Consent is no longer understood as something others undertake on our behalf, but without comprehending the old view, much about the past is unintelligible.
When human rights meet multiculturalism, difficulties are certain to arise, and conflicts ensue, that would not have surprised Michael Oakeshott. If all political questions are to be answered by means of mere syllogisms in which abstract principles are the major premise, absurdities and worse will result. Such, at any rate, was his belief.
In Germany a controversy has arisen over the practice of circumcision. A Muslim doctor in Cologne was brought before a court because a child aged 4 whom he had circumcised in his office bled heavily and had to be taken to hospital by his mother. The doctors at the hospital alerted the authorities because the rules regarding circumcision had been flouted, and the doctor ended up in court. He was subjected to no penalty, but the judges argued that no circumcision could be legally carried out, except for strictly medical reasons, until a boy had reached the age of religious discretion (deemed in Germany to be 14), when he could choose for himself.
Not surprisingly, this caused uproar among the Jews and Muslims of Germany: 200,000 and 4 million respectively. The matter was especially sensitive for the most obvious of historical reasons. Representatives of the Jews said that the ruling could be the end of Jewish life in Germany, while Muslim leaders said it meant that boys would be taken to Turkey for the operation. However, the latter solution would not necessarily put parents beyond the law; for if a young boy had been circumcised, contrary to German law, they could be held responsible, even if the operation had been performed in another jurisdiction where it was legal.
The case has gone to appeal, and so the jurisprudence is not yet fixed. The appeal judges will have to wrestle with knotty problems of principle: how much better it would have been if the question had never been raised, and the problem swept under the great carpet of unknowing.
I will leave aside the question of whether it is reasonable to fix the age of religious majority, when a child is said to be able to decide for himself on religious matters, at 14; personally I rather doubt it, especially where social and community pressure are very strong. From what I’ve seen of close religious communities, 21 would be more realistic.
But what the appeal court will have to pronounce upon is whether the rights of the individual child outweigh the rights of very old religious communities to practice their rites, even where they seem to clash with the former.
The court of first instance in Cologne argued that male circumcision for reasons other than medical is a form of mutilation, or modification. The judgment read:
Circumcision modifies a child’s body in a lasting way.
This modification is contrary to the interest of the child,
who must decide his religious affiliation for himself…
The right of the child to his physical integrity overrules
that of the parents in the matter of religious education.
No doubt some people will argue that circumcision has health benefits, for example reducing the rate of HIV transmission, of cancer of the penis, and of cancer of the cervix among women. It might be argued (I do not personally know the statistics) that these benefits outweigh the chances of complications of circumcision itself, just as doctors in Britain can claim that the Abortion Act in practice allows abortion on demand, because any abortion is safer statistically than any continuing pregnancy, and can therefore always be performed on health grounds. Sophistical, but not easy to refute.
However, it is unlikely that the appeal court will accept the argument that circumcision is in the interest of the child on health grounds. In the modern world the health risks of failing to be circumcised are easily avoidable; and the avoidance of remote health risks is not the whole of a child’s ‘interest.’
I think it fair to say that most people who believe that human rights, in so far as they can be said to exist, inhere in the individual and not in the community of which he is a member. Indeed, they exist in part to protect the individual from the powerful and often preponderant claims of the community to regulate his life. And yet the same people will probably be very uneasy with the Cologne court’s ruling, and not only because of the peculiar historical context in which it was handed down. (That the particular historical context was, and always should be, of great importance in decision-making was, of course, one of Oakeshott’s points.)
The rationalist in politics would probably have to concede that the Cologne court was right: circumcision is an attack on the physical integrity of the child, one to which he has not agreed and to which he is not mentally competent to agree. The law does not permit parents to tattoo their children or pierce their ears before the age of 16 (though in practice, and increasingly, it is flouted). How much more important is the integrity of a child’s genitals! The fact that one mutilation – tattooing – is frivolous or whimsical, and the other – circumcision – of deep religious significance: it is not for the state to decide what is whimsy and what is serious. I have known many tattooed and pierced people, indeed (and alas), who take their tattoos and piercings seriously.
It is no good arguing that, if a mutilation is performed early enough in life, the child will not remember it and will regard his own body as being natural rather than mutilated. Humans are resilient and can get used to almost anything. The question could be decided only by asking a large and unselected group of uncircumcised men whether they wished they had been circumcised; and even this method would not be without objection, because they would mostly come from a culture in which circumcision was not seemed socially or religiously desirable.
The unexamined life, said Socrates is not worth living. Perhaps so, though I am not entirely sure that it is up to philosophers to say whose lives are worth living; but what the Cologne case illustrates is that life can sometimes be examined too closely for comfort. Carpets are sometimes for sweeping things under.