Consensual Incapacity to Marry

by Catherine Godfrey-Howell, Raymond Leo Cardinal Burke (Foreword by)

Overview

The anthropology that supports marriage perceives justice to be a particular reality, and for this reason marriage will always be a subject of law and of great interest to jurists and sociologists alike. With respect to the realization of justice in marriage, understood as the moment the bond is created, Catholic ecclesiology and canon law articulate an original legal category––namely, the consensual incapacity to marry.  In the last fifty years, however, and despite the juridical innovations provided by the current Code of Canon Law promulgated in 1983, American canonical practice in the sphere of marriage law has lost its foundation. The consequences of this include mechanisms of judgment that are rendered incoherent although not inactive, particularly in local tribunals reviewing claims of marriage nullity. In other words, the application of law in the Catholic Church moves forward without a clear indication of its anthropological basis. Canon law, then, on the issue of marriage is perceived to be purposefully oppressive or absolutely meaningless.

 Jurists, scholars, and members of the Roman Curia acknowledge that, more than a general response to this crisis of law and marriage, what might be needed most is greater scrutiny of the canon in which the formula for consensual incapacity appears. It is furthermore acknowledged that American canonical practice is perhaps the most influential in the world, and is responsible for shaping and sustaining the global attention given to this issue. To fully grasp the crisis and the best way forward, a profile of this canon in American jurisprudence is fundamental and demanded presently. The new course charted by canonical studies and formation of jurists, as well as the new developments in ecclesiastical legislation, will find guidance in this study provided by Catherine Godfrey-Howell, and further insight in the foreword given by the American Cardinal prelate and former Prefect of the Apostolic Signatura, Raymond Leo Cardinal Burke.

Product Details

ISBN-13:	9781587311352
Publisher:	St. Augustine's Press
Publication date:	07/20/2020
Sold by:	Barnes & Noble
Format:	eBook
Pages:	442
File size:	957 KB

Table of Contents

Contents Acknowledgements Abbreviations Foreword by Raymond Leo Cardinal Burke Introduction Amentia and Insanity Jurisprudence and Discretion of Judgment American Jurisprudence and Due Discretion Jurisprudence In Iure Templates for “Lack of Due Discretion” The Critical Faculty Jurisprudence In Iure Templates for “Lack of Due Discretion” that Cite the Critical Faculty 2. The Pontifical Commission for the Revision of the Code of Canon Law (PCRCCL), the Canon Law Society of American (CLSA) and Consensual Incapacity Canon 1095, 1º Canon 1095, 2º Canon 1095, 3º The Canon Law Society of America and the Juridical Relevance of the Second Vatican Council The American Procedural Norms (APN) and the CIC-83 Schema Anglo-American Common Law as Renewed Canon Law The Endorsement of Communitarian Political Theory Vatican Council II and the Consortium Vitae Interpersonality of the Bond Relative Incapacity Chapter Two: Consensual Incapacity to Marry and the Code of Canon Law 1. Consent Elimination of the Ius in Corpus and the Elimination of Conjugality as Object of Consent Juridical Relevance of Pastoral Language Subjects as Objects of Consent: Shifts in Canonical Theory Consent and the Psychic Process: Integrity of Function or Integrity of Choice? Subject as Object: Consent Is Contingent but Not Creative Community of Life and Love and Personality The Nature of the Bond and the Person: Properties and Ends of Marriage and the Foundations for the Moral Approach A First Look at the “Good of Spouses” as an Essential Property of Marriage Marriage in Canon Law and New Natural Law Theory Consensual Incapacity: A Designation of Moral Disposition? Triumph of Person over Contract, over Conjugality Consensual Incapacity and the Command of “Due Discretion” Proliferation of Terminology and Loss of Categorical Distinction 2. Lack of Discretion of Judgment Discretionis Iudicii (Canon 1095, 2º) Discretion for Value Subjectivity in the Creation of the Marriage Bond and Relative Incapacity Relation of Discretion of Judgment to Lack of Sufficient Reason and Inability to Assume Essential Obligations of Marriage Lack of Due Discretion and Immaturity Immaturity and Clinical Labels Given to Judgment Pathology Basic Definitions of Lack of Discretion of Judgment in Scholarship Internal Freedom of the Will 3. Inability to Assume the Essential Obligations of Marriage Consensual Incapacity, the Psycho-Sexual Anomaly and the Intimacy Shift Basic Definitions of the Incapacity to Assume Obligations in Scholarship The Essential Obligations Incompetency and the Bonum Coniugum The Bonum Coniugum is the New Content of the Ius Connubii Chapter Three: Consensual Incapacity to Marry and Psychology Christian Anthropology and Social Psychology 1. Relative Incapacity and the Archdiocese of New York (1970) 2. Canonical Reliance on Scientific Approaches for Clarity: Archdiocese of Chicago (1982–1984) 3. The Grisso Competency Model—Marital Capacity (2000) 1. Higgins (1967) 2. Bauer (1981) 3. Hannon (1989) 4. Guiry (1988, 1991) Christian Anthropology and the Command of Psychological Insight Conclusion 3.1.a. Archdiocese of Chicago Questions for the Tribunal Expert 3.1.b. Archdiocese of Chicago Excerpt of In Iure Template Used Prior to the CIC-83 3.2.a. The Survey of Relative Incapacity for Marriage 3.3.a. “Generalized List of Expected Functional Abilities for Capacity/Competency to Successfully Create a Marital Covenant” 3.4.a. Personality Disorders in DSM-II and DSM-V Bibliography