Last week, the Pope urged Catholic judges and lawyers not to co-operate in any way with divorce if that was directed towards the break-up of a marriage. A QC in practice at the Scottish Bar explains why he dissents from the Pope?s instruction. It cannot be followed without breaking basic principles under which lawyers operate.

ON 28 January, Pope John Paul II attended a meeting of the judges and lawyers who staff the Roman Rota, the Catholic Church?s court of appeal for ecclesiastical cases. Appeals may be made to it, for example, from decisions of diocesan marriage tribunals on annulment applications. In his address to these Roman canon lawyers, the Pope was concerned to set out a number of points which, in his view, follow from the Church?s teaching on the indissolubility of marriage. His remarks were directed at three distinct audiences: first, lawyers and judges working in the church courts; secondly, legislators and the electorate in civil society; and thirdly, lawyers and judges working in the ordinary civil courts.

The Pope first warned against any tendency on the part of the lawyers and judges of the church courts to treat marriage annulment as a form of divorce process. Annulment is a court decree which states that a marriage never properly existed. This may be because, for example, the marriage ceremony took place under duress or out of fear, or by deceit, or with one party rejecting some of marriage?s essential elements (see canons 1095-1107). By contrast, divorce or legal separation are civil remedies in respect of a validly contracted marriage which has subsequently gone wrong. The lawyers and judges of the church courts were warned by the Pope to pronounce decrees of annulment (that is to say, to declare that a broken marriage had been void from the outset) only where such a finding could properly be supported by the facts. The church?s lawyers were, in effect, told to practise what the Church preaches on the indissoluble nature of validly contracted marriages.

Secondly, the Pope addressed himself to what he described as the ?profound crisis of the institution of marriage in civil society?. He emphasised that the family was the foundation for all civil society. Accordingly, he rejected any suggestion that the ideal of the indissolubility of marriage concerned only members of the Church and not wider civil society. On the contrary, in his view the idea of marriage as, by definition, an indissoluble union should be promoted throughout civil society as a whole, and he encouraged all those who accept the indissoluble nature of marriage to oppose civil legislation and administrative practices aimed at introducing or easing marriage dissolution. Legislation should also be opposed if it sought to establish a legal regime for unmarried partnerships or legal recognition to same-sex unions.

He deplored the prevalent ?divorce mentality?. He proposed that it should be combated by the promotion of legislation which actively supported marriage and improved its social recognition, albeit that the civil law might still, because of the hardness of hearts (Mt 19:8), permit divorce in limited circumstances.

Finally, the Pope addressed remarks to the lawyers and judges involved in administering the civil law in society. He first set out his basic principle:

Agents of law in the civil area must avoid being personally involved in anything that might imply co-operation with divorce.

He then explained what this might mean in practice:

In exercising a liberal profession, lawyers must always decline to use their profession for an end that is contrary to justice, such as divorce. They can only collaborate in an action of this kind when, in keeping with the client?s intentions, it is not directed to the break-up of the marriage, but to other legitimate effects, which can only be attained by a specific legal ruling through the judicial process.

It would seem from this pronouncement that Catholic lawyers should only act in divorce cases by virtue of an application of the doctrine of double effect. That is to say, although the legal dissolution of the marriage is a foreseeable consequence of the action, the primary involvement of Catholic lawyers in such cases should be to safeguard associated legal rights for innocent parties to the divorce ? for example, the wronged spouse or the children of the union ? on the basis that there is no other way of resolving the marital crisis.

It would appear to follow that Catholic lawyers can only properly act for the wronged party in a divorce case. And where it is not clear where the wrongs lie, then they should not act for either party. The assumptions that underlie this instruction would appear to be these: that justice is served when only ?the just? are represented; and that those ?in error? have no rights worthy of protection. But this cannot be right. For justice to be seen to be done, even the unworthy, the unjust and the guilty must have their cases properly presented.

What, then, of the position of judges in civil society, seeking to be true to the teaching of the Church on the indissolubility of marriage? The Pope apparently recognises that their position is more complicated because, unlike lawyers in practice, judges cannot pick and choose the cases that will come before them. Once a case is before them, the Pope recognises that the judges are legally obliged to apply the law, irrespective of their personal views as to its morality. The Pope concludes that ?for grave and proportional reasons? civil judges ?can act according to the traditional principles of material co-operation in evil. However, they must also find the effective means to favour marital unions, especially through a wisely conducted effort at conciliation.?

The suggestion that judges might take such an active role in litigation appears to presuppose a Continental model of the judge as inquisitor into the facts, rather than the role ? more common in the English-speaking legal world ? of the judge as a more or less passive and neutral umpire taking note only of the material actually put before the court by the litigating parties. But in both cases, it is for the judge to determine and apply the law to the case before him. The Pope?s instruction seems to be that when judges are required to apply divorce laws (which the Pope considers to be unjust because they are destructive of marriage), they should do so in a manner which mitigates their unjust effects.

Implications of the new papal teaching
In addressing instructions to lawyers and judges in civil society as to how they should administer the law on divorce, the Pope has entered an area of potentially great difficulty, namely the inter-relationship between law and morality, or perhaps, more accurately, the interplay between the legal duties of lawyers and the demands of the moral life. His enthusiasm for upholding the ideal of marriage seems to have led him into making a number of pronouncements to civil lawyers and judges which are, perhaps, difficult to sustain when the wider implication of these statements are noted.

In relation to civil lawyers, the Pope assumes that, as a general principle, lawyers can and should pick and choose among their clients and causes; and that they can and should decline to act in cases which do not accord with their own private moral views. But that is not the case. A fundamental principle of practice at the Bar, for example, is the ?cab rank rule?; that is to say that, within his area of legal competence and expertise, a barrister or advocate who is available is obliged to take instructions from any client, and for any cause.

It is not for the legal practitioner to judge the moral worth of an individual?s suit. The duty of the lawyer is to represent his client, and not himself. His skill is put at the service of the client, to ensure, ultimately, that his or her legal rights are fully and properly presented and protected. It is in this way that justice, the rendering to each of that which is properly due to them, is done. Individuals, no matter how immoral, how unpopular or how apparently guilty, have a right to legal representation. The corollary of this is that lawyers have a duty to provide legal representation to the best of their ability, no matter what their personal views may be concerning the rightness of the cause.

The justice of the cause is judged, not by the conscience of the lawyer, but by the judge in accordance with the law after both sides of the case have been heard and due procedures followed. In his address, the Pope told civil lawyers that they should ?avoid becoming simple technicians at the service of any interest?. But being a lawyer is precisely that: to be at the service of any interest which requires legal assistance. To characterise such a position, in the words of the Pope, as being a ?simple technician? rather than ?a server of individuals? rights? is unfair and misleading. The duty of the lawyer is to present a case in accordance with the law. That is a worthy and honourable role ? the Holy Spirit is, after all, traditionally given the title of Paraclete, the Greek term for advocate or defence counsel. It is then the judge, and not the lawyer, who determines whether or not the case put forward is correct in law.

If a lawyer were to carry out his role in accordance with the Pope?s recent instruction, then, before taking on a client?s case, he would be obliged to assess the moral justice of the matter. If the lawyer considered the cause to be a morally just one, he could then, in conscience, act for the client. There would then be a moral identification between the lawyer and the cause or client he represents. But this is a dangerous road to go down. It would imply that a lawyer representing, say, those accused of terrorist offences is himself a terrorist sympathiser. And it was precisely such a confusion between lawyer and client that resulted in the murders of Catholic lawyers in Northern Ireland such as Pat Finucane and Rosemary Nelson.

Criminal defence lawyers are not, generally, criminals at heart. Neither should divorce lawyers be characterised as immoral marriage wreckers, regardless of which side they act for. The Pope may well be correct to consider that the existence of civil lawyers able to advise individuals as to their rights to, and on, the civil dissolution of their marriage contributes to a greater readiness on the part of individuals to divorce. But the decision to divorce is made by the individual, not by the lawyer. And the conditions under which divorce is available are determined by the general law of the land and not by the cunning of the lawyer. To hold the lawyer culpable for presenting a case is simply to blame the messenger for the unwelcome message.

Equally serious in their implications are the remarks addressed by the Pope to judges in the civil sphere. As we have seen, he allows that judges should apply the civil law, but observes that their application of this civil law should be tempered by Catholic moral teaching on the particular topic. In particular, in divorce cases, the Catholic judge is advised to find ?means to favour marital unions, especially through a wisely conducted effort at conciliation?. But what of other legal questions which a judge may be called upon to decide, on which the Church has also taken a view? Issues of some moral complexity in the area of family law which have recently come before the courts in Scotland and England include the following: whether a parent should be informed if their child under the age of consent seeks medical advice or assistance on contraception; whether the courts may give prior authorisation to the next-of-kin to assist in the suicide of a terminally ill family member; whether conjoined twins should be surgically separated, notwithstanding that the inevitable result would be the death of one of them; whether the surviving member of a same-sex union should be regarded for the purposes of succession to a tenancy as a member of his partner?s family; whether a homosexual man in a committed same-sex relationship should be permitted to adopt a child; whether a couple may recover damages in respect of the birth to them of a healthy child following a failed sterilisation; whether a child in utero is to be regarded as a ?person? for the purposes of claiming damages in respect of their death; whether a man may obtain a court order to prevent the mother of his unborn child from seeking a termination; and whether an embryo created by cloning falls within the protection of the law.

If such issues come for decision before Catholic judges, are their decisions to be influenced or guided by official Catholic moral teaching? From the terms of these recent papal pronouncements, it would seem to be that the answer to that question must be ?yes?. By contrast, from the point of view of lawyers? professional duties, the answer to that same question must be ?no?.

In a recent case (Locabail (UK) Ltd v. Bayfield Properties Ltd and another, 2000), the then Chief Justice (and now Senior Law Lord) Lord Bingham stated that: ?We cannot...conceive of circumstances in which an objection [of apparent judicial bias] could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge.? Lord Bingham is clear that, in his view, a judge?s particular religious convictions will not influence his decisions on matters of law. The Pope?s view seems equally clear that a judge?s Catholicism should influence his legal judgment. But if Catholic judges followed the Pope?s views, and stated that their understanding and application of the civil law would be tempered by specifically Catholic moral teaching, then objections could properly be taken and upheld against a Catholic judge sitting on a particular issue of moral controversy.

Further, if a judge were to make explicit in his reasoning (as he is duty-bound to do) that he was influenced in coming to a particular decision by considerations derived from Catholic moral teaching, then there would be good grounds for appeal against this decision, since it would have been reached by the judge after taking into account legally irrelevant factors. The fact that a judge is a Catholic should have no bearing on the outcome of a case. If it does, then this is evidence of judicial bias.

The fundamental principle that is required of all our judges is that they be independent and impartial. As Lord Steyn noted in a recent case concerning human rights under the European Convention: ?It is a basic premise of the convention system that only an entirely neutral, impartial and independent judiciary can carry out the primary task of securing and enforcing convention rights? (Brown v. Stott, 2001). And Lord Clyde has emphasised that ?judicial independence is of fundamental constitutional importance. It is an indispensable condition for the preservation of the rule of law? (Millar v. Dickson, 2001). Independence and impartiality embody the essential characteristics of what it is to be a judge, whether acting as an ?inquisitor? on the Continental model or as an ?umpire? in the English-speaking legal world. The implications of the Pope?s direction to civil judges to temper their application of the law with Catholic principle would appear to run directly counter to this.

The Pope?s instruction places conscientious Catholic judges in a dilemma. If they now seek to apply Catholic teaching to the questions which come before them, their legal impartiality may be called into question. But if they refrain from applying Catholic teaching in their professional role, their loyalty and fidelity to the Church might be called into question. Either way, they are compromised.

The only resolution of this matter in accordance with the instruction would be for the Catholic judge to withdraw from acting in any legal matter in which the Church might be seen to have a prior view. That would indeed be paradoxical: the Catholic judge would be left with no option but to withdraw from acting in precisely those areas of law where the Pope thinks that Catholicism should make a difference.

The point which the new papal teaching has ignored is this: those who participate in the system of civil law, whether as judges or lawyers, have a (legal) duty to be true to the values embodied within that system. The duty of all lawyers or judges, whether Catholic or otherwise, is to ensure that the law is applied impartially without fear or favour. The civil law is not to be applied instrumentally to further some other external system of values, however worthy, such as for example those set out in official Catholic moral teaching, because to do so is to subvert the very integrity of the legal system which lawyers and judges have sworn to uphold. The teaching of the Church must allow for the autonomy of the legal system within civil society, just as it must respect the autonomy of the political sphere. We have the privilege of living and working in an established democratic, liberal and pluralist polity. The Church cannot require that a form of theocracy be substituted for it, or insinuated within it.

Moral values within the civil law

In any event, the fundamental values contained within the civil law may be said to be in harmony with basic Christian humanist principles. Thus, many of the classic moral duties set out in the gospels have been translated, in the legal context, into fundamental rights to which people are entitled, in the words of Article 14 of the European Convention, ?without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status?. These fundamental rights include: the right to life; the right not to be tortured or treated in an inhuman or degrading manner; the right not to be held in servitude or to be required to perform forced labour; the right to liberty; the right to a fair trial; the right not to be punished other than in accordance with the law; the right to respect for private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of assembly and association; the right to marry; and the right to a effective remedy before the courts for violation of the other fundamental rights. All of these rights require the community at large to respect the integrity of each individual person, simply from the fact of that person being human, not because of any other attributes he or she may have, such as riches, intelligence, moral rectitude or an otherwise deserving nature. These rights are each and every individual?s, no matter how apparently undeserving.

It is unsurprising that these fundamental rights set out in the European Convention (and now incorporated into United Kingdom law by the Human Rights Act) reflect underlying Jewish and Christian values. The European Convention was drafted in the aftermath of the Second World War. The limits it sets on the law and the State are precisely those limits which were breached by the Nazi state and Nazi legal system. The German state from 1933 to 1945, particularly in its ?Nuremberg laws?, systematically withdrew the protection of the law from segments of the population, allowing them to be detained and killed without due legal process, and abrogated their rights to a fair trial.

The primary impetus behind the European Convention was, then, to ensure that that kind of perversion of law ? perverse because so fundamentally immoral ? should not ever be allowed to happen again. With the incorporation of many of the rights contained in the European Convention by the Human Rights Act, the law in the United Kingdom has accepted a specific moral code. It is now explicitly imbued with a particular moral vision, derived from this underlying Judaeo-Christian perspective underpinning Western civilisation.

Conclusion

So perhaps the Pope need not worry so much about instructing civil lawyers and judges how to carry out their jobs in a manner which he sees as compatible with specific Catholic teaching. Insofar as the Church finds the civil law wanting in any particular respect, then it may properly petition and press for that law to be changed by the respective national legislatures. Otherwise the Church should respect the integrity of the civil legal system, and those who work within it, to protect the values already within that system and which are common to civil society as a whole, rather than simply one Christian confession within it.

Lawyers are not bereft, as individuals, of personal moral views. But when acting in their professional capacity, whether as lawyers or judges, their fundamental duty is to uphold the law and legal values. The law does not invariably produce a just result, but justice cannot be achieved except through law. For justice to be done according to law, lawyers are obliged to keep separate their personal views of what the law ought to be from their professional view as to what the law is. The Pope?s recent instruction to the legal profession seems to have failed to take this into account.

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