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Cdl. Coccopalmerio on streamlining the annulment process, and a new idea

Francis Cdl. Coccopalmerio, head of the Pontifical Council on Legislative Texts (a very influential position in canon law), has weighed in on three ideas to streamline the annulment process.

1. Eliminate mandatory appeal of affirmative sentences (c. 1682). This has been suggested in many circles and it seems that almost no one is defending the double process requirement. As I have said for some time, mandatory appeal can be eliminated without damage to the natural law aspects of the tribunal process and it would speed up the annulment decision process.

2. Use sole judges to hear marriage cases instead of using collegiate tribunals (cc. 1425). This idea is already provided for in the law and is widely followed in the USA. Perhaps bishops in other nations did not give the option sufficient consideration. Because of restrictions against lay persons serving as sole judges, I always served on a collegiate tribunal, but I must say, I did not notice the collegiate panels moving more slowly than did the sole judges. Both kinds of panels heard cases with deliberate speed. Adoption of this idea will not have much impact on the overall pace of tribunal work.

3. Let bishops decide some annulment petitions administratively (c. 1419). This idea, too, requires very little canonical modification and would very likely increase the numbers of annulments being declared while shortening the time needed. But the several serious concerns I have expressed about this idea remain in place.

Now, for a new idea …

Given that elimination of mandatory appeal for affirmative sentences seems a virtual certainty, another idea to speed up the tribunal process without threatening the natural of elements of justice that must be present in any canonical process (whether that process is judicial or administrative, I might add), would be this: eliminate the requirement that, in marriage nullity cases, a formal, detailed sentence must be produced (see esp. c. 1612) and instead allow the judge who has attained moral certainty (c. 1608) of nullity to simply declare that finding in a short Memorandum of Decision.

Time and again I found in tribunal work that, after the careful investigation of the facts in a case and after the analysis of any unusual legal issues involved (though recall: most tribunal cases do not turn on obscure or complex questions of law, they turn on interpretation of facts read in light of the law), the sense of moral certainly regarding nullity came to the judge(s) but could not “published” until a lengthy sentence had been drafted (itself necessary in large part because that sentence had to be forwarded to second instance for assessment, meaning that extensive information had to be included in that sentence for second instance to be able to have an appreciation of the situation as assessed by first instance). If so much time were needed to gather and study the facts and to examine the law, then that much time or more would be needed to write the sentence reflecting the decision that came from that study. But sentence writing (something not required for justice under natural law!) adds nothing to the certainty of the decision.

So if, as seems likely, affirmative sentences need not be forwarded automatically to another tribunal, then a judge, or a panel of judges, could reach moral certitude of nullity in accord with the facts and the law and simply declare in a memorandum that said certitude has been found. Considerable time would, unquestionably, be saved, and the elements of justice would still be fully honored. Of course, in cases, whether going affirmative or negative, contested by either of the parties or by the defender of the bond, a normal sentence would still be drafted and all the usual norms for appeal be followed. But in the many cases not contested (including not contested by the DOB), a judicial Memorandum Decisionis would suffice.

Some correctives to another bad news article on annulments

Well, it seems that the original, highly flawed, news article written by Elise Harris and posted at Catholic News Agency, has been pulled. That being the case, no purpose is served by my correcting an article that is no longer in circulation, so I am pulling my rebuttal post, too.

Clarifying what we can, when we can

I hope it’s the Vatican’s synodal news summaries themselves that are badly phrased. Else, the level of imprecision in comments on marriage matters is very worrisome.

Four examples from today’s VIS 141008:

(A) “First and foremost, the debate focused on the Church in the Middle East and in North Africa. … In these contexts, interreligious or so-called ‘mixed’ marriages are present and on the increase in these contexts …”

Now, the vast majority of marriages between Catholics and non-Catholics in the Middle East and Africa are those contracted with Muslims, Jews, or animists. But to call these marriages “mixed” is to confuse marriages between Catholics and non-Catholic Christians (which are sacramental and are designated “mixed” in Canon 1124) with marriages between Catholics and non-baptized persons which, though presumptively valid, are not sacraments. Entering marriage without the grace of Matrimony is a pastoral challenge quite distinct from entering marriage with those graces (albeit with a spouse not in full communion). The language being reported does not seem to recognize that important fact.

(B) “A further challenge is also represented by those Christians who convert to Islam in order to marry: also in this case, suitable reflection is necessary …”

This phrasing makes little sense. First, Catholics who “convert” to Islam are canonically “apostates” per Canon 751, a state with serious negative implications regardless of one’s matrimonial status. Second, Catholic marriage with any non-baptized person is, unless dispensed, null (Canon 1086), so, whatever the civil relationship is, the Church does not even recognize it as a marriage.

(C) “The question is not simply interreligious, but at times also ecumenical: there are cases in which a Catholic who has contracted a canonical marriage and is not able to obtain a declaration of nullity passes to another Christian confession, remarrying in a Church which permits this …”

More confusion I’m afraid. “Interreligious” and “ecumenical” are distinct concepts and the statement starts off recognizing that, but then it confuses “Christian confession” with (presumably separated) “Church”, leaving one wondering what exactly is being addressed: Protestant confessions or Eastern Orthodox Churches, both of whose approaches to divorce differ between themselves and are serious at odds with Catholic teaching on the permanence of marriage. In any case, the main problem here is one of pastoral care for lapsed Catholics, not theological dialogue about the definition of marriage.

(D) “With regard to the question of divorced and remarried persons, it was highlighted that the Synod must certainly … combine the objectivity of truth with mercy for the person and for his or her suffering. It is necessary to remember that many faithful find themselves in this situation through no fault of their own …”

Setting aside the ambiguous notion of “fault”, one can indeed be divorced through no fault of one’s own. But how can be remarried through no fault of one’s own? And is not remarriage after divorce, and not just divorce, what is at issue here? An issue framed with a mistaken premise is not likely to be discussed fruitfully.

Praying for real clarity in true charity.

A couple notes on John Allen’s notes

John Allen, semper legendus, has several interesting notes on the Synod. I react to just a few, modo Fr. Z.

Allen: An annulment is a declaration that even though two people had a Church wedding [careful: a ‘Church wedding’ is not a prerequisite for an annulment petition, tribunals hear many non-Catholic cases], the sacrament of marriage [careful: annulments cases are about validity, not sacramentality!] didn’t exist because one or more of the tests for validity wasn’t met [careful: tribunals don’t prove marriages valid, they find some marriages null]. People seeking one go through a detailed process under Church law that some find cumbersome, lengthy, and invasive, not to mention occasionally [careful: very, very occasionally] expensive.

Allen: Erdő floated the idea of creating an “extra-judicial” process, allowing bishops to issue an annulment by administrative fiat without the necessity of a legal verdict [that idea addressed here], in order to speed things up. During a Vatican news conference, Erdő said he included the idea in his talk because many bishops’ conferences around the world had suggested something like it, suggesting fairly strong support. [Interesting: to me, that reads as if the canonist included the idea because so many people are talking about, not because it’s necessarily good in itself.]

Is reception of Communion doctrinal or disciplinary?

In a recent brief interview Washington Archbishop Donald Cdl. Wuerl stated: “The reception of Communion is not a doctrinal given, it’s a pastoral application of a doctrinal position” (0:30). Distinguo.

Preliminarily, Communion reception (an external activity) is not by its nature “doctrinal” (as in, propositional), so the cardinal’s comment, as it stands, informs the practical debate but little. If, however, the prelate’s point was—and I rather think it was—that questions of Communion reception do not turn on doctrine, then I think that claim is often (not always, but often) wrong. Consider three cases.

(a) The question as to whether non-fasting Catholics may be allowed to receive Communion is clearly practical and pastoral;

(b) The question as to whether non-Catholic Christians may be allowed to receive Communion is, it seems, partly pastoral and partly doctrinal; and

(c) The question as to whether non-baptized persons may be allowed to receive Communion is, I think, entirely doctrinal.

Disciplinary norms (canons) touch all three reception questions (see cc. 919, 844, and 842 respectively) but the mere fact that canons regulate all three activities does not render all three questions disciplinary (or for that matter, doctrinal). What must be appreciated by discussants is whether doctrine underlies the disciplinary norms. Sometimes doctrine is not involved; sometimes doctrine is involved in part; and sometimes doctrine is the fundamental basis of the discipline in question.

I have argued from the outset of this debate that the reception of holy Communion by divorced-and-remarried Catholics raises fundamental questions of doctrine not simply about marriage, but also about the Eucharist and about the sacrament of Confession.

Cdl. Collins’ small, but very good, point

Commenting on the various problems associated with divorced-and-remarried Catholics receiving holy Communion, Toronto Archbishop Thomas Cardinal Collins makes a small but good point (actually, he makes several good points, but I will underline just one): “There are many reasons why a Christian might choose not to receive communion. If there were less pressure for everyone to receive communion, it would be some help to those who are not in a position to do so.”

Just so, as I have argued for some years now! Current ecclesiastical requirements on the Communion fast are at an all-time low. As a result Catholics with guilty or doubtful consciences are left with no way to avoid notice if they do not receive Communion.

The Communion fast should be reformed to require at least three hours of fasting for reception at any Mass that one is required to attend (for most of us, that would be Mass on Sundays and holy days of obligation).

Lighter fare: can bad Latin save a papacy?

I got an odd one a few days ago (okay, I get lots of odd ones, but this one kinda struck me), namely: that Pope Benedict XVI’s resignation was invalid because of mistakes he (allegedly) made in the Latin of his resignation letter. My correspondent claims two medieval Church laws in support of the claim, one of which I could track down: Lucius III (reg. 1181-1185), dec. Ad audientiam, c. 11, X, de rescriptis, I, 3 (or Friedberg 20 fbo those for whom QLD citations are impenetrable).

Now, granting that Ad audientiam does attach negative canonical consequences to bad Latin, the context of that question was documents whose Latin was so bad it that raised questions of authenticity (this, of course, being a practical concern in an age of ecclesiastical forgeries). Looking lightly at some commentary on Lucius’ decretal (always fun to have an excuse to do that!), it seems that debates arose over how bad ‘bad’ needed to be before it was too bad, over what kind of bad could be ignored or rehabilitated, and so on. Interesting stuff, granted, but it’s all moot.

When the great Gasparri prepared canon law for its first codification at the beginning of the twentieth century, he had before him, among other things, the whole of Gregory IX’s decretal law (which contained Lucius’ letter on bad Latin along with nearly 2,000 other provisions on nearly 200 other canonical topics). And guess what? Ad audientiam did not make it into the 1917 Code, although almost every other norm de rescriptis did, in some form or another, get carried into codified law. Nor was Ad audientiam resurrected for the 1983 Code.

What the 1983 Code does say, as did the 1917 Code, is this: “Only those laws must be considered invalidating … which expressly state that an act is null …” (c. 10, olim c. 11).  Because no canon of the 1983 Code, under which Benedict XVI submitted his resignation (c. 332 § 2), addresses the quality of the Latin used in papal documents, let alone does any canon make the Latinity of papal documents go to their validity, I say, odd question answered: bad Latin does not mean that one must remain pope.

PS: Now that we’re thinking about it, winking at bad Latin (assuming btw that Benedict’s was bad Latin, I wish I could write it as well!) probably makes sense these days. Consider: when the 1983 Code came out, it was marred by more than 100 typographical errors. I would hate to think we’ve all been spinning our canonical wheels since then!

PPS: Don’t even ask about mistakes on the Vatican website.

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