New Article: Explaining the Cologne Circumcision Decision

These are the first lines and the table of contents of my newest article „Explaining the Cologne Circumcision Decision“. It has been accepted for publication in the Journal of Criminal Law and will be printed in an immanent issue shortly.

Jan F. Orth*
Keywords: Religiously motivated circumcision; Circumcision as criminal assault; Consent to medical operation of minors; Parental rights; German criminal law

The decision of the Cologne Regional Court[1] (Landgericht Köln)[2] on religiously motivated circumcisions allegedly banned those circumcisions in Germany – or at least a part of Germany. The opinion of the court was discussed worldwide and was continually misconstrued as a broader signal emanating from Germany that reflects potential discrimination and ignorance of important religious groups and their needs. The author was the spokesperson of the court for this case, a judge himself at the Cologne Regional Court at the time. He explains the legal and factual background as well as the reaction of the German legislator to the decision. He clearly rejects the notion that this decision is discriminatory in nature. On the contrary, it shows a remarkably liberal approach, although references from its holding may indeed limit religious communities in practicing circumcisions.

For the English reader this article provides an illustrative presentation of the fundamental differences between the Civil and Common Law legal systems, an introduction to the German criminal law and therefore a distinction from “Gillick”[3], the leading case in the UK regarding consent and its necessity for medical actions on minors. In the case, the House of Lords held that minors can in some circumstances validly consent to medical treatment without additional consent from their parents and that “parental rights” are not an obstacle to this as they exist only in a sense to be a safeguard to the best interests of a minor. This article shows that there is a tension between this and the current German approach. Obviously, the German understanding of “parental rights” goes distinctly further. […]

Read more… in an immanent issue of the Journal of Criminal Law

Table of contents:
1. Initial Remarks
– Judges and Spokespersons.
– The Reputation of Germany in the International Community.
2. Should judges decide critical and complex socio-political questions?
3. The case history of the circumcision decision
4. The decision
– Proceedings.
– The law on medical operations.
– Contents of the opinion.
5. Binding effect and legal as well as practical consequences of the decision
6. Reactions to the court
7. Reaction of the German legislator
8. Reception in the German population
9. Outlook

 


* The author is a Judge and worked at the Cologne Regional Court at the time the Court rendered the circumcision decision. He was the Spokesperson of the court on duty for this particular case. Currently, he is seconded to the Ministry of Justice of North Rhine Westphalia. Moreover he is an Adjunct Professor at the University of Cologne. […] The views expressed in this article are the personal ones of the author only. They do not necessarily correspond with the views of the Judge concerned, the Cologne Regional Court, its Chief Justice (President) or the Justice of the State of North Rhine Westphalia. The author wishes to thank Mr Jeremy DeWaal, Nashville, for proofreading the text.

[1] Regional Courts (Landgerichte) in Germany have chambers for criminal and civil law cases, both as court of first instance and as court of appeals. In this case, the chamber acted as a court of appeals. “Landgerichte”, often translated also as “District Courts”, are intermediate courts, which have superior courts above them and lower courts below them. However, in order to distinguish them from the “District Courts” in terms of the US-American legal systems, it should be noted that German Regional Courts are state courts (not federal courts), which nevertheless apply and enforce federal German law, like the German Criminal Code (StGB) or the German Civil Code (BGB) for instance.

[2] The Cologne Regional Court is one of the largest Regional Courts in Germany. It has jurisdiction over more than two million residents in its district and about 150 permanently employed full-time judges.

[3] Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402.

 

Picture reference: Picture taken from http://commons.wikimedia.org/wiki/File%3ACovenant_of_Abraham.JPG. Attribution: By Cheskel Dovid (Own work) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC-BY-3.0 http://creativecommons.org/licenses/by/3.0/, via Wikimedia Commons

Posted in Recht and tagged .

Kommentar verfassen