty” was imposed on
the defendant, who was acquitted. But the retroactive destruction of a defence violates any principle of legality less narrowly
defined, even if no penalty is imposed. Under international criminal law, it is not only the rule of non-retroactivity of crime
creation that has reached customary international law status. There is an equally well-established rule of non-retroactivity
in eliminating defences to crimes. The latter rule prohibits elimination of defences concerning what acts the law deems as noncriminal
(unless the defence – though formally in place – can be considered unjust and where, stripped of the defence, the
act in question was squarely criminal at the time.). It cannot be said that parental consent to ritual male circumcision as a
defence to the act in question can be considered unjust, or that male circumcision as such is squarely criminal under current
criminal law in Europe. As stated before, it is clear that circumcision can be medically beneficial, even if such benefits are not
motivating factors in the practice of ritual male circumcision.
If children’s rights are indeed seriously impaired by allowing ritual male circumcision, as some judges and academics believe,
the way forward is not to claim that the practice is illegal, only that it should be illegal. Such claims will then have to deal
with the medical ambiguity related to the subject, just as much as they will have to respond to the claims of religious freedom
properly understood. If Europe is to remain a place of diversity, then a dialogue about the desirability/necessity of ritual male
circumcision outside the constraints of the discourse about its legality is likely to find more open ears than the accusation that
some of the contributors to Europe’s legal status quo are habitually violating this very same status quo.
'An Examination of Legal and Ethical Issues Surrounding Male Circumcision: The Canadian Context' by Suzanne Bouclin in (2005) 4(2)
International Journal of Men's Health 205
comments that
Despite shifts in the discourses adopted and reinforced within the Canadian medical community and the international community, routine neo-natal male circumcision remains fairly normalized. Focusing on the Canadian context, this paper outlines the health-based and legal arguments against elective infant male circumcision. Part one provides an overview of routine neo-natal male circumcision and deals with the crucial distinction between therapeutic and non-therapeutic intervention. It locates elective neo-natal male circumcision within the non-therapeutic category. Part two outlines the theoretical underpinnings for medical consent in the Canadian context, and discusses the legal requirements for 'informed consent'. The work of part three is to tease out issues of parental consent and whether parents should be entitled to substitute consent for non-medically necessary, routine, neo-natal circumcision.
