Page 3, 9th December 1949

9th December 1949
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Page 3, 9th December 1949 — THE ROLE OF A I CATHOLIC JUDGE
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Organisations: Catholic Church
Locations: Rome

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THE ROLE OF A I CATHOLIC JUDGE

Meaning Of The Pope's Recent Speech

By Dr. Francis f. Connell, C.SS.R.

ON November 7 the Pope ad

dressed a group of legal authorities—professors of law, lawyers and judges—assembled in Rome for a convention of Italian

Catholic Jurists. The discourse of the Sovereign Pontiff has aroused great interest in the world, and many requests have been sent to the authorities of the Catholic Church for art interpretation of the Pope's statement.

It must be emphasised that in the first place the Pope is not proposing

new principles. He is merely restating and applying tenets which have been presented for many years in manuals of Catholic moral teaching.

Four Principles

The chief portion of the Pope's address consisted in the enunciation of four principles. He premised these by stating that his main purpose in enunciating these principles was to furnish Catholic judges with norms which they might safely follow, since in lands that have rejected the laws of Christian morality conscientious judges are often uncertain as to the way they should act in their official capacity.

The first principle is concerned with the part which the judge plays in the administration of justice. The Pope asserts that the judge may not

lay the entire responsibility for the injustice of a sentence which he passes on the law and the lawmakers. In other words, when he passes sentence in accordance with a law which he is convinced is unjust he may not salve his conscience by saying that he is merely the mouthpiece of the law. It is true, the principal responsibility rests in those who have passed the law; but he is an

accessory. For example, if a civil law forbids parents to teach their children religious truths, a judge who would sentence a parent to jail for such action must consider himself as partially responsible for the unjust sentence.

The second principle concerns a sentence which would oblige a person to perform an action that is intrinsically immoral. The Pope states that under no condition may a judge pass such a sentence. For example, if a law were passed prescribing that all imbeciles be put to death, a judge would never be justified—even though his office were at stake—in commanding a physician to kill a person because of his mental disability.

It is interesting to note that this principle was invoked in some of the military trials after the recent war, when it was decreed that a subordinate official is not justified in commanding acts of cruelty and brutality merely because he was commanded to do so by his own superior officer, Unjust Laws

The third principle concerns the approbation of an unjust law. The Pope states that a judge may never expressly acknowledge or approve an immoral taw (which, he says, would not be a valid law in the eyes of God). It should be noted, in view of what is stated in the fourth principle, that Ihe application of a law does not necessarily mean its approval. In this third principle the Pope is concerned only with the latter procedure. Thus, in a Communist-dominated land, where the law forbids any protest against the tenets of Communism, a judge who would not only send a person to jail for rejecting the principles but would also deliver a speech upholding Communism, would be against this principle.

'11-te fourth principle emphasises the distinction just made between the approbation and the application of an unjust law. The Pope states that at times a judge may apply an unjust law to a particular case to avoid greater evils. Thus, in the case just proposed, the judge might be justified in sending the anti-Communist to jail, in accordance with the unjust lew, though he could not manifest approval of the law. The Pooe states that in the past Catholic judges have sometimes done this in lands where there was persecution of the Church because in so doing it was possible to preserve for the people an honest justiciary and to avoid a much worse fate for the Church and for its members. However, the Pope adds, the judge may never go to the eetent of inflicting a death sentence on an innocent person as the applica

tion of an unjust law. Evidently. only a fine or a prison term is visualised as sometimes permissible as an application of an unjust law.

The Judge and Divorce

The chief interest in the West in the Pope's message revolves about the granting of a divorce by a Catholic judge. As was stated above, the Pope's pronouncement on this matter is substantially the same as that hitherto taught by Catholic moralists. Briefly it is this: A Catholic judge believes in conscience that the marriage bond is permanent, according to the law of God. Hence, when a couple who are validly married seek a divorce from hilt,, he is convinced that he cannot separate them in such wise that in the sight of God they are no longer hosband and wife and have a right to contract new marriages.

However, it is not intrinsically wrong for him to declare that, as far as the civil law is concerned, they are no ranger to be regarded as husband and wife.

Hence, for a good reason he is allowed to make such a declaration. The couple in question have no reasonable cause to complain that they are not receiving all that that civil law grants them. The fact that the judge himself, personally. believes that they have no right to remarry, as far as the law of God is concerned, will have no effect on their future conduct. They certainly have no right to demand that the judge, in contravention of his own conscience, should believe that there is no longer a divinely sanctioned bond between them.

It was said that the Catholic judge may follow this procedure for a

good reason. Certainly there are evil consequences to divorce; the lightness with which the marriage bond is accepted by many at the present day is gravely harmful to the welfare of the home and society. Consequently. the granting of a divorce, when it is permissible for him to grant it, may not be taken lightly by the judge. There must be a good reason for his action.

For example, if the reasons alleged for divorce by both parties or by one of them are evidently flimsy or false, so that they do not satisfy even the requirements of the civil law, he must refuse their petition. He must have a good reason to justify his own conscience—for example, the realisation that the couple cannot be reconciled and that matters will only grow worse if they are not granted what they are seek ing. If he can do so, he should avoid taking divorce cases. But in practice. if the parties have a legal cause for divorce and cannot conveniently take their case to another judge. the Catholic judge may grant the divorce. for then there would be a sufficiently grave reason to justify this procedure,

Marriage Between Protestants

The Catholic judge regards the bond of every marriage as sacred. whatever may be the religion of the parties. To him the marriage of two Protestants is a Sacrament, which is just as exalted and just as holy as the marriage of two Catho lics. Consequently. as far as his own conscience is concerned, he must regard the divorce of two nonCatholics as being just as deplorable as the divorce of two Catholics. However, as was previously stated, this conviction of the Catholic judge will not be arty hindrance to the freedom of non-Catholics who may believe that there is no divine law against divorce. If they have a claim on his services and produce enough cause for divorce, according to the State's law, they still receive a declaration that in the eyes of the civil law they are no longer husband and wife.

Ti is difficult to see how any fairminded person can regard the statement of she Pope as imposing an Catholic judges restrictions that will prevent them from giving the full measure of service and loyally to the laws of our country. It will rather serve to remind them of their duty to be fully observant of civil law, as the expression of God's will. It will remind them that the law of God must be taken into consideration by anyone who aspires to fulfil the important duties of the law. No one who believes in God can deny that His law is the fundamental norm of human conduct.




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