The good news
Good news with the draft: There is the reference to the purpose (“Zweck”) of circumcision, no criterion of religion, thus including the case of non-religious circumcision and avoiding the distinction between “good” and “bad” religion. The decisive criterion for ruling the decision of parents (who of course have to be fully informed about the risks) lawful is that there is no jeopardy for the welfare of the child (“Gefährdung des Kindeswohls”).
Then, what about anesthetics? No strict rule (“im Einzelfall geboten”). And the professionality of the circumcisor? In the first six months of the child, no strict requirement of a doctor. A comparably trained professional officially nominated by a religious association is sufficient (and we know the person the legislator has in mind). Resuming the draft, it leaves room for further discussion, even beyond the massive dispute to be expected for the next weeks, and subsequent jurisdiction. In general, the world will say “well done,” for circumcision lege artis will generally not be a criminal matter anymore.
The right of physical integrity
For a comprehensive treatment in doctrine, you first have to distinguish between a utilitarian approach weighing interest of whatever sort and a truly normative, de-ontological approach relating primarily subjective rights to each other in the foreground of human dignity. There you not only find the right of physical integrity but also of mental integrity grounded in culture and, quite often, in religion. Nobody would claim that a boy should wait until maturity to consent to a language he feels home in. And even an atheist may consider the idea that you should know of religion to become a good atheist rather than prohibiting the reading of the Old Testament because of its cruel parts.
And isn’t culture in many respects determining personality more than circumcision, in a world where, according to the World Health Organization, 33 % of the male population are lacking the foreskin? Quite apart from the fact that one could also argue in favor of not postponing circumcision for the child’s sake (for it gets more complicated the longer you wait). Presupposing that you cannot just wait until maturity, the crucial issue becomes the questions of paternalism. Should it be the state or the parents doing the advocacy work?
When I was working in Christian-Jewish institutions in Germany during my college and university education, a move like the verdict of the court in Cologne was unimaginable. Not only did we have many Jews and not yet a large Muslim communities in Germany (Muslims being almost non-existent in the media). The fear of the lable “anti-Semitic” was omnipresent. It is fortunate for the democratic deliberation that this fear is widely gone. Thus we can talk business.
Creativity and imagination
In addition, striving for academic success requires creativity, imagination and, not the least, self-imagination. The German doctrinal discussion profits from a charming young professor, Holm Putzke, holding a junior-professorship (“Lehrprofessur”) at the university of Passau. I am afraid that there would be no summer of circumcision if he had had a senior professorship before, let’s say at the university of Munich, Freiburg or Berlin and didn’t accept the early calling, likely by his academic teacher at the university of Bochum, for a doctrinal crusade against circumcision.
I suggest to take the matter in a different way from the Eurocrats and profit from open public discussion. The mature religions are older than legal doctrine or are even at its origins (like Judaism) and even a historic modernist would grant what Jethro Tull said about rock ’n ’roll in crisis: “And he was too old to rock ’n ’roll but he was too young to die.”
Thus, just relax at the mélange of ideas we will observe in the discussion on circumcision. The psychological tactics used by low intellectualism, short-sighted humanism, anti-Muslim and anti-Semitic traditions, which speak of serious traumata by early circumcision suggesting that Judaism and Islam are traumatic in itself; or anti-Americanism claiming that lay circumcision is either strangely religious or just curious. If there is anything that really merits close attention, then it would be the hotel of sharp legal doctrine.
Lorenz Schulz is professor of criminal law and legal philosophy at the university of Frankfurt/Main and a practicing lawyer. He is also working for the European Academy of Legal Theory and is Secretary General of the International Association of Legal and Social Philosophy