The abstract legal question has been under discussion for a while. The new part is not that a circumcision counts as bodily injury. German courts have always helt that basically every medical treatment is a "bodily injury" under section 223 of the criminal code. There are however legal justifications that make the act of bodily injury legal. The most important one is consent, which is why doctors are still in business.There's more in the full post about the specific context, how the case progressed, and the likelihood (apparently high) that legislation will be passed to make it clear that circumcision is a protected religious practice. Go read the whole thing.
Now the question is if parents can consent to their children's circumcision. The general rule is that they can consent to medical procedures if they are in the child's best interest. What exactly counts as the child's best interest is not defined by statute and basically left to the courts. Most German legal scholars think circumcision is in the best interest of a child growing up in a religious setting that demands it, because in that context it's an important part of socialization. A minority think it isn't, because an irreversible damage is more important.
Unlike common law systems, the German legal system doesn't officially have binding precedents. So no new law has been created and any other court or theoretically even the same one could find different in different cases. But this specific court has made its opinion known and presumably would find child circumcision criminal in other appeals from its district.
I am ashamed for my country. Obviously a statute in need of interpretation should be interpreted in the light of the constitutional guarantee of religious liberty. And I think it's pretty obvious that circumcision wins for every religion prescribing it.
But in this case it's especially bad because of our national history with the Jews. A German court declaring it a crime to practice the Jewish religion is even more heinous than it "just" failing to get religious freedom. A week ago I would have thought this impossible and people in other countries are fully justified in downgrading their opinion of Germany.
Still, please keep your sense of proportion in the extent of how far you downgrade your opinion of Germany. Idiotic court rulings happen in all countries and the principles of this one will not stand.
Wednesday, June 27, 2012
On the German Circumcision Ruling
Gilbert of The Last Conformer is a Catholic blogger in Germany who writes in English, and as such he's able to bring some local knowledge to the "Germany outlaws Judaism" story that's been going around.