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On using, or misusing, others’ scholarly works

March 16, 2014

Back in 1972 a rising German theologian—albeit not one specially trained in canon law—wrote an article on Christian marriage, divorce, and holy Communion. The article (which I read in translation) met the standards for peer-reviewed writing and made, like thousands of articles before it and since, a small contribution to Catholic science. But because of the later spectacular service rendered by that same theologian to the Church, some are presenting that 1972 article as a prophetic precursor to their own campaign to reverse the constantly reiterated (if, more recently, only imperfectly administered) law of the Church to withhold holy Communion from, among others, Catholics who take it upon themselves to divorce their spouses and ‘marry’ others.

Normally I would not take time to offer canonical commentary on a minor theological article, especially one more than 40 years old but, because of how others are (mis?)using that article, some cautionary remarks on it, if it is flawed, must be made. And it is flawed.

I prescind from reviewing the article’s lengthy historical section (many passages of which are densely phrased and heavily nuanced) and will consider only the final assertions of the article. Now, in the “Conclusions” of a scholarly article one should expect to find an author’s fundamental views most directly and succinctly expressed. If those claims are sound, then one may surmise soundness in the arguments that lead up to them; but if those views are flawed, let alone if they are seriously flawed, one cannot but question the quality of the analysis that preceded them and challenge the appropriateness of invoking same in support of a major change in Church practice.

The first formal conclusion offered by the author of the 1972 article reads thus: The marriage of baptized persons is indissoluble. This is a clear and unambiguous directive of the faith of the Church of all centuries, a faith nourishing itself from the Scriptures. It is a categorical directive, that is not at the disposal of the Church, but is given to the Church to witness and to realize; it would be irresponsible to give the impression that anything on this point could be changed.

Please read that first sentence again: The marriage of baptized persons is indissoluble.

I regret to say it, but this statement is wrong; it lacks not one but two crucial qualifications needed to make it correct: namely, only consummated marriages wherein both parties are baptized persons are indissoluble (1983 CIC 1056, 1061, and 1142). Marriages of baptized persons to non-baptized persons are radically dissoluble as are non-consummated marriages even between two baptized persons. No canonist (or theologian with adequate training in canon law) has claimed otherwise for nearly a century, if not much, much longer.

The theologian’s misstatement on indissolubility is not a careless claim buried in a footnote; it is the central iteration of a major conclusion of his entire article. Moreover, the author repeatedly reinforces it with assertions that his claim represents a clear and unambiguous directive of the faith of the Church of all centuries [no, it’s not], that it is a categorical directive [no, it’s not] … not at the disposal of the Church [yes, it is], and that it would be irresponsible to give the impression that anything on this point could be changed [not necessarily, it depends on what one has in mind].

So what do we have? We have an outstanding theologian who ventured a claim about canonical discipline that, notwithstanding the centrality of that claim to his research and the vigor with which he proposes it, is seriously flawed. But if an error of this sort can be made in a passage that, perhaps before any other, should have been gotten right, with what degree of confidence can one rely on more complex claims offered in the article and respond to suggestions based on those claims? Given these flaws, this article should never have been fetched from the stacks and offered as some sort of special insight into today’s question of Communion for divorced-and-remarried Catholics.

But even beyond its intrinsic flaws, there is also an extrinsic reason for leaving aside this older scholarly article by a private theologian dealing with holy Communion for divorced-and-remarried Catholics; as it happens, the same author, more than 20 years later and then head of a major Roman dicastery, made an official statement on this very question.

In his Letter to the Bishops of the Catholic Church “Concerning the reception of holy Communion by divorced and remarried members of the faithful” (14 Sept 1994), the author of the 1972 article, now prefect of the Congregation for the Doctrine of the Faith, wrote “If the divorced are remarried civilly, they find themselves in a situation that objectively contravenes God’s law. Consequently, they cannot receive Holy Communion as long as this situation persists.”

Indeed, in many respects, the prefect’s 1994 statement seems almost a direct reply to the arguments made by the theologian back in 1972. For example, the narrow exceptions to this prohibition of Communion (e.g, a brother-sister relationship) made in 1972 are noted as narrow exceptions in 1994, but the theologian’s earlier negative comments about the annulment process (a process that underwent major modifications in 1983) are re-contextualized by the prefect’s acknowledgement of improvements in that process in 1994. Even the theologian’s earlier (admittedly tentative) appeal to the Fathers is turned down by the prefect writing some two decades later.

In sum, for both intrinsic and extrinsic reasons, I suggest that a theologian’s 1972 article misstating a key aspect of Church discipline on Catholic marriage, should be read (if at all) in light of a prefect’s letter in 1994 directly rejecting disciplinary proposals based at least in part on that article.

And not vice versa!

May I add a comment? I think it to be professionally regretted that a 40-year-old, speculative, theological, and as it happens scientifically-flawed article has been put forward in support of a fundamental change in Church’s canonical practice when the author of that original article cannot, as a practical matter, comment on his private views at present, and when the same author, twenty years ago and twenty years after he wrote his earlier article, expressly rejected the practices for which his views are being invoked today!

I think it poor form to use others’ and their works thus.

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