A libertarian argument for a new law.

Mark, who writes the excellent Publius Endures, left an excellent (and appreciated) comment over the weekend. Normally I would reply there, as I do with most comments. But Mark included one point that I’d like to discuss (emphasis added).

I must say that the circumcision debate (to the extent it can even be called that) has made me feel relieved that my wife and I are having a girl since we don’t even have to consider the issue. Circumcision is frequently done almost without thought, essentially as a ritual. Until Andrew Sullivan started blogging about it in the last few years, it was an issue that I didn’t even consider – I thought it was something that was just what was done. People like you and Sully are starting to open eyes that the practice largely lacks any kind of basis other than as a cultural norm.
The main reason to perform circumcision, as far as I can tell, is that it may create some awkwardness when the child becomes a sexually active adult. The thing is that by the time that becomes an issue, the child will be more than capable of making the decision on his own.
If we had our child a year ago (and it was a boy), I think I would have opted for circumcision just based on the fact that it is a social norm and that there is little publicity about the arguments against circumcision. Were the decision to come up now, I would almost certainly not circumcize.
I’m not sure the procedure should be made illegal, though, but only because I’m generally opposed to adding new laws. However, parents need to be better informed about the risks and generally nonexistent benefits of circumcision.

Before I respond, allow me to clarify that this is in no way meant to condescend on this (or any) point. Although I’m certain that I’m right in all facets of my approach, I’ve thought about this every day for many years. I’ve read a lot of bad arguments on both sides. Reading through them can be tiresome, and without self-monitoring, my response can fall into frustration. (I try to avoid outright disdain, even though there are places where it’s richly deserved.) Mark’s comment is none of that. He shows an open mind that demonstrates genuine intellectual curiousity. He grasps the fundamental argument against male infant circumcision and is willing to act based on that new knowledge. Or to not act, based on that new knowledge. I wish more people had that kind of integrity.

Nor am I suggesting that he does not understand any of the libertarian approach I advocate here. Allow me to reiterate, if you’re not reading Mark’s blog, add it to your RSS feed today. His libertarian credentials are well written in his entries. Here, I’m only offering how I think a libertarian approach must be applied. I’ve read that libertarian arguments don’t apply to children. I find that strange, so this is at least tangentially a refutation of that.

To his comment, though, I think there’s an easy libertarian argument that demands legal prohibition. The Female Genital Mutilation Act of 1995 exists. As long as it is valid law, restricting all medically unnecessary genital cutting on female minors, even at the request of parents, the 14th Amendment demands that the government treat citizens equally. The only choices are to repeal the FGM Act or make the law gender neutral. Since we all agree that the former is unacceptable, we’re left with the latter. (Take a look at the work Matthew Hess is doing to achieve an MGM Bill.)

Beyond that, viewing government through a libertarian goal of maximizing liberty, I’m against any law that would restrict people from making that decision for himself (or herself). I can form whatever opinion I want about someone’s decision, but it’s irrelevant to what he should be able to do to himself. Weigh the benefits against the harm with whatever consideration makes sense. But the issue at hand is that medically unnecessary surgery is objectively identifiable as harm. There is cutting. There is an inherent risk of complications, both minor and severe. And infants do not have their choice. Objective harm is forced on them without their consent with no medical need or objective benefit.

Statistics demonstrate that, when left with their choice, males almost never choose or need circumcision. Any reasonable person standard must side with not removing healthy body parts from children. They have the same individual rights that every adult has to the extent that a right is inherent and inalienable. For minors, those rights should be viewed as held in trust rather than created upon reaching the age of majority. Since the first legitimate purpose of government is to protect the rights of each citizen against infringement by other citizens, there is no reason to overlook that just because the person imposing the harm is a parent who views the imposition as beneficial in some (subjective) manner.

Again, I don’t think Mark’s comment indicates that he’s willing to overlook anything. He’s not rejecting a law. But as he points out there is a societal norm in the United States that male circumcision is just an inconsequential snip. As I’ve demonstrated throughout my circumcision category, it’s not true that it’s inconsequential. Even though most American men are content to be circumcised, we are a nation of individuals before any other examination. Adding a new law to include boys protects them as individuals in the same we already protect girls. It is a law that actively advances individual liberty, while actively rejecting an incoherent narrative of liberty dressed in parental “rights”.

We shouldn’t need a law to protect against infant circumcision. But in a perfect world, parents wouldn’t remove healthy body parts from their children out of fear, superstition and conformity. We must legislate for the world we have, with the foundation of individual rights that we know is valid. I could make an argument that existing assault laws cover unnecessary infant circumcision, but no prosecutor is going to pursue that in the common circumstances of male infant circumcision in America. So, barring a sudden shift to rational action by parents, this is an area where the government must legitimately exercise its authority in defense of rights.

Post Script: There’s a little more to Mark’s comment than what I posted here. I left an additional response there, but it was more anecdotal.

4 thoughts on “A libertarian argument for a new law.”

  1. Thank you for the many kind words, Tony. I’m trying to figure out if I ought to respond on my site since there’s a lot here that invokes the kind of libertarian theory I love discussing.
    In any event, I’m slowly starting to come over to your point of view about legality. One thing which I rarely see mentioned as a justification for laws – and which in some ways ought to be the justification for all malum prohibitum laws – is government’s value as an information-sharing agent. By this I mean that one of the few valuable functions government can serve is that of warning against dangerous and potentially life-threatening products and procedures. This is not to say that anything that is dangerous ought to be banned (a distinction which requires more space than I’m willing to go into here); however, it is to say that by prohibiting certain goods and/or services, government is ensuring that low-information consumers are not taken advantage of. In the case of circumcision, very few people are aware of the high costs and low benefits of the procedure; since they are often told to do the procedure by medical professionals who do not properly inform them of the risks/benefits and since the harm caused by the procedure is a one-time, permanent harm, there is a strong rationale for government intervention on information-sharing grounds. This is, of course, in addition to your completely valid argument about harm, which I agree is a particularly strong argument.
    An important caveat to the above- as information becomes increasingly readily available through nanotechnology and the internet, the utility of government information sharing will decrease dramatically, obviating the need for a wide swath of laws and regulations.
    In any event, I’ll cop to remaining a bit hesitant to support a law here, but that hesitance is rooted more in my Burkean respect for societal tradition than in anything I could consider rational. But I am getting ever-closer to agreeing that a prohibition would be appropriate.
    Also, the anecdote you shared is truly horrifying; certainly, the nurse’s actions seem to violate the “no coercion” maxim of libertarianism.

  2. An important caveat to the above- as information becomes increasingly readily available through nanotechnology and the internet,..
    I defiantly agree with this assessment. It is interesting to note that although it has been well established since at least the very early 70s that there is no significant medical benefit to circumcise, the government has done little to promulgate that message and doctors have been less than ethical in delivering that message too. One has to ask why? The Internet, on the other hand, has contributed an immeasurably to the education of Americans and helped reduce the prevalence of circumcision in the US, not to detract from several wonderful groups, organizations, and individuals who have been campaigning against this for years. It is interesting though with the amount of available information, I still read posts and discussions where people commented that they were oblivious to the fact that this is a uniquely American problem. Most believed that all men around the world must be circumcised.
    Also, the anecdote you shared is truly horrifying; certainly, the nurse’s actions seem to violate the “no coercion” maxim of libertarianism.
    Unfortunately Mark, Tony’s story is not at all uncommon. Although all stories like this are anecdotal I’ll just add that I’ve heard the same situation occurring many times. It is interesting that despite the amount of information that is readily available, like through the Internet, even medical professionals cling to the notion that this is a necessary procedure despite the fact that infant circumcision is rare outside the US. Further, it is common that parents are given improper information regarding how to properly care for their intact boys. The right thing to do is essentially nothing but it is not uncommon for a doctor to insist on retraction and cleaning. (Even though the AAP guide is mostly right and says otherwise) This improper care may lead to problems down the road, a self fulfilling prophesy if you will.
    I am not sure how this problem will ultimately be tackled. I wouldn’t mind seeing a law in this case (actually that is a bit of an understatement on my part), perhaps like the one being considered in Australia. But it does seem that it will be a hard long slog helped along by articulate blogs such as this one. At least now people can get decent information if they care to look. And the thing with circumcision is the more you look into it the worse it gets.

  3. @Mark said, An important caveat to the above- as information becomes increasingly readily available through nanotechnology and the internet, the utility of government information sharing will decrease dramatically, obviating the need for a wide swath of laws and regulations.
    Unfortunately, in the near term, information availability is not ubiquitous. Currently in the US, access to information is partially class based and partially age based. We who use the Interent often forget that there is a large segment of the population without access to the information that is readily available to us. At what point can we say that the public has access to and understanding of the information available so as to make a law unncessary?
    As Joe noted, there are even those with Internet access who are woefully ill informed about the circumcision issue. Access to information is not enough. There are those who do not become informed because they do not seek to investigate and access available information.
    To me, the harm of a law that prohibits circumcision is a low. It is the type of law that any rational and informed person would not need. But, its value rests upon those who act irrationally or who are not well-informed.

Comments are closed.