Christ among the Doctors of the Law



Tuesday, December 15, 2009

Omnium in mentum: two important changes in the Code

Of the two changes to the 1983 Code announced today in ap. lit. Omnium in mentem, the second (that dealing with the obligation of canonical form for marriage) may be explained quickly.

Ever since the 1983 Code, chiefly in Canon 1117, exempted Catholics from the requirement of observing canonical form if they had "formally defected" from the Church, there have been high-level grumblings against the admittedly novel provision, along the lines of, why should Catholics get to pick and choose which canon laws they want to follow and which ones they don't (as if that were a fair way to describe the situation).

Overlooked in most such complaints, though, was the fact that, by exempting Catholics from having to observe form if they had left the Church before marrying outside of it, Canon 1117 made it more difficult for those renegade Catholics to later walk away from marriages they had entered with people, Protestants and others, who often enough had married them in good faith.

After years of canonical debate,
a strained (in my opinion) interpretation of what constituted "formal defection" came down in 2006 which very narrowly defined what would count as the formal defection sufficient to exempt one from observing canonical form. But the ensuing debate* for and against that interpretation (itself a novel one) is now moot: all Catholics are bound by canonical form in marrying, period. The number of null marriages out there will go up.

Personally, I thought that Canon 1117 was a step (albeit an imperfect one) basically in the right direction, and I considered the narrow constraints on formal defection laid down in 2006 to be impractical, but today's decision revoking the exemption in toto, while unquestionably within the authority of the Church to pronounce (c. 841), makes it imperative, I think, to ask a deeper question: does the requirement of canonical form still serve the best interest of the Church, or is it a solution that has outlived the problem that occasioned it (historically, clandestine marriages)?

I'll only say, strong arguments can be raised for and against the continued requirement of form, and I caution anyone from concluding either way on the issue until one is familiar with the literature.

Now, about the first change announced today, that dealing with the description of deacons under canon law (cc. 1108-1109), it is really interesting, obviously, and I need time to study it. The language here obviously does not seem to underscore the unity that permeates the three level of holy orders, but (per Abp. Francesco Coccopalmerio of the Text Council) it is more consistent with the language of CCC 1581, as it was revised in 1998. In any case, I'll certainly be consulting the auctores probati on this one.

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* For a fine overview of the debate by an author who defended the intepretation, see J. Huels, "Defection from the Catholic Church by a formal act and the Circular Letter of 13 March 2006", Studia Canonica 41 (2007) 515-549.