The great waves of global migration into and out of Europe such as those that preceded World War I, followed World War II, and again drew our attention in 2015 inevitably challenge the fixity or stability of a country’s constitutional identity. Whether official ideologies are those of assimilation, integration, pluralism, or multiculturalism seems not to matter; challenges will arise no matter. Constitutional identities are not just ensembles of laws and an accumulated national jurisprudence. They are grounded in cultural configurations that evolve over long periods of time but are, for the most part, taken for granted. Thus, for example, a thoroughly secular constitution such as that of Germany (not to mention, France) nonetheless is built on a deep foundation, a vital layer of which is the Christian past.1 Fundamental constitutional tenets of many a receiving country, such as the “separation of church and state,” are barely thinkable outside the history of western Christianity.
Migrants bring with them their own established social and cultural identities, sometimes more akin to that of the receiving country and sometimes less. In any event they become new passengers on a ship that has been sailing for quite some time. They become entitled, perhaps even before they become citizens but certainly once they do, to affect the whither, the wohin, of that ship, but they are also called upon to acknowledge and defer to the whence, the woher of the vessel they have chosen or forced to board. Consciously or otherwise, natives and immigrants both change, though which side bears how much burden is, obviously, a source of great political and social debate and stress. Most liberal constitutional orders (and some illiberal ones) allow for a certain measure of legal pluralism, so that a fundamental secular constitutional identity or order is not necessarily threatened by the existence of religious officials or tribunals in family disputes, the arbitration of commercial conflicts, or a range of other matters.2
In addition to recent migrants, minorities of long standing may hold to values different from or irritating to those of the majority-including values very much a part of group and individual identity. Here controversy may be a constant or recurring phenomenon with minorities enjoying certain rights guarantees but also being subjected to conformist pressures, legal and social. With luck, a more capacious constitutional identity may be the outcome of such controversies; without it, existing social fissures may be exacerbated.
The controversy began unspectacularly enough in November 2010. One Saturday morning, a four year-old Iraqi-German Muslim boy was brought to a local Cologne emergency room in an ambulance called by his mother, who was panicked over minor bleeding around the site of a circumcision performed two days earlier. Due, it seems, to language shortcomings in explaining what had transpired and a possibly hostile on-call doctor, the conversation between mother and staff led to the police being called. Two indictments followed: one of the parents for child abuse, soon dropped, and another, in January 2011, of the physician who had performed the circumcision for aggravated battery, “use of a dangerous instrument to physically abuse another and damage their well-being,” through a violation of the infant’s physical integrity.
The controversy over circumcision combined a challenge to minority rights with “line drawing” intended to contain and transform practices of recent migrants, practices very much at the core of their identity but perceived by many in the majority as subversive of, if not directly contrary to, the constitutional identity of liberal Germany. The legal and public conflict that it unleashed demonstrated, in addition, the power and limits of the German commitment to making Germany a hospitable place for its renewed Jewish community as well tensions in the legal construction of the relationship among parent, child, and state.
Finally, I attend to the possible means of reconciling German constitutional identity with this important particular cultural practice of the Jewish and Muslim minorities, the former ancient but only recently reestablished and the latter a growing and “coming out” sector.
1. Cecile Laborde thus coined the term “Catho-laïque” to describe the Christian assumptions underlying the constitutionalism of utterly secular France; Critical Republicanism: The Hijab Controversy and Political Philosophy (London: Oxford University Press, 2008).↩
2. It does, however, belong to the heated atmosphere of recent times that anxieties about being overwhelmed by sharia law or the like have gained real traction, not only in places like the Visegrad countries where demagogy is the coin of the political realm but also in firmly established constitutional democracies like Germany, Scandinavia, Canada, and the U.S.↩
David Abraham’s article “Circumcision: Immigration, Religion, History, and Constitutional Identity in Germany and the U.S.” has been published in German Law Journal 18, no. 7 (2017): pp. 1745-1762.
Access to the article is available here.