There is not much on which everyone in the Church agrees these days, but if there is one thing around which there is broad consensus, it is that the system of ecclesiastical justice is among the areas of Church life most urgently needing reform.
That is an assessment shared by experts, clerics of every rank, and informed lay people across the spectrum of opinion in the Church.
Heading into the conclave in May of last year, veteran Church watchers of every stripe also knew that reform of the Church’s justice system would be a major challenge for the new pope, whoever he would be.
When the cardinals chose Augustinian Cardinal Robert Francis Prevost, a trained canon lawyer with judicial experience and two terms as the head of a global religious order, it became clear that concern for the state of ecclesiastical justice somehow informed their choice.
Reform of the ecclesiastical justice system, however, is a gargantuan task.
Pope Leo XIV frankly acknowledged the fact in an exclusive interview with Crux Now – the first of his pontificate – conducted by Elise Ann Allen in the first months of his reign.
“Law exists,” Leo said, “and we can talk about civil law or church law, but the law exists to protect the rights of all people.”
The pontiff told Crux Now the goal is “to have, as much as possible, a reliable system of justice that respects the rights of all,” and “that takes time.”
Leo XIV was replying to a question about the narrow issue of clerical abuse and the persistent sense – especially among victims but by no means exclusive to them – that the Church’s laws targeting abuse and coverup are not being implemented and victims are still largely left in the dark about the process.
“One of the things that many victims do comment upon,” Leo noted, “is: ‘Why do these processes take so long?’”
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“Well, we live in Italy, I lived in Peru, even in the United States, many processes that go into the courts take years and years, and that’s just a fact.”
Leo – a trained lawyer who has served as a judge – noted that the presumption of innocence must be protected and the accused have rights any just society is bound to protect.
“The fact that the victim comes forward and makes an accusation and the accusation presumably is accurate,” Leo said, “does not take away the presumption of innocence. So, the priests also have to be protected, or the accused person has to be protected, their rights have to respected.”
“But even saying that at times is cause of greater pain for the victims,” Leo said.
“So,” he said, “we’re in kind of a bind there.”
(Readers will find the full interview in six parts here at Crux Now and in the final chapter of Elise Allen’s authoritative work, Leo XIV: The Biography)
Beginning with reforms of the John Paul II era, the Church has attempted to facilitate investigations and streamline legal processes. The signature reform legislation of the Francis pontificate, Vos estis lux mundi, was – on paper, at least – a major step forward.
The implementation of Vos estis, however, has not been either regular or transparent. It was applied selectively and without much in the way of explanation, both when it was used and when it was not.
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Meanwhile, criminal trials at Church law continue to be protracted affairs, and they remain opaque.
Like the Church herself, the task of justice reform is irreducibly complex even considered by itself, though it is only one part – albeit a significant part – of a larger problem: Recovery of “rule of law” as an idea that informs ecclesiastical governing structures and shapes hierarchical leadership culture.
Over the next several weeks, Crux Now will be running a series of pieces examining the question of justice in the Church, the possibilities and limits to reform, the conditions of reform’s possibility, and some of the emerging practical proposals for the reform of ecclesiastical justice.
Rule of Law in the Church
To ease our way into the thorny tangle of problems, Crux Now spoke with Father Giorgio Giovanelli, an expert on penal law who has taught criminal procedure at the Pontifical Lateran University in Rome, where he currently teaches General Norms.
Giovanelli has taught criminal procedure at Naples, as well. He currently serves as judicial vicar in his home diocese of Fano-Fossombrone-Cagli-Pergola in the Italian Marches and in various capacities to different general curiae, and as matrimonial commissar to the Dicastery for the Doctrine of the Faith.
The priest-professor – who has always held pastoral as well as juridical roles and currently serves as pastor of the cathedral parish in his home diocese – spoke with Crux Now at length about the good and the bad, the better and the worse of things.
“Law is necessary in society,” Giovanelli said, “so it is necessary in the Church, because law regulates conduct and orders common life.”
“Law is a necessity because our relationships are characterized also by conflicts between people,” he said.
“The law not only reminds us what is good – and sometimes what is not – but also allows us to resolve the conflicts that inevitably arise in life, to harmonize differences, if you will,” he said.
“Too many people believe the law is somehow opposed to pastoral solicitude, but the truth is that law is a necessary condition of real pastoral life,” Giovanelli said.
“The Church’s law – canon law, we call it – serves the Church’s mission,” he continued.
Giovanelli said the law, rightly understood, arises from the relational nature of human being and expands the possibility for human relationship by giving expression to the truth regarding human nature.
“I like to think the law serves human happiness, human flourishing,” he said, “especially canon law.”
“The ‘rule of law’ – we call it the principio di legalità in Italian, literally ‘the principle of legality’ – is a modern concept that emerged in the contemporary era with the aim of limiting the power of the Sovereign,” Giovanelli said.
Nevertheless, the substance of the idea is not foreign to the Church or her legal tradition.
“This concept envisages a clear legal system,” Giovanelli said, “and a distinction between various functions and powers – such as the legislative, executive, and judicial – in order to ensure the equitable application of the law for every citizen.”
Though it is not a notion of strictly canonical origin, rule of law “encapsulates various fundamental institutional imperatives,” Giovanelli said.
“The Church has embraced it within her own legal system,” Giovanelli said, through “her own peculiar forms and distinct ways of doing things.”
In most secular governments, there is an effective distinction of the three powers: legislative, executive, and judicial.
In the Church, the governing power resides in the local bishop, and – in a special way – the Roman pontiff.
“This holds fundamental importance,” Giovanelli said, “as it enables us to grasp the true meaning of ‘authority’ within the Church.”
“It does not constitute a despotic power founded upon the arbitrary will of the one who holds it,” he said.
“Regrettably,” Giovanelli said, “such a degeneration may occasionally occur, but it is certainly not what the Church intends,” and in the Church’s legal system, the rule of law is at least notionally held in the highest regard.
The legislative, executive, and judicial powers are “three functions pertaining to one and the same governing power.”
“Although the authority may exercise each of these functions—by virtue of holding ‘proper ordinary power’,” Giovanelli said, “it is preferable, and strongly recommended, that authority share the exercise of such functions with other individuals.
“Consider,” he said, “by way of example, the roles of the Vicar General and Episcopal Vicars, or that of the Judicial Vicar, while bearing in mind that legislative power must be exercised directly by the Bishop – or, at a higher level, by the Roman Pontiff.”
Justice in the Church
For centuries, the Church was a leader in the administration of justice. It is certainly fair to say she has fallen behind more recently, as even a brief perusal of headlines over the past several years will amply attest.
Despite the bad press of recent years and decades – much of it deserved – the Church does have a highly developed juridical and judicial structure, one that has been responsible for preserving and transmitting not only key notions of what justice is, but also concrete techniques of judicial procedure, as part of the common patrimony of western civilization and of humanity.
“The Church has many very talented and dedicated canonists today,” said Giovanelli.
“By and large,” he said, “the bishops of the world desire to administer justice properly. To administer justice, however, is not an easy task. It requires a special skill set.”
“Canonists are legal professionals,” Giovanelli continued, “and the Church’s legal system is complex, articulate, touching every area of Church life. The Church has law governing everything from property to matrimonial law to liturgy, from ordinary discipline to grave crime.”
“In civil life,” he said, “you would not ask a divorce lawyer to handle a complex criminal case, or a lawyer who mostly handles house closings to deal with a complex intellectual property case. Too often, however, similar or analogous things happen in the Church.”
Solving this problem is difficult primarily because the apparent solution would be enormously expensive. That is one reason why Giovanelli founded Giuristi per la pastorale: to help train canonists already working within diocesan tribunal structures around the world, in the practice of criminal law in the Church.
Giuristi per la pastorale began in 2020, and brought together a group of university professors, lawyers of the Roman Rota, ecclesiastical judges, and civil and criminal lawyers practicing at Church law and in secular courts.
The outfit was founded to train and consult with canonists and officials in dioceses around the world, to help alleviate the confusion and bewilderment anyone may experience – from lay people to bishops – when faced with legal matters ranging from the administrative to the matrimonial, property issues, and even criminal cases.
Today, the Church has a great deal to learn not only from secular systems but also from herself, in her historical storehouse of wisdom.
“Knowing different juridical systems is very important,” Giovanelli told Crux Now, “because we are called to improve the canonical system, which should not be entirely self-referential.”
“We can learn from other juridical systems,” he said, “it’s a great occasion to growth in the canonical experience in the Church.”
Giovanelli said the Church should not fear studying other systems or even borrowing from them.
He noted the Church’s historical role as one of custodianship and advancement of legal science, and that justice as such is a public good, one that is not a substantially different thing inside the Church when compared to justice in the secular sphere.
Justice: a public good
To say that justice is a public good is to say that justice is a necessary characteristic of any society. Justice “belongs” to everyone in a society, meaning that every member has a stake in the establishment, preservation, and administration of justice.
The Church is a society.
In the old way of speaking, the Church conceived herself as a societas perfecta – literally, a “perfect society” – which, it is important to say, did not mean to assert that she is without blemish or incapable of making mistakes.
It only meant to convey the idea that the Church possesses, of her very nature, all the power necessary to order the lives of her members to the achievement of human flourishing: ultimately, eternal happiness with God.
These days, the Church prefers to speak of herself of herself as a Communio and more precisely as a Communio hierarchica, i.e., a hierarchical communion, emphasizing the unity of all the body’s members on pilgrimage in history under divine providence and with a divinely given hierarchical constitution premised on the dignity and community of all the baptized.
In any articulate society, there will be individuals specially trained and appointed to administer justice.
The Church is peculiar, in that the governing power resides primarily in the bishops, and in a special way, in the pope.
Still, the Church has power to legislate, execute, and judge.
Powers in tension: The unity of authority and judicial independence
“In defining the proper relationships between the legislative, executive and judicial powers,” we read in Chapter 8 of the Compendium of the Social Doctrine of the Church, “the constitutions of modern states guarantee the judicial power the necessary independence in the realm of law.”
The Compendium is actually quoting Pope St. John Paul II, who made the remark in a March 31, 2000 speech to Italy’s National Association of Magistrates.
“[In a] modern democratic state,” the sainted pontiff told the judges, “the judicial power stands side by side with the legislative and executive powers, with its own autonomous and constitutionally protected function.”
“The balanced relationship between these three powers,” he said, “each one operating according to its own specific competence and responsibility so that one never prevails over the others, guarantees the proper functioning of democratic life.”
As this journalist has noted elsewhere, that description will fit any articulate polity deserving of the name.
The legal systems that have developed in the modern democratic age are neither more nor less than a response to the requirements of natural justice as they present themselves in a particular sociocultural context and historical moment.
“A legal culture, a state governed by law, a democracy worthy of the name,” as Pope St. John Paul II also said in his address to Italian judges, “are therefore characterized not only by the effective structuring of their legal systems, but especially by their relationship to the demands of the common good and of the universal moral principles inscribed by God in the human heart.”
While the Catholic Church is not a democracy – and we may thank God for that – the Church is a polity with her own legal culture and a history of jurisprudence that traces its remote origins far into antiquity.
The Church has promoted legal scholarship and has been the principal driver of great achievements in legal science. She has been a chief custodian of legal culture, the health of which is always measured, however, by the response that culture gives to the demands of the common good.
Those responsible for the administration of justice have a duty that is ultimately to God, but that duty is not therefore careless of the people for whom they exercise their offices of trust.
In the Church, the bishops and the pope rule God’s people in the faith, and they do justice primarily for the people of God.
At the same time, an independent judiciary appears to be a requirement of natural justice– at least a practical necessity – for any society in this age, whether civil or ecclesiastical.
“The ecclesiastical judge,” Giovanelli said, “though he exercises vicarious judicial power conferred upon him by the bishop – who is the judge by right – should enjoy the necessary independence by virtue of the stability of his office.”
“His appointment cannot be limited ad actum (to a single specific act) or restricted to a brief span of time; rather, it must be stable,” he said, “with the cessation of duties being stipulated only upon reaching the age limit established by law.”
“It is readily apparent,” Giovanelli said, “how the provision for an ad tempus (for a term) appointment – even more so if it is renewable – could compromise the judge’s independence vis-à-vis higher authority.”
Giovanelli mentioned the expectation of reappointment or other interests held by the judge himself as possible examples.
“An ad tempus appointment could also conflict with that principle of legal civilization represented by the pre-constitution of the judge with respect to a specific trial,” he said, “a principle by virtue of which the creation of an ad hoc and ex post judge is expressly prohibited.”
It bears mention here that many secular jurisdictions, especially in the United States, choose judges by popular election at regular intervals. It is a practice not universally appreciated and often lamented by legal professionals and experts.
Many legal professionals and experts contend that the ideal is for judges to serve “during good behavior” – meaning in essence that they cannot be arbitrarily fired and may be removed only after impeachment and criminal conviction – or at least for lengthy terms.
“An ad tempus magistrate, in other words, could prove incompatible with the principle of the ‘natural judge pre-constituted by law’,” Giovanelli continued, “a principle which, together with others (such as the principle of legality or the requirement that proceedings be conducted within a reasonable timeframe), serves to constitute the broader principle ‘due process’ as it is called; a principle which, naturally, applies to canonical penal processes as well.”
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“Now,” Giovanelli continued, “this is not to say that judges serving for terms defined in law and subject to renewal completely fails the basic requirements of natural justice.”
“There are many civil jurisdictions around the world,” he said, “in the United States especially, in which judges are elected periodically.”
“Even when they are not elected,” he noted, “they are nominated, and frequently must undergo a vetting and approval process by a power that is separate from the one that nominates them.”
“One wonders,” Giovanelli said, “whether a similar or analogous way of doing things could be developed within the Church, as well?”
“I do not take a position on the question,” Giovanelli said, “please let it be clear – but I see no reason in principle why it could not.”
“Practicalities,” he said, “are another matter.”
Nowhere are the stakes higher than in penal processes, especially those involving charges of the most grave criminal behavior.
“The mechanics of penal process in canon law are very different from those of penal processes in civil jurisdictions,” Giovanelli said.
“There are many excellent reasons for this,” he continued, “including the particular history of the Church as a hierarchical communion on pilgrimage in the world and the peculiar requirements of justice in a society characterized by hierarchical communion.”
“Justice, however, is one thing,” he said. “It is a natural obligation of any community – to itself, its members, and to the broad world – and a public good.”
“Grace perfects nature,” he said, “[but] grace does not replace or supplant nature.”
At this point, the great practical question is: How does one secure the independence of the judiciary under one man with absolute power?
Follow Chris Altieri on X: @craltieri
