Moral Certitude: Merits and Demerits of the Standard of Proof Applied in Roman Catholic Jurisprudence

2019 ◽  
Vol 8 (2) ◽  
pp. 300-325
Author(s):  
Judith Hahn
Keyword(s):  
Catholic Church ◽  
Canon Law ◽  
Burden Of Proof ◽  
Roman Catholic ◽  
Convincing Evidence ◽  
Reasonable Doubt ◽  
Criminal Cases ◽  
Standard Of Proof ◽  
Standards Of Proof ◽  
Anglo American

Abstract In Roman Catholic canon law, moral certitude describes the ecclesiastical judge’s full conviction that a defendant is guilty or that a statement of claim made by a civil plaintiff is rightful. Moral certitude is the requirement for a conviction or a civil sentence in favour of the party under the burden of proof. Secular legal orders apply other standards. Anglo-American legal cultures mostly refer to the beyond a reasonable doubt standard in criminal cases, the preponderance of evidence, or the clear and convincing evidence standard in civil matters. Continental European cultures predominantly refer to the standard of full conviction in criminal and civil matters alike. This article compares those standards of proof with moral certitude in order to better understand its merits and limits. Based on this comparison, it examines the arguments both in favour of and against abiding with moral certitude as a standard of proof in the Catholic Church.

scholarly journals On understanding of proof in English and American law

2018 ◽  
Vol 81 (2) ◽  
pp. 13-27
Author(s):  
O. V. Tiaglo
Keyword(s):  
Burden Of Proof ◽  
Convincing Evidence ◽  
Three Dimensions ◽  
Reasonable Doubt ◽  
Criminal Cases ◽  
Standard Of Proof ◽  
Logical Connection ◽  
American Law ◽  
History Of ◽  
Legal Proof

This research paper is devoted to explication of understanding of proof in English and American law by means of study of its evolution and current condition. To get this aim the comparative analysis of few similar fragments from the Black’s law dictionary is completed. It is concluded, firstly, that concept of judicial proof grasps both process of presentation of legal evidence and its effects – conclusion, supported by system of the evidence, and belief to this conclusion, induced in minds of relevant persons. Secondly, cluster of (concepts and relevant) terms, by which proof in English and American law is (realized and) expressed, includes, among others, «truth», «proof» and «evidence», «to prove» and «to evidence», «burden of proof», «degree of proof», «standard of proof», «standard of proof beyond reasonable doubt», «standard of proof by preponderance of the evidence», «standard of proof by clear and convincing evidence», «legality», «admissibility», as well as «belief», «conviction», «to convince» and «to persuade». Thirdly, this cluster had been shaped and develops further – in addition to natural space and time – in at least three dimensions: logical, legal, and rhetorical. If during the late XIX – the first half of the XX century in this cluster were prevailing that was laying in logical and legal dimensions, then since the middle of XX century there is an expansion of rhetorical content through, at least partially, extrusion of the logical. Fourthly, on this way the concept of judicial proof has lost – as necessary components of its content – immanent signs of the logical proof, namely, truth of the premises-evidence and necessary logical connection between system of the evidence and conclusion. Concept of standard of proof has undergone significant change: it is divided into three subordinate concepts, usage of which depends on situation. And even those of these subordinate concepts, which correspond to criminal cases and include the strongest requirements, do not require truth or absolute certainty of the conclusion, agreeing only on absence of reasonable doubt that by nature is subjective and practically never avoid some dependence on rhetorical influence. Finally, the history of understanding and expression of legal proof shows that real legal proof goes more and more away from its analog in logic.

Proof of Causation in Tort Cases

2020 ◽  
Vol 82 ◽  
pp. 149-160
Author(s):  
Bohdan Karnaukh
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Burden Of Proof ◽  
Reasonable Doubt ◽  
Criminal Cases ◽  
Ways Of Coping ◽  
Law System ◽  
Standard Of Proof ◽  
Civil Cases ◽  
Civil Law System

The article addresses the problem of uncertainty over causation in tort cases. It reveals the interconnection between burden of proof and standard of proof. The author provides a comparative overview of approaches to standard of proof in common law and civil law systems. It is argued that while in common law there are two different standards viz: beyond-reasonable-doubt-standard for criminal cases and balanceof-probabilities standard for civil cases in civil law system there is only one standard applicable both to criminal and civil cases. With comparative analysis in the background the article also reveals the peculiarities of Ukrainian law in the respect of the issue raised. The problem is approached in a pragmatic manner: using a hypothetical case the author models practical outcomes entailed by each of the approaches being applied to the case. Eventually the conclusion is made that there are four ways of coping with uncertainty over causation: (1) to reverse the burden of proof; (2) to calibrate the standard of proof for certain cases; (3) to recognize the very creation of the abnormal risk as a compensable damage; and (4) to multiply damage plaintiff sustained by the probability factor indicating the likelihood of the damage being actually caused by the defendant.

scholarly journals Application of the Balance of Probabilities Standard of Proof in Judicial Practice

2020 ◽  
pp. 227-233
Author(s):  
Illia But
Keyword(s):  
Common Law ◽  
Convincing Evidence ◽  
Reasonable Doubt ◽  
Standard Of Proof ◽  
National Courts ◽  
Judicial Practice ◽  
European Court ◽  
The Usa ◽  
Standards Of Proof ◽  
The Uk

The paper describes key standards of proof used in common law countries: balance of probabilities and beyond reasonable doubt,applied in judicial practice in the UK, and the criminal standard beyond reasonable doubt, civil standard preponderance of evidence,and interim standard clear and convincing evidence, applied in judicial practice in the USA. The author identifies main conditions for application of the balance of probabilities standard in foreign judicial practice: 1) thisstandard is not merely a surmise based on guesses or suspicions; such surmise shall be based on certain evidence, which in total is notenough to establish presence or absence of a certain fact unequivocally; 2) the graver is an allegation, the less probable is the occurrenceof the fact, and hence it must be proved with harder evidence; 3) the less probable is an event, the more evidence there must be to provethat it might have truly occurred; 4) there is no direct connection between graveness of an allegation (consequences) and probability ofan event: some grave harmful conduct may be fairly common or, on the contrary, may happen rather infrequently.The paper identifies step-by-step implementation of standards of proof in practice of the European Court of Human Rights(ECHR): at the first stage one can find references to standards of proof only in cases against the United Kingdom; at the second stagethere are judgments made on complaints against other countries, though in such judgments the ECHR does not assess standards ofproof, but merely reflects that those have been applied by national courts. At the third (contemporary) stage the ECHR only distingui -shes between application of standards of proof in criminal and quasi-criminal cases.The author concludes on the basis of study of empirical data that the balance of probabilities standard of proof is already appliedin the national judicial practice, however principles of its application in the judicial practice have not been developed yet. It is notedthat though the doctrine of the standards of proof was developed in the common law countries, application thereof does not contradictthe concept of judicial activism: an idea, according to which a decision must be made in favour of the party, whose statements are reliablenot per se, but in comparison with statements of the adverse party, enables courts to make judgments in cases when positions ofboth sides are impeccable, and evidence for unequivocal conclusions is not enough.

scholarly journals Economic theory of distributism

2015 ◽  
pp. 653-676
Author(s):  
Misa Djurkovic
Keyword(s):  
Economic Theory ◽  
Catholic Church ◽  
Roman Catholic ◽  
Economic Thought ◽  
Roman Catholic Church ◽  
Specific Direction ◽  
The Status ◽  
Anglo American ◽  
Social Teachings ◽  
Economic Thinking

this paper, the economic theory of distributism has been analyzed. In the first place, the author explains that the distributism is a social thought which emerged in the Anglo-American world as the development of social teachings in the Roman Catholic Church. Although it has not received the status the main schools in modern economic thought have, distrubutism persists as a specific direction of socio-economic thinking. The paper particularly investigates the ideas of classical distibutism. The author focuses on two basic books by Gilbert Chesterton and two most important economic books by Hilaire Belloc. These authors have insisted on the problem of society moving towards the so-called servile state in which a small number of capitalists rule over mass of proletarians who are gradually coming under slavery status, which is sanctioned by the law. For the purpose of remedying this tendency and collectivism, they proposed a series of measures for a repeated broad distribution of ownership over the means of production. Finally, there is an overview of this idea and its development throughout the twentieth century, finishing with contemporary distributists like John Medaille and Alan Carlson.

4. The burden and standard of proof

2017 ◽  
Author(s):  
Richard Glover
Keyword(s):  
Burden Of Proof ◽  
Criminal Cases ◽  
Standard Of Proof ◽  
Civil Cases

This first part of the chapter discusses the concept of burden of proof, covering the legal or persuasive burden of proof; the evidential burden; the effect of presumptions on the burden of proof; the legal burden of proof in civil cases; the evidential burden in civil cases; the burden of proof in criminal cases; defence burdens of proof before Lambert; defence burdens of proof after Lambert; and the burden of proof of secondary facts. The second part of the chapter discusses the standard of proof, covering standard of proof required of prosecution in criminal cases; standard of proof required of defence; standard of proof of secondary facts; the standard of proof in civil cases; and the standard of proof in matrimonial and family cases.

‘Anglicanism’ and the Origins of the Church of England

2014 ◽  
Vol 16 (3) ◽  
pp. 319-334
Author(s):  
Peter McCullough
Keyword(s):  
Sixteenth Century ◽  
Catholic Church ◽  
Canon Law ◽  
Church Of England ◽  
Roman Catholic ◽  
Roman Catholic Church ◽  
The Church ◽  
Historical Sketch ◽  
Formative Years

This article aims to provide an introductory historical sketch of the origins of the Church of England as a background for canon law in the present-day Anglican Communion and the Roman Catholic Church. Written by a specialist for non-specialists, it summarises the widely held view among ecclesiastical historians that if the Church of England could ever be said to have had a ‘normative’ period, it is not to be found in its formative years in the middle decades of the sixteenth century, and that, in particular, the origins of the Church of England and of what we now call ‘Anglicanism’ are not the same thing.

The Never-Ending Story? Or, Does the Roman Catholic Church Remain Vulnerable to Charges of Improper Handling of Clergy Child Sex Abuse?

2019 ◽  
Vol 8 (2) ◽  
pp. 270-299 ◽  
Author(s):  
Patrick S Nash
Keyword(s):  
Cultural Change ◽  
Catholic Church ◽  
Canon Law ◽  
Roman Catholic ◽  
Roman Catholic Church ◽  
Religious Institutions ◽  
Sex Abuse ◽  
Organizational Settings ◽  
High Profile ◽  
Child Sex Abuse

Abstract This article explores whether the Roman Catholic Church’s response to the clergy child sex abuse scandal shields it from further charges of improper handling of cases. It begins by noting the current topicality of institutionalized abuse and how several high-profile public inquiries have recently been established to investigate child sex abuse across a range of secular and religious organizational settings. Although numerous religious institutions have become embroiled in clergy child abuse crises, the Catholic Church has come in for particular scrutiny and condemnation on account of its distinctive institutional characteristics which have exacerbated its own abuse scandal in a uniquely severe way. The Church’s own understanding of this issue is that a culture of antinomianism has taken root within the clerical hierarchy and that, were canon law to be applied properly, the crisis would be resolved. This contrasts quite dramatically with the typical external understanding of the crisis which sees the canonical legal system as part of the problem, namely the Church’s refusal to cooperate fully with the secular criminal justice system and effective assumption of a criminal jurisdiction of its own. The article concludes with a final prognosis of the prospects of fundamental legal and cultural change.

scholarly journals Ritual Void or Ritual Muddle? Deconsecration Rites of Roman Catholic Church Buildings

Religions ◽  
2020 ◽  
Vol 11 (10) ◽  
pp. 517
Author(s):  
Kim de Wildt
Keyword(s):  
Pastoral Care ◽  
Catholic Church ◽  
Canon Law ◽  
Western Europe ◽  
Sacred Space ◽  
Roman Catholic ◽  
Roman Catholic Church ◽  
Church Building ◽  
Subject Orientation ◽  
Church Buildings

The decrease in people who regularly celebrate liturgy in western Europe has led to the question of what to do with so-called obsolete church buildings. This question not only refers to whether or not a church building will be converted, reused or demolished, but also to the question of whether or not such a building needs to be deconsecrated, and if so, what does deconsecration of a church building actually entail? In this contribution, I will consider the role deconsecration rites play in the Roman Catholic church when a church building is taken out of liturgical use. In Roman Catholic liturgy, there are no prescribed, official deconsecration rites that are mandatory for a church building that is to be taken out of liturgical use. The actual deconsecration of a church building is, according to canon law, established by a decree that is issued by the responsible diocesan bishop. In the case of a church being taken out of liturgical use, however, there seems to be a shift from having a ritual void with regard to deconsecration rites, and also a focus on the “legitimate” way (in the sense of canon law) to deconsecrate a church building (object orientation), towards, in recent decades, paying more attention to a growing pastoral need (subject orientation) for deconsecration rites. These new ritual initiatives can be regarded as forms of pastoral care intended to help parishioners cope with the loss of their church building. I will show that different interpretations of canon law articles complicate straightforward answers to the question of which arguments are legitimate to deconsecrate a church. Furthermore, I will address the “ritual muddle”, the mixture of the actual deconsecration act in the sense of canon law and deconsecration rites that, from the perspective of canon law, do not effect church deconsecration. I will also address the differentiation between desecration and deconsecration, address historical forms of deconsecration rites and pay attention to the making and unmaking of sacred space. Finally, I will focus on contemporary deconsecration rites against the background of the complex reality in which such rites are situated.

The Canon Law Society of Great Britain and Ireland and its Newsletter

1999 ◽  
Vol 5 (25) ◽  
pp. 284-285
Author(s):  
Robert Ombresop
Keyword(s):  
Great Britain ◽  
Catholic Church ◽  
Canon Law ◽  
Roman Catholic ◽  
Roman Catholic Church ◽  
Annual Conference ◽  
Pope John Paul Ii ◽  
Code Of Canon Law ◽  
John Paul Ii

The organisation now known as the Canon Law Society of Great Britain and Ireland was founded in 1957, and its Newsletter was first published in 1969. The activities, publications and achievements of the Society within the Roman Catholic Church are manifold, and were acknowledged by Pope John Paul II when he granted an audience to participants of the 1992 annual conference held in Rome. This papal address is printed at the beginning of The Canon Law: Letter & Spirit (London 1995), the full commentary on the 1983 Code of Canon Law prepared by the Society.

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