Introduction
Conflicts of interest infect the trustworthiness of a decision maker’s judgement in ways that cannot be gauged or corrected completely.Footnote 1 Robert Aronson notes that ethical principles designed to avoid the influence of conflicts of interest have existed since biblical times.Footnote 2 There is a long tradition of concern in canon law to eliminate conflicts of interest.Footnote 3 This Comment will explore this tradition, and how it operates, within the Roman Catholic Church’s judicial and administrative functions today.
I begin by exploring how conflicts of interest in ecclesiastical courts were managed by the Church from a historical perspective. Next, I examine the importance of relationships, and the antithetical practice of nepotism which I will show in various instances, and to varying degrees, affected historical ecclesiastical administration. Finally, I analyse the Code of Canon Law of the Catholic Church promulgated in 1983 and associated legislation which relate to impartiality, and are designed to prevent conflict and bias.
Historical foundations
The aspirations for impartiality and avoiding conflicts of interest and bias have historical foundations and these foundations provide the socio-political contexts and sources for our contemporary approach to these issues.
Court, litigants and judges
The Gregorian reform of the Church in the eleventh century resulted in a ‘canon-law-centered, Rome-centered Church of the High Middle Ages’.Footnote 4 The systematic study of law, a revival of Roman law and serious teaching about it, can be documented from around the 1140s onwards.Footnote 5 The new Romano-canonical procedural system emerged in the second half of the twelfth century, following the twelfth century father of canon law Gratian’s Decretum (c. 1140) and the new interest in Roman law earlier that century.Footnote 6
The system of ecclesiastical courts flourished in the late Middle Ages with its legal culture and codification of law. Volkmar explains that:
The result was an ecclesiastical organization of law courts that had no secular counterpart. It possessed a legal code that bore the stamp of Roman law, an efficient procedure based on written documents, trained professional judges (the officials), and a spatially comprehensive stratified organizational structure where various bodies had specific competences. In keeping with the ecclesiastical hierarchy, its structures included the archdeacon’s court and the bishop’s court, below which were the archiepiscopal and papal courts, as well as papally delegated judges who sat locally.Footnote 7
The ideal of judicial impartiality
It was expected that the judge must not accept favours from parties, ‘although it was permissible to accept token offerings of consumable items, such as food, wine, or firewood, as symbols of respect, provided that their total value was trivial’.Footnote 8 Personal status might disqualify a judge such as being a schismatic, heretic, excommunicant, Jew, slave, woman, minor, adulterer, or those held as infames by law.Footnote 9
Nevertheless, impartial equality was presented as an ideal in medieval canon law.Footnote 10 Pope Innocent III (c. 1160–1216) is quoted, ‘There is nothing more serious, nothing more dangerous than to litigate under a suspect judge’ (Nihil enim gravius, nihil periculosius est quam litigare sub iudice suspecto).Footnote 11 Parts of Innocent III’s legal dictum is found in medieval England in writings about laws by an ecclesiastic in the King’s service, Henry of Bracton or simply Bracton. Comparisons are made with his possible sources such as Tancred’s Ordo iudiciarius. Tancred was a canonist who lived in the early part of the thirteenth century and was an eminent teacher in Bologna. One of Tancred’s manuscripts reads ‘Because in truth, it is dangerous to litigate under a suspect judge and sometimes a very sorrowful result is obtained’ (Quia vero periculosum est sub iudice suspecto litigare et interdum tristissimum sortitur effectum).Footnote 12
Elsewhere one canonist, a bishop in France known as Henricus de Segusio or Enrico da Susa, was later called Hostiensis when he was named cardinal of Ostia.Footnote 13 Medieval historian James Brundage quotes Cardinal Hostiensis (d. 1271) in relation to judges:
Note that a judge should be so impartial that he injures no one. Neither hatred nor favour, fear nor money should sway his judgment or cause him to do anything detrimental to a party. Accordingly, he should deny justice to no one, not to a slave or an excommunicate, or to anyone at all, however detestable they may be, not even to the devil himself could he be brought into court, nor should he condemn anyone unjustly, as is shown here. Let the judge keep fair play ever before his eyes.Footnote 14
Hostiensis also wrote recommendations for jurists active in the study and practice of law; documents should be ‘carefully examined for errors. For example, “is” is very different from “is not”, but a scribal error can easily change one into the other. Do not accuse the author for a mistake of the scribe’.Footnote 15
He added, ‘do not condemn the writings of others from envy’, and a jurist ‘should always carefully cite the opinions of others and should name the authors of contrary opinions. We read works in order to know them, some works so that we do not ignore them, and some works to reject them’.Footnote 16 Moreover, ‘the jurist should never hold his own grand opinion rather than the truth’ and ‘should never reject the opinions of prior jurists and texts without considering the new law (ius novum) carefully’.Footnote 17 It means rising above self-interest to avoid conflicts of interest and personal bias towards particular arguments.
Privilege of forum
Despite the ideal of judicial impartiality being clearly stated, it was not always achieved and the issue of bias and conflicts of interest were, at times, evident in several areas of the practice of law, including the courts, litigants, and judges. In the courts, there was a jurisdictional divide as demonstrated especially in the handling of crimes. Bishops could exercise an exclusive jurisdiction over a cleric who stole from a layman, killed a layman, or slandered him.Footnote 18 In practice, as Helmholz argues, canonical courts did not always treat ‘princes and ploughmen with even-handed impartiality. The canonical legal system, like any other, often – perhaps too often – fell short of its ideals’.Footnote 19
Nevertheless, this concept of privilegium fori (privilege of forum) or clerical legal immunity from secular courts for the clergy in England was subject to secular jurisdiction.Footnote 20 In 1164 King Henry II decreed in clause 3 of the Constitutions of Clarendon that:
Clerks charged and accused of anything, being summoned by the Justice of the king, shall come into his court, about to respond there for what it seems to the king’s court that he should respond there; and in the ecclesiastical court for what it seems he should respond there; so that the Justice of the king shall send to the court of the holy church to see in what manner the affair will there be carried on. And if the clerk shall be convicted, or shall confess, the church ought not to protect him further.Footnote 21
Conflict arose between Henry II and Archbishop Thomas Becket over criminal clerks and clause 3 of the Constitutions of Clarendon, where the principal goal of the provision was the transfer of at least significant matters of clerical crime to both lay courts and especially to the King’s court.Footnote 22 Later Henry II reached a compromise with Pope Alexander III’s legate, Hugh Pierleone in 1175/1176:
We have conceded … that a clerk shall not in future be drawn in his own person before a secular judge for any criminal matter (de aliquo criminali), or for any trespass (de aliquo forifacto), except the trespass of my forest, and except for lay fee for which lay service is owed to me or to another secular lord.Footnote 23
During the twelfth century the state started constraining clergy immunity; ‘the rest of the Middle Ages was essentially a story of the Church in tactical retreat’.Footnote 24 During the reign of King John (1199–1216) the privilegium fori was an inadequate plea in the court rolls and the pleas became less significant until the middle of Henry III’s reign (1216–1272).Footnote 25 In the thirteenth and fourteenth centuries the royal authorities had sometimes punished the bishops or their agents for acting too rapidly or at other times ordered the church to hold an accused clerk until the crown decided upon his release.Footnote 26
Unscrupulous litigants and judges
Conflicts of interest were also generated when unprincipled litigants conferred, at times, with numerous or even all of the practising advocates and proctors in their jurisdiction. Such circumstances rendered matters irresolvable for their legal opponents to effectively acquire the services of a lawyer.Footnote 27
For judges, bias was also a problematic occupational risk. In the western European legal landscape, papal judge-delegates were judicial officers whose use progressively grew during the twelfth century, alongside the development of law, legal institutions, procedures and judgments.Footnote 28 Circumstances triggering suspicions of possible judicial bias included mutual interest or links between a judge and a party or a party’s advocate. For example, relationships by close kinship, marriage, even enmity, where the judge was the lord of one of the litigants or had close associations with a party and their legal advisers, or a judge or judicial assessor had previously acted as advocate for litigants.Footnote 29
Procedures to remedy perceived bias and conflicts of interest
A few centuries later, analysis of a short English tract on law and ecclesiastical lawyers written during the reign of King Henry VIII (1509–1547) revealed that partiality among judges was not a fictional problem, particularly in ecclesiastical courts where an absence of juries compared with common law courts meant that all depended upon the judge.Footnote 30 It may be true too that some jurors could have been biased and jury trials were not essentially superior in guaranteeing impartiality. Canonists saw the possibility of bias and enacted processes to minimise the risk for those who appear before church courts.
Richard Helmholz refers to William Shakespeare’s Henry VIII, in Act II, Scene IV when Queen Catherine faces divorce proceedings against her.Footnote 31 Cardinal Wolsey was one of the two cardinals delegated as judges by the Pope but loyal to Henry and probably not an unbiased judge on the legal merits to be argued. The Queen says to him:
I do believe
Induced by potent circumstances, that
You are mine enemy, and make my challenge
You shall not be my judge.
Helmholz comments that Shakespeare does not enjoy a wide reputation as a canonist, but he rather accurately described the canonical recusatio that permitted parties in some situations to challenge and remove a papal judge delegate due to prejudice, conflict of interest or incompetence.Footnote 32 Earlier, Gratian had outlined mechanisms to recuse judges suspected of bias and to appeal to higher authorities to address defective decisions.Footnote 33
On the matter of recusado iudicis (recusal of a judge), there was the right of an accused in particular situations to ‘challenge and remove a papal judge delegate for interest, prejudice, or unfitness for office’.Footnote 34 This problem occupied the minds of canonists early on. Interestingly, Schrage notes that this type of disqualification of a judge for bias or for any other reason than direct financial conflict of interest seems not to have been part of the English law before the nineteenth century. Footnote 35 A judge could be recused, though it was seldom: disparity of rank expressed the hierarchical principle that persons can only be judged by their peers or superiors. Hence, it was out of order for a layman or simple priest to adjudicate over a bishop.Footnote 36
Advocates
Roman law influence
Bias and a lack of impartiality were hazards also for advocates. In Roman law, conflicts of interest between advocate and client were continual difficulties. A practising advocate could not act as a legal advisor to a judge or serve as a judge in cases where he was professionally or personally involved.Footnote 37 Proctors were prohibited from representing a party for whom they held a strong dislike or appear in cases wherein they were related to the opponent.Footnote 38
Ambidexterity
For advocates in the Middle Ages, acting honestly and avoiding conflicts of interest meant not switching sides during a case, and not acting as judge in a matter wherein he previously had been an advocate.Footnote 39 Moreover, it entailed advocates not appearing as a witness in subsequent appeals of a case that he had been involved in at first instance, and above all not becoming a party to the case by purchasing an interest in his client’s cause.Footnote 40 Here, the term ‘ambidexterity’ describes lawyers who took payments with each hand from different parties to a dispute, which affected lawyer discipline and civil liability to victims.Footnote 41
Ambidexterity was a usual type of medieval misconduct. Jonathan Rose explains that the London Ordinance of 1280 regulated lawyer conduct and their admission to practice in the City of London courts.Footnote 42 One of the prohibitions was to bar concurrently representing two sides of a dispute. Rose cites James Brundage who thought that the London Ordinance took up ‘the long-standing disciplinary practices current in the ecclesiastical courts … and well-settled doctrine in canon law … before 1280’.Footnote 43
Complaints by local citizens against lawyers in the Eyres (courts of itinerant justices) in thirteenth century England included conflicts of interest arising from sham prosecution, fraudulent withdrawal, corruption, forgery, failure to act after taking fee, collusion, and wrongful pleading intentionally to lose.Footnote 44 It is not surprising that the ecclesiastical courts of England and other parts of western Europe and France are regarded as the first medieval courts to formally set standards for legal advocates, using oaths sworn to God.Footnote 45
Ethical expectations
In the statutes of the Council of Rouen issued in 1231, there was a requirement for advocates to swear that they would perform their duties ethically, for example not use false pleas that were known to be such:
nor that he will prolong (delay) the case of his client as long as he believes that he is acting in the interest of the client himself; and that in those matters which shall be transacted in court and concerning which requirements are made of him by the Judges, he will not silence the truth according to his belief; and that if he become convinced of being inadequate to the handling of the case, he will have conference with the procurators; and that he will prepare with his own hand a journal and the acts in cases which he has taken, as faithfully as possible; or that he will cause them to be written out, in case he be neither able nor willing to do so himself.Footnote 46
Thus, client interest comes before self-interest. This includes the advocate’s competence.
In 1278 in France, the synod of Langeais whose president was Jean de Montsereau, Metropolitan of Tours, decreed advocates must possess the necessary skills, ‘inasmuch as not a few cases have been lost through ignorance on the part of advocates, we, therefore, will that none shall be admitted to conduct cases in the ecclesiastical court, unless they have studied three years at least in canon and civil law, or are otherwise made experts in the performance of their duties’.Footnote 47
Integrity in the practice of advocates would ensure their clients’ protection. In 1231, Archbishop Juhel de Mayenne and the bishops of the Province of Tours met at a council at Chateau-Gontier. Section 36 of the reform-canons concerned paid advocates who were duly sworn in. These canons stipulated standards such as, ‘That they shall not favour (take) knowingly cases that are not just; nor shall they bring about, with malice aforethought, undue delay or haste in the conduct of cases by means of false oath, rather than stand by the truth’.Footnote 48 Later that century, the Archbishop of Canterbury, Robert of Winchelsea in 1295 issued a document Statuta et ordinations for diocesan administration. For advocates:
in receiving information from their clients they will elicit from them, with all possible caution, the truth of the case, and they will clearly show their clients the dangers to which they expose themselves in legal proceedings as far as they know, declining to prosecute any further desperate, bad cases; and as soon as the cases or surrounding conditions show themselves to be unjust (dishonest) from the point of view of the law, they shall relinquish them entirely.Footnote 49
Such uprightness of advocates were designed to ensure impartial service to those who sought their services.
Unfair procedures
Bias and lack of impartiality can occur in the procedures followed by legal and judicial practitioners. There was methodical reflection on the law of procedure as an autonomous juridical discipline in the eleventh and twelfth centuries.Footnote 50 Historian of law Eltjo Schrage explains how, during this period, the difference between substantive and adjective law was systematically worked on for the first time. He notes that:
It may be true that the Romans left behind one or two monographs on the law of procedure (Callistratus’ treatise on cognitio especially deserves to be mentioned) and that the fourth book of Gaius’ Institutes bears the heading De actionibus, but in none of these works is the law of procedure considered to be a branch of the law independent from the substantive law.Footnote 51
In the procedure per inquisitionem used during the medieval period, a judge took action against a suspected offender ex officio, without any accusation, commencing proceedings on the grounds of ‘common fame’ (fama) – a persistent, pervasive belief that a person had committed an offence.Footnote 52 The proceeding per inquisitionem determined (1) if and when to commence an action, (2) what charges to use and against whom, (3) saw to witnesses, (4) took testimonies, (5) responded to defendants’ arguments, (6) reached a verdict, and (7) pronounced sentence. In short, the functions of investigator and prosecutor were combined with the judicial role.
This consolidation of functions into a sole investigator, prosecutor, and judge disadvantaged the defendant and left ample room for judicial bias. Indeed, defendants in canonical criminal proceedings were disallowed from hiring a proctor to act as their representative in front of the court, nor were they normally entitled to receive legal counsel from advocates.Footnote 53
Family and nepotism
A major historical conflict of interest concerned the family of the Pope, the family of the diocesan bishop, and the likelihood that such engagement reduced barriers for family members to benefit themselves and against the interests of the Church.Footnote 54 Nepotism was the preferential involvement of relatives in significant roles and enabling them to gain from the financial and capital produced by these offices, associations, and roles.Footnote 55 Nepotism is traced to the Latin word for grandson or nephew, nepos; however, the word derives from nepote, the Italian word that denotes nearly any member, male or female, of the family from whichever generation;Footnote 56 whereas nepotismo emerged as a fourteenth or fifteenth century term referring to the practice of appointing papal relatives to offices, sometimes illegitimate sons who they called ‘nephews’. Footnote 57
In the medieval Roman curia, Adinolfo di Anagni and Niccolò di Anagni (c. 1206–d. 1272/1273), were nephews of Gregory IX (1227–1241) who held successful positions; and other Popes also followed nepotistic practices such as Nicholas III (1277–1280).Footnote 58 Later the ‘cardinal nephew’, a close relative or frequently the nephew of the Pope, held various offices following the election of his uncle.Footnote 59 The cardinal nephew was a formal office from 1538 until 1692 when Pope Innocent XII abolished nepotism in the bull Romanum decet pontifice on 22 June 1692. The bull prohibited Popes to confer church property on their relatives and suppressed the lucrative office traditionally occupied by the papal nephews or nipoti. Footnote 60
In the fifteenth century Pope Pius II (1458–1464) was aware of the nepotism of his predecessors and the dangers for the Church when its patrimony was wasted and undeserving men were promoted in the hierarchy.Footnote 61 The circumstances of the fifteenth century Church saw a major secular power active in Italian and European matters and Pius II was pressured into making appointments to build a dependable administration. Any convenient corrective actions enacted by new Popes in appointing their friends and kin only delayed a solution.Footnote 62 ‘As long as the spiritual freedom of the Holy See was interwoven so tightly with its political freedom of action, the major attention of politically conscious Popes such as Pius II had to be focused on secular affairs, thereby obscuring legitimate concern for reform of the church government.’Footnote 63
Nepotism was evident in the contemporaneous Church of England too. Appointed by the Pope to the see of Canterbury, Thomas Cranmer endorsed the establishment of the King’s authority over the Church in England and the elimination of the Pope’s authority.Footnote 64 In 1533, Archbishop Cranmer appointed his brother Edmund as provost of the collegiate church of Wingham and as archdeacon of Canterbury, and the predecessor in both roles was William Warham, nephew to the former Archbishop of Canterbury. Warham yielded both in exchange for a pension of £80 per annum.Footnote 65 MacCulloch notes that ‘[v]iewed in this light, such actions are simply part of a traditional display of nepotism by a newly-appointed ecclesiastic in high office’.Footnote 66 Moreover, one the sisters of Thomas and Edmund Cranmer, Alice, became a Cistercian nun and sacristan at Stixwold in Lincolnshire.Footnote 67 After the death of Prioress of the Benedictine house of Minster in Sheppey, Mildred Wigmore, the nuns ‘compromitted’ the election of her successor to the archbishop, and on 11 November 1534 they duly elected Alice Cranmer, Soror et Germana domini Archiepiscopi’Footnote 68 [nun and sister of the lord Archbishop]. No other nuns with the same name were recorded at Minster or any religious house in Kent, and not having a Kentish last name led Baskerville to conclude, ‘[t]he archbishop must, therefore, have brought his sister from outside the county, just as, only a month before, he had brought his brother Edmund to be archdeacon of Canterbury and provost of Wingham College’.Footnote 69
The cultural contexts supported the ongoing incorporation of papal relatives into papal administration during the fifteenth and sixteenth centuries. Offices and kinship ties reinforced the broad expressions of praise of the Pope, which scholars identified as substantiating the papal dependence on lay relatives, and later would underpin the pre-eminent administrative role of cardinal-nephews.Footnote 70 As Desilva notes, ‘[f]ixed in the contemporary expectation was the idea that service to one’s familial patriarch was beneficial to all his relatives, and grew out of insoluble ties that were similar to the religious duty that bound the homo ecclesiae to the pope’.Footnote 71
Yet the power structures were also political. Historians recall how Pope Pius IV (1559–1565) had prosecuted the Carafa family who were nephews of his predecessor Pope Paul IV (1555–1559), together with senior clerics for theft, corruption, and abuse of power. Pius’s condemnation of the family was interpreted as a censure of the whole system rather than particular individuals.Footnote 72 Moreover, a scheme of nepotism protected the Church’s political autonomy and papal relatives were less privy to corruption compared with the secular state.Footnote 73 A notable feature of nepotism in the sixteenth and seventeenth centuries was the allocation of substantive Church and State revenues to relatives of the reigning Pope as benefices, money, pensions, curial offices and sometimes tax income.Footnote 74
It could be viewed that the pre-modern age understood nepotism as legitimate in that it was functional and even morally needed.Footnote 75 In societies wherein outstanding worth was placed on family relations, kinship considerations were influential as usefulness in office needed an eminence in personal standing.Footnote 76 Thus, ecclesiastical nepotism did not appear as a disturbing issue.
At the end of the 1670s, the idea of ‘pietas’ was used to justify the practice of nepotism, being an aspect of charity requiring care of the family.Footnote 77 This moral norm of pietas concerned obligations of an individual towards relatives and fellow countryfolk. Emich explains the position thus: ‘The norm of pietas virtually demanded permitting one’s own family to partake of the fruits of one’s success. Of course, the extent of this participation was negotiable, but the principle was incontrovertible’.Footnote 78
The subject of nepotism was considered by the curial officials. Cardinal Decio Azzolino (1623–1689), an author who held significance at the papal court, addressed the issues. Azzolino’s treatise of 1679, Voto Nepotismo, argued that greater evils would occur if nepotism were to be supressed since, without nepotism (and the resultant papal protection) the nephews might turn to secular powers for patronage. In short Azzolino considered that, due to human nature promoting self-interest, the nephews of the popes will inescapably pursue other means to fortune if deprived of papal protection.Footnote 79 Rodén notes that:
papal authority is enslaved by secular powers. [Azzolino] conjures up the horrors of what might happen to the Holy See if a transalpine pope should possess the papal crown. For Azzolino, secular intervention in the affairs of the Church was the greatest of all evils, and he was therefore willing to tolerate nepotism as an institution whose patronage enhanced the pope’s monarchical status, thereby placing him on an equal footing with the secular rulers.Footnote 80
Most cardinals viewed the Pope as a monarch whose significant responsibilities included the church administration and government of the Papal States.Footnote 81 The Pope oversaw geographical territory in what is now Italy, held political influence, and collected temporal and spiritual revenue.Footnote 82 In the civil realm nepotism resulted in family members appointed without merit to run banks and railways.Footnote 83 It was a clear conflict of interest.
The Code of Canon Law, conflict of interest, and upholding impartiality
I turn to examine the later development of the Catholic canonical tradition in relation to the canons concerning conflict of interest, impartiality, and bias. The principal text is the 1983 Code of Canon Law (CIC) and the norms on marriage nullity tribunals contained in Dignitas connubii (DC).
There are a number of canons in the 1983 CIC and DC that address what amount to conflicts of interests in judicial and administrative proceedings, and when officials should recuse themselves.
Relationships
The first broad category that gives rise to conflicts of interest is summed up in the relationships between persons.
Kinship
These are biologically based family relationships of consanguinity and affinity. Judges are not to adjudicate cases in which they are involved by reason of consanguinity or affinity in any degree of the direct line and up to the fourth degree of the collateral line (CIC c. 1448 §1). Here, ‘the promoter of justice, the defender of the bond, the assessor, and the auditor must abstain from their office’ (CIC c. 1448 §2); and DC extends this to ‘the other ministers of the tribunal’ (DC a.67 §2). Even judges of the Roman Rota can be investigated on matters of consanguinity, affinity, and other conditions listed in canon 1448.Footnote 84
Canon 1448 is interpreted as holding ‘any personal bias for or against’.Footnote 85 It can be personal knowledge about material facts which would bias a judge’s decision, or that of the promoter of justice, defender of the bond, assessor, and auditor; if so there is duty to withdraw or recuse themselves.Footnote 86 Under suspicion of bias, judges and tribunal officers abstain when they voluntarily withdraw from a case, and recuse themselves if they involuntarily withdraw due to a challenge against their involvement, although both actions are usually described as recusal.Footnote 87
Persons related to the bishop up to the fourth degree of consanguinity or affinity are barred from the diocesan finance council (c. 492 §3). These ‘blood relationships’ are described as possible ‘conflict of interests’ which gives rise to ‘some impediments to ecclesiastical office’.Footnote 88 Other cases of questionable kinship relations include: the role of vicar general and episcopal vicar cannot be entrusted to blood relatives of the bishop up to the fourth degree (c. 478 §2); and that ecclesiastical goods, unless an asset is of little value, are not to be sold or leased to the administrators of these goods or their relatives up to the fourth degree of consanguinity or affinity without proper permission (c. 1298).
Socially neutral, advantageous, or disadvantageous relationships
Judges are not to adjudicate cases in which they are involved by reason of trusteeship, guardianship, or close acquaintance (c. 448 §1). These circumstances apply to the promoter of justice, the defender of the bond, the assessor, and the auditor (c. 1448 §2); and the other tribunal ministers (DC art 67 §2), who all must abstain from their offices. The ‘close acquaintance’ (intimae vitae consuetudinis, c. 1448 §1) used in DC 67 is also translated as ‘close relationship’, because ‘acquaintance by definition is not intima. The suspicion of bias arises only when the official has a personal stake in the life and well-being of the other person, not simply when the official happens to know the person well’.Footnote 89
The social relationship may be disadvantageous to a party and the law prohibits judges from adjudicating cases wherein they are involved by reason of great animosity (c. 1448 §1), reasons that also cause the defender of the bond, the assessor, and the auditor (c. 1448 §2), and the other tribunal ministers (DC a. 7 §2), to abstain from their offices.
Alternatively, the social relationship may bring advantages: the making of a profit, or the avoidance of a loss (c. 1448 §1). Judges and all tribunal officials are forbidden from accepting any gifts on the occasion of their acting in a trial (c. 1456).Footnote 90 Procurators and advocates who betray their office by accepting gifts or promises betray their ecclesiastical office act illegitimately.Footnote 91 Instead, in these circumstances lawyers ought to aspire to pursuit of the truth, to try to affirm the marriage and re-establish conjugal living, to commit to a complete and accurate account of the facts, and to have the deposition of the proposed witnesses follow the same philosophy.Footnote 92
Any founded suspicion of favoritism in marriage nullity tribunals
DC further stipulates that judges are not to take up a cause ‘in which any other sort of founded suspicion of favoritism could fall upon him’ (DC a. 67 §1). If so, the defender of the bond, promoter of justice, assessor, the auditor, and tribunal ministers, must abstain from exercising their offices (DC a. 67 §2).
Relationships between bishops and appointment of future bishops
There may be a kind of ‘close acquaintance’ (c. 1448) relationship perceived in the canonical methods leading to the Supreme Pontiff appointing bishops or confirming those legitimately elected (c. 377 §1). This could involve bishops in an ecclesiastical province or possibly a conference of bishops, or individually, when they compose a list of presbyters (c. 377 §2), for diocesan or coadjutor bishops (c. 377 §3) and auxiliary bishops (c. 377 §4). At least every three years, the bishops of an ecclesiastical province or a conference of bishops draw up a list of priests suitable to be a bishop, and their names are sent to the Apostolic See. Similarly, for the appointment of a diocesan bishop or a coadjutor bishop, a list of three names are submitted. Any close acquaintances named by bishops may imply a possible lack of impartiality, particularly when the process is conducted in secret.
Relationships affected by the sacramental internal forum
For Institutes of Consecrated Life, a canon forbids superiors from hearing the confessions of subjects unless the members request it on their own initiative (c. 630 §4). Similarly, the director of novices, his associate, and the rector of a seminary or other institute of education, are not to hear the confessions of their students living in the same house, unless freely requested in particular cases by the student (c. 985).
Undertaking canonical responsibilities
In the performance of roles, conflicts of interest may occur within one of the above relationships or independently. These can lead to bias and threats to impartiality, thereby causing possible miscarriages of justice in penal trials, denial of justice in ordinary contentious trials, impaired judging or officiating, and overall compromised judicial processes.
Dereliction of duties, willful negligence, and culpable incompetence
Judges fail if they refuse to render a judgment when they are competent, or wrongly declare themselves competent and adjudicate cases, or violate secrecy laws, or inflict damage on the litigants out of malice or grave negligence (c. 1457 §1). The various requirements to observe secrecy in different circumstances, and the consequences of not doing so (c. 1455), are significant for impartiality of proceedings. Ministers and personnel of a tribunal can equally fail in their offices (c. 1457 §2). Procurators and advocates could, in deceit of the law, withdraw cases from competent tribunals thereby having the cases decided more approvingly by other tribunals (c. 1488 §2). There is the irremediable nullity of sentences due to absolutely incompetent judges or other persons lacking the power of judging (c. 1620). Speaking to the Roman Rota, Pope Paul VI noted with sorrow the tendency to exploit certain concessions and practically evade the canonical procedural law by the artificial creation of bogus domiciles or permanent residences.Footnote 93
Illicit gains
Beyond simply accepting gifts, there are problems when procurators and advocates resolve the litigation by bribery or for excessive profit or who share in the object under dispute (c. 1488 §1). If the person tendering a gift intends to bribe the tribunal official to act unlawfully, and the judge or official accepts the bribe and acts unlawfully, this becomes a case of financial malfeasance according to canon 1386.Footnote 94 Offerings usually given to superiors or administrators of ecclesiastical juridic persons, even private ones, are presumed given to the juridic person itself (c. 1267 §1). Clergy and lay administrators of ecclesiastical goods by a legitimate title may fail to fulfil their functions in the name of the Church (c. 1282). They err if they fail to prepare and sign an accurate, descriptive inventory of movable objects, immovable property, or other goods, including appraisals; and review existing inventories (c. 1283, 2°).
Imposed circumstances of injustice
Finally, there is the defect of irremediable nullity in a sentence that may arise in an ordinary contentious trial. This occurs when a judge renders the sentence coerced by force or grave fear (c. 1620, 3°).
Instances in the Code when the word ‘praeiudicium’ indicates a conflict of interest
There is one instance in the main English language translations of 1983 CIC where ‘conflict of interest’ translates the concept of praeiudicium. The translation by the Canon Law Society of Great Britain and Ireland presents canon 876 as:
To prove that baptism has been conferred, if there is no conflict of interest, it is sufficient to have either one unexceptionable witness or, if the baptism was conferred upon an adult, the sworn testimony of the baptised person.
The Canon Law Society of America translation of canon 876 is:
To prove the conferral of baptism, if prejudicial to no one, the declaration of one witness beyond all exception is sufficient or the oath of the one baptised if the person received baptism as an adult.
The Latin text reads:
Ad collatum baptismum comprobandum, si nemini fiat praeiudicium, sufficit declaratio unius testis omni exceptione maioris, aut ipsius baptizati iusiurandum, si ipse in aetate adulta baptismum receperit. [Emphasis added.]
Normally the proof of a witness is canonically acceptable. One witness can testify about the baptism, for example, when someone wishes to be received into full communion with the Catholic Church who was baptised in the Lutheran ChurchFootnote 95 in circumstances where (1) there is no record of the baptism, (2) the person does not know where the baptism took place or about any godparents, (3) he is an only child, and (4) the parents are both deceased.
However, the declaration of a witness or the oath of a person baptised as an adult is insufficient in a ‘prejudicial’ case, ‘one in which the rights of another person may be adversely affected’.Footnote 96 For instance, a marriage nullity case where a declaration of nullity is based on the proof, or proof to the contrary, about the baptism of a spouse. A sole witness may be deemed inadequate and more conclusive proof may be called upon.Footnote 97
In the current Latin Code, there are seven other uses of praeiudicium, involving possible infringement on, or loss of, the rights of individual or juridic persons. These other cases are:
Canon 80 §3. Individual persons cannot renounce a privilege granted to some juridic person or granted in consideration of the dignity of a place or of a thing, nor is a juridic person free to renounce a privilege granted to it if the renunciation brings disadvantage to the Church or to others (‘si renuntiatio cedat in Ecclesiae aliorumve praeiudicium’).
Canon 428 §2. Those who temporarily care for the governance of the diocese are forbidden to do anything which can be prejudicial in some way to the diocese or episcopal rights (‘… vetantur quidpiam agere quod vel dioecesi vel episcopalibus iuribus praeiudicium aliquod affere possit’).
Canon 540 2. A parochial administrator is not permitted to do anything which prejudices the rights of the pastor or can harm parochial goods (‘Administratori paroeciali nihil agere licet, quod praeiudicium afferat iuribus parochi aut damno esse possit bonis paroecialibus’).
Canon 1195. The person who has power over the matter of the vow can suspend the obligation of the vow for as long a time as the fulfillment of the vow brings disadvantage to that person (‘… quamdiu voti adimpletio sibi praeiudicium afferat’).
Canon 1201 §2. If an oath is added to an act which directly tends toward the harm of others or toward the disadvantage of the public good or of eternal salvation, then the act is not reinforced by the oath (‘Si actui directe vergenti in damnum aliorum aut in praeiudicium boni publici vel salutis aeternae …’).
Canon 1203. Those who can suspend, dispense, or commute a vow have the same power in the same manner over a promissory oath; but if the dispensation from the oath tends to the disadvantage of others who refuse to remit the obligation of the oath, only the Apostolic See can dispense the oath (‘… sed si iurisiurandi dispensatio vergat in praeiudicium aliorum qui obligationem remittere recusant …’).
Canon 1455 §1. Judges and tribunal personnel are always bound to observe secrecy of office in a penal trial, as well as in a contentious trial if the revelation of some procedural act could bring disadvantage to the parties (‘In iudicio poenali semper, in contentioso autem si ex revelatione alicuius actus processualis praeiudicium partibus obvenire possit …’)
Common to all these examples is that there is some relationship which may occasion a conflict of interest. However, the emphasis in these eight canons concerns a person whose actions and their consequences could encroach on the rights and freedoms that another canonical or individual person may enjoy.
The effects of judicial decisions tainted by conflicts of interest
Notwithstanding the decisive consequence of an irremediably null sentence if a judge renders the sentence coerced by force or grave fear (c. 1620, 3°), by contrast CIC is not explicit about what ought to happen when judges know about their conflicts of interest, no objection is raised by a party, and the judge fails to withdraw.Footnote 98 The acts of a judge placed before an objection is lodged are valid; however, acts placed after an objection is lodged ‘must be rescinded if a party requests it within ten days from the acceptance of the objection’ (1983 CIC c. 1451 §2). This is the echoed in the Instruction Dignitas connubii (DC): DC art 70 §2.Footnote 99
The Code of Canons of the Eastern Churches (CCEO) states a similar procedure; however, there is final provision that ‘after the acceptance of the objection, the acts are invalid’ (CCEO c. 1109 §2).Footnote 100 This is absent in the CIC and DC. Michael-Andreas Nobel sums up the situation of 1983 CIC and DC:
all acts of a judge placed after the admission of the objection still remain valid. Conflict of interest is not a question of the competency of a judge. He remains a competent judge and his acts remain valid. Conflict of interest is a question of personal disqualification, demanding that the judge withdraws from a cause or that a party can lodge an objection against him. There are no juridic effects if the judge is aware of a conflict of interest but does not withdraw from the cause; his acts remain valid.Footnote 101
In other words, judges can issue valid sentences with juridic consequences that are unjustly influenced by conflicts of interest or bias. This is an evident gap in CIC that could benefit from further study and discussion.
Conclusions
Contemporary Roman Catholic canon law in numerous areas of law strives to uphold impartiality, avoid bias and minimise conflicts of interest in judicial and administrative life of the community. The norms governing relationships in ecclesiastical settings, kinship ties, and improper advantage, have learnt from the lessons of a long history that traditionally favoured families and nepotism. Conversely the medieval and early modern concerns about ethical codes for judges and advocates, and fair procedures, find continuity in canons relating to the exercise of canonical responsibilities.
