ECCLESIASTICAL JUDGE. – In a very broad sense, an ecclesiastical judge might be said to be anyone who exercises in the name of the Church the power of judging, which belongs to it in the jurisdiction (v.). The power of jurisdiction is then understood in its integral sense, embracing both the external forum and the internal forum, that is, whether directed principally toward the common good, by regulating the social relations of its members and producing public juridical effects, or directed principally toward private good, by regulating the relations of consciences with God and producing predominantly moral effects.
But such a broad notion of an ecclesiastical judge – even if in itself it exactly corresponds to the structure of the Church, in whose organization, as is well known, there is no effective separation of powers, and in which it is particularly difficult to establish an exact criterion for distinguishing administrative from judicial functions – could obviously not, by reason of its very breadth and the variety and heterogeneity of the elements it embraces, be treated as a unity. Indeed, the functions to which it refers, even though fundamentally reducible to a single expression, namely, the delivery of a judgment concerning given elements or situations, assume wholly particular and differing characteristics, scope, and forms according to the manifold aspects under which the Church’s power of jurisdiction is exercised and divided.
If, on the other hand, the expression is taken in a more technical sense – by analogy with state systems, in which a judge is the person or body of persons called upon to dispose of a proceeding by means of a decision having juridical force – an ecclesiastical judge will be understood as the organ, whether an individual or a collegiate body, to which, in the organization of the Church, the exercise of judicial power, or jurisdiction in the strict sense, is entrusted. This power belongs to the Church itself as an independent and sovereign perfect society, both through the authentic decision of contentious cases, that is, disputes arising among subjects concerning a right or the existence of a juridical fact, and through the application, in criminal proceedings, of penalties against transgressors of the laws.
The difficulty of distinguishing within the Church among the various functions, particularly between administrative and jurisdictional functions, has already been mentioned, since these functions and the corresponding powers are generally combined in the same organs. Nevertheless – without prejudice to the fundamental principle inherent in the divine organic constitution of the Church, according to which every public power of the Church, including jurisdictional power, resides in the Pontiff and the bishops, so that all others participate in it only insofar as they receive this power from them, and every original separation of functions is excluded – the Church established offices and tribunals for its exercise, with their powers distributed.
And although this distribution of powers does not always entail an absolute distinction among the organs to which they are entrusted (thus, for example – not to mention the faculty reserved to the Pontiff, the bishops, and the superiors of exempt Religious institutes to judge personally – the Congregation of the Holy Office is also a true tribunal, while the Congregation for Religious is responsible for confirming, so that they may be enforceable, sentences of dismissal pronounced by the tribunal, etc.), it nevertheless makes it possible to identify within the Church a complete judicial organization in relation to its ends, with a well-defined body of rules governing the procedural juridical relationship, that is, the relationship established by the proceedings between the parties and the judge (v. PROCESS; ECCLESIASTICAL TRIBUNALS).
The competence and hierarchy of ecclesiastical judges are defined by the CIC (Book IV, De processibus, Part I, Section I). After establishing that no one may judge the First See (can. 1556) – a logical consequence of the primacy of the Pontiff (cann. 218–21) – it provides that only the Pope may judge heads of state, their sons and immediate successors in government, cardinals, legates, and, in criminal matters, all bishops, including titular bishops. The tribunals of the Holy See are reserved jurisdiction in contentious matters over residential bishops, dioceses, and juridical persons whose immediate superior is the pope. Cases called by the pope to his own judgment shall be examined by the judge designated by him. In the aforementioned cases, the incompetence of every other judge is absolute (cann. 1557–1558). Independently of this special competence, and of the fact that anyone may at any time have recourse to the Holy See, without this suspending the proceedings pending before the competent judge, except in the event of an appeal or referral to the Holy See (can. 1569), the judge by ordinary right in every diocese and for all cases not reserved by the Holy See is the bishop or Ordinary. He may judge personally, except in disputes concerning the temporal goods of the diocesan curia’s mensa, in which the bishop is therefore a party to the case; but even in all other matters he is ordinarily urged to entrust their examination, especially in serious criminal and contentious cases, to the ordinary diocesan tribunal (cann. 1572–78). This tribunal is directed by an official, whom the bishop is obliged to appoint, with ordinary power to judge, in a person distinct from the vicar general (except in small dioceses or those with few cases); vice-officials may be appointed to him as assistants or substitutes. The official and vice-officials must be priests of unimpeachable reputation, doctors or experts in canon law, and at least thirty years of age. They are removable ad nutum episcopi, but do not cease from their functions and may not be removed while the see is vacant. In every diocese, judges are also to be appointed, not more than twelve in number, who may be chosen even outside the diocesan clergy. They are called synodal or pro-synodal according as they are designated at the synod or appointed directly by the bishop after consultation with the Chapter, and they possess delegated power (cann. 1573–74).
The synodal judges may be appointed as assessors by the single judge; they then form, together with the official or vice-official, the judicial panels in cases for which these are required by law. Panels of three judges are prescribed for cases concerning the bond of sacred ordination, matrimonial cases, cases concerning the rights and goods of the cathedral church, and also criminal cases involving deprivation of an irremovable benefice or excommunication; a panel of five judges is required for cases relating to offenses carrying the penalty of deposition, perpetual deprivation of ecclesiastical garb, or degradation. The Ordinary may entrust other cases as well to a panel of three or five judges, especially when they are of particular importance or difficulty. The judges who, together with the presiding judge, constitute the collegiate tribunal are appointed for individual cases by the same Ordinary, normally in rotation. The collegiate tribunal must proceed collegially under the presidency of the official or vice-official, who directs the proceedings, and delivers its judgment by majority vote (cann. 1576–77).
Cases for which a collegiate judge is not prescribed are to be decided by a single judge, normally the official.
For exempt clerical Religious, the judge is the provincial; for a monastery, its abbot; between two provinces, at first instance, the superior general; between two monasteries, the superior of the monastic congregation. Between persons belonging to different religious institutes, however, and between religious of the same institute that is non-exempt or lay, or between religious and secular clerics or laypersons, the judge shall be the Ordinary of the place (can. 1576).
The rules stated thus far for the members of the diocesan tribunal (as, moreover, do those generally governing its composition or operation as a single or collegiate judge at first instance) also apply to the constitution of appellate tribunals at metropolitan or suffragan sees exercising appellate functions (cann. 1595–1596).
As regards the Apostolic See, given the general principle that the pontiff is the supreme judge for the entire Catholic world, and that he may pronounce judgment either personally or through the tribunals established by him or the judges delegated by him (can. 1597), and subject to the special norms determining cases falling within the exclusive competence of the pontiff himself (can. 1557) and of other special bodies designated toties quoties by him (can. 1961) or by the law itself (such as the Congregations for particular matters: cann. 666, 247, etc.), the ordinary judicial functions belonging to it are exercised by two collegiate bodies, the S. Romana Rota (v.) Apostolic Signatura (v.). The former consists of magistrates, called auditors, chosen by the pontiff himself from among priests who have at least obtained a degree in utroque iure; the latter is composed of cardinals, one of whom is the prefect, and, among other things, judges violations of secrecy and damages caused by the auditors of the Rota, as well as pleas of suspicion against them.
The conditions and forms in which judges of the various grades perform their functions are governed by the norms of procedural law contained in the CIC (v. particularly can. 1608 ff) and in the special laws enacted for particular kinds of trials or for particular bodies. Here it will suffice to recall the fundamental common rule whereby no one may be judge in his own case, that is, exercise judicial power, whether ordinary or delegated, in proprium commodum (can. 202 § 2), as well as the other rule whereby a judge who has heard a case at one level of jurisdiction may not judge the same case at another level (can. 1571).
As regards the extent and grounds of the competence of the ecclesiastical judge in the canonical legal order, as well as the recognition or non-recognition of that competence in the legal systems of States, or the relations between ecclesiastical and civil jurisdiction, V. GIURISDIZIONE; TRIBUNALI ECCLESIASTICI.