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A Question of Interpretation: The Roman Rota and the Theology of Marriage

Published online by Cambridge University Press:  31 July 2008

Aidan McGrath Ofm
Aidan McGrath Ofm
Affiliation:
Research Fellow, Centre for Law and Religion, Cardiff University Judicial Vicar, Dublin Regional Marriage Tribunal Professor Invitatus, Pontifical Gregorian University, Rome
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Judges need guidance if they are to apply the law in particular circumstances with an even hand. For Roman Catholics, Canon 19 of the 1983 Code of Canon Law provides this guidance by reference to the practice of the Roman Curia and by the constant opinion of learned authors. Useful as these supplementary sources are, they mean that judges have to trust that those responsible for making decisions in the Roman Curia and the learned authors have drawn their conclusions on a sound basis. This study considers what happened when a specific document was misunderstood in the Roman Catholic Church for almost four hundred years. The document, a letter from Pope Sixtus V to his Nuncio in Spain in 1587, responded to a specific query concerning the capacity for marriage of men who had been castrated. The interpretation of the letter defined the Roman Catholic Church's concept of marriage in general and its understanding of the impediment of impotence for four centuries. In the twentieth century, several Roman Catholic judges and canonists refused to take at face value the conclusions offered by other judges and learned authors, and decided to carry out their own analysis of the document in question. This resulted in a complete reversal of the way in which marriage cases were considered by the Apostolic Tribunal of the Roman Rota, and contributed to the emergence of a much richer and more integrated theology of marriage.

Type
Articles
Information
Ecclesiastical Law Journal , Volume 8 , Issue 39 , July 2006 , pp. 425 - 437
Copyright
Copyright © Ecclesiastical Law Society 2006

References

1 Canon 19 states: ‘If on a particular matter there is not an express provision of either universal or particular law, nor a custom, then, provided it is not a penal matter, the question is to be decided by taking into account laws enacted in similar matters, the general principles of law observed with canonical equity, the jurisprudence and practice of the Roman Curia, and the common and constant opinion of learned authors’.Google Scholar

2 In Roman Catholic Canon Law, the term ‘jurisprudence’ refers to the understanding of law based on actual judicial decisions.Google Scholar

3 This point was stressed before the promulgation of the 1983 Code in a Rotal decision before Egan, 9 December 1982: Apostolici Rotae Romanae Tribunalis Decisiones, vol LXXIV, pp 612–618.Google Scholar

4 Pope John Paul II, Address to the Roman Rota, 30 January 1986, in Woestmann, W (ed) Papal Allocutions to the Roman Rota 1939–2002, (Saint Paul University Ottawa, 2002), p 190.Google Scholar

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8 Details of the correspondence and contemporary comments by theologians and canonists are found in McGrath, A, A Controversy Concerning Male Impotence (Editrice Pontificia Università Gregoriana, 1988), pp 14–15.Google Scholar

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14 Ibid 56–57.

15 Eg Decision before Sabattani, 10 April 1959, Monitor Ecclesiasticus 84 (1959), pp 616–634.Google Scholar

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27 The text of the Decree is as follows: ‘The Sacred Congregation for the Doctrine of the Faith has always held that persons who have undergone vasectomy and other persons in similar conditions must not be prohibited from marriage because there is no certain proof of impotency on their part. And now, having examined that practice, and after repeated studies carried out by this Sacred Congregation, as well as by the Commission for the Revision of the Code of Canon Law, the Fathers of this Sacred Congregation, in the plenary assembly held on Wednesday, 1 lth May, 1977, decided that the questions proposed to them must be answered as follows: 1. whether the impotence which invalidates marriage consists in the incapacity to complete conjugal intercourse which is antecedent and perpetual, either absolute or relative? 2. inasmuch as the reply is affirmative, whether for conjugal intercourse the ejaculation of semen elaborated in the testicles, is necessarily required? To the first question: in the affirmative; to the second question in the negative. And in the Audience granted to the undersigned Prefect of this Sacred Congregation on Friday, the 13th day of the said month and year, the Supreme Pontiff, Paul VI, approved the above decree and ordered that it be published. Given at Rome from the offices of the Sacred Congregation for the Doctrine of the Faith, 13th May 1977: Acta Apostolicae Sedis 69 (1977), p 426.Google ScholarThe English translation is a modified version of that found in Canon Law Digest, vol 8. pp 676–677.Google Scholar

28 Details of the variety of views on the Decree are to be found in McGrath, A, A Controversy Concerning Male Impotence, pp 264–273.Google Scholar

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34 Decision before Serrano, 27 January 1986, Apostolici Rotae Romanae Tribunalis Decisiones, vol LXXVIII, p 62.Google Scholar