Infant male circumcision in the public square: applying the public reason of John Rawls

Abstract

John Rawls is perhaps the most influential political philosopher of the twentieth century. His philosophy is based on the idea of justice as fairness and emphasizes the importance of basic liberties, including the right to bodily integrity and the use of rationality in making ethical determinations. His political philosophy addressed the challenges a secular society faces when its citizens adhere to a variety of comprehensive doctrines and religious beliefs yet requires social cooperation for the benefit of all. Public policy is determined through ‘public reason’ in which reasonable proposals are considered and compromises made. Using the decisional approaches that Rawls developed, this article explores how the process of public reason would consider the reasonableness of surgically altering the genitals of male minors for non-therapeutic ends. It will incorporate the issues of the basic liberties of minors and the weaknesses of a utilitarian defense of this practice.

Keywords:

• circumcision
• Rawls
• bodily integrity

Acknowledgements

I thank Brian Earp, MSc, and James G. Dwyer, JD, PhD, for their input and insightful comments while preparing this manuscript.

Notes

^1. This would include, but not be limited to, scarification of the face as practiced in some parts of Africa (R v Adesanya), female genital cutting (Boulware-Miller 1985), or tattooing (Lopez 2010).

^2. Unless otherwise specified, circumcision means non-therapeutic circumcision of male infants or other minors.

^3. This article will deal predominantly with the later writings of Rawls with some references to his earlier material.

^4. Rawls argued that utilitarianism did not assign adequate value to the rights and autonomy of moral persons, and an increase in the average utility of a population may have devastating impact on those at the bottom end of the distribution curve.

^5. Viens offers no argument to support this statement.

^6. Viens conveniently ignores the relevant analogy of how we would view incursions on the bodily integrity of an incompetent adult as a per se harm absent, compelling justification tied to that person’s urgent welfare needs. Imagine if a guardian for an incompetent adult wanted very much to have that adult circumcised for cultural reasons or because of belief in the various medical claims that have been made about its benefits. What should the legal rule be for permissibility of the guardian doing so? (Dwyer 2006)

^7. This is an example of the ‘burden of proof’ fallacy.

^8. Ironically, Viens cites the law as justification for parental rights, yet he believes that relying on legal remedies to prohibit circumcision uses the law to enforce ‘a particular value judgment in a way that appears to remove the moralism inherent in its source’ (Viens 2004, 245).

^9. Viens is begging the question here. His argument can be restated thus: not allowing parents’ ‘other-regulating’ conduct to violate their infant’s bodily integrity limits the parents’ liberty to violate their infant’s bodily integrity. Viens also appears to have trouble thinking of infants and children as persons distinct from their parents. Consequently, he repeatedly engages in ad hoc assertions of position that he would not apply to anyone other than children.

^10. This approach is explored extensively by Dwyer (2006) and Lebit (1992).

^11. Rawls’s ‘original position’ is discussed later in the manuscript.

^12. Nearly all rational people would not choose to have their basic liberty to bodily integrity violated or to have sensitive parts of their genital amputated without their input. The empirical evidence is that in developed countries, competent male rarely choose to be circumcised unless there is a medical indication (Wallerstein 1980). Some circumcision apologists have summarily rejected substitute judgment as nonsensical without discussion (Friedman Ross 1999; Diekema 2004). They argue the impossibility of determining what an infant or a child would want, yet it does not take much insight to determine that a child would choose to live, to be fed, to have shelter, and to maintain their bodily integrity. Others have argued that parents do not have the authority to provide proxy consent for infant circumcision (Svoboda, Van Howe and Dwyer 2000). In the case of circumcision, it must also be considered that when males become adults, they generally place high value on protection of their genitals and the quality of sexual experience.

^13. Thirty-eight prominent European clinicians called the report of the 2012 AAP Task Force ‘culturally biased’ (Frisch et al. 2013).

^14. A similar ineffectual argument favoring infant circumcision based on a ‘double effect’ has also been floated (Clark, Eisenman, and Szapor 2007) and refuted (Van Howe and Svoboda 2008).

^15. Although this has been repeated been asserted by pro-circumcision activists (Schoen, Wiswell, and Moses 2000), including the members of the 2012 AAP Task Force (American Academy of Pediatrics 2012), this conclusion has not generally been accepted (Frisch et al. 2013; Svoboda and Van Howe 2013). As noted earlier, national medical organization uniformly have not found sufficient evidence to recommend it. Likewise, cost-utility analyses that follow established standards for identifying articles, making calculations, and reporting results (Gold 1996) that looked at the full array of potential benefits and known risks have not found circumcision to be cost-effective or to have sufficient benefits (Ganiats et al. 1991; Lawler, Bisonni, and Holtgrove 1991; Chessare 1992; Van Howe 2004; Schoen, Colby, and To 2006). One exception is a study by Sansom et al. (2010) that found that circumcision would be cost-effective in preventing HIV infections in the United States. This study only looked at one issue, did not adequately consider the risks of the procedure, overestimated the incidence of HIV infection, and assumed that circumcision was 40–80% effective in preventing HIV infection when studies in the United States have consistently failed to demonstrate an association between circumcision status and HIV infection (Chiasson et al. 1991; Laumann, Masi, and Zuckerman 1997; Thomas et al. 2004; Mor et al. 2007; Warner et al. 2009; Rodriguez-Diez et al. 2012). A further critique of the analysis by Sansom et al. can be found at http://www.plosone.org/annotation/listThread.action?root = 9371 and http://www.plosone.org/annotation/listThread.action?root = 301.

^16. While many see Rawls as a political philosopher, it is fairly evident that Rawls, with the publication of the first edition of A Theory of Justice, was looking to establish a universal, rational, ethical system. He stated, ‘Justice as fairness is a theory of our moral sentiments as manifested by our considered judgments in reflective equilibrium’ (Rawls 1971, 120).

^17. If one only looks at the benefits and ignores the harms, one could justify penectomy as a more effective intervention than circumcision (Van Howe and Svoboda 2008).

^18. Even if the foreskin was not most sensitive portion of the penis, removing it would still be an unacceptable violation of basic human liberties.

^19. Healthy tissue has intrinsic worth from a biological perspective, in that it has blood vessels, nerve endings, lymphatics, et cetera.

^20. Another problem with jumping immediately to a justification based on the ‘reasonable’ is that ‘reasonable’ also changes with time. Slavery used to be considered reasonable. Sometimes this determination is made by those in power rather than those affected by the decision; consequently, the views of those in power (the parents) will usually prevail. The first principle of justice is there to protect the basic liberties of all and the interests of the least powerful from the tyranny of those in power.

^21. The right to an open future involves leaving decisions with permanent, irreversible consequences that can safely wait until the child is old enough to decide for himself (Feinberg 1980; Davis 2000; Darby 2013).

^22. In cultures in which circumcision is popular, many men say that they prefer to be circumcised and that they are glad that it was done when they were an infant, so that they did not have to consciously experience the surgery. This attitude is likely the result of cultural conditioning and indoctrination. Given the opportunity, very few adult men choose to be circumcised, even though general anesthetic is available (Wallerstein 1980). No one is suggesting that adult men would not have that choice available to them.

^23. This represents the logical fallacy of putting the burden of proof on the circumcision opponents rather than providing the necessary proof to support his own position.

^24. At the risk of providing an argument based on popularity, the ‘choice-protecting’ view of rights expressed by the Will/Power Theorists enjoys little acceptance among rights theorists and the ‘interest-protecting’ views are now dominant (Dwyer 2006).

^25. Note that religious practices are not included.

^26. The counter argument is given the religious and cultural pressures to be circumcised; many men within circumcising cultures would choose to have been circumcised as infants. This argument was typically given by men who were circumcised as infants. This projection of one’s value system on an infant infringes on what Singer calls the principle of equal consideration of interests (Singer 2011). Likewise, the religious or cultural affiliation of the parent would not be a factor when addressing this issue in the original position. The empirical evidence indicates a very low rate of elective circumcisions among adult males in the United States (Wallerstein 1980) and substantial rate of adults who do not adhere to the religion of their upbringing (PEW 2008).

^27. Apologies to Benatar and Benatar (2003a).

Additional information

Notes on contributors

Robert Van Howe

Dr. Robert Van Howe, paediatrician, is a Clinical Professor in the Department of Pediatrics and Human Development at Michigan State University College of Human Medicine. He also holds a Master’s degree in biostatistics. Dr. Van Howe is an expert on circumcision, has spoken internationally on that topic, and has published numerous articles and studies, including (2012) ‘How the Circumcision Solution in Africa Will Increase HIV Infections’, published in the Journal of Public Health in Africa (JPH).