Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, January 7, 2019

The Supreme Judge for the Catholic World

"To judge" is a term used in many ways, and, as a result of that lack of univocity, we need to be careful when assessing the merits or demerits of particular examples of judging (or judgment).  It is fashionable in some quarters to posture as eschewing all judging or judgment, but the anti-judging posture simpliciter is unsustainable.  Judgment of various kinds is obviously a necessary achievement on a regular basis for a life of tranquil order or even the avoidance of the edge of chaos.

Judges, as in courts of law, do judge, but legislators and private persons also judge.  For example, I, a private person, judge that torture of the innocent is always and everywhere wrong; no legal consequences attach to my private judgment but it is nonetheless what we refer to as a judgment.  A judge acting as a judge, however, judges, for example, not only that the defendant did a legally proscribed act (actus reus) but also that he did it with the requisite fault (mens rea), and, under certain specified circumstances, the consequence called punishment will by judicial action (sentencing) attach to that legal judgment.  Unless our whole system of penal law were unthinkably to be transmuted into a regime of strict or absolute liability, its operation depends upon judgments of both acts and, to my present point, persons and, specifically, their fault vel non.  I would just add that a system of penal law that eliminated structured and limited judgment of the fault of duly accused persons in favor, instead, of universal strict liability would present its own, profound moral problems.  

The preceding, about the necessity of judgment to civilized living, is background to our present, real-life predicament.  On the one hand, the line for which Pope Francis is most likely most well known is "Who am I to judge?" On the other hand, however,

the Roman Pontiff is the supreme judge for the entire Catholic world; he renders judicial decisions personally, through the ordinary tribunals of the Apostolic See, or through judges he has delegated.

 CIC 1442.  The person who as Pope publicly undermined his own capacity "to judge" is at the same time (as long as he remains Pope) unalienably the supreme judge for the Catholic world:  "Romanus Pontifex pro toto orbe Catholico iudex est supremus."

Before proceeding, let me anticipate the objection that it is canon law and the Roman-legal way of thinking, not the tension I have identified between the role of the "supreme judge" and the particular supreme judge who ponders "Who am I to judge?" that constitutes the problem.  But it is canon law, duly articulated and justly enforced, that constitutes the problem?  I submit that it is not, something Raymond of Penafort (whose feast the Church celebrates today) very much appreciated.   A worthy system of law, such as the canon law of the Church over the centuries, is vital to the just and effective, not to mention virtuous, functioning of a (complete) society.  The opposing point of view usually says that love is be preferred to law in the Church.  Indeed, but the priority of love in the Church rather calls for law than displaces law.

It is well known and easily documented that many of the active minds behind what we call "Vatican II" wished to divest the Church of the inheritance of Roman law in the canon law.  These tended, by the way, to be the same minds, such as Marie-Dominique Chenu OP, who wished to eliminate Latin as the liturgical language and also sought to downplay in Catholic theology the treasure of Greco-Roman discovery of the logos.   As I have commented here before, however, if the Church had not been functionally talked out of her own system of law and its just enforcement, the incidence of crime and other wrongdoing in within the Church herself in recent decades would surely have been orders of magnitude lower.  The canon law has remained on the books (though of course much weakened in relevant respects between the Code of 1917 and the Code of 1983), which is why  my saying "talked out of her own system of law" is somewhat hyperbolic, but the evidence is irrefutable that canonical crimes by prelates, for example, have gone by and large un-prosecuted.  

But enter a gaping exception.  This week includes what is to-date the most famous, indeed epochal, exception to the don't-prosecute prelates rule.  The Wall Street Journal and other sources are reporting that this very week, at long last, Archbishop McCarrick is finally getting the canoncial trial Pope Francis promised would be held when he accepted Archbishop McCarrick's resignation from the College of Cardinals this past June.  I have no competence, let alone any wish, to try to prejudge (sic) the result of the ongoing trial.

What I do wish to underscore is that the man who very successfully adopted the anti-judging stance for all the world to see and celebrate is the man who nonetheless will be, will-nilly, the "supreme judge" in McCarrick's case. It does not matter to the exercise of that supreme jurisdiction that McCarrick seems to have found personal favor with Cardinal Bergoglio and then Pope Francis.  Francis cannot recuse himself from being the supreme judge in McCarrick's case because, just as the Pope is the supreme legislator in the Church (which of course does not mean that his power is absolute), so, too, is he the supreme judge, irrespective of any bias of which he cannot rid himself.   This perhaps startling claim is the consequence of the theological doctrine summarized as follows in Canon 331, a canon Pope Francis himself has not been shy about formally invoking (e.g., with respect to his own role in ratifying the results of the 2015 Synod (cf. Can. 343)):

The bishop of the Roman Church, in whom continues the office given by the Lord uniquely to Peter, the first of the Apostles, and to be transmitted to his successors, is the head of the college of bishops, the Vicar of Christ, and the pastor of the universal Church on earth.  By virtue of his office he possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise.  (emphasis added)

We should pray for Theodore McCarrick and for his supreme earthly judge.  It is to be hoped that McCarrick will receive a just trial and, if he is justly found guilty under canon law, a just penalty.  These will depend upon judgments of his acts but also of his culpability.  And thereafter there remains also the possibility of mercy.

Now enter the "Pope of Mercy."  People who are likely to be reading these words will know that this Pope has made his mark on the media and the world, including many Catholic faithful, by styling himself as more merciful than others, including his predecessors.  The most recent example of Francis's unique mercy came with his revision of the Catechism of the Catholic Church to declare that the Church now considers capital punishment to be always and everywhere "inadmissible," a topic I recently discussed here. Pope Francis seems to have judged (sic) all previous popes to be deficiently merciful on the question of capital punishment (and, for that matter, related penological policies and practices).

The rub, however, is as follows.  Even the "Who am I to judge?" and uniquely merciful Francis cannot help acknowledge the necessity of judgment.  Consider this from Francis's less-than-merry "Christmas Greetings" to the Roman Curia during Advent (sic) 2018: "To those who abuse minors I would say this: convert and hand yourself over to human justice, and prepare for divine justice."  Justice, both human and divine, presupposes and depends upon judgment.  

So far, to the best of my knowledge, not one man among the hierarchy has responded to the Pope's ominous Christmas imperatives to hand themselves over to the police.  In fact, the very recent news is that Pope Francis did not know that he had just a few months ago given (and continues to give) cover in the Vatican (as an "Assessor" in high Vatican finances) to one of his protege bishops from Argentina who is publicly accused of sexual abuse of his seminarians.  It sometimes seems that Pope Francis has very bad prudential judgment about whom to bring close to himself in exercising his ministry, thereby unintentionally multiplying the consequences of the "Who am I to judge?" policy.

We all await the divine judgment: Pope Francis got that right.  And we should await that judgment with the "fear and trembling" that the Catholic tradition always until recently taught and preached.  But Pope Francis also got right that he himself has a ministerial role that concerns judgment that, subject to ultimate and assured eschatological rectification, must be made in the here and now, sometimes by civil authorities but sometimes by ecclesiastical authorities.  We must not forget, come what may in the McCarrick trial and otherwise, that Pope Francis is the supreme judge "pro toto orbe Catholico."  Even the "God of Surprises,"a favorite of Pope Francis's, seems at this point unlikely to make the McCarrick problem go away.  We therefore await the judgment of this Pope as the supreme judge for the Catholic world, including Archbishop McCarrick, keeping in mind that the Code of Canon Law (1983) concludes by reminding those called to judge under its force that "the salvation of souls . . . must always be the supreme law in the Church."  CIC 1752.     


Brennan, Patrick | Permalink