Leiden Law Blog

Male circumcision

Male circumcision

In an article with the title “Culture, Religion, and Gender” (2003) the Israeli professor of law, Frances Raday (b. 1944), takes a clear stance with regard to religion and human rights. Human rights as we know it today, she writes, “is a product of the shift from a religious to secular state culture at the time of the Enlightenment in eighteenth-century Europe”. The eighteenth century was a time when religious paradigm was replaced by secularism, communitarianism by individualism, and status by contract.

If Raday is right, human rights and religion are not very compatible. Although this will not be a popular view with those who think that religious prescripts can be interpreted any way we choose, there are some recent court rulings that seem to confirm Raday’s vision. One of the most spectacular rulings of this summer is a ruling by the “Landsgericht Köln” criminalizing male circumcision for mere religious reasons (circumcisions on medical grounds are excluded from this judgment).  According to the German Court “The religious freedom of the parents and their right to educate their child would not be unacceptably compromised, if they were obliged to wait until the child could himself decide to be circumcised”.

This is a clear example of the clash of cultures that Raday talks about. The pre-modern, religious view is communitarian; the parents decide for the child on the basis of what is written in scripture. The modern, human rights point of view takes an individualist stance. The parents can educate their children but not permanently mutilate their bodies to earmark them as belonging to a certain religious community.

Usually this is presented as a clash between the parents’ rights to educate their children in the faith of their choice and the integrity of the human body, but, one may contend, there is some deeper conflict involved. The practice of circumcision violates also the right to free choice in matters religious and otherwise. When someone is permanently physically mutilated or earmarked to proclaim his or her adherence to a religious community this violates the freedom of religion as well. According to a human rights regime one has not only the right to choose a religion, but also to abandon or reject a religion. Physically earmarking someone else makes it more difficult for a person to change his opinion about this religion. Therefore all forms of circumcision do not only violate bodily integrity but also the notion of “religion” as such: the notion of religion as compatible with a human rights regime.

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