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On the Sacramentality of Marriage: the Divergence of Canon Law and Theology and the Inability to Maintain the Presumption of Facere Quod Facit Ecclesia

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On the Sacramentality of Marriage: the Divergence of Canon Law and Theology and the Inability to Maintain the Presumption of Facere Quod Facit Ecclesia ON THE SACRAMENTALITY OF MARRIAGE: THE DIVERGENCE OF CANON LAW AND THEOLOGY AND THE INABILITY TO MAINTAIN THE PRESUMPTION OF FACERE QUOD FACIT ECCLESIA by GLEN JOSEPH POTHIER submitted in accordance with the requirements for the degree of DOCTOR OF THEOLOGY in the subject SYSTEMATIC THEOLOGY at the UNIVERSITY OF SOUTH AFRICA PROMOTER: PROFESSOR E VAN NIEKERK JOINT-PROMOTER: PROFESSOR S SIPUKA NOVEMBER 2008 I declare that On the Sacramentality of Marriage: The Divergence of Canon Law and Theology and the Inability to Maintain the Presumption of Facere Quod Facit Ecclesia is my own work and that all sources I have used or quoted have been indicated by means of complete references. Signed _______________________ Glen Joseph Pothier 35117974 ii Table of Contents Declaration of Authorship........................................................................................ ii Abstract.........................................................................................................................1 Introduction .................................................................................................................3 Preliminary considerations of the Canon Law of Marriage in light of the teaching of the Church ...............................................................................................9 Chapter 1 1.1 Statement of the problem...................................................................................12 1.2 Nature of sacramental dignity (c. 1055, §2).....................................................14 1.3 Secular vs. the sacred: covenant/partnership ................................................16 Chapter 2 2. Sacramentality of marriage..................................................................................25 2.1 Canonical considerations...................................................................................25 2.1.1 Development of c. 1055 ...................................................................................25 2.1.2 Historical – From Decretales of Gregory IX to through CIC/17 ..................29 2.1.2.1 Inseparability of contract and sacrament for the baptized........................29 2.1.2.2 Roman Law Perspectives on Marriage ......................................................36 2.1.2.3 Ex opere operato [by the ‘work worked’] as sacramental ‘automaticism’ ...........................................................................................................40 2.1.2.4 Expansion of Tridentine term ‘marriage’ to ‘marriages contracted between the baptized’ (Gasparri) ...........................................................................46 2.1.2.5 Ius Vigens – CIC/83 ........................................................................................50 2.1.2.6 Non-inclusion vs. exclusion ........................................................................52 2.1.2.7 Nature of Simulation ....................................................................................53 2.2 Theological Considerations ...............................................................................54 iii 2.2.1 Biblical – overview of Scriptural traditions..................................................54 2.2.2 Patristic ..............................................................................................................62 2.2.2.1 Ante-Nicene – Basil, Gregory of Nanzianzen, John Chrysostom ..........62 2.2.2.2 Basil .................................................................................................................62 2.2.2.3 Gregory of Nanzianen..................................................................................63 2.2.2.4 Chrysostom....................................................................................................63 2.2.3 Post-Nicene – Augustine and Ambrose........................................................66 2.2.3.1 Ambrose of Milan (338-397) ........................................................................66 2.2.3.2 Augustine of Hippo (354-430).....................................................................68 2.3 Scholastic ..............................................................................................................75 2.3.1 Aquinas’ officium communitatis .......................................................................75 2.3.2 Tridentine theology as explanation of Church policy and not of marriage itself.............................................................................................................................78 2.3.3 Developments in pre-conciliar Papal and Rotal Jurisprudence................81 2.3.4 Second Vatican Council and the Personalist Dimension ...........................82 2.3.5 Post-Second Vatican Council: International Theological Commission and Familiaris Consortio ....................................................................................................86 Chapter 3 3. Developments........................................................................................................94 3.1 Definition of sacrament constricts......................................................................94 3.2 Paradigm shifts....................................................................................................94 3.2.1 The (un)changing nature of divine law and historical/literal critical methods ......................................................................................................................94 3.2.2 Aristotelian philosophy as once valid frame of reference for scholastic philosophy and theology .......................................................................................100 3.2.3 Radical Sanation (Sanatio in radice) ..............................................................113 3.3 Gradation/progression of sacramental marriage ........................................115 3.3.1 1980 Synod of Bishops...................................................................................115 iv 3.3.2 Gradation in Diocese of Autun, France ......................................................122 3.4 Betrothal as a precursor to sacramental marriage and moving beyond ‘living together’ .......................................................................................................124 3.4.1 Betrothal – Engagement ................................................................................124 3.4.2 Betrothal in the CIC/83 ..................................................................................126 3.4.3 Current trends in Betrothal...........................................................................127 3.5 Ministers and Recipients..................................................................................130 3.5.1 Intention Receives Significance in Light of Faith ......................................131 3.5.2 A Human Act..................................................................................................133 3.5.3 Regarding the Role of Faith..............................................................................135 3.5.4 The Object of Consent ...................................................................................136 3.6 Identification of baptized unbelievers ...........................................................139 3.7 Praxis of the Roman Rota.................................................................................141 Chapter 4 4.1 Inability to maintain the presumption facere quod facit Ecclesia ..................145 4.2 Proving the Intention against Sacramentality...............................................149 4.2.1 The Framework of Traditional Proofs.........................................................149 4.2.2 Proving Positive Exclusion in the Baptized Non-Believer.......................151 4.3 Surveys ...............................................................................................................155 4.3.1 The CARA Survey ...........................................................................................156 4.3.1.1 Principle areas of interest...........................................................................156 4.3.1.2 Analysis of CARA Survey data ..................................................................156 4.3.1.2.1 Familiarity with Catholic Teaching on Marriage .......................................156 4.3.1.2.2 Marriage between two baptized persons is a sacrament .............................157 4.3.1.2.3 Marriage between a Catholic and a non-Christian is a sacrament .............157 4.3.1.2.4 Influences on One’s View of Marriage .......................................................158 4.3.1.2.5 Distinctiveness of Marriage in the Catholic Church ..................................158 v 4.3.1.2.5.1 Sacramental nature of marriage in the Catholic Church .........................159 4.3.1.2.5.2 The presence of God at the wedding and in the marriage ........................159 4.3.1.2.5.3 A stronger, long-lasting commitment between spouses ..........................159 4.3.1.2.5.4 Limitations on divorce and remarriage ....................................................160 4.3.1.2.5.5 More rules and regulations ......................................................................160 4.3.1.2.5.6 There are no distinguishing characteristics .............................................161 4.3.1.2.5.7 Less common theses among other responses ............................................161 4.3.1.2.6 Marriage is whatever two people want it to be ...........................................161
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