The wrongs of human rights

By Jonathan Fisher, September 16, 2012
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Using human-rights principles to attempt to ban circumcision in Germany is a grotesque insult to the memory of Holocaust victims.

The Jewish jurists who helped inspire the human-rights movement must be spinning in their graves at the intellectual violence that their legacy has spawned.

The perversity is not confined to "amputation of healthy skin without consent". Eternal cemeteries are prohibited in Switzerland because they infringe environmental rights while, in the UK, the religiously based admissions policy of a Jewish school was struck down for offending the right to equality.

The emerging landscape does not seem pretty for European Jewry. To date, British courts have treated religious circumcision as lawful, recognising that parental consent in the best interests of a child encompasses cultural heritage. But attitudes are hardening and it is only a matter of time before the issue comes before the British courts again. The outcome then will be far from certain.

The Jewish jurists must be turning in their graves

The ultimate judicial authority in the UK for such cases is the European Court of Human Rights in Strasbourg. In 2010, this august body was asked to decide whether the Russian government had infringed the human rights of the Moscow branch of the Jehovah's Witnesses by refusing to re-register the community as a religious association.

The re-registration was opposed because the community encouraged members to refuse blood transfusions. It was also deemed to infringe the rights of non-community parents by encouraging children of mixed marriages to participate in communal activities.

The ECHR concluded that the human rights of the Jehovah's Witnesses had been infringed since the Russian government could not show sufficiently weighty and compelling reasons to support its decision.

There is a chilling passage in the judgment that should send a shiver down the spine of the Anglo-Jewish community. It says: "The Court observes, on a general note, that the rites and rituals of many religions may harm believers' well-being, such as, for example, the practice of fasting, which is particularly long and strict in Orthodox Christianity, or circumcision practised on Jewish or Muslim male babies. It does not appear that the teachings of Jehovah's Witnesses include any such contentious practices".

So, in contrast to a community that encourages children to refuse blood transfusions, Judaism and Islam stand condemned in the dock of human rights for practising circumcision which "may" harm a believer's well-being. Given the significant body of medical opinion regarding the beneficial effects of male circumcision, it is of great concern that the ECHR should have made this highly damaging assertion in the absence of evidence on the point.

Since the Holocaust, human rights have focused on the notion of entitlement at the expense of individual and communal responsibility. As Prince Charles noted: "The Human Rights Act is only about the rights of individuals (I am unable to find a list of social responsibilities attached to it) and this betrays a fundamental distortion in social and legal thinking."

His thinking is more closely aligned with Judaism's approach, which posits a system of duties rather than one of rights. Recognition of an individual or communal duty implies the recognition of a collateral right, unlike secular systems where it seems to be the other way round. A classic example is the right to privacy. Judaism obliges every individual to respect his neighbour's privacy, rather than the responsibility resting on the state.

It is a pity the Jewish jurists who influenced the development of human rights did not draw more comprehensively on Jewish law. We might have been spared the growing attacks on our traditions if greater emphasis had been placed on individual responsibility, communal cohesion and the role faith can play in delivering these objectives.

Jonathan Fisher QC is a visiting professor of law at the London School of Economics

Last updated: 10:45am, September 16 2012