GIUDICE. - By judge in the strict sense is meant a person (an individual judge) or a body of persons (a collegiate judge) called upon to determine a case by means of a decision having legal force. If the judge is an individual, he combines in himself the two functions of direction and decision; when, on the other hand, he is collegiate, the directing function belongs to a head (president), while the function of decision belongs to the body, including its head.
At all times the function of the judge has been considered among the noblest, and as invested with a sacred and priestly character.
The task of the judge is to apply the law to the disputed fact within the framework of the rules laid down by legislation. In the absence, however, of positive rules applicable to the individual case, he remains free to have recourse to general principles of law, doctrine, or jurisprudence, to legal analogies, and to an inquiry into the will of the legislator; likewise, he remains free in the practical application of punishment.
It is not, however, possible to accept a modern doctrinal tendency, which has nevertheless found a place in some codes, that would grant still
greater freedom and independence to the judge, as though he could create the rule to be applied to the concrete case.
The judge binds himself by a kind of quasi-contract with society to discharge 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 properly prepared for their task by technical knowledge and moral integrity. Professional morality further requires diligence in conducting the proceedings and prudence in pronouncing judgment. The latter must be based more upon the force of arguments than upon the words of witnesses. And, although it is necessary for the judge to act within the limits of the laws, through the whole body of judicial acts and documents he must form his own moral conscience, according to which he is to render judgment.
In the light of these general principles, the casuistry concerning the profession of the judge is developed and disputed questions are clarified.
1) Given the necessity of technical training for his profession, if he lacks it 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 away from impartiality of judgment are political or social influences, flattery or threats, and gifts. To remedy these inconveniences, it is appropriate to guarantee by law the impartiality of the judiciary, as the Italian constitution has done (art. 104), and also to provide adequate remuneration from the State. For his own part, the judge is obliged to preserve his impartiality in the face of any influence extraneous to the case before him. With regard to gifts, the following moral principles apply:
a) he may not receive them, and still less demand them, as compensation for an unjust sentence or for the performance of acts to which the parties are entitled;
b) it is not contrary to justice to receive or demand them for acts to which the parties are not entitled. Every violation of justice must be compensated by reparation for damages and restitution of the gift.
3) With regard to the conduct of the judge in a doubtful case, that is, when he is unable to attain full proof of the truth of the facts and to form a moral certainty, in civil cases he must judge according to the greater probability; in the case of equal probability, he must endeavor to settle 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 permitted by the law. Likewise, he must acquit an accused person whom he knows by private knowledge to be guilty, if the evidence in the proceedings demonstrates his innocence.
In the contrary case of an innocent person whom all the evidence gathered accuses as guilty, the judge, after having done everything possible to reach the truth, if he does not succeed and remains firmly convinced of the innocence of the accused, though unable to condemn him to the most severe penalties, may impose the minimum penalty, especially a pecuniary one. This seems the best solution in the face of the extreme opinions of s. Tommaso (Sum. Theol., 2ª-2ªe, q. 67, a. 2) and others on the one hand, who advocate judgment always «iuxta acta et probata»; and of those, on the other hand, who maintain that judgment should in every case be pronounced «iuxta veritatem» (cf. D. M. Prümmer, Manuale theol. mor., II, 4th-5th ed., Freiburg im Breisgau 1928, pp. 141-42, no. 158).
4) In the face of an unjust law, the judge can never condemn one who violates it where the penalty is extremely severe, or one who is defeated in court with respect to an intrinsically evil act (e.g., compelling a woman to return to the man to whom she is joined solely by a civil bond). If the act is not intrinsically evil or the penalty is mild, the judge may apply the law in order to avoid greater troubles for himself.
Thus, for a grave reason, he could pronounce a sentence of divorce in nations where it is permitted, provided that he intends, and that the spouses who have recourse to his ministry know, that the sentence has for them only the effects of personal separation: in that 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).