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The ruling by the district court of Cologne that circumcision is illegal under German law, due to constituting “a violation of physical integrity", has led to a great deal of media comment.

The argument for the ban is simple. Circumcision is harmful to the child, even a form of child abuse. It “permanently and irreparably” changes the child’s body. It should be illegal to harm others without their consent, so, since the child is not able to consent, circumcision should be illegal.

The first thing to say in response to this argument is that while the prevention of harm is an important moral and legal principle, it is not the only value the law should protect. Another important value is that of religious freedom. This idea can be fleshed out in various ways. For example, philosopher Martha Nussbaum talks of ‘respect for conscience’ and William Galston of ‘expressive liberty’. The key idea, however, is that individuals should be free to live out their fundamental beliefs about what brings meaning and value to life. Both Nussbaum and Galston argue that this is a central value within liberalism.

Circumcision is clearly a vital part of both Islam and Judaism. It is a mark of identity, of belonging, of being part of God’s covenant people. It would therefore appear to come under the protection of the principle of freedom of religious practice.

So we have a clash of values, with harm and consent on the one side, and religious freedom on the other. Religious freedom certainly must give way in some cases where it causes harm. If a religion commanded child sacrifice this would not mean the state should stand by and let such a practice occur. Likewise for female genital mutilation. The importance of religious identity and freedom cannot justify the harm caused in such cases. Some have sought to put circumcision in the same bracket, but this conflation is surely spurious. The harm caused by circumcision is not on the same scale. As Dr Frank Montgomery, president of the German Medical Association, has asked, if circumcision is illegal due to non-consensual harm, what should we say about parents who pierce their children’s ears? There is clearly a spectrum of harm here, and we are going to have to draw the line somewhere. Given the fundamental importance of circumcision to the religious practice of Jews and Muslims, I would argue that the scales firmly tip toward allowing circumcision in law.

We must also consider the issue of consent. Religious freedom is fine, some would say, as long as it does not involve imposing one’s religion on another person. As the court put it, circumcision “conflicts with the child's interest of later being able to make his own decision on his religious affiliation".

In itself, the court’s claim here is surely a dubious one. The fact that an individual is circumcised does not prevent them from choosing to reject Jewish or Muslim faith as an adult. It is wrong for one person to coerce another into following the former’s religion (although a distinction must be made between coercively imposing one’s religion on another and one’s practising of one’s religion merely affecting or inconveniencing another person), but that is not really what is occurring in the case of circumcision. Rather, the parent’s are expressing their own religious faith and identity, and their desire for their children to inherit it. This is a sentiment most of us share. As Ed West put it in his article on this issue, “personally I like to think that my children and their children will continue my culture, traditions and religion”.

I therefore think that consent is something of a red herring. After all, everything that happens to children occurs without their consent. Children are born into an existing community, tradition and culture, which shape and form them in all sorts of ways that they do not choose. Circumcision appears strange and archaic to many of us, based as it is on ideas of covenant, nation, and collective identity that are foreign our individualistic moral sentiments. Nonetheless, it is ultimately an outward expression of a community’s desire for its cultural and religious identity to be continued, and thus a valid expression of parent’s religious freedom. If it caused great harm to the child then it would indeed be unacceptable, but I have already argued that this is not the case. As West states, “liberalism should mean distinguishing between abusive, unacceptable cultural forms that violate individual freedom and ones you just don’t agree with.” I would add: “or don’t understand”.

Morality and law often involves weighing up competing considerations. The circumcision debate is an example of this, with strong arguments on each side, but (to my mind at least) religious freedom, expressive liberty, respect for conscience, or whatever you want to call it, ought to have won out in this case.

Paul Billingham is undertaking a DPhil in Political Philosophy at Oxford University and is an intern at Theos

Image by James Cridland from flickr.com available under this Creative Commons licence.