Love & Matrimony

I have gotten a lot of comments on my post from last week on courtship and dating that took issue with my statement that love was not necessary for the sacrament of marriage. I feel that I must clarify this position and address some criticisms of it.

When I say that love is not necessary for marriage, I emphatically do not mean that true love (charity) is not requisite to have a happy marriage, or a good home, or that it is not commanded by Christ, not only to our spouses, but for everyone. In fact, it is indeed commanded by St. Paul in the context of marriage ("Husbands, love your wives"-Eph. 5:25). So, I am definitely not downplaying the importance of love in a marriage.

But it is nevertheless true that sacramentally, love is not necessary to bring forth the sacrament of marriage, which is the point I was getting at. The sacrament of marriage can be brought about without love. All it that is required for the form and the matter is a Catholic man and a woman free of any impediments, public vows, and a witness of the Church. That is the nuts n' bolts of a sacramental marriage. So, while I agree that love is essential for the practical working out of a good marriage, I maintain that it is not necessary in the least way for bringing about the sacrament of matrimony. I don't think this needs any "proofs" but I will submit two.

First, if we look at annulments (and yes, we all know they are abused) we will see that an annulment regards impediments to marriage that were in place at the time the marriage was celebrated, so that though the couple thought they were getting married in good faith (i.e., putative marriage), they were in fact not getting married at all due to the presence of an impeding or diriment impediment. Now, if "lack of love" was essential either as matter or form to bring about the sacrament, then "lack of love" or "He didn't really love me" would be grounds for an annulment. Of course, even in our modern Church where annulments can be granted for a variety of reasons, lack of love is not one of them. This may be an element in the "psychological" reasons for an annulment, but this alone is not grounds for an annulment and never has been. Therefore, since lack of love cannot annul a marriage, we have to assume that love is not (strictly) necessary to bring the sacrament about.

Second, if love were requisite for the sacrament, none of the world's many politically arranged marriages throughout history would have been valid. Consider in the Middle Ages, where a monarch might bargain with another monarch and receive the other king's daughter in marriage. He would have never seen her, and even the marriage itself was contracted over long distance, via a proxy (an odd rite where the king would ceremonially lay down in bed with a minister of the other family to symbolize comsummating the marriage). The King would meet his new bride for the first time after they were already married legally and sacramentally and then would proceed to consummate the union with a woman who was practically a complete stranger. This was the norm for Christian marriage among the upper nobility in the Middle Ages and Early Modern Period, a type which everybody, including the popes, recognized as valid. For example. Pope Julius II regarded the marriage of Arthur Tudor to Catherine of Aragon as valid, though the two had never met and were married by proxy. If love were a strict requirement, the pope could not have done this.

There is, however a degree of fidelity or truthfulness that is required to bring about the sacrament. The vows have to be said in good faith, and the vows of course state that the man promises to love and care for the spouse. We must notice something: in the vows, the man swears that he will love his wife, not that he already does. And how is the love to be manifest in these vows? By what comes next: in swearing to take care of her, defend her, care for her in sickness and in the raising up of children, etc. In other words, this love is presumed not by the affection that the husband bears the bride, but by the practical things he promises to do on her behalf.

So long as the husband promises these things in good faith, the sacrament occurs. But let us not confuse the promising of the things with the things themselves. It is necessary that the hubsand and the wife vow to care for each other in love (which is seen in this sacrament as the practical supporting of each other's physical needs and the raising of children), but it is not necessary that they possess that love at the time of the ceremony. In fact, the marriage rite's conception of love is very different from the modern idea of love as an emotive affection ("romantic fondness"). Therefore, traditionally speaking, it is possible for the paradox to arise of a man loving his wife but not liking her, because his matrimonial love is manifest in the tending to practical and material needs.

Now, let me be frank about something historically: it was always seen as ideal and beneficial for the spouses to have true affective attachment to each other. That was seen as a given. You get married, go off with your spouse and learn to love and cherish them as time goes on. However, people who married "for love" were considered to be fools, ignorant of how their union would affect their later lives. If someone did have a marriage for love that worked out well, it was considered a happy (but rare) occurrence. Thus the sister of Henry VIII, Mary Tudor, when she married the Duke of Suffolk Charles Brandon for love, was considered rash and foolhardy, and Henry even considered prosecuting against her for marrying without his consent. But he later relented and Mary and Charles had a happy marriage - that is not unusual, but we must look at how it was perceived, and the people of the day perceived their union as extraordinarily fortuitous, for usually such unions "for love" wound up ruinous, as in Romeo and Juliet, for example. Obviously the play is not a true story, but it demonstrates how people thought: though romantic unions for love were passionate, enticing and sometimes envied, in the end (it was thought) they were bound to turn out poorly.

Therefore, yes, of course we want to have love in our marriages. I never insinuated otherwise. But however much we may want to exalt marital love, we are bound to admit that strictly speaking, it is not necessary to bring about the sacrament of matrimony.

Question on Custom

From a concerned blogger:

Boniface, sorry, but this question is a bit long and complicated: for at least twenty years in our parish, we have had a summer festival every year out in a parish-owned piece of property near the Church. As part of the festivities, the parish priest has always said an open-air Mass outdoors on the big day of the festival, with no major abuses except the ones common to the Novus Ordo. I always questioned whether or not we ought to be doing this (since the Church was close by and there was no pressing need to have a Mass outdoors except for novelty).

Anyhow, we recently got a new priest of a more conservative persuasion who cancelled the outdoor Mass and moved it into the Church. Many of the more liberal-minded persons of the parish were upset by this move, and a certain gentleman parishioner who claims to be an expert in canon law claims that the priest cannot lawfully move the Mass back to the Church because since the custom of observing the Mass outdoors has been done for over twenty years, it therefore has the force of law and cannot be altered by the priest.

Is it true that anything done for over twenty-years has the force of law? He showed me in the Code where it said this, but something still seemed fishy. Can you offer any clarification? (anonymous)

Thanks for the question. This is indeed a tricky point, but your suspicions are well-founded; this guy who claims to be a canon law expert is completely off. Fortunately, this situation is easy to resolve because the Code of 1917 and the Code of 1983 are in agreement on the matter, so there is no room for ambiguity.

First, your friend was probably referring to Canon 26 of the 83 Code, which says, "A custom...aquires the force of law only when it has been lawfully observed for a period of thirty continuous years." So, what does thirty continuous years mean? Well, Cicognani in his commentary on Canon Law writes that "the years must be in continuous succession; the years must not be interrupted, even by one contrary act, because continuous time according to Canon 35 [26 in the new Code] means a space of time which does not suffer any interruption. And the years must be completed, that is, completed in duration-not even one particle of time should be wanting" (pg. 652).

First, you will notice that the canon calls for thirty continuous years, not twenty. In your situation, this means that the priest, by canceling the custom and removing the Mass back to the parish Church, has already nullified the possibility of using the argument from thirty-continuous years, since even one contrary act nullifies the succession of years. Thus, if it takes thirty-years to establish custom with the force of law, and the priest alters the custom in the twenty-ninth year, in the following year you must start over from one, so that "not even one particle of time should be wanting."

But, I would say you do not even have to have recourse to this argument, because there is a more fundamental one that is against this gentleman's opinion. Canon 25 (26 in the 17 Code) reads: "No custom aquires the force of law unless it has been observed, with the intention of introducing a law, by a community capable of at least receiving a law." There are two elements here (1) intention of introducing a law, and (2) the only community who can introduce legally binding custom are those who are capable of receiving an ecclesiastical law.

Regarding the first point, the commentary footnotes of the 1983 Code says, "Custom must be observed with the intention of introducing a norm." Cicognani says of this same canon, "Moreover, the members of the community are to perform these acts with the intention of obligating themselves" (pg. 648). In otherwords, the custom of the outdoor Mass could only acquire the force of law if, from the beginning, it was being performed with the intention of establishing a binding custom, which it seems you'd be hard pressed to be able to prove.

Regarding the second point, that only those who are capable of receiving a law can establish a binding custom, it is clear that only a community who can receive a law is able to likewise bind themselves to a customary law. The commentary on the 83 Code is silent on who can receive a law, but Cicognani says of the same canon in the 17 Code: "The following communities are capable of receiving laws: an ecclesiastical province, a diocese, a body of clerics, the province of a religious Order, monasteries that are sui juris and convents of nuns also" (pg. 648). We must point out that parish churches, festival planning committees or parish councils are not listed. In fact, all of the above bodies are either religious orders or ordained clerics. Thus, this man is misapplying canon law in attributing the power to establish customary law to parish churches or festival planning committees.

There is one final reason why this gentleman is errant in his assertion that the parish is obligated to hold the festival Mass outdoors. Canon 24 of the 83 Code states that "No custom which is contrary to divine law can acquire the force of law." The corresponding canon in the 1917 Code (Canon 27:1) is much more explicit: "No custom can in any way derogate from the Divine Law, either natural or positive; nor does a custom prejudice an ecclesiastical law, unless it is a reasonable custom and lawfully prescribed..." Both Canon 27 of the old Code and 24 of the new Code speak about the reasonableness of the custom, and though the 1983 Code speaks only of custom being unable to contravene Divine Law, it points out in the footnote that this includes "ecclesiastical discipline" as well. So, is it against divine law (either natural or positive) or ecclesiastical discipline to hold an outdoor Mass in a field within walking distance from a parish Church?

The answer is yes. Canon 932 of the 1983 Code states: "The eucharistic celebration is to be carried out in a sacred place, unless in a particular case neccesity requires otherwise; in which case, the celebration must be in a fitting place." In case anyone has any qualms about what constitutes a "sacred place," Canons 1205 and 1210 clearly define them as "those which are assigned to divine worship" and where "only those things are permitted which serve to exercise or promote worship, piety and religion." Clearly a field adjacent to the parish does not qualify as a sacred space, and the 1983 Code seems to envision nothing other than a church, oratory or private chapel by the phrase "sacred space."

So, unless there is "particular necessity," a Mass must be said in a consecrated Church (a consecrated cemetary is also permitted, provided there is a suitable place for the Sacrifice). Now, we must ask ourselves, is there necessity in having the Mass outdoors against the order of Canon 932? The answer must be no, for three reasons: (1) There is no emergency; it appeared to be done just for "novelty," as the anonymous questioner pointed out (2) The parish Church was very close-by, making it pointless to needlessly have a Mass in a field when it could easily be done in the Church (3) The fact that the new priest did in fact move the Mass to the Church proves that it is reasonable and feasible to have the Mass in the Church building and that doing an outdoor Mass is uneccesary in this case. Therefore, Canon 932 remains in force. Cicognani says that the introduction of custom "cannot arise from error or ignorance" (pg. 648); in this case, it seems that both error and ignorance were the source of this dubious custom of celebrating Mass out in the field.

It is a long-winded answer, but I can summarize it in a few short points:

1) Mass cannot be celebrated in the field with good reason because it violates Canon 932, which requires Mass to be said in a consecrated Church unless there is particular necessity, which it has been proven that there is not.

2) Even so, a parish-body is not a competent legal entity to establish legally binding custom because it is not capable of receiving a law (Canon 25); furthermore, there was no demonstrable intent of the parish to bind itself to this custom.

3) Even so, thirty-continuous years have not been observed, the parish priest having interrupted the succession the past year (Canon 26).

I hope this helps. As is the case with many other things, Canon Law becomes very tricky when people attempt to take individual canons out of context and without reference to canonical tradition.

On Epiky

This weekend in my spare time I was browsing through an old commentary on the 1917 Code of Canon Law by an Archbishop Giovanni Cicognani, Professor of Canon Law in the Pontifical Institute of Canon and Civil Law at St. Apollinare's in Rome, published 1935. By the way, in case you entertained any uncertainty as to how much of a dork I really am, knowing that I read commentaries on Canon Law during the weekend should take the last bit of doubt away. This is a truly massive tome, at least 800 pages. It was formerly used as a first year textbook for those beginning their seminary education and was the required reading for a class called "Introductions," which was a one semester course that attempted to cram the concepts of Canon Law, the history of the sources of Canon Law, a commentary on the 1917 Code and some supplementary info on natural, eternal and positive law into a single class. The stamp in this book says it was from Duns Scotus College in Detroit (opened 1930, closed in 1979). By the way, that is the actual book in the picture to the left.

I know they still offer Canon Law classes today in seminary, but I doubt they are as thorough as what is covered in this one introductory book for beginners. It is amazing the amount of scholarship and erudition we have lost; it reminds me of Aquinas' comment that the Summa is meant to be "instruction for beginners." There are so many great points in the one chapter that I read that it would be burdensome to enumerate even half of them; but I can say that if our priests and bishops had the type of formation in Law (of all types) that the author of this work seems to attempt to inculcate in his students, many subsequent problems regarding obedience and proper interpretation of documents would have become moot. Let me give you two examples.

Interesting to me from a Traditionalist standpoint was the section on custom. Cicognani starts with the premise that established custom is in fact a form of law and gives it the name Consuedtudinary Law (from the Latin word consuetudinarium, which is best interpreted as "customary). He does not just state that it is a supplement to written law (positive law), but says that it has the force of law itself. In other words, it is equal with positive law, but just of another type.

But he goes further and states that the origin of all positive law is originally from custom; positive laws are simply customs written down and legistlated upon. "There were no human laws in the beginning of human life, for mankind was ruled by manners and customs" (p. 639). Based on this reality, he says that it is false to take the positon that customs/traditions are merely supplementary to written laws. On the contrary, it is written laws which appear as supplements to custom. Written laws are handmaids to custom, constructed and called upon only when custom is ambiguous or ill-fitted for a certain question at hand. But through most of human civilization, customary law has been the norm and crux of all legal systems.

Now, Catholic Canon Law is an outgrowth of Roman customary law. Speaking now of ecclesiastical Canon Law (in the context of custom), the great canonist Gratian (c. 1150) says in the Decretals, "Custom is that certain law established by usages in observance for a long time, which is accepted as law where there is no law" (c. 5, D. I). This later became part of the 1917 Code in Canon 29, "Custom is the best interpreter of the law" (consuetudo est optima legum interpres) and was retained in Canon 27 of the 1983 Code. This reality is what Traditionalists have tried to get through to conservatives for a long time regarding such issues that were mandated by the 1917 Code but not mentioned in the 83' one (e.g., the law commanding women to wear veils in Church, mandated in canon 1262.2 of the 1917 Code but not mentioned in the 83 Code). When no law is in place, as Gratian says, "where there is no law," then custom is to be looked to. But in what capacity is it to be looked to? As guidance? As a suggestion? No; as Gratian says, it is to be "accepeted as law where there is no law." This is even taught in the 1983 Code of Canon Law in Canon 21: "In a case of doubt, the revocation of a pre-existing law is not presumed, but later laws must be related to the earlier ones and, insofar as possible, must be harmonized with them." Custom has the force of law.

The second issue which I found fascinating was the notion of epiky. I confess, before I picked up this work, I had never so much as heard of this word, but Cicognani treats of it in the introduction to the book as a fundamental principle of Canon Law. Epiky comes from the Greek epieikeia and translates literally as equity. But in Canon Law, it means much more than that. Cicognani defines it thus:

A human lawgiver is never able to foresee all the individual cases to which law will be applied. Consequently, a law, though just in general, may, taken literally, lead in some unforseen cases to results which agree neither with the intent or the lawgiver nor with natrual justice, but rather contravene them. In such cases the law must be expounded not according to its wording but according to the intent of the lawgiver and the general principles of natural justice. Law in the strict sense is, therefore, positive law in its literal interpretation; equity, on the contrary, consists of the principles of natural justice so far as they are used to explain or correct a positive human law if this is not in harmony with the former. Epiky is therefore defined: The benign application of the law according to what is good and equitable, which decides that the lawgiver does not intend that, because of exceptional circumstances, some particular case be included under his general law (p. 15).

I know that is a lot to swallow, but essentially he is saying this: it is possible to misapply or misinterpret human laws and decrees for a variety of reasons; or, we can discover that what seemed like a good idea in general turns out to be unworkable when the law is applied to the nitty-gritty scenarios of everyday life. In such situations where the outcome of enforcing the law actually runs counter to natural justice, we are to interpret and enforce the law in keeping with the intent of the lawgiver, even if this means neglecting or contravening the actual wording of the law. As St. Thomas says of such cases, "In such cases judgment should be delivered not according to the letter of the law, but according to the equity which the lawgiver has in view" (STh, II-II, q. LX, 5).

Let's apply this to the current situation in the Church. We have a bunch of documents and decrees from the Conciliar and post-Conciliar period that, in the least, suffer from a degree of ambiguity both in their original promulgation and in their subsequent implementation. Such ambiguity ("timebombs" as Davies calls them) have led to interpretations and implementations of the law that are not only not as good as they could be but are actually destructive to faith, morality and justice. Now, what are we to do? Let's apply the two principles we have enumerated regarding epiky and customary law.

Knowing that positive law is a supplement to custom, we ought to first look to the custom of the Church. An example is Pope Leo XIII's using of custom and precedent to render his judgment on Anglican orders in 1896. Custom, found in all of the words of the popes, councils, fathers and saints, but more importantly in their actions and judgments, tells us how the Church has always acted in such cases and thus gives us an intepretive principle for how she ought to act now. But what if the customary solution runs contrary to the law now in force? Well, if the inplementation of such a law is unjust or leading to the destruction of faith, then the principle of epiky comes in to play. Even if we must ignore the letter of the law, we interpret the law in the spirit of the lawgiver.

Here you probably cringe when I say to intepret something in the "spirit" of a lawgiver. But, I did not say in the spirit of a majority consensus of liberal periti; no, I said the spirit (i.e., intent) of the lawgiver. The lawgiver is the Church, promulgating law as a juridical person. So, when we apply epiky, we temper the letter of the law with the intent of the Church, whose universal mission is to save souls. This mission of the Church is referred to in Cicognani's books as the Supreme Law. In brief, if some law is prohibiting the Church from fully exercising her mission to proclaim the truth and save souls (e.g., a prohibition against kneeling in a certain diocese), then to hell with the letter of the law. Even though the law may say one thing, those who act more in accord with justice are actually the ones keeping the higher law, while those insisting on an unhealthy application of the law are guilty of contravening the higher law.

Now, this is a very coarse paraphrasing of Cicognani's statements, and I certainly do not mean them to be taken in the sense that we can simply be disobedient if we don't like the rules in place. It has nothing to do with liking or disliking, but rather of justice. As the author points out, there are times when laws are found to be harmful when applied. Abraham Lincoln had a famous quote that said "The best way to get an unjust law overturned is to enforce it strictly." Epiky tells us how we are to react to such a law; custom what to do in the case when there is no law.

This is a wonderfully interesting subject and very pertinent to today's Church. If the princes of our Church were thoroughly grounded in these concepts, I don't think they could have so easily chucked out our long and venerable traditions in favor of the illusive phantom-utopia church envisioned by the liberal prophets of the 1960's.

It was kind of difficult, but I found a copy of Archbishop Cicognani's book for sale for $12.00 on Biblio. It is a great find and I heartily recommend it. Click here for it.