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Can a judge rely on his private knowledge? Early modern Lutherans and Catholics compared
Comparative Legal History ( IF 0.6 ) Pub Date : 2021-04-20 , DOI: 10.1080/2049677x.2021.1908935
Paolo Astorri

This article examines the opinions of Catholic and Lutheran authors on the question of whether a judge should decide a case according to his personal knowledge when that knowledge conflicts with the charges and evidence at the trial. The majority of the Catholics contended that the judge had to follow the evidence. They distinguished between the judge as a public functionary and as a private man. The judge could not use in a trial what he knew as a man. There were certain Lutherans whose opinions remained close to this position. However, a significant number argued that the distinction between the judge as a functionary and as a man lacked foundation. Divine law commanded the judge to avoid lies and not to kill an innocent. If the judge knew that someone was innocent and nonetheless condemned him by following the evidence at the trial, he committed a sin. To avoid giving an unjust sentence, the judge had to use the knowledge he had obtained privately.



中文翻译:

法官可以依靠他的私人知识吗?早期现代路德派和天主教徒的比较

本文探讨了天主教和路德教会作者的看法,即当知识与审判时的指控和证据相冲突时,法官是否应根据其个人知识来决定案件。大多数天主教徒争辩说法官必须遵循证据。他们区分法官是公职人员还是私人。法官无法在审判中使用他所认识的男人。有些路德教会的人的观点仍然接近这个立场。但是,有很多人认为,法官作为工作人员和作为人的区分缺乏基础。神圣的法律命令法官避免撒谎,不要杀死无辜者。如果法官知道某人是无辜的,但仍遵循审判中的证据谴责他,他犯了罪。为了避免判处不公正的判决,法官必须利用自己私下获得的知识。

更新日期:2021-05-11
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