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Law and repentance - John Charmley - 27-04-2010 12:16 PM

Dear Bothers and Sisters in Christ,

An enquiry about marriage and Canon Law has prompted an interesting discussion in another part of the Forum. It has got me thinking about something which is, in truth, at least as old as our Faith, and which St. Paul himself had occasion to write about - namely the apparent tension between Law and the freedom of His forgiveness.

We know that the Corinthians got a little confused on this one, but in this instance it is perhaps a narrower aspect of this more general question which attracts attention.

Is this scenario impossible within the BOC? (It is one from real life, but in another Apostolic Church). A person wishes to be received into the Church. They are married to a non-Orthodox person. This person is actually their second spouse. The first marriage, many years ago, was dissolved in civil law, the divorced person subsequently re married. In the case I have in mind, the person was told by a priest that they could not receive communion because of their status as a divorced person in what their Church considered an irregular marriage, which meant that they could not be received into the Church.

The person concered suffered considerable distress, not least since they had become convinced that salvation demanded their entry into this particular Church. In the end a 'loophole' was found and they were received.

But the whole thing made me think, as does the post from Eira in the 'Question' section. of how Our Lord would have dealt with repentatn sinners? The successors of the Apostles inherit the power to bind and loose, which they seem to devolve to canon lawyers.

Now one can argue, as many would, that all this is has it has long been, rules is rules and all of that; but how far does that accord with repentance and renewal? One might, of course, wish to say that being divorced and remarried is such a sin that it debars one from the Church, although there might be individual circumstances which would allow some amelioration of the general rule - but if that is what is thought, ought it not to be said outright?

It prompted the more general thought of how well canon law is suited to dealing with pluralistic Western societies? It seems to presuppose a situation in which most people will be Christian and in that particular Church; if one starts from erroneous suppositions, one seldom gets to where one wishes to be. Smile

In Christ,

John


- Antony-Paul - 27-04-2010 01:17 PM

Dear John,

I am certainly not a canon lawyer, and my thoughts are thus very much those of the layman.

This thread has raised the important question: 'What would Jesus have done?' I am minded of His approach to the Pharisees, when He clearly deprecates the highly legalistic attitude that had developed in Judaism. He evidently does not feel that complex laws in vast numbers is the way to go. He seems to say that the simple philosophy of love, untrammelled by numerous, almost trifling, laws, is the right approach. During His public ministry He hardly ever speaks in terms of legal details, which would probably be unhelpful for many of the lay-people of the time. We should, presumably, rely much more on the guidance of the Holy Ghost in our decision-making.

It is only natural that the Church would develop some basic rules to guide us. God did the same thing with Moses, but His ten rules were essentially simple, as, no doubt, were those of the early Church. But I wonder if the Church has done what the Jews did, much to His annoyance, and gone too far with the legalistic, nit-picking, attitude over time.

Perhaps the last person to ask would be a canon lawyer, who after all has every reason to justify his work. It must be difficult to achieve an objective view in such matters. Maybe the modern concept of KISS - keep it simple, stupid - might be worth consideration.


- John Charmley - 27-04-2010 01:28 PM

Dear Antony-Paul,

Instinctively I am with your line of thought, although I understand the other point of view.

Here, Our Lord's dealings with the woman taken in adultery seem highly relevant.

To prove adultery in Jewish law was difficult; either confession or being caught in flagrante were necessary. In St. John's Gospel we have the latter. The penalty of the law was quite clear - she should be stoned to death.

This, of course, is why the Pharisees presented it to the Lord. He'd being going round preaching forgveness, so either He had to do that here - and be called a law-breaker; or He had to do what the Law of Moses demanded, in which case where was all that forgiveness stuff then?

Of course, being the Lord, He found God's way. When no one there was without sin and therefore able to condemn, neither did He. But He didn't just say, 'Have a nice day', He told her, as He tells us, to sin no more.

We are called to repentance - and forgiveness.

In Christ,

John


law and repentance - kirk yacoub - 07-05-2010 10:16 AM

Regarding marriages, in the Roman Catholic Church, full of laws as you can imagine, there is no divorce, but there is annulment if one of the partners behaved in an irregular way - cruelty, adultery etc. Therefore, another marriage is allowed. If the marriage partners are married before one or both apratners are in the Church, and there has yet to be Church annulment of a previous marriage, then that couple must live in celibacy until the matter is decided by a Church Tribunal.... Uff!
Little wonder that Christ said, "I do not condemn you, go and sin no more!" It is simpler and says so much. The choice is always: do we want to live according to God's Law or our short-term wants.

Kirk Yacoub


- John Charmley - 08-05-2010 01:45 PM

Dear Kirk,

Yes, go an sin no more is the watch-word. We might notice that the injunction relates to the future, not the past. Our Lord did not say to her that her previous sin cut her off from communion with Him, neither did He do what the Pharisees expected Him to do, which was to apply the Mosaic Law to her.

But, of course, Our Lord was not running an institution, so one might say that whereas He could dispense with a rule-book, His Church needs one. One might, however, add that Our Lord's words should provide the spirit which should infuse such rules.

In Christ,

John


- Fr Gregory - 09-05-2010 05:41 AM

Kirk wrote: “Regarding marriages, in the Roman Catholic Church, full of laws as you can imagine, there is no divorce, but there is annulment if one of the partners behaved in an irregular way - cruelty, adultery etc. Therefore, another marriage is allowed. If the marriage partners are married before one or both partners are in the Church, and there has yet to be Church annulment of a previous marriage, then that couple must live in celibacy until the matter is decided by a Church Tribunal.... Uff!”

This is not correct. “Divorce” (in Orthodox and Roman Canon Law and in civil law) is the dissolution of a marriage – so there must be a marriage to start with. Rome does not allow the dissolution of a marriage except for two obscure grounds, known as the Petrine and Pauline privileges. It does not allow dissolution on the grounds of adultery (although the Lord taught that this was a ground), cruelty, desertion or anything else.

“Annulment” is not the dissolution of a marriage. It is (again in Orthodox and Roman Canon Law and in civil law) a declaration that no marriage ever existed. Annulment cannot be declared on the grounds of cruelty or adultery. It can only be declared if and when some fundamental flaw is found in the purported marriage from the beginning (for example: one partner was already married, the marriage was induced by coercion or fraud, one partner was under the lawful age for marriage, the partners were related in a prohibited degree). The Roman tribunals look at the evidence and if they determine that there was no marriage, a declaration of nullity is given. Both partners are then usually free to marry (not re-marry, since they had never previously been married).

These matters are dealt with by Canons 1055-1165 of “The Code of Canon Law” (1983). A good basic introduction to this very complex subject is Eileen Stuart “Dissolution and Annulment of Marriage by the Catholic Church” The Federation Press, Sydney, 1994.

Unlike Rome, the Orthodox Churches (both Eastern and Oriental) provide for both declarations of nullity and for the dissolution of marriage (that is, divorce).

Fr Gregory


- John Charmley - 09-05-2010 11:32 AM

That's a very helpful clarification, Fr. Gregory.

The problem of adapting the teachings of the Lord to the circumstances we sinners manage contrive for ourselves is present in every age, and it is perhaps optimistic to expect Canon Law to keep up.

Every broken marriage, even those which it may suit Rome to regard as never having taken place validly, is a personal tragedy. In a society where spiritual formation by any Church is often absent, to expect consciences formed by secular mores to act in a way they might have had they been formed by the Church is not only over optimistic, it may well be self-defeating.

The Church is a Church full of sinners, and it reaches out to other sinners. At some point its Canon Law needs to be attuned to these circumstances. Drawn up at a time when it was expected that consciences were formed by the teaching of the Church, canon law seems, at least on this issue, to sit uneasily alongside a situation where the Churches have signally failed in that part of their mission.

We are not, in any meaningful sense of the words, a Christian society, and in our dealings with those who, almost miraculously, find their way to the Church, we need to recall Our Lord's willingness to forgive, and also His injunction to sin no more.

In Christ,

John


law and repentance - kirk yacoub - 13-05-2010 08:24 AM

Dear father Gregory,
My remarks regarding annulment and divorce in the Roman Catholic Church are more or less verbatim as given to my wife and myself by the Roman Catholic Church Tribunal regarding such matters.

Kirk Yacoub


- Fr Gregory - 16-05-2010 03:15 AM

Dear Kirk

The confusion may have arisen because a distinction was not clearly made between canonical separation, declaration of nullity and divorce (or dissolution of marriage).

If a couple has been married, Roman Catholic Canon Law has no provision for the dissolution of their marriage (that is, the granting of a divorce) with the obscure exceptions of the Pauline and Petrine Privileges. These Privileges have nothing whatsoever to do with the behaviour of the parties (e.g. adultery, cruelty).

If married parties wish to live separately and apart, Roman Catholic Canon Law expects that they will have canonical reasons for doing so, because Canon 1151 requires that a married couple has the duty “to preserve conjugal living unless a legitimate cause excuses them.”

Canons 1152-3 identify legitimate causes for canonical separation (including adultery and cruelty). A separated couple remains married; their marriage has neither been declared null nor has it been dissolved.

If one of both or the parties wishes to marry another person, he or she would have to obtain a declaration of nullity (which is not a divorce) from the relevant Church authorities. This is a declaration that there is not and had not ever been a marriage, regardless of whether the parties went through a rite of marriage in the Roman Catholic Church. It is not a divorce nor the dissolution of a marriage. It is the acceptance that there were fundamental flaws in the supposed marriage rendering it invalid from the beginning.

Canons 1083-1094 prescribes those “diriment impediments” the existence of which means that parties purportedly undergoing a marriage are not in fact married. Adultery or domestic violence are not diriment impediments; nothing that occurred after the act of marriage invalidates the marriage. Where any such impediments (e.g. lack of consent, fraud, coercion) existed, no marriage has ever existed, and one or both parties may apply to the Church Tribunal for a declaration of nullity (commonly, but incorrectly, called “an annulment”). The Church does not “annul” or “dissolve” the marriage: it declares that no marriage has ever existed, therefore this is not a divorce.

Fr Gregory


- John Charmley - 16-05-2010 07:28 AM

Thanks for the clarification, Fr. Gregory. There is a wonderfully logical legalism at work in the thinking behind such rules. On the one hand it sticks with Our Lord's teaching; on the other it provides a 'loophole' (as one priest put it to me). The difficulty, from what I observe and hear is that the loophole is operated by canon lawyers and lay assistants which effectiovely means that the petitioner is in an ecclesiastical version of a postcode lottery; some dioceses are notoriously liberal, others are not, and I know of at least one case where a priest has recommended another diocese to a petitioner.

The irony is that the RCC regards as sacramental marriages in a Church (the C of E) whose orders it does not recognise. :o

peace,

John


- Fr Gregory - 16-05-2010 09:41 PM

Yes, Tribunals around the world and even within individual countries vary dramatically in their harshness or generosity. Pope Benedict has recently issued warnings regarding Tribunals not conforming strictly to the requirements of Canon Law, and Pope John Paul II had done the same. There is special concern about the USA which produces 75% of all declarations of nullity each year.

There have been some cases in which a local declaration of nullity has been overturned by Rome. A case that attracted media coverage in the USA was that of Congressman Joe Kennedy whose marriage to Sheila Rauch Kennedy was declared a nullity by the Boston Tribunal in 1996. She wrote a book, “Shattered Faith”, denouncing what she saw as corruption in the annulment process. Joe Kennedy had “remarried” in 1991 (but not in a Roman Catholic Church). The Roman Rota (effectively a court of appeal) reversed the decision of the Boston Tribunal in 2005, but did not inform Sheila Rauch Kennedy until 2007. This means that Joe Kennedy (in the eyes of the Church) remains married to Sheila Rauch Kennedy and not to the woman he says is his “second wife”.

The issue of Anglican Orders, although often raised by Anglicans, is irrelevant. A significant difference between Roman Catholicism and Orthodoxy is that the former recognizes marriages solemnized by non-Catholic clergy or by lay celebrants. In sacramental terms, for Rome the ministers of the Sacrament of Marriage are the couple themselves, not the Priest. He is present only as a witness and for the purpose of blessing the marriage. Roman Canon Law provides for the contraction of a valid marriage without the assistance of a Priest (e.g. Canon 1112.1) and civil or non-Catholic marriages would be generally recognised in the case of non-Catholics.

For Orthodoxy, the minister of the Sacrament of Marriage is the Priest without whom no sacramental Marriage can occur (allowing for some rare exceptions under the principle of Economy).

So, Orthodox Canon Law is to some degree simpler than Roman Catholic Canon Law in this regard. If the marriage was not of two baptised Orthodox Christians and celebrated by a Priest, no marriage exists in Orthodox Canon Law. Roman Tribunals have to investigate complex aspects of non-Catholic and civil marriages, and of details of any form of Baptism received by non-Catholic parties.

Fr Gregory


- John Charmley - 17-05-2010 06:10 AM

That, dear Fr. Gregory, brings great clarity - your students are fortunate in your gift for cutting through the complexities to the heart of the matter.

peace,

John


- Fr Gregory - 17-05-2010 06:50 AM

Some of those posting in both the questions and the general discussion sections are obviously frustrated by problems arising from Canon Law! I cannot but share some of that frustration.....but, as a canon lawyer, I also feel a need to offer some explanation (albeit not an apology).

Canon lawyers and ecclesiastical judges (like Priests and Bishops) can only interpret and apply the law as it exists. They cannot change the law. As I have said in a previous posting, in Orthodoxy there are two approaches to the interpretation of Canon Law which might be thought of as the strict (akrivea) and the generous (economia); the former is more legalistic, the latter more pastoral. But even in the more generous interpretation, the law itself cannot be changed.

There are parallels in civil law. In some cases a judge may be able to be more compassionate and take individual circumstances into account, or even to not apply the law if he or she is allowed to take “special circumstances” into account. But, if the law is strictly written (for example, “If a person does X the consequence is Y”) the judge may consider the consequence in the particular case to be unfair, unjust or even wrong, but he or she has no power to not apply the law as it is written.

I teach in a University School of Law, and when I ask my students to define the purpose of the courts they usually say “justice”. I have to disillusion them: the purpose of courts is the interpretation and application of the law, regardless of justice!

I also sit as a member of a federal appellate tribunal which hears appeals in social security law matters. I am often presented with cases that reveal terrible human suffering, hardship and distress – people whose pensions have been cancelled, or who have been denied support when they suffer from severe disabilities, or who are being required to pay back significant debts because they made mistake when filling in a form (I recently heard an appeal from an old age pensioner being pursued for a debt of more than $90,000.00). But I have to apply the law as it is written.

So – let me offer a case (from civil not canon law) and seek your comments on how it should be decided! An elderly and sick man wanted to apply for a social security benefit and the law required that his claim had to be lodged by a specific date. Ten days before that date he set out, with his completed claim form, to go to the local social security office. On the way there he suffered a stroke, was rushed to hospital and remained in a coma and on life-support for two weeks. Thereafter, he was extremely sick and in hospital for a month. When he (more or less) recovered, he asked his wife to take the claim form to the social security office, with medical certificates and letters from the hospital and his doctors explaining his circumstances. His claim was refused - he was more than a month out of time. No-one questioned his story, it was just that the law said his claim must have been lodged on a specific day, and it wasn’t.

He appealed, and I heard his case. He and his wife were now in serious financial difficulties because they were not receiving the social security benefit.

Tell me, what would you (sitting in my place) have decided? If you really want to know, I’ll tell you what I decided......and what was the legally correct decision!

Fr Gregory


- Fr Simon - 17-05-2010 09:21 AM

Dear Fr Gregory,

I cannot tell you what I, sitting in your place, would have decided for I do not trust myself - for example, I might have been afraid of the consequences - but I can tell you what I like to think I would have decided, what I hope I would have decided. I hope I would have decided in favour of the man's appeal. Maybe that might have not been the exact legally defined position but then I guess I would have to argue that the law was meant to cover certain situations or abuses and that the man's circumstances were in keeping with the spirit of the law and its intent if not its exact technical wording. I have no idea how, if at all in the slightest, there would be any justification for that argument but I still hope that's what I would have done.

I think I am grasping at or struggling vaguely towards some connection with the spirit of the law rather than the letter of the law?

In the recent British General Election we had the fiasco of people being denied their democratic right to vote because some polling stations had insufficient voting papers and at others people queued from 8.30 in the evening and were still queuing when the polling station doors were shut at 10pm. One polling station was kept open to allow people to vote and I heard talk of the Polling Station officer being prosecuted for breaking the law (though thankfully that seems to have been quietly dropped - at least I hope so - for all I know it could be quietly being pursued). I would have had no problem with a police constable being stood at the end of the queue at 10pm to allow no-one else to join as they would be trying to join after the official closing time but I would have wanted everyone who had queued (and in the pouring rain) whether for a couple of minutes or for 90 minutes to vote. Would I have been illegal in so doing? Undoubteldy. Would I care? Not in the slightest.

Am I saying that all these laws can simply be ignored whenever it suits us? No, I am not, I have it in mind that it has long been taught by many that even bad government and law is better than anarchy and chaos. So how I do judge? I have no neat and easy and tidy answers.

So in relationship to Church canons how do I apply them? Well I am certainly not to flaunt them and ignore them just because it suits me or makes me feel better. They are there to help me get it right, to help me do the best for the greatest number of people - but so is economy there for this also. I hope I will never be found to have deliberately just flaunted any canon - and especially not just because it made me feel good. But if I am to get it wrong and if I am to be judged or condemned then I would rather be judged and condemned for showing too much charity rather than too little. But even of this I do not make any absolute rule and certainly not for anyone else and bear in mind that much charity lies behind many canons and they are not just abitrarilly there to make life difficult and those who created these canons no doubt had many insights and much wisdom I don't have. I am no canon lawyer just a pastor trying to shepherd those few people God has called me to.

Lord Jesus Christ, Son of God, have mercy on us.


- Antony-Paul - 17-05-2010 09:41 AM

Dear Father Gregory,

What a splendid example.

My thoughts, as one who has no canon law training, begin with the question: What would Jesus do?

I feel you are quite brave to place yourself in a situation where there is an obvious potential for conflict between the civil law and your Christian compassion.

In this case I think I would take the matter further, with a view to bringing about first, a sensible resolution of this particular case (which I regard as allowing the claim), and second to highlight to the legislators the weakness of laws framed in such a way. I assume that there is a higher court to which this can be referred, not to get you off the hook for the decision, but to achieve the sensible outcomes.

I wonder if there is a parallel here with the notion of alibi? If you have an alibi it is regarded by the court as demonstrating that you could not have been involved in the matter. Surely the medical condition of this claimant amounts to pretty much the same thing?

It seems to me that civil law is there to serve the people and provide a framework for societal behaviour, not to impose unnecessary restriction when matters are beyond the control of the individual. Canon law is perhaps a little different, (and I am sure you will correct me) in that we are dealing with God's law, which begins with love and compassion, and He would surely permit this man to claim under such circumstances.