Sunday, 23 July 2017

Jurisprudence and imprudence

In our legal system, we have a doctrine of the presumption of innocence. 

The reasons for this are fairly clear: a society in which people can be judged guilty without a proper process is clearly problematic.

The presumption of innocence, of course, may lead to injustices:  an individual may know very well that someone is guilty of an offence against him, and yet be unable to prove it to the standards required in law: the truly guilty party escapes the consequences of his actions, and the victim is denied justice.

But so it must be: for the alternative is so much worse: if the police, or the State (either of which means, effectively, those with power) can decide who is guilty without due process, it is worse for all of us. And inevitably the highest price will be paid by those with least power.

A second principle is that nobody is the judge in his own case. Again, the reasons are fairly clear: the temptation to bias (whether conscious or unconscious) is so strong that we cannot fairly submit somebody to such temptation and rely on him to give a just verdict. Rather, we seek means to ensure that judgement is made by people without a vested interest in the outcome. These are fairly universal principles in any civilised society, for reasons which are obvious.

I reflect on these, because some people do not seem to see the massive imprudence of some apparently merciful approaches to the problem of divorce and 'remarriage.'

The presumption in favour of the bond - that is the presumption that a marriage is valid until proved null - serves a similar function with regard to marriage as the presumption of innocence does to criminal justice. It is true that, just as with the presumption of innocence, the presumption in favour of the bond may lead to individual cases of injustice; but the principle stands, because the alternative is so much worse and more damaging for everyone. And as ever, those most damaged will be those who have least power.

Likewise, any attempt to change the annulment process so that one of the parties to a marriage becomes the judge in his own case is clearly an affront both to the principles of justice and to the institution of marriage. It may appear merciful, but (inter alia) places a terrible burden of responsibility on the individual, in an area where we already know that human judgement is, let us say, unreliable.

Someone very close to me has recently abandoned his wife and taken up with another woman. He has managed to persuade himself that his marriage was a sham. I have no doubt that such a psychological event has taken place in his mind: he genuinely believes it. I have no doubt that he is wrong... We humans are remarkably good at doing that: interpreting reality to justify our behaviour and our desires.

And of course the injustice is done to his wife and children; and harm done to himself (he is really bent out of shape...) and to the institution of Marriage. So whilst one could not, and should not, pronounce on his individual culpability, one can see that an 'internal forum' solution is profoundly problematic.

These are some of the reasons why some of the approaches being promoted in the wake of Amoris Laetitia are so troubling to so many thoughtful Catholics.

Of course, by drawing attention to these issues in this way, I lay myself open to the charge of being legalistic. But I would draw a distinction between legalism and clear thinking about the law. Our Lord condemned a certain type of legalism; but also declared for the Law. Catholic tradition has long recognised the importance of Canon Law - and not least with regard to protecting Holy Matrimony. 

The law - civil or canon -  may be an imperfect instrument; but those who do away with it in the hope of advancing justice, peace and happiness soon find that it doesn't work out so well: the revolution always ends up consuming its own children - and particularly the powerless.

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