JUDGE. — In the strict sense, a judge (9. singular) is a person or a body of persons (9. collegial) called to adjudicate a case by means of a decision having legal force. If the 9. is singular, it combines in itself the two functions of directing and deciding the case; if it is collegial, the directing function belongs to a head (president), while the decision-making function belongs to the collegium, including the head.
At all times, the office of the judge has been regarded as one of the noblest and as invested with a sacred and priestly character.
The task of the judge is to apply the law to the disputed facts within the framework of the norms established by the laws. However, in the absence of positive norms applicable to the particular case, the judge remains free to resort to general principles of law, doctrine, or jurisprudence, to legal analogies, or to the search for the legislator’s intent; likewise, the judge remains free in the practical application of punishment.
It is not possible, however, to accept a modern doctrinal tendency, which has found a place in some codes, that would grant even greater freedom and independence to the judge, as if he could create the norm to be applied to the concrete case.
The judge enters into a quasi-contract with society to fulfill his office well; if he fails in this, he violates legal and distributive justice. The importance of the administration of justice in society further requires that judges be well prepared, both technically and morally, for their task. Professional morality also demands diligence in instructing the case and prudence in pronouncing judgment. The latter must be based on the strength of the arguments rather than on the testimony of witnesses. And while it is necessary for the judge to operate within the bounds of the law, he must, through the entirety of the judicial acts and documents, form his own moral conscience by which to render judgment.
In the light of these general principles, the casuistry pertaining to the judge’s profession unfolds, and controversial questions are illuminated.
1) Given the necessity of technical training for his profession, in case of deficiency the judge must either acquire it as soon as possible or resign (H. Noldin-A. Schmidt, *Summa theol. mor.*, 26th ed., II, Innsbruck-Leipzig 1939, no. 720, p. 670).
2) Among the causes that may lead the judge to deviate from impartiality are political or social influences, flattery or threats, and gifts. To prevent such abuses, it is advisable to guarantee the impartiality of the judiciary by law, as the Italian Constitution has done (art. 104), and to provide adequate remuneration from the state. On his own part, the judge is bound to maintain his impartiality against any influence extraneous to the case at hand. Regarding gifts, the following moral principles apply:
a) The judge may not receive them, and much less demand them as compensation for an unjust judgment or for performing acts to which the parties are entitled;
b) It is not unjust to receive or demand them for acts to which the parties are not entitled. Any violation of justice must be compensated by damages and the return of the gift.
3) With regard to the judge’s conduct in a doubtful case—when he cannot reach full proof of the facts or form a moral certainty—the judge must, in contentious cases, decide according to the greater probability; if the probabilities are equal, he should strive to settle the dispute amicably; and if this is not possible, he is free to decide at his discretion. In criminal cases, he must favor the accused within the limits permitted by law. Likewise, he must acquit the accused, who is such by private knowledge, if the trial evidence demonstrates his innocence.
In the case, however, of an innocent person against whom all the evidence points to guilt, the judge, after having done everything possible to ascertain the truth but failing to do so, if he remains firmly convinced of the accused’s innocence, may not impose the most severe penalties, though he may apply the minimum penalty, especially pecuniary. This is the better solution compared to the extreme positions of St. Thomas (*Summa Theol.*, II-II, q. 67, art. 2) and others, who advocate that judgment should always be “iusta acta et probata,” and those who, on the other hand, maintain that judgment should always be “iusta veritatem” (cf. D. M. Prümmer, *Manuale theol. mor.*, II, 4th-5th ed., Freiburg in Br. 1928, pp. 141-142, no. 158).
4) In the face of an unjust law, the judge may never condemn one who violates it if the penalty is extremely severe or if the judgment would result in an intrinsically evil act (e.g., forcing a woman to return to a man with whom she is joined only by a civil bond). If the act is not intrinsically evil or the penalty is mild, the judge may apply the law to avoid greater harm to himself.
Thus, for a grave cause, he could pronounce a sentence of divorce in countries where it is permitted, provided that he intends and the spouses who resort to his office know that the sentence has for them only the effects of a personal separation: in such a case, indeed, the sentence is nothing other than the dissolution of the civil bond (cf. D. M. Prümmer, *op. cit.*, III, pp. 647-48, no. 893).