Limits of Enlightenment and the Law - On the Legality of Ritual Male Circumcision in Europe Today

Abstract

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.

Keywords: Circumcision, Human Rights Law, Criminal Law, Legal History, Germany