Hear no evil: canon and tabloid lawyers at work

The parallel between Murdoch’s lawyers at the News of the World and Vatican spokesmen on child abuse.

Yesterday I watched on live TV two former boyars in Rupert Murdoch’s monocracy wriggling under gratifyingly hard and pointed questioning by the House of Commons Select Committee on Culture and the Media. A few years ago, this would have been as challenging as beach rounders. Now, its different; not just because Murdoch is damaged and British politicians are taking their revenge for years of humiliating grovelling, but because the committee members are much better prepared and briefed. John Bercow, the widely disliked but intelligent and ambitious Speaker, knows, unlike Obama, the sour truth of Caligula’s saying: oderint dum metuant.

Former legal director Tom Crone, and former editor Colin Myler of Murdoch’s sleazy and now shuttered UK tabloid The News of the World, ended up contradicting evidence given earlier by their one-time boss James Murdoch, viz. that when he agreed to a very large settlement of a hacking lawsuit brought by Gordon Taylor, he didn’t know of a damning email proving that the case was not isolated. James Murdoch is likely to be recalled for further inquisition. You agreed to a half-million quid settlement just to shut Taylor up, not to keep the lid on a bigger can of worms?

What struck me was the attitude of Myler and Crone. Crone particularly clearly saw his job entirely as minimising the damage to his employers from the lawsuits resulting from reporters’ illegal shenanigans, balancing monetary with reputational loss, exactly as an outside lawyer would. They never mentioned any broader duty to see that their paper conducted its business in a reasonably ethical and lawful way.

You would not expect better of the sort of men who float to the top of Murdoch’s septic tank. But what’s the difference between their evidence and the Vatican’s latest response to the Irish government on the child abuse scandal? Judge for yourself. Irish government charges here; Vatican response here.
The critical point for the response goes back to 1997. After scandals, the Irish Catholic bishops prepared guidelines for the handling by diocesan officials of allegations of child abuse. On 21 January 1997 the Papal Nuncio, Archbishop Storero, wrote them a letter relaying Vatican legal hesitations on “merely a study document”:

The Congregation [for the Clergy] wishes to emphasise the need for this document [the guidelines] to conform with the canonical forms presently in force.

It expands on this point, but doesn’t say anything else. The Irish government claims that this letter gave cover to reactionary bishops who proposed to ignore the non-binding guidelines, thus allowing abuse to continue.

The Vatican’s response is like that of Tom Crone, only much better done and far less defensible. It’s the case for Storero’s defence in a canon law tribunal. Sample:

The Congregation [of the Clergy]’s description of the Framework Document as a “study document”, which was based on the explanations of its nature as provided by the Irish Bishops and in the published text itself, was not a dismissal of the serious efforts undertaken by the Irish Bishops to address the grave problem of child sexual abuse. The Congregation, taking cognizance of the Bishops’ intention not to make the document binding, while at the same time aware that each individual Bishop intended to adopt it for his Diocese to deal with cases as they arose, wished to ensure that nothing contained in it would give rise to difficulties should appeals be lodged to the Holy See.

Point scored! Our man Storero is in the clear! Except that the whole thing completely misses the beam in the Vatican’s eye. Fourteen years on the Curia still thinks this is about the proper handling of disciplinary charges against priests, not the prevention of evil done to children, still less institutional penitence for it. The response reproduces, in more elegant form, the moral blindness and political obtuseness of Storero’s letter, which doesn’t even pay lip service to the gravity of the offences of the abusing priests, the crisis in the Church’s standing in Ireland, and the vital pragmatic as well as moral need for a vigorous crackdown.

Update The anger of Taoiseach (Irish Prime Minister) Enda Kenny is justified:

The rape and torture of children were downplayed or ‘managed’ to uphold instead, the primacy of the institution, its power, standing and ‘reputation’. Far from listening to evidence of humiliation and betrayal with St Benedict’s “ear of the heart”……the Vatican’s reaction was to parse and analyse it with the gimlet eye of a canon lawyer.

/update

The new response does make the required genuflections on the tragedy, but few are fooled. Can you imagine an Irish leader saying, even ten years ago, anything like these words of Kenny’s:

This is not Rome. Nor is it industrial-school or Magdalene Ireland, where the swish of a soutane smothered conscience and humanity and the swing of a thurible ruled the Irish-Catholic world. This is the Republic of Ireland 2011. A Republic of laws…..of rights and responsibilities….of proper civic order….. where the delinquency and arrogance of a particular version….. of a particular kind of ‘morality’….. will no longer be tolerated or ignored.

He sounds like a French anti-clerical in 1905.

The Vatican has at least learnt the Murdoch skill of throwing underlings under the bus. The Pope publicly rebuked Irish bishops (untouchable in the old days) in a pastoral letter last year:

It cannot be denied that some of you and your predecessors failed, at times grievously, to apply the long-established norms of canon law to the crime of child abuse. Serious mistakes were made in responding to allegations.

But was the Vatican in any way responsible for abetting the train wreck? Dear me no. It only appoints the bishops and tells them what not to do. It’s not so much the Pope who’s infallible, but the Curia that is not responsible for anything.

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web

15 thoughts on “Hear no evil: canon and tabloid lawyers at work”

  1. Every institution I have ever known places institutional preservation as job 1, ahead of institutional mission. (The good institutions at least place mission as job 2: bad institutions have other #2s.) It’s ugly, but it is the very nature of the beast. Decrying this is the act of a moralistic milksop.

    You can’t expect institutions to behave otherwise. The only solution is the old Madisonian idea: external accountability to some other institution, which in turn must be externally accountable to yet another. Set one thief to catch another, and try to keep them from colluding.

  2. @ Ebenezer

    The problem is a lot older than Madison (as is the solution): quis custodiet ipsos custodes is as much a Latin cliche as oderant dum metuant, dating back to Juvenal.

    The problem no one has solved yet is the infinite regress implicit in the solution.

  3. @Dennis:
    I think that there is a solution to the infinite regress problem: heterarchical democracy, with multiple accountability. There are prosecutors, the press, Congress, shareholders, the competition–and I’m just thinking of religious institutions! There is also civil litigation, regulators, random busybodies (who can invoke other sources of accountability), and elections.

    Of course, it is an awful sloppy solution, and works at most imperfectly. Ambition can counteract ambition only in a sufficiently competitive environment. The ambitious recognize this, and try to tone down the level of competition: captured regulators, “tort reform”, campaign financing, etc.

    I think that it makes a lot more sense to try to strengthen accountability than to expect institutions to behave without oversight. Tom Crone is always going to be the closest thing that institutions have to a conscience. This is no conscience at all in a guilt culture, because Tom Crones have no guilt. But it is a passable substitute for a conscience in a shame culture, if shame manifests itself in consequences.

  4. Dennis: Isn’t it worse than a mere infinite regress? The custodians-of-each-other, by the nature of their common work if not actual exchanges of personnel, end up with common interests against the non-custodians under them. The only ways to stop this, institutionally, involve continually accreting new and un-co-opted institutions or fragments thereof on the one hand, or generating a lot of institutional mortality on the other.

    The one is a recipe for bureausclerosis, the other for turning up the conflict/selfishness dial to 11 at the expense of useful purpose. Neither are obviously promising.

    The implication, to me, is that whole ecosystems of institutions have a finite functional lifespan without some sort of across-the-board reset or actual loss of cohesion. Since “whole ecosystem of institutions” sounds a lot like a fancy way of saying “society”, and we know how lovely whole-society reboots tend to be, this is a somewhat sinister conclusion.

    Avoiding durable concentrations of power which invite capture by the self-serving, and promoting scepticism and readiness to appropriate disobedience amongst individuals, are the only long-term medicines in which I see much hope. But these are painfully abstract solutions, and we know that competent bureaucrats everywhere have much more concentrated incentives to shoot relevant instances down than most folk have to raise any up; wherefore I conclude that that this was not one of my favourite mornings for getting out of bed.

    And rise in good hope anyway, because what else can a body do?

  5. Fourteen years on the Curia still thinks this is about the proper handling of disciplinary charges against priests, not the prevention of evil done to children…

    And I continue not to see why this si necessarily a problem.

    Similarly, 40 years after Miranda, the courts still think that the criminal justice system is about proper handling of charges and evidence, not the prevention of murder. Yes, properly handling charges and evidence will prevent (many-but-not-all) crimes.

  6. “Decrying this is the act of a moralistic milksop.” Aren’t the two charges contradictory, though nicely alliterative à la Spiro Agnew? I gladly plead guilty to moralising, and no doubt would the Taoiseach. Milksops run from conflict.
    It strikes me as commonsensically right to hold religious institutions, whose mission includes the propagation of virtue, to higher standards than secular ones. Failure to hold any institution to the appropriate moral standard (often the self-proclaimed one) is a – let’s see – … cowardly cynical cavilling cop-out.

  7. @JW,
    Sorry, I got carried away by the alliteration. My problem with moral responses to institutional depravity–or for that matter, individual depravity–is that they’re not very productive. Depraved institutions or people don’t care all that much about moral disapproval, pretty much by definition. So moral disapproval by itself isn’t going to do much of anything. This is particularly true for institutions, which are inherently depraved, because they place their own preservation above all else.

    Depraved institutions or people care about sanctions, and they care about the system of norms that defines sanctioned behavior. (And even if they don’t care, any incapacitating sanctions make them act as if they care, ex post if not ex ante.) You and I both want to hold the bishops to higher standards. But I don’t think that our moral disapproval will bother them. I only think that big fines or the Big House will make any difference at all, unless the Catholic laity starts to use Peter’s pence as a club over the bishops.

    @GrayWoodland,
    Touche.

  8. @ Gray,

    Isn’t a “mere infinite regress” bad enough? I’m with Ebenezer: in the absence of the infinite regress (which is impossible anyway) we end up with heterarchical (loverly word, by the way) democrazy [sic]. It is a sloppy, inefficient solution, but it’s better than Bushie’s solution (If this were a dictatorship it’d be a heck of a lot easier, just as long as I’m the dictator.)

    We’ve tried limited lifetime solutions (zero-base budgeting, sunset provisions) but they don’t seem to work well. I’m about at the point you are: like my smarter-than-me phone, societies seem to need a periodic system reset. They are messy, and from my reading of history the greater the inherent inequality the messier they are. Compare the American Civil War, French or Russian revolutions with the American revolution or the Arab Spring-going-into-winter of 2011. Of course, they aren’t done in Egypt and Tunisia by a long shot, and its becoming more apparent that we didn’t get the job done here with the Civil War.

  9. We are what we are by how we choose to dress! Look at the fashions of the Catholic hierarchy, and it becomes clear to all just how screwed up those men of the cloth are, and to what lengths they’d go not to let the rest of us into their secret fantasies about little boys!

  10. kevo: Please don’t trivialise this. Most religions involve odd clothes, and a lot of people have unavowable fantasies. The cases here are deeds: major crimes of sexual abuse of children committed by a small minority of priests, and a high-level cover-up by their superiors.

  11. With regard to Murdoch’s people, it’s important to remember something about the people at the top of a corporation. I’m not sure exactly how far down it applies, and thus whether or not it applies to Crone and Myler, but corporate officers have a legal fiduciary duty to maximize profits (or minimum losses) for the shareholders. So long as it doesn’t involve breaking the law at the time of their testimony (as opposed to when the obviously illegal phone hacking occurred) they must see their “job entirely as minimising the damage to his employers from the lawsuits resulting from reporters’ illegal shenanigans, balancing monetary with reputational loss, exactly as an outside lawyer would.” They have no choice.

    It is unclear to me just how you get around this problem, as releasing corporate officers from that fiduciary responsibility invites all kinds of shenanigans. Perhaps courts and legislatures should be empowered to override that responsibility and shield officers from lawsuits for actions taken in specific contexts. I have no idea how effective that would be, since as Ebenezer has pointed out, institutions and the people within them have a strong bias towards survival and minimizing damage.

  12. J. Michael Neal: If you are right, my analogy with the boyars of Muscovy was even better than I thought. A boyar was effectively a household slave of the Tsar (see Richard Pipes, Russia under the Old Régime)and owed him absolute and unquestioning obedience, unlike a feudal noble in Western Europe whose fealty was in principle voluntary, contractual and constrained on both sides by by law and custom. We now have a whole class of corporate servitors who own no civic or moral duty higher than their contract of employment, and have internalised the Nuremberg Defence so much that there isn’t even any cognitive dissonance left.

  13. James: “Fourteen years on the Curia still thinks this is about the proper handling of disciplinary charges against priests, not the prevention of evil done to children…”

    SamChevre: “And I continue not to see why this si necessarily a problem.”

    James is wrong here, and you’re going along with it. The Curia is not and never was interested in ‘proper handling’ of anything here; they are interested in covering things up, and absolutely OK with the covering up allowing the abuse to continue.

  14. I think we’ve got a contradiction here. If you deny that lawyers or clerics are moral agents, then you’re also denying that they have any rights as human beings. Although it’s tempting to open up the possibility of putting them down like rabid dogs, I don’t think that’s the way to go. It’s possible to acknowledge that incentives in place in a particular organization are strongly conducive to immoral behavior without losing sight of the fact that people bowing to those incentives are still knowingly doing evil. And fiduciary duty is not really a shield either. First, of course, there’s a grey area for maneuver when you take into account the longterm vs short-term implications of an action. Second, sometimes the canons of ethics preclude continuing in a job.

  15. Barry is correct. The Curia is not interested in the proper handling of charges against priests. Indeed, it has no authority over how such charges should be handled. That is the responsibility of the civil authorities in the countries where the alleged offenses took place. Of course, it has a right to decide whether to impose its own disciplinary measures on accused priests, but that has nothing to do with ordinary criminal charges.

    This is not to say the church has no right to, say, provide defense counsel to the accused, but it may not engage in obstruction of justice, or assert its authority as overriding that of the civil authorities.

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