Passions and ideas
When Buddy Holly in the late fifties pioneered “rock and roll,” he meant the term literally. Ten years later, when John Lennon was thought by many to be more important than Jesus, “Lucy in the Sky” and ladies as rainbows dominated the thinking and writing of many academics. Did anybody in those days imagine, even in delirium, that a generation later, people would think of circumcision enhancing satisfaction (or not), or hindering masturbation (or not)? And perhaps next, if one may dare a prophecy, is that esoteric theology will ask, how many angels can dance on man’s anatomy (with or without the foreskin)?
And we shall wait, one assumes, for a new generation of internet sages telling us that it is not Viagra that turns you on but circumcision, and that we may go to some Holy Land for it or alternatively to the Bahamas to receive it on discount! To read the many current statements on circumcision seems like walking around in a vast English garden of man’s passions and ideas. Sadly, however, space dictates that there is no time to continue walking in that garden.
“The verdict of this court is unsatisfactory and perhaps even unprofessional from a procedural aspect.” Professor Lorenz Schulz
Let’s be serious. One general observation and one professional note: The dispute on circumcision is not a German one for one could have detected it before now on a global scale. Of course, in Israel and in Judaism generally, there is almost nothing that cannot be disputed, usually, it is said, resulting in at least three options among two disputants. But now, among us, this circumcision dispute has emerged out of dusty obscurity, for no particularly good reason, to become an open and gripping matter dominating the public attention thanks to that court of Cologne.
Unsatisfactory and – unprofessional?
The professional note: The verdict of this court is unsatisfactory and perhaps even unprofessional from a procedural aspect. Since the court’s interpretation has introduced a new interpretation of addressing a case, it should have been taken care of by an appeal to a high court or, foreseeing the absence of an appeal, the matter should have been submitted directly to the Supreme Court in the first instance. Thus, we would have a final ruling.
Although this case considers a verdict of acquittal on the basis of normative ignorance on the part of the accused, it proposes the briefly delineated assumption that even a lege artis executed circumcision is unlawful. Although quite a few scholars in criminal law think this conclusion is correct, other colleagues take it as an unusual, if not odd and unjustified decision.
No legal harm
It is not difficult to grasp the main ideas behind the decision: (1) Circumcision is bodily harm. Bodily harm may be justified by consent, i.e., the consent of the harmed. A new, modern doctrine in criminal law even claims that in the case of such consent, there is no legal harm at all. This is important. Unusual practices, for example sado-masochistic practices in sexual life, are in some systems of law considered legal and a lawful constituent of the full autonomy of persons. But in other systems, such as in England, such practices are unlawful.
(2) I have not met anybody who fails to appreciate the growing legal status of childhood. It took a lot of effort to secure the UN Convention on the Rights of the Child in 1989 (CRC, still not ratified by Somalia and the US), and much of the important effort was argued from the theological notion that all beings are children of God. Thus, the child’s interests are the point of departure and the parents are the advocates of them.
As a result, is it not natural to claim that, since there is no consent by the baby, circumcision has to wait (as baptism might wait for adult baptism)? And is it not natural to think like Kant, the champion of man’s autonomy and dignity, and therefore to restrict religion and theology to pronouncing on “natural” matters, meaning to keep religion within what we hold to be enlightened bounds?
But what is enlightenment in a tradition that has not encountered the many sacrifices of the Europeans before the Enlightenment, that does not know the devastation by confessional wars? Even a most cruel civil war is different from the experience of eventually secularizing any kind of public matters for heaven’s sake. Take this question bluntly: Is the present discussion in German legal doctrine translatable at all to an Anglo-American audience?