LAST November 4, 2009, Pope Benedict XVI promulgated the Apostolic Constitution Anglicanorum coetibus—ending short-lived speculations regarding the nature of the possible Personal Ordinariates for groups of Anglican, who wish to enter into full visible communion with the Catholic Church. Subsequently, Complementary Norms for the apostolic constitution were issued by the Congregation for the Doctrine of the Faith. To conclude this series of articles, let us briefly go over the more salient provisions of these documents.
Establishment of a Personal Ordinariate
The hierarchical nature of the personal Ordinariates is manifest in the way they are erected by and accountable to the Holy See, as seen in the following provisions:
1) Personal Ordinariates for Anglicans entering into full communion with the Catholic Church are erected by the Congregation for the Doctrine of the Faith within the confines of the territorial boundaries of a particular Conference of Bishops in consultation with that same Conference (AC, Sect.I, §1). Within the territory of a particular Conference of Bishops, one or more Ordinariates may be erected as needed (AC, Sect.I, §2).
2) The Decree establishing an Ordinariate will determine the location of the See and, if appropriate, the principal church (AC, Sect.XIII).
3) Each Ordinariate possesses public juridic personality by the law itself (ipso iure); it is juridically comparable to a diocese (AC, Sect.I, §3).
4) Each Ordinariate is subject to the Congregation for the Doctrine of the Faith. It maintains close relations with the other Roman Dicasteries in accordance with their competence (CN, Art.1).
The Ordinary of the Personal Ordinariate and his Power of Jurisdiction
1) A Personal Ordinariate is entrusted to the pastoral care of an Ordinary appointed by the Roman Pontiff (AC, Sect. IV).
2) A married former Anglican Bishop is eligible to be appointed Ordinary. In such a case he is to be ordained a priest in the Catholic Church and then exercises pastoral and sacramental ministry within the Ordinariate with full jurisdictional authority (CN, Art.11, §1).
3) The power (potestas) of the Ordinary is (AC, Sect. V):
a. ordinary: connected by the law itself to the office entrusted to him by the Roman Pontiff, for both the internal forum and external forum—i.e., not delegated;
b. vicarious: exercised in the name of the Roman Pontiff—i.e., not a proper power (as in the case of the Military Ordinariates or Personal Prelature);
c. personal: exercised over all who belong to the Ordinariate;
d) cumulative: This power is to be exercised jointly with that of the local Diocesan Bishop, in those cases provided for in the Complementary Norms—i.e., like the military ordinariates).
4) Every five years the Ordinary is required to come to Rome for an ad limina Apostolorum visit and present to the Roman Pontiff, through the Congregation for the Doctrine of the Faith and in consultation with the Congregation for Bishops and the Congregation for the Evangelization of Peoples, a report on the status of the Ordinariate (AC, Sect.XI).
Communion of the Ordinary with other Bishops and the Episcopal Conference
The Complementary Norms specifies the relationship of the Ordinary of the Personal Ordinariate with other Diocesan Bishops and with the Episcopal Conferences:
1) The Ordinary, in the exercise of this office, must maintain close ties of communion with the Bishop of the Diocese in which the Ordinariate is present in order to coordinate its pastoral activity with the pastoral program of the Diocese (AC, Art 3).
2) The Ordinary is a member of the respective Episcopal Conference (CN, Art 2, §2). The Ordinary follows the directives of the national Episcopal Conference insofar as this is consistent with the norms contained in the Apostolic Constitution Anglicanorum coetibus (CN, Art 2, §1).
The Faithful of the Personal Ordinariate
1) The Ordinariate is composed of lay faithful, clerics and members of Institutes of Consecrated Life and Societies of Apostolic Life, originally belonging to the Anglican Communion and now in full communion with the Catholic Church, or those who receive the Sacraments of Initiation within the jurisdiction of the Ordinariate (AC, I, §4).
2) As for the doctrinal requirement for ecclesial communion, the Catechism of the Catholic Church is the authoritative expression of the Catholic faith professed by members of the Ordinariate (AC, I, §5). Thus, only those members of the Anglican communion, who are willing to profess the faith of the Catholic Church as summarized in the Catechism of the Catholic Church, can form part of the personal Ordinariate.
The Complementary Norms further specifies the process for entering into full communion with the Catholic Church:
3) The lay faithful originally of the Anglican tradition who wish to belong to the Ordinariate, after having made their Profession of Faith and received the Sacraments of Initiation, with due regard for Canon 845, are to be entered in the appropriate register of the Ordinariate. Those baptized previously as Catholics outside the Ordinariate are not ordinarily eligible for membership, unless they are members of a family belonging to the Ordinariate (CN, Art 5, §1).
4) Both the lay faithful as well as members of Institutes of Consecrated Life and Societies of Apostolic Life, originally part of the Anglican Communion, who wish to enter the Personal Ordinariate, must manifest this desire in writing (AC, IX).
Pastoral Care in the Personal Ordinariate
1) Without excluding liturgical celebrations according to the Roman Rite, the Ordinariate has the faculty to celebrate the Holy Eucharist and the other Sacraments, the Liturgy of the Hours and other liturgical celebrations according to the liturgical books proper to the Anglican tradition, which have been approved by the Holy See, so as to maintain the liturgical, spiritual and pastoral traditions of the Anglican Communion within the Catholic Church, as a precious gift nourishing the faith of the members of the Ordinariate and as a treasure to be shared (AC, III).
2) The Ordinary, according to the norm of law, after having heard the opinion of the Diocesan Bishop of the place, may erect, with the consent of the Holy See, personal parishes for the faithful who belong to the Ordinariate (AC,VIII, §1). These would be like the territorial parishes in an ordinary diocese, and would overlap with them territorially—i.e., the members of the personal parishes would still be members of the territorial parish by virtue of domicile or quasi-domicile.
3) Pastors (i.e., parish priests) of the Ordinariate enjoy all the rights and are held to all the obligations established in the Code of Canon Law and, in cases established by the Complementary Norms, such rights and obligations are to be exercised in mutual pastoral assistance together with the pastors of the local Diocese where the personal parish of the Ordinariate has been established (AC,VIII, §2).
4) Priests incardinated into an Ordinariate, who constitute the presbyterate of the Ordinariate, are also to cultivate bonds of unity with the presbyterate of the Diocese in which they exercise their ministry. They should promote common pastoral and charitable initiatives and activities, which can be the object of agreements between the Ordinary and the local Diocesan Bishop (AC, VI, §4).
Governance in the Personal Ordinariate
1) The Ordinary is aided in his governance by a Governing Council with its own statutes approved by the Ordinary and confirmed by the Holy See (AC, X, §1). The Governing Council, presided over by the Ordinary, is composed of at least six priests. It exercises the functions specified in the Code of Canon Law for the Presbyteral Council and the College of Consultors, as well as those areas specified in the Complementary Norms (AC,X, §2).
2) The Ordinary is to establish a Finance Council according to the norms established by the Code of Canon Law which will exercise the duties specified therein. (AC, Sect.X, §3]
3) In order to provide for the consultation of the faithful, a Pastoral Council is to be constituted in the Ordinariate (AC, X, §4).
The Clergy of the Personal Ordinariate: Celibacy applies.
1) Initially, the clergy of the personal Ordinariates will logically come from the ranks of former Anglican clergy:
— Those who ministered as Anglican deacons, priests, or bishops, and who fulfill the requisites established by canon law and are not impeded by irregularities or other impediments may be accepted by the Ordinary as candidates for Holy Orders in the Catholic Church. In the case of married ministers, the norms established in the Encyclical Letter of Pope Paul VI "Sacerdotalis coelibatus", n. 42 and in the Statement in June are to be observed. Unmarried ministers must submit to the norm of clerical celibacy of CIC can. 277, §1 (AC, VI, §1).
— The Ordinary, in full observance of the discipline of celibate clergy in the Latin Church, as a rule (pro regula) will admit only celibate men to the order of presbyter. He may also petition the Roman Pontiff, as a derogation from can. 277, §1, for the admission of married men to the order of presbyter on a case by case basis, according to objective criteria approved by the Holy See (AC, VI, §2).
— However, those who have been previously ordained in the Catholic Church and subsequently have become Anglicans, may not exercise sacred ministry in the Ordinariate. Furthermore, Anglican clergy who are in irregular marriage situations may not be accepted for Holy Orders in the Ordinariate (CN, Art 6, §2).
2) As regards their incardination and faculties:
— Incardination of clerics will be regulated according to the norms of canon law (AC, VI, §3). Priests incardinated into an Ordinariate (…) constitute the presbyterate of the Ordinariate (AC, VI, §4).
— Presbyters incardinated in the Ordinariate receive the necessary faculties from the Ordinary (CN, Art 6, §3).
3) The presbyterate of the Ordinariate is also inserted in the territorial diocesan pastoral structure:
— The presbyters, while constituting the presbyterate of the Ordinariate, are eligible for membership in the Presbyteral Council of the Diocese in which they exercise pastoral care of the faithful of the Ordinariate (CN, Art 8, §1; cf. CIC, can. 498, §2).
— Priests and Deacons incardinated in the Ordinariate may be members of the Pastoral Council of the Diocese in which they exercise their ministry, in accordance with the manner determined by the Diocesan Bishop (CN, Art 8, §2; cf. CIC, can. 512, §1).
— The clerics incardinated in the Ordinariate should be available to assist the Diocese in which they have a domicile or quasi-domicile, where it is deemed suitable for the pastoral care of the faithful. In such cases they are subject to the Diocesan Bishop in respect to that which pertains to the pastoral charge or office they receive (CN, Art 9, §1).
4) Finally, in the case of new vocations to the sacred ministry, the Apostolic Constitution stipulates that candidates for Holy Orders in an Ordinariate should be prepared alongside other seminarians, especially in the areas of doctrinal and pastoral formation. In order to address the particular needs of seminarians of the Ordinariate and formation in Anglican patrimony, the Ordinary may also establish seminary programs or houses of formation which would relate to existing Catholic faculties of theology (AC, VI, §5).
Conclusion
Just like the case of the Military Ordinariates, we are dealing with an atypical personal ecclesiastical circumscription (i.e., not typified in the Code of Canon Law). Unlike the former, however, the Personal Ordinariates for former Anglicans shall be vicariates—i.e., with vicarious instead of proper jurisdiction. In this respect, it is also different from that other model of personal jurisdiction which is the Personal Prelature.
Monday, October 26, 2009
Wednesday, October 21, 2009
The Legates of the Roman Pontiff
I have often wondered just what the Papal Nuncio is and what the role of the Papal Nunciature is. I am even more confused when I read in the news that the Papal Nuncio would lead the traditional toast of the diplomatic corps, implying his position of honor among the different legates. Can you please clarify this matter to me?
A Brief History of the Institution
The practice of churches sending representatives to other communities or even to civil authorities can be traced to the earliest times of the Church. By the 5th Century, the Pope—who by that time had assumed responsibility both for the ecclesiastical and civil life of the city of Rome—began sending permanent representatives to the Imperial Court in Constantinople. This was the start of the current practice of nuncios who represent the Holy See both to local churches and to civil governments.
By the Middle Ages, the popes were granting certain residential bishops special powers over neighboring bishops, which went beyond the prerogatives of Metropolitans (e.g., Thessalonika in Illyricum, Arles in Gaul, Tarragona and Seville in Spain). They were called Apostolic Vicars, a title that by the 9th Century had gradually evolved to legatus natus—i.e., legates with the innate appointment to those particular sees. Eventually the persons occupying such positions became known as primates.
In contrast, a person sent on a more transitory mission was known as legatus missus—i.e., a legate sent for a specific purpose. When a cardinal was sent on such a mission, he was known as a legatus a latere—i.e., sent from beside the Pope. Better equipped for their tasks—and more closely allied to the Popes—legates of this type gradually took on more stable functions in the places where they were sent. At the same time, the legati nati slowly lost their significance, such that by the CIC 17, they lost their special rights as such.
Gregory XIII reorganized the system of legates in the 16th Century and established permanent nunciatures, originally with the principal task of implementing the Tridentine Reform. This system received further international recognition in the Congress of Vienna (1815), which gave special prerogatives to papal nuncios in consideration of their spiritual mission. In more recent times, the Vienna Convention (1961) modified such special status, but retained recognition of the right of the Holy See to send representatives under international law.
In the light of the Vatican II provision that the office of legates be more precisely defined (CD, 9), Paul VI issued the Motu Proprio Sollicitudo omnium Ecclesiarum (24.VI.1969). Although this is the major source of the canons regulating papal legates in the present Code, the brevity with which the material is treated in the Code—coupled with the fact that the Code has not reordered the material ex integro (cf. c.6)— makes it still the main source of particular law for the institution (cf. c.20).
Justification of Papal Legates
Can.362 — The Roman Pontiff possesses the innate and independent right to appoint, send, transfer and recall his own legates to particular Churches in various nations or regions, to states and to public authorities; the norms of international law are to be observed concerning the sending and the recalling of legate appointed to states.
Before anything else, the legislator proclaims the right of legation of the Roman Pontiff as innate—i.e., not stemming from anything outside the juridic order of the Church, but rather arising from the very perfection of that order itself. The corollary claim of its being independent is just a consequence. What is noteworthy in the present canon is the apparent lack of justification of such a right of legation, which on the other hand we find in the ecclesiology of Vatican II and in the commentaries that have been written regarding this material since the publication of Sollicitudo omnium Ecclesiarum.
1) Legation ad intra. This refers to the sending of legates to particular Churches, and finds its primary justification in the right-duty of the Roman Pontiff to nourish ecclesial communion through instruments that manifest his solicitude towards the particular Churches and all the faithful. On the other hand, the reference to various nations or regions allude to the advisability—in certain cases—that the Holy See not follow the geo-political division of a given territory. For example, given a low Catholic population, only one legate may be sent to take care of the particular Churches comprising several countries, with the seat of the legation in the country that offers more security for the same.
2) Legation ad extra. This refers to the sending of legates to states and to public authorities, which finds its constitutional foundation in the religious mission of the Church (cf. GS, n.42), understood as a duty “to be present in the community of peoples ... by means of its official channels” (GS, n.89).
It is noteworthy that in the present Code, the legislator has gone beyond the previous formula that limited such legation to States, to now include other public authorities—a formula more open to further development of political communities and the international community. It is also interesting to note at this point that the title by which papal legates to States are accredited is that of the Holy See—not Vatican City—underlining the unique identity of the Church in the international community.
Kinds of Papal Legates
Can.363 — §1. To legates of the Roman Pontiff is entrusted the responsibility of representing him in a stable manner to particular Churches and also to states and public authorities to which they are sent.
§2. They also represent the Apostolic See who are appointed to a pontifical mission as delegates or observers at International Councils or at conferences and meetings.
According to this canon, there are three basic types of legates, the first two mentioned in §1 and the third type mentioned in §2 of the present canon:
1) Apostolic Delegates—are the legates who represent the Pope to the particular Churches but not to the civil government.
2) Legates to both Particular Churches and Civil Governments — can in turn be of various types and dignities:
a) Nuncio—is a legate who holds the rank of ambassador and enjoys the privilege of being automatically the dean of the diplomatic corps in the capital where he serves.
b) Pro-Nuncio—is also an ambassador but without the special privilege of being automatically the dean of the diplomatic corp.
c) Inter-Nuncio—is an extraordinary envoy and minister plenipotentiary: a rank used in diplomatic norms when relations have not yet consolidated to the ambassadorial level.
d) Regents and Chargés d’affairs with Special Instructions—can also serve as permanent legates below ambassador level under certain circumstances.
Sollicitudo omnium Ecclesiarum limits the aforementioned offices to ecclesiastical men—i.e., clerics—many of whom are bishops (actually archbishops in many cases).
3) Legates to International Organizations, Various Conferences or Meetings—which the aforementioned motu proprio allows to be laymen as well as clerics. They are of two kinds:
a) Delegates—are those with voting status.
b) Observers—are those without voting status. The Holy See maintains such legations at the United Nations, in various UN-related organizations, at the Organization of American States, etc.
Ecclesial Functions
The importance and priority of the ad intra—over the ad extra—functions of Papal Legates is acknowledged by the legislator not only by explicitly stating they constitute a principal duty, but by giving them a separate and prior treatment in the Code. Again reserving the matter of the ad extra functions for a later Lesson, we concentrate at the moment on c.364.
Can.364 — The principal duty of a pontifical legate is to work so that day by day the bonds of unity, which exist between the Apostolic See and the particular Churches, become stronger and more efficacious. Therefore, it belongs to the pontifical legate for his area:
1º to send information to the Apostolic See on the conditions of the particular Churches and all that touches the life of the Church and the good of souls;
2º to assist the bishops by action and counsel, while leaving intact the exercise of the bishops’ legitimate power;
3º to foster close relations with the Conference of Bishops, by offering it assistance in every way’
4º to transmit or propose the names of candidates to the Apostolic See in reference to the naming of bishops and to instruct the informative process concerning those to be promoted in accord with the norms given by the Apostolic See;
5º to strive for the promotion of matters which concern peace, progress and the cooperative efforts of peoples;
6º to cooperate with the bishops in fostering suitable relationships between the Catholic Church and other churches or ecclesial communities and non-Christian religions also;
7º in concerted action with the bishops to protect what pertains to the mission of the Church and the Apostolic See in relations with the leaders of the state;
8º to exercise the faculties and fulfill the other mandates committed to him by the Apostolic See.
As the opening line of the canon affirms, the principal ecclesial duty of the legates is to promote the unity of the Church, in keeping with the key role of the Petrine ministry in the Church as a service to unity. This principle, as it where, is the hermeneutic key to the proper interpretation of the provisions of this canon.
A Brief History of the Institution
The practice of churches sending representatives to other communities or even to civil authorities can be traced to the earliest times of the Church. By the 5th Century, the Pope—who by that time had assumed responsibility both for the ecclesiastical and civil life of the city of Rome—began sending permanent representatives to the Imperial Court in Constantinople. This was the start of the current practice of nuncios who represent the Holy See both to local churches and to civil governments.
By the Middle Ages, the popes were granting certain residential bishops special powers over neighboring bishops, which went beyond the prerogatives of Metropolitans (e.g., Thessalonika in Illyricum, Arles in Gaul, Tarragona and Seville in Spain). They were called Apostolic Vicars, a title that by the 9th Century had gradually evolved to legatus natus—i.e., legates with the innate appointment to those particular sees. Eventually the persons occupying such positions became known as primates.
In contrast, a person sent on a more transitory mission was known as legatus missus—i.e., a legate sent for a specific purpose. When a cardinal was sent on such a mission, he was known as a legatus a latere—i.e., sent from beside the Pope. Better equipped for their tasks—and more closely allied to the Popes—legates of this type gradually took on more stable functions in the places where they were sent. At the same time, the legati nati slowly lost their significance, such that by the CIC 17, they lost their special rights as such.
Gregory XIII reorganized the system of legates in the 16th Century and established permanent nunciatures, originally with the principal task of implementing the Tridentine Reform. This system received further international recognition in the Congress of Vienna (1815), which gave special prerogatives to papal nuncios in consideration of their spiritual mission. In more recent times, the Vienna Convention (1961) modified such special status, but retained recognition of the right of the Holy See to send representatives under international law.
In the light of the Vatican II provision that the office of legates be more precisely defined (CD, 9), Paul VI issued the Motu Proprio Sollicitudo omnium Ecclesiarum (24.VI.1969). Although this is the major source of the canons regulating papal legates in the present Code, the brevity with which the material is treated in the Code—coupled with the fact that the Code has not reordered the material ex integro (cf. c.6)— makes it still the main source of particular law for the institution (cf. c.20).
Justification of Papal Legates
Can.362 — The Roman Pontiff possesses the innate and independent right to appoint, send, transfer and recall his own legates to particular Churches in various nations or regions, to states and to public authorities; the norms of international law are to be observed concerning the sending and the recalling of legate appointed to states.
Before anything else, the legislator proclaims the right of legation of the Roman Pontiff as innate—i.e., not stemming from anything outside the juridic order of the Church, but rather arising from the very perfection of that order itself. The corollary claim of its being independent is just a consequence. What is noteworthy in the present canon is the apparent lack of justification of such a right of legation, which on the other hand we find in the ecclesiology of Vatican II and in the commentaries that have been written regarding this material since the publication of Sollicitudo omnium Ecclesiarum.
1) Legation ad intra. This refers to the sending of legates to particular Churches, and finds its primary justification in the right-duty of the Roman Pontiff to nourish ecclesial communion through instruments that manifest his solicitude towards the particular Churches and all the faithful. On the other hand, the reference to various nations or regions allude to the advisability—in certain cases—that the Holy See not follow the geo-political division of a given territory. For example, given a low Catholic population, only one legate may be sent to take care of the particular Churches comprising several countries, with the seat of the legation in the country that offers more security for the same.
2) Legation ad extra. This refers to the sending of legates to states and to public authorities, which finds its constitutional foundation in the religious mission of the Church (cf. GS, n.42), understood as a duty “to be present in the community of peoples ... by means of its official channels” (GS, n.89).
It is noteworthy that in the present Code, the legislator has gone beyond the previous formula that limited such legation to States, to now include other public authorities—a formula more open to further development of political communities and the international community. It is also interesting to note at this point that the title by which papal legates to States are accredited is that of the Holy See—not Vatican City—underlining the unique identity of the Church in the international community.
Kinds of Papal Legates
Can.363 — §1. To legates of the Roman Pontiff is entrusted the responsibility of representing him in a stable manner to particular Churches and also to states and public authorities to which they are sent.
§2. They also represent the Apostolic See who are appointed to a pontifical mission as delegates or observers at International Councils or at conferences and meetings.
According to this canon, there are three basic types of legates, the first two mentioned in §1 and the third type mentioned in §2 of the present canon:
1) Apostolic Delegates—are the legates who represent the Pope to the particular Churches but not to the civil government.
2) Legates to both Particular Churches and Civil Governments — can in turn be of various types and dignities:
a) Nuncio—is a legate who holds the rank of ambassador and enjoys the privilege of being automatically the dean of the diplomatic corps in the capital where he serves.
b) Pro-Nuncio—is also an ambassador but without the special privilege of being automatically the dean of the diplomatic corp.
c) Inter-Nuncio—is an extraordinary envoy and minister plenipotentiary: a rank used in diplomatic norms when relations have not yet consolidated to the ambassadorial level.
d) Regents and Chargés d’affairs with Special Instructions—can also serve as permanent legates below ambassador level under certain circumstances.
Sollicitudo omnium Ecclesiarum limits the aforementioned offices to ecclesiastical men—i.e., clerics—many of whom are bishops (actually archbishops in many cases).
3) Legates to International Organizations, Various Conferences or Meetings—which the aforementioned motu proprio allows to be laymen as well as clerics. They are of two kinds:
a) Delegates—are those with voting status.
b) Observers—are those without voting status. The Holy See maintains such legations at the United Nations, in various UN-related organizations, at the Organization of American States, etc.
Ecclesial Functions
The importance and priority of the ad intra—over the ad extra—functions of Papal Legates is acknowledged by the legislator not only by explicitly stating they constitute a principal duty, but by giving them a separate and prior treatment in the Code. Again reserving the matter of the ad extra functions for a later Lesson, we concentrate at the moment on c.364.
Can.364 — The principal duty of a pontifical legate is to work so that day by day the bonds of unity, which exist between the Apostolic See and the particular Churches, become stronger and more efficacious. Therefore, it belongs to the pontifical legate for his area:
1º to send information to the Apostolic See on the conditions of the particular Churches and all that touches the life of the Church and the good of souls;
2º to assist the bishops by action and counsel, while leaving intact the exercise of the bishops’ legitimate power;
3º to foster close relations with the Conference of Bishops, by offering it assistance in every way’
4º to transmit or propose the names of candidates to the Apostolic See in reference to the naming of bishops and to instruct the informative process concerning those to be promoted in accord with the norms given by the Apostolic See;
5º to strive for the promotion of matters which concern peace, progress and the cooperative efforts of peoples;
6º to cooperate with the bishops in fostering suitable relationships between the Catholic Church and other churches or ecclesial communities and non-Christian religions also;
7º in concerted action with the bishops to protect what pertains to the mission of the Church and the Apostolic See in relations with the leaders of the state;
8º to exercise the faculties and fulfill the other mandates committed to him by the Apostolic See.
As the opening line of the canon affirms, the principal ecclesial duty of the legates is to promote the unity of the Church, in keeping with the key role of the Petrine ministry in the Church as a service to unity. This principle, as it where, is the hermeneutic key to the proper interpretation of the provisions of this canon.
Monday, October 12, 2009
The Presumption of Validity of Marriage
I am a Parish Priest and I am sometimes presented with problems of couples—claiming irreconcilable difference—who “in conscience” think that their marriage was invalid from the start. At times their recounting of the circumstances are so compelling, that even I am tempted to agree with them, more so if either spouse has already moved on to a new union, which has subsequently born fruit in the form of a new and happy family. How do I resolve this dilemma?
A. Notion and point of controversy
Your dilemma in fact illustrates one of the hottest issues in Matrimonial Law Canon in the last two decades of the 20th Century, so brilliantly resolved by John Paul II in his annual address to the Roman Rota on 29.I. 2004.
Can. 1060 of the Code of Canon Law states: Marriage enjoys the favor of the law; consequently, when a doubt exists the validity of a marriage is to be upheld until the contrary is proven. Though the canon clearly establishes the presumption of validity of a canonically celebrated marriage, the continued applica¬bility of such a juridic presumption has been contested.
The problem stems in part from the very redaction of c.1060, in which the causal particle “consequently” (quare in the original Latin) seems to suggests that the reason for the presumption of validity of a marriage (duly celebrated or peacefully accepted and consequently placed in doubt) is the favor iuris (presumption of law) enjoyed by mar¬riage. Thus, this doctrine has been attacked from the point of view of the validity of the favor matrimonii, i.e., the favor iuris enjoyed by marriage itself.
B. clarifying Can. 1060: Removing the Red Herring.
Before addressing the attacks against the favor matrimonii itself, it is good to remove the red herring, by making the conceptual distinction between the two parts of c.1060:
1st Part: Marriage enjoys the favor of the law. This is the canonical declaration of the favor matrimonii.
2nd Part: When doubt exists, the validity of a marriage is to be upheld until the contrary is proven. This actually constitutes the canonical declaration of the presumption of validity of a marriage duly celebrated canonically or hitherto peacefully accepted.
It is important to realize that the foundation of the presumption of validity of a duly celebrated canonical marriage is not the favor matrimonii. Rather, it is simply an application to the case of canonical marriage of a general presumption that constitutes a principle in all juridic systems: The presumption of validity of a juridic act whose external (juridically relevant) elements have been verified correct, as expressed in c.124, §2: A juridic act correctly placed with respect to its external elements is presumed to be valid.
This is what is know in Law as a juridic presumption—i.e., a link established by law between a certain fact (the external elements of given juridic reality), which is called the factical index or basis of the presumption, and that juridic reality, which is called the presumed fact.
On the other hand, as John Paul IIin the aforementioned address to the Roman Rota on 29.I.2004points out “this presumption cannot be interpreted as the mere protection of appearances or of the status quo as such, since the possibility of contesting the act is also provided for, within reasonable limits. Rather, what appears outwardly to be correctly placed, to the extent that it is lawful, deserves initially to be considered valid and, consequently, to be upheld by law since this external reference point is the only one which the legal system realistically provides to discern situations which must be safeguarded. To hypothesize the opposite, that is, the obligation to provide positive proof of the validity of the respective acts, would mean exposing the subjects to a demand that would be almost impossible to achieve.”
C. Arguments against the Favor Matrimonii
John Paul II, in the aforementioned address, outlined the attacks against the principles enunciated by c.1060 as follows:
1. Skepticism vs. Validity of Consent at Present Times. To some people, [the favor matrimonii] seems to be anchored in social and cultural situations of the past, in which the request to marry in accordance with canon law had normally implied that those engaged to be married understood and accepted the true nature of marriage. In the crisis that marks the institution of marriage todaythose people holdthe very validity of the consent may often be jeopard¬ized, due to various forms of incapacity or to the absence of the essential properties. Thus, these critics wonder if it might not be correct to presume the invalidity of the marriage contracted rather than its validity. In this perspective, the favor matrimonii, they say, should give way to the favor personae [favoring whatever is good for the spouses], the favor veritatis subiecti [favoring whatever is subjectively good for the spouses] or the favor libertatis [respecting the freedom of the spouses to opt out of a marriage bond].
2. Skepticism vs. Process of Ascertaining the Validity of a Marriage. Often the real problem is not so much the presumption in words as the overall vision of a marriage itself; hence, the process to ascertain the validity of its celebration is put in doubt. In this regard, a more or less open scepticism has been inferred as to the human ability to recognize the truth about the validity of a marriage. In this area too, a renewed confidence in human reason is necessary with regard both to the essential aspects of marriage and to the specific circumstances of each union.
3. Failure of Marriage Argument. Finally is the argument which holds that the failure of conjugal life implies the invalidity of the marriage. Unfortunately, this erroneous assertion is sometimes so forceful as to become a generalized prejudice that leads people to seek grounds for nullity as a merely formal justification of a pronouncement that is actually based on the empirical factor of matrimonial failure. This unjust formalism of those who are opposed to the traditional favor matrimonii can lead them to forget that, in accordance with human experience marked by sin, even a valid marriage can fail because of the spouses' own misuse of freedom.
D. logical and conceptual flaws of the arguments against the Favor Matrimonii
After clarifying the real basis of the presumptio iuris for the validity of a duly-celebrated canonical marriage, we can reduce the objections to the favor matrimonii to two:
1. Favor matrimonii vs. favor personae seu favor veritatis subiecti. The confrontation that some authors make between the favor matrimonii and the so-called favor personae or favor veritatis subiecti belies a reductive vision of the favor matrimonii, understood almost exclusively in its abstract or institutional sense, disconnected from any concrete marriage, which is always founded on the truth of an authentic marital consent legitimately manifested between two capable persons. We have to recall that the favor matrimonii is simply the juridical protection of a very personal rightthe ius connubii of the spousesand the truth of a very real and concrete marriage.
At the same time, such objection often belies an equally narrow view of the so-called favor personae or favor veritatis subiecti which often refers only to the person of the spouse or spouses who are pretending the declaration of nullity of a marriage, disregarding those who hold its validity or who may be interested in its eventual convalidation.
2. Favor matrimonii vs. favor libertatis. More absurd still is the contraposition made by other authors between the favor iuris enjoyed by marriage and an erroneous application of the general principle in dubio pro libertate, according to which one must not burden anyone with an obligation unless such obligation is certain. However, such objectors forget that the principle in dubio pro libertate operates only when there is no opposing presumption based on a certain fact, such as the common good which is the case in the favor matrimonii.
On the other hand, what they claim as the right to freedom of the spouses almost always refers to the futurei.e., a liberation from past commitmentsdisregarding the obvious fact that such commitments were made in the exercise of their own freedom in the first place. It is interesting to understand favor matrimonii precisely from the point of view of the freedom of the spousesi.e., the protection of their ius connubii which had already been exercised (and exhausted) when they validly contracted marriage.
Conclusion
In the end we have to conclude with John Paul II that “the problem concerns the concept of marriage seen in a global vision of reality. The essential dimension of the justness of marriage, which is based on an intrinsically juridical reality, is replaced by empirical viewpoints of a sociological, psychological, etc. kind, as well as by various forms of juridical positivism. Without in any way belittling the valid contributions of sociology, psychology or psychiatry, it cannot be forgotten that an authentically juridical consideration of marriage requires a metaphysical vision of the human person and of the conjugal relationship. Without this ontological foundation the institution of marriage becomes merely an extrinsic superstructure, the result of the Law and of social conditioning, which limits the freedom of the person to fulfill him or herself.
It is necessary instead to rediscover the truth, goodness and beauty of the marriage institution. Since it is the work of God himself, through human nature and the freedom of consent of the engaged couple, marriage remains an indissoluble personal reality, a bond of justice and love, linked from eternity to the plan of salvation and raised in the fullness of time to the dignity of a Christian sacrament. It is this reality that the Church and the world must encourage! This is the true favor matrimonii!”
Finally, as to the concrete problem at hand, we have to remind everyone that nobody can decide unilaterally—neither can a couple agree on their own—that a marriage contracted canonically suffers invalidity on whatever ground. It is for the competent ecclesiastical tribunal, after all the parties have been listened to, to judge the case and declare the validity or invalidity of the marriage.
A. Notion and point of controversy
Your dilemma in fact illustrates one of the hottest issues in Matrimonial Law Canon in the last two decades of the 20th Century, so brilliantly resolved by John Paul II in his annual address to the Roman Rota on 29.I. 2004.
Can. 1060 of the Code of Canon Law states: Marriage enjoys the favor of the law; consequently, when a doubt exists the validity of a marriage is to be upheld until the contrary is proven. Though the canon clearly establishes the presumption of validity of a canonically celebrated marriage, the continued applica¬bility of such a juridic presumption has been contested.
The problem stems in part from the very redaction of c.1060, in which the causal particle “consequently” (quare in the original Latin) seems to suggests that the reason for the presumption of validity of a marriage (duly celebrated or peacefully accepted and consequently placed in doubt) is the favor iuris (presumption of law) enjoyed by mar¬riage. Thus, this doctrine has been attacked from the point of view of the validity of the favor matrimonii, i.e., the favor iuris enjoyed by marriage itself.
B. clarifying Can. 1060: Removing the Red Herring.
Before addressing the attacks against the favor matrimonii itself, it is good to remove the red herring, by making the conceptual distinction between the two parts of c.1060:
1st Part: Marriage enjoys the favor of the law. This is the canonical declaration of the favor matrimonii.
2nd Part: When doubt exists, the validity of a marriage is to be upheld until the contrary is proven. This actually constitutes the canonical declaration of the presumption of validity of a marriage duly celebrated canonically or hitherto peacefully accepted.
It is important to realize that the foundation of the presumption of validity of a duly celebrated canonical marriage is not the favor matrimonii. Rather, it is simply an application to the case of canonical marriage of a general presumption that constitutes a principle in all juridic systems: The presumption of validity of a juridic act whose external (juridically relevant) elements have been verified correct, as expressed in c.124, §2: A juridic act correctly placed with respect to its external elements is presumed to be valid.
This is what is know in Law as a juridic presumption—i.e., a link established by law between a certain fact (the external elements of given juridic reality), which is called the factical index or basis of the presumption, and that juridic reality, which is called the presumed fact.
On the other hand, as John Paul IIin the aforementioned address to the Roman Rota on 29.I.2004points out “this presumption cannot be interpreted as the mere protection of appearances or of the status quo as such, since the possibility of contesting the act is also provided for, within reasonable limits. Rather, what appears outwardly to be correctly placed, to the extent that it is lawful, deserves initially to be considered valid and, consequently, to be upheld by law since this external reference point is the only one which the legal system realistically provides to discern situations which must be safeguarded. To hypothesize the opposite, that is, the obligation to provide positive proof of the validity of the respective acts, would mean exposing the subjects to a demand that would be almost impossible to achieve.”
C. Arguments against the Favor Matrimonii
John Paul II, in the aforementioned address, outlined the attacks against the principles enunciated by c.1060 as follows:
1. Skepticism vs. Validity of Consent at Present Times. To some people, [the favor matrimonii] seems to be anchored in social and cultural situations of the past, in which the request to marry in accordance with canon law had normally implied that those engaged to be married understood and accepted the true nature of marriage. In the crisis that marks the institution of marriage todaythose people holdthe very validity of the consent may often be jeopard¬ized, due to various forms of incapacity or to the absence of the essential properties. Thus, these critics wonder if it might not be correct to presume the invalidity of the marriage contracted rather than its validity. In this perspective, the favor matrimonii, they say, should give way to the favor personae [favoring whatever is good for the spouses], the favor veritatis subiecti [favoring whatever is subjectively good for the spouses] or the favor libertatis [respecting the freedom of the spouses to opt out of a marriage bond].
2. Skepticism vs. Process of Ascertaining the Validity of a Marriage. Often the real problem is not so much the presumption in words as the overall vision of a marriage itself; hence, the process to ascertain the validity of its celebration is put in doubt. In this regard, a more or less open scepticism has been inferred as to the human ability to recognize the truth about the validity of a marriage. In this area too, a renewed confidence in human reason is necessary with regard both to the essential aspects of marriage and to the specific circumstances of each union.
3. Failure of Marriage Argument. Finally is the argument which holds that the failure of conjugal life implies the invalidity of the marriage. Unfortunately, this erroneous assertion is sometimes so forceful as to become a generalized prejudice that leads people to seek grounds for nullity as a merely formal justification of a pronouncement that is actually based on the empirical factor of matrimonial failure. This unjust formalism of those who are opposed to the traditional favor matrimonii can lead them to forget that, in accordance with human experience marked by sin, even a valid marriage can fail because of the spouses' own misuse of freedom.
D. logical and conceptual flaws of the arguments against the Favor Matrimonii
After clarifying the real basis of the presumptio iuris for the validity of a duly-celebrated canonical marriage, we can reduce the objections to the favor matrimonii to two:
1. Favor matrimonii vs. favor personae seu favor veritatis subiecti. The confrontation that some authors make between the favor matrimonii and the so-called favor personae or favor veritatis subiecti belies a reductive vision of the favor matrimonii, understood almost exclusively in its abstract or institutional sense, disconnected from any concrete marriage, which is always founded on the truth of an authentic marital consent legitimately manifested between two capable persons. We have to recall that the favor matrimonii is simply the juridical protection of a very personal rightthe ius connubii of the spousesand the truth of a very real and concrete marriage.
At the same time, such objection often belies an equally narrow view of the so-called favor personae or favor veritatis subiecti which often refers only to the person of the spouse or spouses who are pretending the declaration of nullity of a marriage, disregarding those who hold its validity or who may be interested in its eventual convalidation.
2. Favor matrimonii vs. favor libertatis. More absurd still is the contraposition made by other authors between the favor iuris enjoyed by marriage and an erroneous application of the general principle in dubio pro libertate, according to which one must not burden anyone with an obligation unless such obligation is certain. However, such objectors forget that the principle in dubio pro libertate operates only when there is no opposing presumption based on a certain fact, such as the common good which is the case in the favor matrimonii.
On the other hand, what they claim as the right to freedom of the spouses almost always refers to the futurei.e., a liberation from past commitmentsdisregarding the obvious fact that such commitments were made in the exercise of their own freedom in the first place. It is interesting to understand favor matrimonii precisely from the point of view of the freedom of the spousesi.e., the protection of their ius connubii which had already been exercised (and exhausted) when they validly contracted marriage.
Conclusion
In the end we have to conclude with John Paul II that “the problem concerns the concept of marriage seen in a global vision of reality. The essential dimension of the justness of marriage, which is based on an intrinsically juridical reality, is replaced by empirical viewpoints of a sociological, psychological, etc. kind, as well as by various forms of juridical positivism. Without in any way belittling the valid contributions of sociology, psychology or psychiatry, it cannot be forgotten that an authentically juridical consideration of marriage requires a metaphysical vision of the human person and of the conjugal relationship. Without this ontological foundation the institution of marriage becomes merely an extrinsic superstructure, the result of the Law and of social conditioning, which limits the freedom of the person to fulfill him or herself.
It is necessary instead to rediscover the truth, goodness and beauty of the marriage institution. Since it is the work of God himself, through human nature and the freedom of consent of the engaged couple, marriage remains an indissoluble personal reality, a bond of justice and love, linked from eternity to the plan of salvation and raised in the fullness of time to the dignity of a Christian sacrament. It is this reality that the Church and the world must encourage! This is the true favor matrimonii!”
Finally, as to the concrete problem at hand, we have to remind everyone that nobody can decide unilaterally—neither can a couple agree on their own—that a marriage contracted canonically suffers invalidity on whatever ground. It is for the competent ecclesiastical tribunal, after all the parties have been listened to, to judge the case and declare the validity or invalidity of the marriage.
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