Misericordia Extra Codicem in Iustitia

MISERICORDIA EXTRA CODICEM IN IUSTITIA1 E. Christian Coppens* Introduction On Christmas night last year the church of Regina Pacis in Lutselus— a rather unknown part of Diepenbeek, a small town in northern Belgium —collapsed, leaving only the tower and the forefront upright. The church came down immediately after the Christmas midnight Mass. Promptly some wicked people asserted that the parishioners had sung too loudly or with too much force. However, the real cause of the disaster was a thick pack of frozen snow on the flat roof. It is reassuring enough that nobody lost his or her life and even that no one was injured. Everyone had already left the church before the accident. Therefore we might think that divine providence, the divine misericordia, had saved the faithful, because there were at least one or two righteous people in the church.2 But imagine what would have happened if the roof came down during the religious service . . . What about the divine misericordia or the divine providence in that case? Could we maintain that in that case God had punished the parish? The Jurist 71 (2011) 349–366 349 * Catholic University of Nijmegen, the Netherlands 1 This is a somewhat adapted version of the Eighth James H. Provost Memorial Lecture delivered on March 24, 2011 at the Catholic University of America in Washington, D.C. 2 Cf. Gen. 18 350 the jurist One might think that this incident could be used as a metaphor indicating the state of the church in Belgium, but no . . . My first idea after reading this news item was that the architects or the builder had failed to respect the canones;3 however, my second idea was that it couldn’t be that simple. First of all, during the winter of last year the weather conditions were extremely exceptional and almost unforeseeable. It was decades ago that so much snow had fallen. One may wonder whether a law, a technical rule, or building prescriptions could absolutely have prevented this accident . Therefore an accident like this is a complex juridical problem, to be solved by specialists in many domains. Second, in fact, a question arises as to who was responsible for the accident . Who is to blame for it: the city of Diepenbeek,4 the parish as contractor for the construction, the architects, the builder? Is this a case of criminal liability or simply civil liability? If it is civil liability, is this a case of risk liability because there were no victims? In such a case the insurance company has to pay. But the question arises: To whom?—as there were no victims—and how much? Jurisdiction This incident makes us realize that the practice of law is primarily not a matter of lawgiving. Codification is petrification. No matter how perfect the law, a written rule can never solve the problem. Solving a juridical problem in a modern state is not the responsibility of the lawgiver; it is the judge who has to decide. Although the judge will use the written law as a basis for his decision, the written law as such is only a beginning of the solution, not the solution itself.5 This means that it is not the written law, but the judge who decides what is right, what is just. Le juge est la bouche de la loi: What the judge says is law (iuris-dictio). Moreover, in the process of exercising jurisdiction the judge should not only consider the text of the law; in the first instance he has to be just. 3 Kanon = ruler of a mason. 4 Under Belgian law the city may be considered as the owner of the church and therefore as responsible for the state of the building. 5 Rik Torfs, “De bescherming van fundamentele rechten in de Kerk,” in Rechtsbescherming in de Kerk, ed. Hilde Warnink (Leuven: Peeters, 1991) 126: “ . . . recht, een rechtscultuur groeien. De tekst en de wil van de wetgever zijn niet alles.” (The author is following Ronald Dworkin, Law’s Empire [London: Fontana, 1986]). Therefore we accept that his considerations are also based on the work of jurisconsults,6 on supra-legal arguments; we also accept the fact that there are different...