The Nullity Crisis in Light of Canonical Tradition, Part II

...continued from Part I

A Hermeneutic of Continuity?

One may argue that the present author’s interpretation of the phrase “grave defect of discretion of judgment” is not the only possible way of viewing it, and this is certainly true: as Raymond Cardinal Burke opined: “…the lack of discretion of judgment is simply a more purely juridical term for insanity” [4]. Thus, he concludes that there is no novelty introduced by this new term provided that it is interpreted in light of canonical tradition, and he laments the fact that its definition was not properly established early on [5]. While interpreting the law in light of tradition is laudable, particularly in this day and age, this “hermeneutic of continuity”—the same concept that modern conservatives fallaciously apply to the Second Vatican Council [6]—is not sufficient to resolve the nullity crisis.

John Paul II, the pope responsible for the promulgation of the 1983 Code, was cognizant of the fact that many modern declarations of nullity were granted dubiously, and he even drew a connection between this situation and a general disdain for canonical tradition. Addressing the Roman Rota in 1993, he criticizes this attitude and restates the necessity of reading the new law in light of the old:

…in interpreting the present Code one cannot hypothesize about a break with the past, as if in 1983 there had been a leap into a totally new reality. In fact, the legislator positively recognizes and unambiguously asserts the continuity of canonical tradition, particularly where his canons refer to the old law (cf. Code of Canon Law, c. 6 §2) [7].

However, John Paul II ultimately overlooks the fundamental problem, which is that this is not simply a matter of bad interpretation, but of bad laws. No one is hypothesizing about a break with the past; the simple fact is that with the 1983 Code came new definitions of marriage and matrimonial consent. Surely, part of the blame for the current nullity crisis falls upon canonists and judges who abuse canons 1095 and 1098, but the primary blame can only belong to legislator, who himself created a break with tradition while simultaneously denying it by putting the onus upon others:

…the constant concern of the interpreter and of the one applying canon law must be to understand the words used by the legislator in accord with the meaning that long-standing tradition attributes to them in the Church’s juridical system, using well-established doctrine and jurisprudence [8].

Nothing in this passage is incorrect as a matter of principle, but it simply cannot be properly applied to many canons of the 1983 Code, because even after having followed a proper interpretation in accord with “well-established doctrine and jurisprudence” (as Cardinal Burke and other conservatives surely do), many problems still remain. There is no kind of interpretation that can ever change the fact that canons 1055 §1 and 1057 §2 simply contain theological and factual inaccuracies to begin with. As for the newly-worded grounds of nullity, particularly the one based on the “grave defect of discretion of judgment”, why is it that the majority of canonists and judges will “misinterpret” or “misapply” them?

More fundamentally, what is the source of this disregard for tradition that permeates canonical jurisprudence in the post-conciliar era? While efforts can and should be directed toward providing better formation, there can be no question that the “hermeneutic of rupture” is contained within the 1983 Code itself. In fact, this is not really a question of hermeneutics at all, as canon 6 itself causes a radical break with the past. Just as the hermeneutic of continuity is insufficient to resolve the problems posed by the new theology of the Second Vatican Council, no alternative methodology can fully resolve the problems posed by the new jurisprudence which has accompanied it since 1983.

The proper view of canonical tradition is exemplified by canon 6 of the 1917 Code, which declares that for the most part, the Code preserves the discipline previously in force while making some opportune changes. Even laws that are only partly consistent with the old laws must be assessed in light of tradition (3°), and laws that are implicitly contained in the Code are still considered to remain in force (6°). Despite its own faults, the 1917 Code was a remarkable achievement, succinctly codifying the corpus of canon law while paying due respect to canonical tradition.

In contrast to this approach, canon 6 of the 1983 Code seeks innovation and begins by listing the categories of laws that are abrogated. No matter how much of the old law was re-legislated, the attitude presented—that of wiping the slate clean—was a distinct break with the past. This predisposes the entire Code to be interpreted in accordance with the hermeneutic of rupture whenever terms are found to be vague or ill-defined, and it is not wayward legal scholars, lawyers, or judges who established this hermeneutic, but the law itself. The blame shifts from the interpreters of canon law to the one wrote it and built these flaws into the system to begin with. In light of this, canon 6 §2, which mentions “canonical tradition”, is only a rather poor attempt at damage control.

Therefore, it is quite ironic that John Paul II laments that with regard to marriage law, there has been an “attempt at a none-too-well defined humanization of canon law”, and that “there is frequently an intention to endorse its excessive relativization” [9]. These observations are accurate, but the reason why marriage law has been subverted is that he himself redefined marriage and reversed its two ends. The relationship that results from the marriage contract has now entered into the object of matrimonial consent itself, making it easy to equate an unhappy marriage with an invalid one—and this is the primary driving force behind the outlandish number of declarations of nullity granted each year.

When there has been this kind of substantial change, the legislator cannot blame others for allegedly hypothesizing about a break with tradition; objectively speaking, this rupture simply exists. The nullity crisis cannot be solved simply by demanding that the law be properly interpreted and strictly followed, if it is the law itself which is defective and enabling these de facto divorces. Ultimately, the solution lies in a return to the fontes of canon law and a restoration of respect for canonical tradition, so that there may be renewal in true continuity with the past, which will bring the Church out of this desolate winter and usher in a new springtime, bearing with it an abundant harvest of fruits.

[4] Raymond L. Burke, “Lack of Discretion of Judgment: Canonical Doctrine and Legislation.” The Jurist, 45 (1985), 181. [5] Ibid., 185. [6] [7] John Paul II, Address of His Holiness John Paul II to the Tribunal of the Roman Rota (29 January 1993), 5. [8] Ibid. [9] Ibid., 6.