Explaining the Cologne Circumcision Decision
| Published date | 01 December 2013 |
| DOI | 10.1350/jcla.2013.77.6.877 |
| Date | 01 December 2013 |
| Subject Matter | Comment |
COMMENT
Explaining the Cologne Circumcision
Decision
Jan F. Orth*
Keywords Religiously motivated circumcision; Circumcision as criminal
assault; Consent to medical operation of minors; Parental rights; Ger-
man criminal law
The decision of the Cologne Regional Court1(Landgericht Köln)2on
religiously motivated circumcisions allegedly banned those circum-
cisions 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 discrim-
ination 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 legislature 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 com-
munities in practising circumcisions.
For the English reader this Comment provides an illustrative pre-
sentation 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 vWest Norfolk and Wisbech Area Health
* Dr. iur., LLM (University of Texas); e-mail: janforth@me.com. 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 and is an Adjunct Professor at the University of Cologne. Many thanks
are due to Mr stud. iur. Alexander M. Aumüller, University of Hannover, who has
extended permission to use his English translation of the decision in this Comment.
The views expressed 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 original 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.
497The Journal of Criminal Law (2013) 77 JCL 497–511
doi:10.1350/jcla.2013.77.6.877
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