Mirror of Justice

Yesterday Villanova Law School hosted the panel discussion Mark Sargent mentioned in an earlier posting, "Reflections on the Grand Jury's Report on the Archdiocese of Philadelphia."  The event was a real credit to its organizer, the same Mark Sargent.  James Post, Professor of Management and Public Policy at B.U. (and a Villanova Law alumnus), offered a general appraisal of the ongoing scandal and some specific insights into what went wrong in Philadelphia; his comments were nuanced and passionate both.  Chuck Zech, Professor of Economics at Villanova and Director of the University's Center on Church Management, reported the results of his pollings on the effects of the scandal on the life of the Church in the U.S.; his evidence on the growing disengagement of American Catholics from their Church on account of the scandal was sobering.  The still same Mark Sargent gave a masterful sketch of the civil law, criminal law, and bankruptcy issues facing (or not)the Church in Philadelphia today and in the coming years.  More than a hundred people were in attendance:  many members of Voice of the Faithful, parish priests from across the Archdiocese (many sans Roman collar), "Philadelphia lawyers," law students, law faculty, and, yes, a reporter from the Philadelphia Inquirer.  The discussion was predictably lively and remarkably productive; a particular emphasis was the American hierarchy's decades-long failure to follow the governing canon law procedures.  I moderated the event; my introductory comments follow below, for whatever their worth.  I would just add that this sort of event seems to me to exemplify what Catholic law schools can do that is true to their charism and different from what other places can do.  As the event unfolded, I was thinking, "Here is the Church thinking and reflecting; here are Catholic lawyers and scholars gathered together to work on behalf of their Church."

___________

I should like to begin by setting a broader than America-in-the-first-half-of-the-first-decade-of-the-new-millenium perspective that may be of assistance in approaching and focusing the questions of the day.  On one view of the world, societies (such as churches and families) exist by right within a given state only by concession of the state; this is the view embodied, for example, in the following statute of the Third French Republic:  “No religious congregation may be formed by without an authorization given by law that determines the conditions of its exercise. . . .  The dissolution of a congregation or the closing of any religious establishment may be declared by a cabinet decree.”  This statute, mind you, was in effect in first half of the twentieth century.  On another view of the world, and it is the one we grope toward in the United States today, societies, still including religious societies, exist by right that precedes the state.  Bound on the one hand to recognize the freedom of action and development of the legitimate societies that precede it, the state is also bound, on the other hand, to regulate all societies as the common good of the whole body politic may require.  The balance between the primordial authorities of the societies that precede the state and the state’s mandate to care for the common good remains, if we are lucky, a work in progress.  Totalitarianism is one premature resolution of the tension; the failure of plural societies to work together for the common good is the other.

In the current engagement between the Grand Jury that works for the common good of the Commonwealth of Pennsylvania and the society that is the Catholic Church in the particular church that is the Archdiocese of Philadelphia, we confront a paradigm instance of the challenge and its temptations.  It would be wrong to grab either horn to the exclusion of the other.  The Church should govern herself with the legitimate authority that is uniquely hers, and she should seek to govern in a way that supplies no reason or pretext for outside forces to feel justified to enter in and run things “better;” the state, in any event, must never usurp the authority that is irreducibly the Church’s, must never insinuate itself into the Church’s internal life.  The Commonwealth, however, must insist that the Church (and other such societies) be held to a uniform application of the law that is necessary and beneficial to the common good.  The Church never asks, as Pope Benedict has been firm in saying, any special privileges for herself, though she does of course hope for and call for a state that will permit her the internal freedom that is necessary to the authority that is the hallmark of a distinct society.  Clearly, the Church should be among the first to follow the legitimate laws of the state that, as a matter of concrete fact, makes her ministry possible. 

It is the genuine blessing of this Catholic law school that we can come together to talk openly, passionately, and rigorously about what has happened and the way forward to mutual respect between Church and state, and full protection by both Church and state of the youth who are our collective charge.

There is no question but that many priests of the Church in Philadelphia acted very wrongly, and that high officials of the Church in Philadelphia, whatever their good intentions, mismanaged the life of the Church.  Through acts of mismanagement  at the top, and through violence and other abuse in city and suburbs, untold harm was visited upon dozens and dozens of young people, as well, it should be added, as upon innocent Catholics, lay and clergy both, in the Archdiocese and far beyond. 

It is a fundamental truth of the Catholic moral tradition that what atonement must be for the sins we commit and harms we cause depends upon our culpability.  The extensive report of the Grand Jury, the Response of the Archdiocese, and the Grand Jury’s Examination of that Response illuminate a serious discrepancy on the issue of culpability as it concerns various individuals and the Archdiocese itself.   On these issues I find the three documents remarkably unhelpful; the Grand Jury’s Report obscures important points through its rhetorical excess and ultra vires opining; the contents of the Response of the Archdiocese are sometimes irrelevant, frequently conclusory, and often lawyerly (in the bad sense).  Atonement that fits the true culpability is a necessary step in the way forward, and the letter that Cardinal Rigali sent recently from Rome indicates the Archdiocese’s movement in that direction. 

Also necessary to going forward is a fair and workable plan for preventing harm to young people.  The Grand Jury report recommends many expansions of the civil and criminal law.  Law, whatever its greatness as a tool to human living, is also necessarily a crude tool, particularly in its operation and application in the criminal context.  The Grand Jury Report’s repeated invocation of “criminal conduct” that is “not criminally indictable” fits uncomfortably within the Anglo-American criminal law that refuses to elide acts that are mala in se with crime, a creation of the positive law.  As a student and teacher of the criminal law, I have long held reservations about expanding the scope of the criminal law; my general view has been that application of the criminal law should be our last resort, and I retain that view.  The question then, fairly presented today, is whether we have reached the point at which expanded statutes and reduced statutes of limitations are called for.  Something needs to be done.  Some people respond only to the threat of punishment, and certainly, consistent with the moral teaching of the central tradition, the body politic deserves to impose retribution for harm caused to itself and its members. 

In the first reading for last Sunday’s Mass, from the Prophet Malachi, the Lord flared up with anger toward his priests for their straying ways.  The prophet then asked of the people: “Why do we break faith?”  The question we are here to discuss today, as Catholics and other people of good will working in and around the law, is how faith can be restored in the life God’s people, the Church.  In this important work, we have the assistance of three distinguished panelists, whom I shall introduce according to the order in which they will speak.  All three are exceedingly prolific authors, so I have opted to omit even a sketch of their writings from my introductions. . . . .