The Application of Aequitas Et Epikeia to the Divorced and Remarried
The Current Legislation
In the Pio-Benedictine Code, the legislation on the faithful who find themselves in an objective situation of habitual grave sin, canon 855, required that those unworthy because a censure of excommunication, interdict or the vindictive penalty of manifest infamy had been imposed on them were to be turned away from Eucharistic Communion unless they had repented and repaired the scandal; a norm was also given allowing Communion to be administered to those who publicly asked for it and could not be turned away without causing scandal among the other faithful who were receiving it. Thus, the canon's attention was directed primarily to the ratio scandali, the grounds of scandal; besides, the case of the divorced and remarried was very uncommon at the time.
The revision of the canon just mentioned underwent successive drafts, simplifying the previous text and limiting its scope: "Those who have committed a grave public offence and manifestly persevere in their bad will are not to be admitted to Holy Communion". To the observation that the norm had been mitigated compared with that of the Pio-Benedictine Code, since the motive of scandal was not considered, it was replied that the text was sufficient, despite its conciseness, because it took into consideration the gravity of the act, its public nature and the bad will of the faithful; it was also pointed out that certainly the norm itself also concerns the divorced and remarried: thus, even though the text does not say so explicitly, the intention of the revisers was clear.
This alleged lacuna in the proposed canon was filled by Pope John Paul II in the Apostolic Exhortation Familiaris consortio (n. 84 d) of 22 November 1981, with an explicit application to the divorced and remarried: "However, the Church reaffirms her practice, which is based on Sacred Scripture, of not admitting to Eucharistic Communion divorced persons who have remarried". He gave the following reasons: "They are unable to be admitted thereto from the fact that their state and condition of life objectively contradict that union of love between Christ and the Church which is signified and effected by the Eucharist. Besides this, there is another special pastoral reason: if these people were admitted to the Eucharist, the faithful would be led into error and confusion regarding the Church's teaching about the indissolubility of marriage". The reasons given in the Apostolic Exhortation first of all emphasize the gravity of the provision of not admitting the divorced and remarried to the Eucharist. The first reason is actually based on the denial of the essential properties of natural marriage: unity and indissolubility; in Christian marriage these properties obtain a special firmness in virtue of the sacrament. For this reason the analogy between Christian marriage and the indissoluble union between Christ and the Church is cited. It is thus a question of a natural law belonging to the primordial institution of marriage, which was brought to perfection by Christ Jesus (cf. Mt 5:17). The second reason is the ratio scandali, which could lead the faithful into confusion and doubt about the faith; the Church has always considered this reason to be unusually serious, to the point of promulgating in the Code of Canon Law a general law which punishes the grave violation of a divine or canonical law in order to prevent or repair scandal (can. 1399). It should be noted that the imposition of an ecclesiastical penalty always requires the grave imputability of the offender's action by reason of malice or culpability (can. 1321, §1).
The general principle in the Apostolic Exhortation quoted above is followed by what could be called an exceptional principle: "Reconciliation in the sacrament of Penance, which would open the way to the Eucharist, can only be granted to those who, repenting of having broken the sign of the Covenant and of fidelity to Christ, are sincerely ready to undertake a way of life that is no longer in contradiction to the indissolubility of marriage. This means, in practice, that when, for serious reasons, such as for example the children's upbringing, a man and a woman cannot satisfy the obligation to separate, they 'take on themselves the duty to live in complete continence, that is, by abstinence from the acts proper to married couples'" (n. 84e). If in a certain way this exceptional principle goes beyond the first, fundamental reason for the general principle, it still does not seem to be able to eliminate completely the ratio scandali, since life in common would continue despite the termination of sexual relations. This principle already contains an obvious application of canonical equity.
The current legislation of 1983, contained in canon 915 of the Code of Canon Law, clearly expresses the prohibition: not only are the faithful upon whom the canonical censure of excommunication or interdiction has been judicially imposed or declared not to be admitted to Holy Communion, but also other faithful who obstinately persist in manifest grave sin. That the divorced and remarried are included in the category of manifest grave sin, was affirmed by Pope John Paul II in the Post-Synodal Apostolic Exhortation Reconciliatio et Paenitentia (n. 34bc) of 2 December 1984, when he said: "...the Church can only invite her children who find themselves in these painful situations to approach the divine mercy by other ways, not however through the sacraments of Penance and the Eucharist, until such time as they have attained the required dispositions. On this matter, which also deeply torments our pastoral hearts, it seemed my precise duty to say clear words in the Apostolic Exhortation Familiaris consortio, as regards the case of the divorced and remarried, and likewise the case of Christians living together in an irregular union".
The Catechism of the Catholic Church repeats the teaching of the Apostolic Exhortation Familiaris consortio, stating: "If the divorced are remarried civilly, they find themselves in a situation that objectively contravenes God's law. Consequently, they cannot receive Eucharistic Communion as long as this situation persists. For the same reason, they cannot exercise certain ecclesial responsibilities. Reconciliation through the sacrament of Penance can be granted only to those who have repented for having violated the sign of the Covenant and of fidelity to Christ, and who are committed to living in complete continence" (n. 1650).
On the basis of the documents cited, we can legitimately conclude that the expression "obstinate perseverantes" ("who obstinately persist") in canon 915 of the Code of Canon Law refers primarily to the bad will of the divorced faithful who have remarried against the law of God and the Church; but also to the simple will of the divorced faithful who, although repenting of the grave sin they committed by attempting civil marriage, continue to live together more uxorio, even if the situation no longer appears "obstinate" but merely "necessary".
From what has just been said, we can conclude that the Letter of the Congregation for the Doctrine of the Faith Annus Internationalis Familiae (n. 6a), of 14 September 1994, is only reaffirming the Church's constant teaching: "Members of the faithful who live together as husband and wife with persons other than their legitimate spouses may not receive Holy Communion".
Some have asked, then, whether the principles of equity and epikeia can be applied to the question of admitting the divorced and remarried to Eucharistic Communion. They say that according to the Church's traditional doctrine the general norm must always be applied to particular persons and the concrete situation, without thereby negating the norm. For this reason the Church's traditional doctrine has developed "epikeia", while ecclesial discipline has done the same with the principle of "aequitas canonica". It would not be a question, then, of negating the current law and the norm, which remains valid, but only of their application in difficult and complex situations according to "justice and equity", so that justice can be rendered to the exceptional case of different individuals.
Aequitas canonica is not one of the suppletory sources for lacunae in the law, mentioned in canon 19 of the Code of Canon Law, but indicates the way that the general principles of law should be applied in supplying for these lacunae. The adjective canonica adds a special characteristic to equity, making it part of the Church's legal system to the point that it effectively becomes an intrinsic quality of ecclesiastical law itself; for this reason, the adjective canonica is joined to the term aequitas. With this in mind, authors study canonical equity not only in commenting on canon 19, with reference to the analogia iuris as a way to supply for a lacuna in the law, but precisely in the general introduction to the discussion of canon law as such. Archbishop Mario F. Pompedda, former Dean of the Roman Rota, says: "...equity, in the specifically canonical sense, forms a whole, a single entity with the Church's legal system, that is, it is not only suited to it but functions from within it as a factor essentially included and operative in it". And he adds: "In fact, in the Church's law equity is described as aequitas canonica, where the adjective defines a constant: i.e., the originality of the institute compared to what is found in other legal systems" (M. F. Pompedda, "L'equita nell'ordinamento canonico", in Studi sul Primo Libro del "Codex Iuris Canon id", edited by Sandro Gherro, Padua 1993, p. 7). In a different sense, however, equity is understood as a benign application of the law by public authority, that is, "the rigour of the law tempered by the sweetness of mercy". The source of this latter definition is found in Cardinal Hostiensis, Henry of Susa (+ 1271): "aequitas est iustitia dulcore misericordiae temperata" (Henrici Cardinalis Hostiensis Summa Aurea, lib. V, tom. De dispensationibus, n. 1, Lyons 1556, p. 430vb).
Two significant addresses of Pope Paul VI to the Prelate Auditors of the Roman Rota are fundamental for considering equity in its twofold aspect as a characteristic of canon law and as a quality belonging to the application of the law. The first is his address on 29 January 1970, in which he explained the particular need for going more deeply into equity, especially in the ministry of the ecclesiastical judge (AAS 62 , pp. 112-118); in the second, given on 8 February 1973 and cited in the fonts at canon 19, he describes equity as "a sublime ideal and a precious rule of conduct". In this address he goes on to quote a passage from the third principle for the revision of the Code of Canon Law: "In the revision the Code should concern itself not only with justice but with a wise equity which is the fruit of benignity and charity, to the exercise of which virtues the Code should aim to arouse the discretion and the knowledge of pastors and judges" (Communicationes 1 , p. 79). After presenting the pastoral nature of law in the Church, Paul VI quotes Hostiensis' definition of equity and praises its value, saying: "Equity represents one of the highest aspirations of mankind. If social life makes the laying down of human laws necessary, nevertheless their guidelines, inevitably general and abstract, cannot foresee the concrete circumstances in which the law, will be applied. Faced with this problem, canon law has sought to amend, rectify and even correct the rigor iuris: and this is brought about through equity, which thus turns these human aspirations in the direction of a higher kind of justice". Lastly, Paul VI defines the scope of equity: "In canon law aequitas, which Christian tradition inherited from Roman jurisprudence, represents the quality of its laws, the norm for their application, an attitude of mind and heart that tempers the rigour of the law" (AAS 65 , pp. 95-96,99).
Speaking to the same Prelate Auditors of the Roman Rota on 18 January 1990 about the pastoral nature of Church law with respect to equity, Pope John Paul II called attention to "a mistaken idea — an understandable one, perhaps, but not thereby less harmful.... This distortion lies in attributing pastoral importance and intent only to those aspects of moderation and humanness in the law which can be linked immediately with aequitas canonica: that is, holding that only the exceptions to the law, the potential non-recourse to canonical sanctions and proceedings, and the streamlining of judicial formalities have any real pastoral relevance. One thus forgets that justice and law in the strict sense ... are required in the Church for the good of souls and are thus intrinsically pastoral". And he added: "In the Church, true justice, enlivened by love and tempered by equity, always merits the descriptive adjective 'pastoral'. There can be no exercise of authentic pastoral love which does not first take account of pastoral justice" (AAS 82 , pp. 873-874).
To resolve the problem raised above, we ask whether equity can be applied to the general norm of not admitting the divorced and remarried to Eucharistic Communion, in virtue of canon 915 and in conformity with all the other ecclesial documents cited, including the Letter of the Congregation for the Doctrine of the Faith on 14 September 1994.
The answer is no, since there can be no correction of the rigor iuris with a law that does not depend constitutively on the authority of the Church but belongs to the natural law. The grounds for the prohibition are not based on a merely human law, even if it does belong to the Church's law, but on a divine law, i.e., that of the unity and indissolubility of the marital bond, both natural and, with even greater firmness, as a sacrament of the Church, according to what is stated in canon 1056: "The essential properties of marriage are unity and indissolubility, which in Christian marriage obtain a special firmness in virtue of the sacrament". That the divorced and remarried deserve mercy is absolutely in keeping with God's goodness and the Church's pastoral concern; but it is equally true that they continue to be "in manifesto gravi peccato obstinate perseverantes", those "who obstinately persist in manifest grave sin". The only corrective that would admit them to Eucharistic Communion is the situation described in the Apostolic Exhortation Familiaris consortio cited above.
In the Directory on the Pastoral Care of the Family for the Church in Italy (n. 220), the Italian Episcopal Conference puts it simply: "Only when the divorced and remarried are no longer such can they be readmitted to the sacraments. Therefore, it is necessary that, after having repented of violating the sign of the Covenant and of fidelity to Christ, they be sincerely disposed to a form of life that is no longer in contradiction with the indissolubility of marriage or with physical separation and, if possible, with a resumption of the first marital cohabitation, or with the commitment to a type of cohabitation that envisages abstention from the acts proper to married couples.... In this case they can receive sacramental absolution and Eucharistic Communion in a church where they are not known, in order to avoid scandal". This approach deals with the ratio scandal!, one of the reasons for non-admission.
It should be noted then, on the basis of the text just quoted, that it is a question not so much of applying canonical equity to the provision of canon 915, as of the impossibility of applying it to canon 1056, of which canon 915 is the consequence. Canon 1056 expresses a law belonging to the natural law, confirmed by the divine positive law; therefore, by its very nature this law has no possibility of its so-called rigour being lessened, as would happen precisely with the application of equity.
The conclusion given for the application of equity is the same for the application of epikeia to canon 915 and to the consequent non-admission of the divorced and remarried to Eucharistic Communion.
Epikeia can be described as "a subjective norm of conscience, which, by its own private judgement, considers itself excused from observance of the law in particularly difficult cases and circumstances that would make observance extremely burdensome" (L. Chiappetta, Prontuario di diritto canonico e concordatario, s.v. "Epikeia", Rome 1994, p. 523). Another author explains in detail: "The principle of epikeia is very important and should not be regarded as a loophole for someone who does not want to observe the law, or as a correction of the law's rigour, as though it were the intrusion of an extralegal principle. The principle of epikeia, in fact, is not only a moral principle but also a fully juridical one: by it we determine that the law in question does not oblige in a particular case. Since the law is universal in its formulation and thus obligatory in all normal circumstances, and since it cannot provide for special individual cases, the lawgiver himself foresees that if there is a difficulty in applying the law, the obligation is not compelling. Therefore, whenever it is morally certain that, if the lawgiver knew the particular case in which the circumstances hinder the application of the law, he would dispense from it, and since it is impossible for the dispensation to be sought, this principle can be applied" (G. Ghirlanda, Il diritto nella Chiesa mistero di comunione, n. 601, 2nd ed„ Cinisello Balsamo [Milano] 1993, pp. 447-448).
In the past, aequitas was so closely associated with epikeia that the two concepts came to be identified. It was defined by Aristotle, and later by St Thomas in his comment on the text, as a correction of the law when its application in a given case proves unjust because the law is universal (cf. Summa Theologiae, IIa-IIae, q. 120, a. 1, in corpore). Among later theologians it came to mean in general a certain benign interpretation of the law in cases where the latter would become more harmful than reasonable (A. Vanhoye, S.J., De legibus ecclesiasticis [=Commentarium Lovaniense in Codicem Iuris Canonici, vol. I, tom. II], nn. 267-295, Mechelen-Rome 1930, pp. 275-304; O. Bucci, "Per una storia dell'equita", in Apollinaris 63 , pp. 257-317, with an almost exhaustive bibliography).
Since the locus of epikeia is the person's conscience, its application is possible only with the positive laws of human societies, whether civil law or canon law; it is not possible with those laid down by a higher authority on the basis of human nature and revelation. I quote a notable author such as Vermeersch: "In the natural law there is no place for so-called epikeia, since the foundation of this law is right reason, when it forbids something intrinsically illicit and establishes indispensable ordinances for human beings, even in particular cases" (A. Vermeersch, S.J., Theologiae moralis principia, responsa, consilia, tom. I, Theologia fundamentalis, n. 200, 2nd ed„ Paris-Rome 1926, p. 195). Another author explains at length: "In human laws, since the lawgiver cannot foresee all the attendant circumstances of an individual case, it can happen that a law is deficient in that particular case, i.e., that instead of being just and useful, it is in fact useless or even unjust. In that case, one can reasonably presume by epikeia that, if the lawgiver could have foreseen every case, he would not have wanted in that case to oblige the subject to observe the law. But none of this can happen with the natural law, which, being based on human nature itself and originating in God, the supreme and wisest lawgiver, cannot be deficient in itself; nor could there possibly be a particular case which was not foreseen by the all-knowing lawgiver" (L. J. Fanfani, O.P., Manuale theorico-practicum theologiae moralis ad mentem D. Thomae, tom. I, Pars fundamentalis, n. 122, Rome 1950, pp. 197-198). I will conclude with a passage from A. Gunthor: "Epikeia is hardly conceivable for those natural moral norms which are obviously and essentially connected with the highest values of being human. In fact, since in whatever situation man finds himself he still remains a man, and the most important directives of the natural law guide him precisely to the human control of situations, it is inconceivable that these norms could be disregarded at a given moment" (A. Gunthor, Chiamata e risposta. Una nuova teologia morale, I, Morale generale, n. 374, Alba [Cuneo] 1974, p. 377).
Furthermore, marriage has an intrinsically public character: it is a societal fact by its nature, as Archbishop Pompedda has superbly shown in one of his articles. Consequently, a subjective judgement about the nullity of one's marriage cannot subjectively determine a public action, such as receiving Eucharistic Communion, on the basis of the provisions and reasons given in the Apostolic Exhortation Familiaris consortio. As for judging the nullity of one's marriage with absolute moral certitude, we must remember the ancient axiom: "nemo iudex in causa sua", "no one is a judge in his own case"; the consultation itself of an expert in the matter, who could confirm this certitude — and absolute certitude could prove very difficult —, must not overlook canon 1060, which says: "Marriage enjoys the favour of law; consequently, when a doubt exists the validity of a marriage is to be upheld until the contrary is proven": and that in the external forum (cf. M. F. Pompedda, "Canonical Problems" in L'Osservatore Romano English edition, 7 December 1994, p. 6).
In conclusion, the principle of epikeia cannot be applied to the norm of canon 915 regarding the non-admission of the divorced and remarried to Eucharistic Communion, particularly because of its basis in the natural law, confirmed by divine positive law, which justifies this prohibition and also includes the ratio scandal!. John Paul II said in his address to the Roman Rota on 10 February 1995: "An action deviating from the objective norm or law is thus morally reprehensible and must be considered as such: while it is true that man must act in conformity with the judgement of his own conscience, it is equally true that the judgement of conscience cannot claim to establish the law; it can only recognize it and make it its own" (AAS 87 , p. 1017).
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