“The Case of the Pope” by Geoffrey Robertson is a flawed case.

This week I attended a lecture at LSE by Geoffrey Robertson who was introducing his new book “The Case of the Pope: Vatican Accountability for Human Rights Abuse”, conveniently published just days before the Pope’s visit to Britain. Mr Robertson points out the scale of child abuse within the Catholic church and the church’s unwillingness to effectively prosecute (or submit to civilian prosecution) members of the clergy. He continues to argue that the two main reasons why the Catholic church gets away with this are (a) its use of canon law, the church’s own legal system, which helps to keep their investigations internal and (b) the fact that the Pope lays claim to immunity as the head of a state, the Vatican.

I am an atheist and a critic of the Catholic church myself and quite a radical one (and in this context I wish to express my happiness about having withstood my parents’ suggestion of entering a Catholic convent school when I was 10 years old) and as such would love to agree with Mr Robertson’s findings and analysis.

Alas, like Mr Robertson I am also a lawyer and have to subject his latest book to the standards of legal reasoning. I am sorry to say that this is a standard that it miserably fails on several accounts:

  1. I fail to see any connection (and none is explained in the book) between the Vatican’s status of a state and the lack of prosecution of Catholic priests around the world. Catholic priests and bishops neither possess diplomatic immunity, nor does the Vatican claim so. If a Catholic priest in the UK, Germany, Ireland, France or any other country is suspected of having committed a crime, that country’s law enforcement agencies can investigate him, arrest him, indict him, and put him on trial.
  2. That this is not happening often enough is in no way due to the Vatican’s status as a subject of international public law. I can only speculate that it has to do with victims’ (understandable) reluctance to come forward and with the prominent role that the Catholic church plays in many societies which makes the victims’ families think more than twice before filing charges against a priest.
  3. The portrayal of canon law as an arcane and secretive system is correct. However, again I fail to see any connection to widespread non-prosecution of Catholic child abuse: That the church uses canon law to investigate internally does not prevent any country from using its legal system to investigate, prosecute, put on trial and eventually punish criminal acts that happened within the territory of that country. Canon law is NOT designed to be a substitute for secular, civilian legal systems, it is merely something that guides the Catholic church’s internal investigation.
  4. The point that canon law is the reason why the Catholic church doesn’t turn over suspected priests to the police might be a morally valid criticism. Legally however, it is only worthy of criticism if and where domestic law would require other members of an organisation to turn over fellow members that are suspected of a crime to local law enforcement. The fact is however that most countries do not have such a duty for any citizen to report a crime. Can we reasonably expect canon law to establish a duty that national legislatures don’t even want in their statute books? I don’t think so.
  5. Mr Robertson’s criticism of Vatican statehood raises some good points, but is at least negligently confusing: The Vatican and the Holy See are NOT the same, and this would need to be pointed out and explained to readers who are not versed in the peculiarities of international public law. The former is a state, the second is a subject of international public law sui generis (of its own kind). Any serious legal reasoning should keep these two entities separate from each other.

To sum it up: What could have been a valuable contribution on an important subject fell prey to the apparent urge to publish something provocative just in time for the Pope’s visit to Britain. No doubt that it will sell. That Terry Eagleton praised this book in “The Guardian” as having “steely forensic precision” can only be attributed to Mr Eagleton’s lack of any background in law.

About Andreas Moser

You will most likely find me in the forest, next to the lake, reading a book. Just follow the cigar smoke!
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One Response to “The Case of the Pope” by Geoffrey Robertson is a flawed case.

  1. Pingback: Happy New Year 5772! | Publish or Perish – Andreas Moser's Blog

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