I'm not sure who the "we" is in Eugene's hypothesis, but nobody is proposing to add anything to defenses, since it's the existence of the * offense* that is under discussion. Nobody contests that the crime of murder, or attempted murder, exists with a rather precise definition. There is as yet no crime of circumcision. Moreover, in looking at the two situations, it's obvious that the defense of self-defense (which derives from the same "unalienable right" to life to which the crime of murder speaks) contains a mental state within its definition, as does the crime of murder. If there were a similar mental state in the "crime" of circumcision (e.g. removing someone else's foreskin with the intent to do grievous bodily harm), then one might say that the "normal" circumcision would never violate the law, and if the perpetrator did have the requisite intent, claiming religious justification might well not suffice as a defense.
Of course, a legislature creating a crime of circumcision could decide to allow medical exemptions but not to allow a religious one (RFRA arguments, anyone? Would *Lukumi* apply?), but I still think that would be merely a trap for the unwary defendant who fails to allege medical motives. On Thu, Jul 5, 2012 at 10:46 AM, Volokh, Eugene <[email protected]> wrote: > Here’s an analogy from another area in which the normal > rule – one person may not alter or injure another’s body without permission > – is relaxed: self-defense.**** > > ** ** > > Say Vic is doing something that Don perceives as > blasphemous, but that might also be dangerous to Don or Don’s property. > (E.g., say Vic is burning a Koran and saying things that might reasonably > lead Don – a Muslim – to think that Vic will imminently injure Don, or that > the fire will spread to Don’s property.) Vic attacks Don using nondeadly > force and injures him.**** > > ** ** > > If Don reasonably believed that Vic was about to injure > Don, and hit Don to prevent that, Don is not guilty of any crime, by reason > of self-defense. But say that the objective circumstances are the same, so > that Don *could have* reasonably believed that Vic was about to injure > him, but Don *did not actually sincerely believe this*. Instead, he says > that he attacked Vic because he thought God wanted him to attack Vic. Then > Don is guilty of assault; no self-defense defense is available (and I take > it that we’d agree that no other defense should be available to him). This > rule does not treat religious reasons for hitting Vic worse than secular > reasons generally. But it does treat all reasons for hitting Vic worse > than one favored secular reason – the perception that Vic poses an imminent > danger to Don’s person or property.**** > > ** ** > > If I’m right on this, then I all think that there’s no > violation of the norm of equal treatment when we add another reason for > allowing one person to alter or injure another’s body: that the actor is > the subject’s parent and has a medical reason for ordering a surgery to the > underage child. That the parent has a right to alter the child’s body for > medical reasons doesn’t mean he has a right to alter the child’s body – > even when the objective circumstances seem the same – for nonmedical > reasons, including religious ones.**** > > ** ** > > Eugene**** > > ** ** > > ** ** > > *From:* [email protected] [mailto: > [email protected]] *On Behalf Of *Vance R. Koven > *Sent:* Thursday, July 05, 2012 7:09 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: German circumcision decision**** > > ** ** > > OK, let's turn this around again. I don't follow Eugene's reasoning here. > If I do for religious reasons what anyone else could do for secular > reasons, why should this be penalized? Seems like a fundamental > equal-treatment issue. > > On the second paragraph, Eugene is correct that my point went to > institutional competence and legitimacy. I have little faith in courts to > divine a social or moral consensus that isn't heavily biased in favor of > whatever the upper middle class (the category into which most judges fall) > thinks it knows. In the absence of an affirmative policy decision by > elected representatives, therefore, the rule of decision that imposes the > least harm *to the polity* ought to be that tradition carries prima facie > probative weight. This is especially true in criminal cases, where the > standard of statutory interpretation requires that crimes be clearly > specified--none of this "do no harm" generalizing!**** > > On Wed, Jul 4, 2012 at 4:24 PM, Volokh, Eugene <[email protected]> > wrote:**** > > Sorry for the delay responding – I was traveling Monday > and Tuesday – but I’m not sure I grasp the argument in the first > paragraph. My view is generally this:**** > > **** > > (1) People should generally have the power to make > medical decisions for themselves.**** > > (2) Infants and children can’t make such decisions.**** > > (3) Yet some such medical decisions *must* be made > quickly, before the child becomes mature enough to decide.**** > > (4) We therefore delegate this power to make medical > decisions to the parents.**** > > **** > > But this argument hinges on there being medical reasons > for the decision – I don’t see any reason for parents to have this power > when they exercise it for nonmedical reasons. We may defer to a parent’s > decision, even one we doubt, when it involves a tradeoff of one medical > risk for another medical risk. But I don’t see why we should defer to such > a decision when the parent doesn’t even purport to be making a medical > judgment, but is just deciding based on the judgment that “God wants me to > do this” or “I don’t want to give more profits to Big Pharma.” That’s not > weighing religious motivation negatively because it’s religious – that’s > weighing a *nonmedical *motivation negatively compared to a medical > motivation because the only justification for letting me order someone to > alter not my body but my son’s body is the need for *medical* judgment.*** > * > > **** > > This leaves two different arguments. One is “letting > people do what they have always done,” which strikes me as weak for the > reasons I gave in part of my response to Paul Finkelman’s post – especially > give the longstanding tradition of allowing not just parental decisions > about surgery for children but also parental decisions about beating > children, a tradition that I do not think ought to be given much legal > weight. The second, which I think is intriguing and might be correct, is > to have such decisions be made by legislatures directly, rather than by > judges interpreting general human rights norms. I’d love to hear more > thoughts on this institutional question.**** > > **** > > Eugene**** > > **** > > *From:* [email protected] [mailto: > [email protected]] *On Behalf Of *Vance R. Koven > *Sent:* Monday, July 02, 2012 10:58 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: German circumcision decision**** > > **** > > But isn't saying that you would accept the argument that refusing medical > treatment because it might do more harm than good the same as saying the > medical treatment might not be necessary? And if in any particular > situation you would accept the argument that doing or not doing something > would be valid if you said it was for medical reasons, and oh by the way to > do otherwise would be against my religion (and there is independent > evidence that the medical argument is genuine), then why condemn someone > who neglects to mention the medical rationale? The medical evidence goes to > the question of whether, objectively speaking, there is a likelihood of > harm. If the medical evidence is to the contrary, or if the matter is > subject to substantial debate, the religious motivation shouldn't be > weighted negatively, and doing so is simply a point of religious bias > rather than objective analysis. > > This is why I, like Mark Scarberry, would urge a legal heuristic that > courts should be biased in favor of letting people do what they have always > done, unless a democratically accountable legislature has clearly indicated > the contrary (at which point you could begin analyzing whether the > legislature has infringed someone's fundamental rights). Nobody in post-war > Germany has ever prosecuted a doctor or parent (never mind a religious > official) for performing or permitting a male circumcision, which ought to > be evidence that the generally phrased criminal legislation didn't cover > it. The judge's rather high-handed and arbitrary statements that in Central > Europe there are no medical arguments in favor of circumcision do indicate > a mindset that just wanted to take a slap at traditional religious > communities. It's just more legislating from the bench (or the post office). > > Vance**** > > On Sun, Jul 1, 2012 at 5:22 PM, Volokh, Eugene <[email protected]> > wrote:**** > > I don’t see why it’s “religio-cultural[ly] insensitiv[e]” > to say that a decision made for medical reasons is permissible but a > decision made for religious reasons is not; or if it is religio-culturally > insensitive, I would be proudly religio-culturally insensitive in many > instances. (This instance I do find hard, for many reasons, but not for > the reasons described below.) For instance, I don’t see why we should > treat (a) a parent’s refusing necessary medical treatment to a child > because there’s a plausible argument that the treatment will do more harm > than good the same as (b) a parent’s refusing such treatment without any > such explanation but simply because he concludes “we should pray instead of > performing the medical procedure, and God will take care of things.” > Perhaps it’s too hard to tease apart such rationales in some situations, > but as a general matter I would think that courts might quite rightly > reject rationale (b) even if they accept rationale (a).**** > > **** > > Now of course here the situation is not identical – > indeed, as I’ve argued before, male circumcision is not identical to pretty > much any other procedure – and perhaps the situation should be different > when we’re not talking about refusal of necessary medical treatment but > rather the performance of a medical procedure for which the practical > effect (with regard to possible loss of sexual sensation) is unknown. But > the point is that the mere fact that a decision might permissibly be made > for plausible medical reasons doesn’t mean that it might permissibly be > made for religious reasons (or other nonmedical reasons).**** > > **** > > Eugene**** > > **** > > *From:* [email protected] [mailto: > [email protected]] *On Behalf Of *Vance R. Koven > *Sent:* Sunday, July 01, 2012 9:38 AM**** > > > *To:* Law & Religion issues for Law Academics**** > > *Subject:* Re: German circumcision decision**** > > **** > > Isn't there still a substantial body of medical opinion--perhaps not as > prevalent as in decades past--that recommends circumcision as a preventive > health measure? If the issue is the lack of consent from the subject of the > operation, this certainly affects more than just religious observance, and > more than just this particular operation. And if the decision hinges > specifically on the fact that the motivation (if that can ever be clear) is > primarily religious, that certainly smacks of religio-cultural > insensitivity, to put it mildly. > > Vance**** > > > _______________________________________________ > To post, send message to [email protected] > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others.**** > > > > > -- > Vance R. Koven > Boston, MA USA > [email protected]**** > > _______________________________________________ > To post, send message to [email protected] > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Vance R. Koven Boston, MA USA [email protected]
_______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
