Peritus peritorum czy iudex peritorum? : uwagi o pozycji sędziego w dialogu z biegłym (kan. 1095)

Abstract

The judges of the Roman Rota, in an in casu verification of the hypotheses included in Can. 1095, not uncommonly describe the role of a judge in the dialog with a legal expert, by making use of an old dictum: iudex est peritus peritorum. Is it just – the author of this study asks? Should we not give priority to the iudex est iudex peritorum formula? Although any official activities undertaken by all parties to the matrimonial trial, among others, court experts, are directed toward one aim: pro rei veritate, nowadays – in the face of new challenges, also those set moto proprio by Mitis Iudex Dominus Iesus – it is the judgeship that demands particular affirmation. We are free to state that in the science of canon law and the body of rulings the role of judges-members of the collegial tribunal, who by the authority of the Church (ex officio) declare, by a majority of votes, the truth about matrimony: iudex dicit ius, should be accentuated even further. Indeed this significant act of the Church's authority is developed in the conditions of a procedural dialog, or more precisely procedural dialogs (not without the support of a defender of the bond and attorneys). Yet a proper identification of the specification of an official judicial service considerably increases the chances of: firstly, guaranteeing the desired balance in the dialectical search of the truth, and secondly pronouncing in casu a just sentence. Such an affirmation of the judgeship definitely corresponds better with the iudex est iudex peritorum formula.