JUDGE. - By judge in the strict sense is meant a person (single judge) or a body of persons (collegiate judge) called to decide a case by means of a decision having legal force. If the judge is a single one, he combines in himself the two functions of direction and decision; when instead he is collegiate, the directive function belongs to a head (president), while the function of decision belongs to the college, including the head.
At all times the function of the judge was considered among the most noble and as invested with a sacred and priestly character.
The task of the judge is the application of law to the disputed fact within the framework of the norms fixed by the laws. He remains free, however, in the absence of positive norms for the individual case, to have recourse to general principles of law, of doctrine or of jurisprudence, to legal analogies, to the search for the will of the legislator; just as he remains free in the practical application of the penalty.
It is not possible, however, to accept a modern doctrinal tendency, which has indeed found hospitality in some codes, which would wish to grant still greater freedom and independence to the judge, as if he could create the norm to be applied to the concrete case.
The judge binds himself by a quasi-contract with society to fulfill his office well; if he fails, he violates legal and distributive justice. The importance of the administration of justice in society further requires that judges be well prepared by technical knowledge and moral probity for their task. Professional morality further requires diligence in instructing the case and prudence in pronouncing the sentence. The latter must be based on the force of the arguments rather than on the word of witnesses. And, although it is necessary that the judge operate within the circle of the laws, he nevertheless, through the complex of judicial acts and documents, must form his own moral conscience, according to which to issue the sentence.
In the light of these general principles the casuistry that concerns the profession of the judge unfolds and the controverted questions are illuminated.
1) Given the necessity of a technical culture for his profession, in case of deficiency the judge must either procure it as soon as possible or resign (H. Noldin-A. Schmidt, Summa theol. mor., 26th ed., II, Innsbruck-Leipzig 1939, n. 720, p. 670).
2) Among the causes that can make the judge deviate from his impartiality of judgment are political or social influences, flattery or threats, gifts. To obviate these inconveniences, it is opportune to guarantee by law the impartiality of the magistracy, as the Italian constitution has done (art. 104), and also to provide adequate fees on the part of the State. On his own account the judge has the obligation to preserve his impartiality in the face of any influence extraneous to the case he is handling. Regarding gifts the following moral principles may apply: a) he cannot receive them and much less demand them as compensation for an iniquitous sentence or for the performance of acts to which the parties have a right; b) it is not against justice to receive or demand them for acts to which the parties do not have a right. Every infraction of justice must be compensated with the reparation of damages and with the restitution of the gift.
3) Regarding the behavior of the judge in the face of a doubtful case, that is, when he fails to reach full proof of the truth of the facts and to form his moral conscience, he must in contentious cases judge according to the greater probability; in case of equal probability, strive to compose the dispute amicably and finally, if this is not possible, he is free to decide at his discretion. In criminal cases he must favor the accused, within the limits allowed him by law. Likewise he must absolve the accused, whom he knows to be such by private knowledge, if the procedural proofs show him innocent.
In the case, instead, of an innocent person whom all the proofs gathered accuse as guilty, the judge, after having done everything to reach the truth, if he does not succeed and remains in the firm conviction of the innocence of the accused, although he cannot condemn him to very grave penalties, may apply the minimum of the penalty, especially a pecuniary one. This seems the best solution in the face of the extreme sentences of St. Thomas (Sum. Theol., 2a-2ae, q. 67, a. 2) and others on one side, who advocate judgment always «iuxta acta et probata»; and of those on the other side who maintain in every case the judgment pronounced «iuxta veritatem» (cf. D. M. Prümmer, Manuale theol. mor., II, 4th-5th ed., Freiburg im Br. 1928, pp. 141-42, n. 158).
4) In the face of an unjust law the judge can never condemn one who contravenes it to a very grave penalty or one who succumbs in judgment to an act intrinsically evil (e.g., to force a woman to return with the man to 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 troubles for himself.
Thus he could for a grave cause pronounce a sentence of divorce, in nations where it is permitted, provided that he intends and the spouses who have recourse to his ministry know that the sentence has for them only the effects of personal separation: in that case in fact the sentence is nothing other than the destruction of the civil bond (cf. D. M. Prümmer, op. cit., III, pp. 647-48, n. 893).