This article comes from Chiesa.
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When Judges Impersonate Theologians
By Sandro Magister
ROME, July 6, 2010 – Here at the beginning of summer, a new actor has made a sensational appearance in the drama of pedophilia: the judge.
On June 24, in Belgium, police officers acting on the orders of the judiciary searched persons and places central to the Church of that country: the archbishopric of Mechelen-Brussels, while the bishops were meeting there, the residence of Cardinal Godfried Danneels, and the offices of the independent commission created by the Belgian Church to investigate sexual abuse. There the investigators confiscated 475 dossiers, many of them on victims who had gone to the commission instead of to the civil courts in order to safeguard their private lives.
Moreover, that same day, in the cathedral of Saint Rumbold in Mechelen, the tombs of cardinals Desiré-Félicien Mercier, Jozef-Ernest Van Roey, and Léon-Joseph Suenens were broken open in a fruitless search for presumed proof of the Belgian Church's complicity in abuse.
On June 29, in the United States, the supreme court refused to examine the Holy See's request to dismiss charges against the highest Vatican authorities as part of a lawsuit in Oregon over sexual abuse committed by a religious.
The Holy See's request had been supported by the Obama administration. In 2005 as well, during the Bush presidency, the American state department had said it was illegitimate to name Benedict XVI in an abuse lawsuit in Texas, by virtue of the immunity of every head of state, and therefore of the pope as well. And that time, the judge ruled in favor of the administration.
But the supreme court has decided not to consider the question, as it does with the great majority of the 7-8 thousand appeals that it receives every year, examining no more than 60-70 of them.
As a result, the supreme court has left the judgment to a lower court, in this case the federal appeals court of Oregon. Theoretically, therefore, this court could approve the naming as defendants of Pope Benedict XVI, of his secretary of state Cardinal Tarcisio Bertone, of prefect for the congregation of the faith Cardinal William Levada, and of the apostolic nuncio in the United States, Archbishop Pietro Sambi. This would become possible if the Oregon court were to establish that the religious who committed the abuse, who died in 1992, was an "employee of the Holy See."
A similar suit against the highest authorities of the Church is underway in Kentucky, and another was opened a few days ago in Los Angeles.
It is unlikely that the pope will actually be brought to stand trial for the crimes of one of his "employees." But that sooner or later a court should presume to establish according to its own criteria what the Church is and what relationship the hierarchy has with its "employees" is no longer a hypothesis to be ruled out automatically.
The searches ordered by the Belgian judiciary – called "brutal" by no less than the country's justice minister, Stefaan De Clerck – are not at all reassuring. There the Church has been considered on a par with a gang of criminals.
Not only in Belgium and the United States, but a little bit everywhere, there is a growing tendency to judge the nature and organization of the Church while ignoring what it is and its unique original organizing principles, which nonetheless have entered into the best legal culture and have been recognized by internationally valid pacts.
So the hope repeatedly expressed by Church authorities, that the civil and canonical forums should work each in its own sphere to combat sexual abuse by the clergy, does not always translate into peaceful and productive cooperation.
The Church, for some time and above all thanks to the impulse of Joseph Ratzinger as cardinal and pope, has been doing much to correct its own faults and omissions. But civil justice must also do better. Its performance on the field over the past decades has often been disappointing. But if it were to prevaricate today, assuming competencies and roles that do not belong to it and acting accordingly, it would do worse.
The following is an in-depth analysis of the open question of the Belgian and American cases. The author, Professor Pietro De Marco, teaches at the University of Florence and at the Theological Faculty of Central Italy.
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ON JUDGES AND THE CHURCH
by Pietro De Marco
Naturally, no supreme court of the United States has ruled, as one newspaper headline put it, that "the Vatican can be put on trial," nor that it is "civilly responsible for the actions of a priest," as one agency has said. Not only because it is not in the power of a national supreme court to decide in the matter of possible international misconduct, but above all because a state is not "triable."
The imputation of a behavior to a state is possible on the basis of individual conduct that can be attributed to that state. And the conduct in question can be imputed to a state only if that individual is one of its agents, not simply one of its members. But a newspaper headline is only a headline, as misinformative as it needs to be. It would be more precise to speak of a non-decision by the court with regard to the "immunity" of the Holy See, meaning the immunity that protects a sovereign entity from the jurisdiction and responsibility deriving from the exercise of discretionary power. The court simply did not accept the request of the Holy See – which had obtained the favorable opinion of the federal government's solicitor general to the court – to review the validity of the actions taken by the lower court judges who are hearing the John Doe case (the usual generic name here stands for that of a victim of acts of pedophilia, going back to 1965, by an Oregon priest who died in 1992).
With that, the court seems not to exclude in principle the practicability, in the arena of international civil law, of an imputation of responsibility to the Holy See. It is giving a lower court judge the opportunity to try this avenue. But the window of plausibility is extremely narrow. Not only a priest, but even a bishop is not properly an "agent" of the Holy See, not to mention of the State of Vatican City (in parentheses, the confusion of these terms should be enough to invalidate both formal actions and journalistic considerations). The clergy does not represent it, nor does it ordinarily act on its impulse. The authority and guiding force of the Holy See, and of the pontiff in the last instance, over the local Churches, clergy, and faithful, is not that of a chain of command, of a military or business hierarchy. The see of Peter is a reality that inspires, guides, and sanctions, in well-circumscribed cases, with regard to the ultimate ends of the Church itself. It is important to remember that the original notion of "hierarchy," which lasted until the nineteenth century in some languages like German, designates a sacred order or a religious body; while "hierarchy" as the command structure of any sort of apparatus is a linguistic innovation of the late eighteenth century. The Catholic hierarchy remains a body and a sacrament, not a corporate organizational chart; the position of every member of the Church is consistent with this order of sacred law.
On the one hand, then, the State of Vatican City certainly enjoys the "immunity" of every state; on the other hand, the Holy See, protected by the shield of international law of the State of Vatican City, does not have relations typical of a chain of command with the members of the local Churches.
All of this is an expression of a universal historical reality that the legal scholarship of the twentieth century saw well: the Church is an original and unusual arrangement. The high legal doctrine that recognized and sanctioned this millennia-old reality on an international level is at the basis, for example, of the Lateran Pacts of 1929, which were later included in the Italian constitution. No external reality can, in fact, define what the Church is – who its members are, what relationship they have with the hierarchy – while ignoring the organization that the Church presents of itself. An external reality can only "recognize" this self-definition. So the American court has not ruled, and has not even considered, I believe, that "a priest can be held to be an employee of the Vatican," as another authoritative newspaper has announced to us. And there is no one with the authority to decide that he is. It's not that way in the organization of the Church, and that's enough. To force the issue is unjustifiable presumption, or – among the lawyers and a few judges – a game of chance.
So the "immunity" under international law of the government figures of the State of Vatican City is combined, under the substantial, legal-religious aspect, with the unique form of the Christian community, of the Church, in its installation and organization land by land, people by people, "unum et plura," a single reality and at the same time many. The government and people of the Church are identifiable; its territory is the ecumene; everywhere it tends to overlap the territories and peoples governed by the political sovereign. It is not a state of the modern kind; on the contrary, institutionally it precedes and transcends it. It will continue to exist even when the modern state has been replaced by another political form.
Nor is the Church a "corporation," or an international organization. Commentators and jurists would do well to review the classical distinction between institution and organization. There are organizations in the Church, just as there are in the state. But it is not an organization, just as the state is not. Just as the family is an institution, and not an organization.
This must be remembered, because the current legal attack on the Church of Rome has a sociological premise according to which the Church is an entity that is only empirically substantial (faithful, political influence, economic weight: all dimensions seen as vulnerable) but does not have a constitution different from any sort of voluntary association. So in Belgium, a country with a strong secular-irreligious tradition, some have thought to destroy the Church's public image, and weaken its authority, by treating the episcopal conference like a meeting of gang members. Those men, that building, those tombs (including that of the great cardinal Mercier), for the judge who ordered the search, are not part of a universal institution, and do not represent the spiritual history that led that land to the dignity of the Christian West. They are a contingent group of citizens behind old walls, deserving of the ridiculous insinuations (as they were later revealed to be) made by a priest.
May the legal profession have the courage for a critical self-examination! Their inability to see institutions and history beyond individuals is consistent with the protective gadfly of the utilitarian willfulness of individual men and women. But the protection of freedom and rights as ends in themselves, modern "secularism" in short, makes some judges manipulators of historical realities that they do not know in that they are jurists, and that they should not dare to touch. To be clear: a judicial order knows social realities only to the extent to which they require the protection of the law. The jurist as such, for example, does not "know" the family, which exceeds the law, but that which must be legally protected in it. Any further step, which would presume to redesign the family completely, would be an injury to the institution, made blindly or out of deliberate manipulation. The same must hold true for the secular jurist's interventions in religious institutions, all the more so when these are endowed with an organization and juridical system of their own. One almost wants to exclaim: "iudices ne ultra crepidam," do not go beyond what you know how to do!
Carl Schmitt saw it well when he wrote that jurists, instead of theologians, legitimize the institutions of modernity, and have the power of the sovereign, that of execution. In global configurations as in social institutions, in anthropology and in bioethics as in the decision over those who govern, a new wave of jurists are acting today who are "revolutionaries," some consciously and some not, and one does not know which is worse. It escapes many analysts that among the perverse effects of late modernity, this is one of the most pernicious.
