There’s been a lot of column centimetres in the press about the news from Germany, that a court has banned circumcision because it is cruel to the child, who is too young to express an opinion about it. In this article, I am going to take the view that the court is well-intentioned (i.e. no anti-Semitism involved), circumcision is painful (i.e. no medical misdirection involved), but nonetheless the court’s view is wrong.
To arrive at my point a little circuitously, I am going to start with the Rule of Law. There is the Law which is the centrepiece of Government: the legislature lays it down, the judiciary interprets it, and the executive enforces it. Then there is the Constitution, which is more of a ‘national identity’ set of laws, that override legislative law-making.
In my understanding (and this is strictly amateur), the Law that the legislature lays down is more or less temporal. By that I mean the law as it stands today is a reflection of the needs, prejudices and sensitivities of society today (because society elects the legislature that makes the laws). The Constitution is much less temporal; it is deliberately protected by the Law so that it can be changed only very infrequently, and that too under overwhelming popular demand.
Constitutions are usually re-written during moments of great historical upheaval. For example, the Indian constitution was written shortly after India came into being; similarly the US constitution. After World War 2, when the UN was formed, the UN Declaration of Human Rights was adopted; this became some kind of guiding document for many constitutions around the world.
While this document clearly defines individual liberty, and lays down principles such as participatory decision-making and abolition of inflicting pain (which is what the German furore is all about), it does so because at the point in time when it was created, the Declarers of Human Rights felt that these were most important to human existence.
Despite its wording, this is not a Universal Declaration, and this is something I want to emphasize. For example, take slavery. The very word is repugnant to us now. But in nearly every country in the world, till even a couple of hundred years back, slavery was not only practiced, but was the norm. Similarly war. Every nation is called upon to abjure war by the Declaration, and this has worked to a remarkable extent – the amount of violence today is miniscule compared to the past (see, for details and references, Stephen Pinker’s book, “The Better Angels of our Nature”). Nonetheless, War was the most common, accepted way to resolve disputes between countries even a hundred years ago.
So we must understand that Human Rights, really, are not. They claim to speak for our entire species, but they do not: they speak for the here-and-the-now human beings, and not even all of them, only a majority.
What the Human Rights compete against are the Human Customs. For millennia, Jews and Muslims have been circumcising their children; does the fact that it is such an integral part of their culture make it a Human Right all of its own (the Right to Circumcision)? Perhaps not – not under the Humanist scheme of things that the Declaration of Human Rights envisages. Because religion is, in most cases, not Humanist – few religions (if any) prioritize Human Life over Human Goodness, and an underlying theme of most religions is, suffer now so that you may rejoice forever hereafter. This makes for stirring religious speeches, but very poor human rights.
So when we set out to allocate priorities, between human rights and human customs, which should we pick? Most European countries have already chosen: the former. So religion wanes, belief in Judgment Day or an afterlife wanes, and people live their lives for today.
Though it is acceptable that the Europeans should have picked this option, let’s reconcile ourselves to the fact that this option is not the Universal. Should we allow a community to reject a human right that conflicts with a religious duty? I believe, yes, we should. Not because religious duty is more important than human rights, but we cannot, do not, should not have any more confidence in our own formulation of ‘human rights’ than that they are temporary, temporal, a creation of the best minds of the last few decades, and extending into human nature no more than that.