Q6 Are the hands of the cardinals tied by canon law?

Q6 But are not the hands of the cardinals tied by canon law in these circumstances?

A6 Not in the way that the four cardinals imagine.  They need to return to their seminaries and to discover how church history demonstrates that entirely different solutions were available in other times and in other places.  Consider a few examples:

#1 Fr. Paul Keller writes this:

Does the church even teach that marriage is indissoluble? Actually, no. You may or may not have heard of “Privileges of the Faith,” or Pauline and Petrine Privileges. The Pauline Privilege, based on the First Letter to the Corinthians (7:12–15), allows for the dissolution of a marriage between two unbaptized people if one of them becomes Christian (source).

The situation is a bit more complex.  Paul takes the position that, given the approach of the end times, everyone should remain as they are: if someone is married, let them stay married; if unmarried, let them stay unmarried.  But then Paul originates a new principle, “It is to peace that God has called you” (1 Cor 7:15), in order to accommodate marital circumstances unaddressed by Jesus:

If any believer has a wife who is an unbeliever, and she consents to live with him, he should not divorce her. 7:13 And if any woman has a husband who is an unbeliever, and he consents to live with her, she should not divorce him. 7:14 For the unbelieving husband is made holy through his wife, and the unbelieving wife is made holy through her husband. Otherwise, your children would be unclean, but as it is, they are holy. 7:15 But if the unbelieving partner separates, let it be so; in such a case the brother or sister is not bound. It is to peace that God has called you.

Notice that Paul is aware that he is addressing people who believe in divorce and that Paul knows of no tradition coming from Jesus that makes divorce impossible under all circumstances.[1]  He is not against marriage or against divorce (7:7-12) as such. However, if an unbelieving spouse decides to separate from a believer, then “don’t fight it.”  One can imagine here how a devout pagan might make sacrifices to his/her god(s) at every meal and, the believing spouse might refuse to participate in the ritual or even to eat the food that had been offered.  This would, to be sure, create tension between a couple, and the pagan spouse might lose patience and say that they “are fed up with this lack of piety” and divorce the “unbeliever.”  Paul allows that the believer in this instance “is not bound” by the marriage since ‘God wants everyone to live their life in peace.’

It is not clear, however, that the divorced believer is automatically permitted to enter another marriage.  Paul’s general rule is “let each of you lead the life that the Lord has assigned, to which God called you” (7:17).  This could mean that some are meant to be divorced.  Or it could mean that those who were abandoned by their spouses were expected to find a suitable spouse with whom they could live in peace.  This second meaning recommends itself to me.

Stepping back, one can see here that Paul was giving his prudential advice to the believers in Corinth–he was not, by any stretch of the imagination, legislating for the churches in all times and in all places.  Thus, even while the “Pauline Priviledge” makes provisions for a “divorce” today, no one would  imagine that an unmarried convert to Catholicism must remain permanently unmarried.  No pastor would even advise such a thing.  Hence, in truth,  some things in Paul have been retained while other things have been abandoned.  Just because something found its way into the Christian Scriptures does mean that it has to be believed or practiced mindlessly in every generation.

Pope Francis, for his part, goes even further. He has forthrightly warned our bishops against “the temptation to hostile inflexibility, that is, wanting to close oneself within the written word . . , within the law, within the certitude of what we know and not of what we still need to learn and to achieve” (source). When this happens, “the bread” that Jesus blesses and gives to his disciples is transformed “into a stone” that is either “cast against the sinners” or it is carried by them as an “unbearable burden” (Luke 11:46).

#2 This brings us immediately to a second case–canon law in 8th century Ireland.

The principal sources for the history of marriage in early Ireland are the law tracts produced in Irish and Latin in the first half of the 8th century.  These materials are very descriptive and they provide us with clerical rules that detail what was done in terms of pastoral practice.  Relative to divorce and remarriage, the following picture emerges:

Divorce by mutual consent was always available a remedy for an unsatisfactory marriage. Besides, the grounds for unilateral divorce (with or without penalties being incurred by the guilty party) are specified in very considerable detail. A woman could divorce* her husband for many reasons: sterility, impotence, being [becoming?] a churchman (whether in holy orders or not), blabbing about the marriage bed, calumniation, wife-beating, repudiation (including taking a secondary wife), homosexuality, failure of maintenance. A man could divorce his wife for abortion, infanticide, flagrant infidelity, infertility, and bad management. Insanity, chronic illness, a wound that was incurable in the opinion of a judge, leech or lord, retirement into a monastery or going abroad on pilgrimage were adequate grounds for terminating a marriage [on the part of the husband] (Marriage in Early Ireland).

What is evident here is that, in practice, divorce with the right to remarry was granted for a multiplicity of causes. No cleric was thinking that Jesus had ruled that every canonical marriage was permanent and irrevocable. Just the opposite. If a wife went abroad to make a pilgrimage to St. John Capistrano on the coast of Spain, for example, she might return in six months to find that her husband had divorced her and married someone else.  Mind you, he was not required to divorce her (as in the case of adultery), but if he was not able to tolerate an empty bed for six months, he was free to divorce her and to marry someone else close at hand.  Thus, with Paul, might one not say that divorce was permitted by the clerics in cases like this because “It is to peace that God has called you” (1 Cor 7:15)?  If the 8th century had such pastoral rules, is it not possible to imagine that we urgently needs comparable rules today?

##Have you made any discoveries here? Have you been unsettled by what has been said?  Have I missed something?  In any case, your comments are very welcome.  Post them below. . . .

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PS: Keep in mind that the Catholic Church did not have a marriage ceremony until the 11th century and that one has to wait until the 16th century before the Church ruled that all Catholic marriages had to be solemnized through the use of rites within the Church.  Thus marriages were governed by local traditions and only gradually did the Church come to value it own rules for marriage as having a superior standing.  A theology of marriage thus gradually took root within the assemblies of Jesus that set them apart from what was going on outside the Church. In areas where church rules governed society, marriages came to be celebrated ONLY according to the rules of the Church.  But it was not that way in the beginning. . . .

[1] Cardinal Ratzinger, in his study, CONCERNING SOME OBJECTIONS TO THE CHURCH’S TEACHING ON THE RECEPTION OF HOLY COMMUNION BY DIVORCED AND REMARRIED MEMBERS OF THE FAITHFUL, tries to show that the Church does not have the authority to legislate in contradiction to the clear intent of the Lord Jesus.  To argue in this direction, however, is to sanction, in the name of Jesus, legal claims as having precedence over concerns for the human suffering and the welfare of those who are in difficult circumstances.  I argue that Ratzinger’s essentialist and legalistic approach to religious norms is foreign to Jesus.  This can be seen in the way that Jesus defends his disciples when they are accused of violating the Sabbath rest when they take the edge off their hunger by “harvesting” some small grains of wheat with their hands and then eating them.  The Pauline Privilege and the Matthean exception [pornea] also serve to demonstrate that “absolute indissolubility” cannot stand up as representing the mind of Christ and the interpretation of his Church.  The canonical exceptions allowed in 8th century Ireland also demonstrate that human welfare took precedence over an iron-clad insistance upon the rule of indissolubility.  Cardinal Ratzinger thus mistakingly harmonizes Jesus with his own personal interpretation of canon law, and he bends the historical sources to fit his point of view.   See http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19980101_ratzinger-comm-divorced_en.html for an appreciation of Ratzinger’s point of view.  See cdn.theologicalstudies.net/65/65.3/65.3.1.pdf for an extensive refutation of Ratzinger.

 

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