Catholic Justice: When the Church should not defer to the State

By Dr. Jeff Mirus ( bio - articles - email ) | Oct 06, 2017

Phil Lawler introduced a legitimate question when he explained on Wednesday Why the Church still operates under a cloud on the abuse issue. In light of the Church’s continued poor handling of abuse cases, and despite frequent promises to do better, Phil commented on the latest scandal as follows:

The Vatican had every right, under international law, to recall a diplomatic agent rather than revoking his immunity. But was it a wise choice? Vatican prosecutors will, I am sure, press their investigation energetically. But is the world convinced of their commitment? Sometimes, when the credibility of an individual or institution has been badly compromised, special steps must be taken to restore public confidence.

I rarely disagree with Phil. We find ourselves opposed so seldom (and only on prudential questions) that it is actually invigorating. But I am feeling particularly courageous in this instance because, well, Phil is out of town.

Sadly, I cannot take full advantage of his absence, since my colleague merely raised a question. It was only through the implications of raising it that he appeared to suggest he might be prepared to offer a particular answer. Still, our News Director is not often out of striking range, so I will take this opportunity to assert Jeff’s Second Principle of Ecclesiastical Justice:

2. Wherever possible, the Church should judge her own ministers, turning them over to civil authority for judgment only if they have refused the authority of the Church, or for punishment only if justice demands a punishment the Church cannot administer.

Perils of Civil Justice

In most situations, we are dealing with a prudential question here, governed by a few fairly general principles which allow for different working arrangements in different times and places. For example, under the Second Principle during the Medieval period, the Church would typically “relax” a clerical offender to “the secular arm” in serious cases affecting the common good. At that time, the right of the Church’s ministers to be judged by the Church—called “benefit of clergy”—was very broadly recognized and highly prized.

But the disadvantages of this “relaxation”, except when the “secular arm” had a legitimate overriding moral interest, are such that the Church has always had the strongest motive for avoiding it. Secular justice is always at times a contradiction in terms, and secular officials often pursue illegitimate interests which oppose those of the Church. In our own time this weakness is immense: On the most controverted questions, secular justice is all but non-existent. The secular world today almost universally rejects the natural law as a principle of justice, let alone as the very first principle.

In many areas of morality, secular governments do not even recognize the need to discourage serious wrongdoing. In others, they are prone to approve what is evil and punish what is good. Moreover, around the globe, secular governments enter the field of justice with a serious prejudice against the Catholic Church, whose very presence contradicts the universal claims of the State. This prejudice leads to many relative injustices, such as investigating and punishing Catholics far more severely than others who are guilty of the same offenses.

The anti-Catholic attitudes of societies and governments in flight from God are such that the Church has few (if any) governments on which she can rely for justice. Moreover, since opposition to the Church has been common over the centuries even in secular governments controlled by Catholics, it is at the very minimum a dangerous precedent for the Church to cede to the State any role she can legitimately claim in the matter of justice. Here the same rule applies as in all disciplinary matters: It is easy to let things go, and extraordinarily hard to get them back.

Legitimate Separation of Spheres

It is, of course, the right of the Church to judge every person on earth in spiritual and moral matters, determining what is good and what is evil, just as it is Christ’s right to do so. Moreover, it is the right of the Church to determine the moral validity of both the ends and means of civil government—just as it is the obligation of civil government to heed these moral determinations.

But I do not wish to be misunderstood. It is not the right of the Church to judge and mete out temporal punishment to all who violate the moral requirements of society’s common good. This is the prerogative of civil government, and it is a role which the Church may not institutionally usurp—no matter how bad a civil government might prove to be.

Nonetheless, there are overlapping regions of concern. The Church must judge her own ministers, who are called to a higher duty, and to the formation of a higher society, in comparison with civil government. This does not mean that civil government does not also have the right to judge them for violations of the common good. In practice, therefore, it has sometimes been the custom that the Church herself would settle all problems of justice involving her clergy. After all, that is sufficient to resolve problems except when a minister rejects the authority of the Church. So in that case, the minister would rightly be turned over to the temporal power.

Today, such arrangements are rare, which is also acceptable. But a similar arrangement does exist among all governments for diplomats, and where such an arrangement exists for any reason, it should be jealously guarded. My own opinion, then, is that the Church should not waive diplomatic immunity unless or until the diplomatic person in question fails to accept the Church’s authority (or the Church concludes that justice requires a punishment she is not capable of administering).

Conclusion

To me it is not a compelling counter-argument to suggest that the distrust of the Church in civil society could be alleviated by the Church voluntarily relinquishing her right to judgment. I say this partly because distrust and prejudice are going to be rampant in any case: The Church and the larger social order have different ends and, usually, radically different values.

But the most important reason I can offer for my position does not touch the question of prejudice. Neither can it be found in the Second Principle of Ecclesiastical Justice, under which a number of different arrangements are legitimately possible. Rather, the most important reason is found in Jeff’s Very First Principle of Ecclesiastical Justice:

1. The Church must at all times be fully prepared to investigate, judge and punish those among her ministers who either persistently or egregiously undermine the Catholic Faith, deny the rights of the faithful, disobey Canon Law, or violate the natural law.

On this principle, Phil Lawler has never offered even the whiff of a hint of anything to the contrary. On this principle, my colleague has unceasingly demanded ecclesiastical justice for more decades than any of us care to remember. Prejudice will never cease to afflict the Church, but as St. Peter taught, “It is better to suffer for doing right, if that should be God’s will, than for doing wrong” (1 Pet 3:17).

All the more reason, then, for the Church to make a huge and dramatic point of doing things right. If she would trouble herself more in this matter of ecclesiastical justice, prejudicies might shift...or, on the whole, they might not. But the faithful would benefit and God would be pleased. Finally, many of us could devote our lives to something far more satisfying, and certainly far more enjoyable, than abuses within the Church.