- Torfs
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1. What do we understand by freedom of religion - what level of purity is associated with it? It could mean freedom from coersion. In the religion sphere it can mean belief, celebration and expression, which is more than absence of coersion. In US this includes non-establishment from 1) historical reasons, 2) no religious majority, 3) friendly separation, 4) low level of welfare state. More strict separation means fewer tools to manage religion.
Freedom of Religion and Equality. What is equality? Deal equally with equals and unequaly with unequals. New religions can be 1) ignored, 2) upgraded, or downgrade the established religions. Support based on acceptance of democracy and rule of law. Or based on statistics or historical presence (also to resurrect an historically important church, or correcting mistakes of the past). Talking to religious leaders as representatives of the people may not be realistic.
Does content of religion matter? Rowan Williams speech, give religious freedom to religions to regulate themselves and their members. We are less relativist that previously.
Non religious significance of religion - religiously motivated violence. If you forbid headscarves, then you don't know about the religious convictions of people, you push it underground.
- problems of a definition of religion: older religions look more religious, majority seems religious. Anyone can define a religion goes too far, perhaps a legal paradigm could be helpful, developed by trial and error - case law.
Problem - ME and Africa are above replacement population growth and europe is below. On the other hand, the GDP is higher in Europe and lower in ME and Africa. Also Muslims are centered in ME and Africa. Hence population displacement. France 8% muslim, most of europe is 3-4%. Also movement from East Europe and Latin America to West Europe, but they don't involve religious differences.
Why is there a probelm, muslims aren't the majority of immigrants, but they perceived problem comes from the historical conflict of islam and christianity, september 11 and the war on terro, and the religious and cultural differences (hard to separate). The problem will worsen because of economic crisis in Europe.
Consequences - is Islam an exceptional case, are they capable of accepting 1) democracy, 2) gender equity, 3) a secular state. If so, do they require a particular legal regulation, different from that of other immigrants.
Methodological approach. De-ideologize the problem. Don't start with ideology: is islam violent, fostering terror? Look for a pragmatic approach, flexible, - no geographic uniformity necessary, experiments in different places.
Catalogue of problems: Building of mosques; spaces and times of prayers in workplaces and public places; recognition of muslim religious holidays, and friday afternoon; supply of halal food; ritual slaughter; muslim section of cemeteries, and burial practices; Muslim schools; teaching of Islam in state schools; separation of genders in sports; chaplains in army, prison; dress; Muslim family law. When discussing these, who is the dialogue partner to represent the muslim community?
Themes: Issues common to all religious groups: chaplains, religious education, places of worship. Issues shared by some: ritual slaughter, religious holidays, food, burial, religious dress. Specific problems: Muslim representatives; muslim family law and poligamy, repudiation, inheritance.
Example: Choice: teaching of no religion in school, teaching of religion as culture, confessional teaching of religion. Import teacher or train them domestically, both solutions are quite problematic. Pragmatic approach, muslims are here, how can we incorporate the education. First we need to avoid to deal only with the stereotype. Second we need to build an inclusive society - where muslims can feel reasonably at home, a world that works for all. Social mobility helps integration and social mobility is more prevelant in US than in Europe.
Islam may be so different that it can't be digested by Europe.
Presentation is "merely" legal. Two aspects: 1) position of international law on women's rights vs sharia. Most Muslim countries aren't pure sharia, but are largely western law: constitutions, codes, etc. But sharia has been codified for law of persons, namely family law and succession. CEDAW sets up framework to end discrimination against women, 1993. Following earlier developments in UDHR, 1948 and ICCPR 1966. In muslim law, the laws around marriage are certainly in conflict, so muslim countries accede with reservations. Right to change religion is often a way to avoid muslim marriage law. E.g. Egypt, Libya, Bengladesh, Kuwait. Some states objected to their accession. "The Islamic Sharia provisions accord women rights equivalent to those of their spouses as to ensure a just balance between. The most important bases of the marital relations is an equivalence of rights and duties so as to ensure complementarity which results in a true equlaity." This suggests equivalence means rights are different, but more rights bring more duties. Woman has right to bridal money, maintanance, payment on divorce. Man can divorce by saying it, woman has to go to court. Bridal money is linked to man's ability to repudiate. Right of maintenance is predicated on obedience. There is a parajuridic discussion drawing from Islamic law and opportunistically from modern sciences. Inequality of men and women is fundamental to islam, though there is a notion of equal dignity. Reference to naure is new concept for islam. Islamic feminism - gender jihad - say that islam is compatable with pluralism and democracy. Qawwan - in charge of, protector, maintainer, leader, manager, guide advisor. Faddala - superior to. Others - could be other men. Reference to Koran in feminism gives it legitimacy. Both human rights and islam are universals. People now what to distinguish Fiqh and Sharia so that Fiqh can be changed.
Individual Religious Freedom - personal choice and conscience are primary, religion has no effect on enjoyment of civil and political rights. Autonomy of Religious Communities - State has no competence to regulate the inner life of religious communities. Selective Support payment of ministers, teaching of religions in schools. Cooperation Religious groups disciplined by general law of association - the new religious movements, basic freedoms, but no cooperation. Relgious groups at the middle level, then some at the top disciplined by state law and receiving most support. However, if there is to be cooperation and support, there must be a representative institutions to negotiate with. Islam is more network than hierarchy - they come to decisions by consensus of the various centers of authorities, and a weak distinction between State and church - in the west, there is a sharp distinction pope and emperor. Even in modern world, this sharp distinction remains. So give the Islamic community the space to develop representatives, but the need is now, particularly after Sept 11 when there was no muslim spokes person to negotiate with. We have a model in European Judaism. Jews denied everything as a nation, but granted everything as individuals: Clermont-Tonnerre.
Models of creation of Islamic representative institutions. E.g. Spain, conventional model, agreement - you, muslims, build a federation and we, spain, will conclude an agreement with that federation. Some practical problems. Austria, recognition model working quite well, they recognizer certain religions and the religion puts forward its representative. The muslim community is established and european in origin. France and Belgium, democratic model - ministry of the interior assist the group in electing it's representatives. These reps concluded agreements for the religion. Belgium followed, but made worse in a few points.
What can European state s require from Islamic communities concerning their representative institutions - Back to three elements of European model: freedom, autonomy, cooperation. Unconditional freedom; conditional is conditional, but can't handicap autonomy. Unconditional Rights legal personality, places of worship, doctrine, support by faithful, select and train ministers. Appreciating legitimacy/merity of the behaviors corresponding to the tenets of a religion and of their impact on civil coexistence. But this guiding principle does not apply to the internal organization of a religious community (systems of selection of leaders, equal right), that can be structured according to different principles.
Areas of cooperation: 1) Right of the state to require a representative institution of religious community. 2) without defining the features this structure should possess 'on the inside'.
Same sex adoption. Robbers and Haag. Germany - adoption is federal law, agencies are governed by Lander. Germany has same sex partnerships, but no joint adoption, but one of them can adopt personally. Germany allows whole activity of a church a broad autonomy, church's own afairs are defined by itself. Canada accommodates religious practices more that the US.
Ritual Slaughter Qur'an specifies ritual slaughter - allows exception for cases of necessity, but allows muslims to eat food of the people of the book. Judaism, Sikhism also have requirements. Features of ritual slaughter: Cut throat with sharp knife (juglar) bleed. Animal to be healthy, stunning not allowed. For Jews, animal must be stunned. EU directive for stunning animals before slaughter (exception for ritual slaughter). Animals to be spared pain and suffering. US requires stunning or religious ritual. 1) Does ritual slaughter actually cause more animal suffering? 2) How does religious freedom measure up against ritual slaughter? 3) Who is entitled to ritually slaughter? Most european countries permit ritual slaughter, Sweden and Latvia, (Outside EU: Norway and Switzerland) forbid it, 4 countries allow it only by registered groups: Austria M&J, Germany and Slovakia only Jewish community, Poland. Court Decisions. In France large Jewish assn has approval for ritual slaughter in slaughterhouses. A smaller Jewish association diagreed, France wouldn't allow second group, they petitioned ECHR, who said they can get meet from other countries. In Germany, decision said that there is no prohibition on stunning in the Qur'an. Muslim butcher objected, against religious and economic rights. German court said food from abroad is not secure, in availablity or quality. There are other sources of Islamic law, outside Qur'an. Conscience is also protected, but to a lesser degree than religious freedom. In US, Hialeah case. Court reaffirms free exercise only regulated for compelling state interest narrowly tailored for its goal. (no slaughter houses - organic waste).
Talfiqh Ottoman code and Egyptian code both codify inheritance, marriage, etc. National Codes in 1950s. Sudan is the only state with a family code in the 80s. Since 2000, there is an increased codification of muslim law: Egypt, Mauritania, Morocco, Algeria, UAE. India: dissolution of Muslim marriages Act - can divorce for absence of husband, failure of maintenance, defect, cruelty. Igtihad - up to 4 wives, but must care for them equally IV 3, 129. Tunisia is the only Arab country that has abolished polygamy outright, saying Qur'an is revealed to a particular people and culture - tetrageny is the direction of change, not the goal: monogamy. Morocco: connection between social project and human rights. All in society have equal rights. Family is unique genders are non-identical, but of equal value. Principles: tradition, aims and intention of 'good' islam, development, universally recognized human rights. Art. 297, 400. Algeria wants to keep pace with international human rights, yet, they see spiritual values, constitution and international law as basically in harmony. Family didn't merge into civil codes, they remain separate, they differ in origin and nature.
Family and penal law - Art 60 - provisions of this code do not apply to those acts that are performed in good faith in the exercise of a right recognised by the sharia. E.g. husband beating wife IV, 34. Jurists agree on provision, but disagree on amount of force, from separation to physical violence. In a judicial circular in 1973, says wife-beating could be lawful or unlawful based on interpretation.
courts and legal professions - Religious courts and secular courts were unified in Egypt 1955, Algeria 1962. In most countries women dominate in family law, but in arab courts they are the exception. Women judges were unknown, the first in Jordan 1996, Bahrein 2006, Abu Dhabi, Egypt 2007, UAE announcement 2008. Morocco 17% women judges, Syria 11%. Belgium >50%. Lawyers not regulated in most countries, so women can be lawyers. But in Saudi, custom says women not in court.
Procedural law. Foster parents care for the child, but is not 'adoptable'. The Algerian code allowed use of family name to be used by child, though it didn't change the sharia ban. Also, Nationality and religion is determined by the father. States easily can change nationality laws, Egypt 2000, Algeria 2005, Morocco 2007. This may yet reflect back on family law.
1. History. Passive blasphemy focussed on harm to the community. Insulting God - proection of community are linked. Oaths were broken, this is blasphemy, but this also has commercial effect. Conformity blasphemy is non-conformist. Active blasphemy includes an intention to insult God. From Honor to Indiviualism. Boatman burned because he denied Mary. Changed the words of a song to irreverent. Intention to wound is necessary to the crime. Good Intention erases the notion of blasphemy. Public order Today, Christianity is not so interested in prosecuting this, though they may express outrage. But Muslims want to prosecute - this is not the state, or the majority, but a minority. Danish cartoon makers weren't active blasphemers, but it was the passive blasphemy was relevant. Reintroduction of the crime of blasphemy would curtail free and open debate.
Blasphemy Today. Non-acceptance of democracy may give rise to calls for criminalization of blasphemy. Multiculturalism groups growing side by side can hurt one another. Poor groups are often muslims so they hold on to honor in place of money.
Arguments for Curtailing Freedom of Speech as applied to Blasphemy. See human rights as harmonious, not as contradictory. If rights aren't of equal importance, then the more important would certainly take precedence. Wilders - pre-announced blasphemy, bad film. "Needless provocation" should be disallowed. Hofland an old journalist.
Outcomes
Muslims in Britain since 8th century, but especially since 1869, and again in the 1950s. Now 3.3%. Mainly Sunni, most native born. 'Typical' muslim is male, middle eastern and 35 years old. 10,000 muslim millionaires. Grievances Social disadvantage, foreign policy, persecution
Divine law. All have the capacity to at least understand good and bad. Natural divine law is the link between christians and non-christians. Siniatic Revelation and Noahiel Revelation (Six prohibitions (10 commandments) and obligation to create tribunals of justice).
| Law | revealed divine law | natural divine law |
| Whence | Revelation | Creation |
| Where | Holy Books | Conscience |
| How | Revelation | Reason |
| Who | Faithful | Humanity |
Spring
MSQ
Schultz
Defenders should be honest but defend. Auditors gather evidence - need people with discretion. Advocates & Procurators - practice varies, advocate can broker contentious respondent, mentally ill petitioner. Respondents are sometimes treated hostilly.
Smith-Jones
Libellus: 1504, says put judge. DC says- put tribunal. Petitioner favor, plaintiff right. They don't have grounds here.
Appeal
Fixing an irregular marriage: Sanatio in Radice / Simple Validation / Convalidation new consent.
Invalidities that can be fixed: Defect of form - 2 catholics, done wrongly, call the chancery for sanatio. Lack of form - can't simply validate, without dispensation from form.
Presumptions
CHAPTER VI : PRESUMPTIONS
Can. 1584 A presumption is a probable conjecture about something which is uncertain. Presumptions of law are those stated in the law; human presumptions are those made by a judge.
Can. 1585 A person with a presumption of law in his or her favour is freed from the onus of proof, which then falls on the other party. [Transfers burden of proof.]
Can. 1586 The judge is not to make presumptions which are not stated in the law, other than on the basis of a certain and determinate fact directly connected to the matter in dispute.
DC 216 §1. The judge is not to make presumptions, which are not established by law, unless from a certain and determined fact, which is directly connected with the object of the controversy (c. 1586).
§2. Likewise the judge is not to make presumptions which are contrary to those developed in the jurisprudence of the Roman Rota.
Can. 1321 §1 No one can be punished for the commission of an external violation of a law or precept unless it is gravely imputable by reason of malice or of culpability.
§2 A person who deliberately violated a law or precept is bound by the penalty prescribed in that law or precept. If, however, the violation was due to the omission of due diligence, the person is not punished unless the law or precept provides otherwise.
§3 Where there has been an external violation, imputability is presumed, unless it appears otherwise.
Search for the truth is also to test the presumptions. Standard of proof: moral certainty that proofs overturn 1060 presumption of validity. Gap between legal an ontological truth - it might be invalid, but not proveable. Judged a particular ground, you can't judge it again, but otherwise no double jeopardy.
13.1 particular law presumed territorial
97.2 use of reason
1060 marriage enjoys favor of the law.
1083.1 Marriage age - presumption of capacity.
1086.3 presumption of validity of baptism.
1096.2 Non-ignorance of sex not presumed after puberty.
Constat Constat NonConstat // if one marries after 2 constats, 2nd marriage stands. 294
Page
DC
21 canons on Marriage procedure - then ordinary process; Same problem in 1917 code, with Provida Mater giving some guidance. DC gives lots of guidance, leads them by the hand, don't need to look at code. An instruction, doesn't change ANYTHING of law. Different from Gen. Ex. Decree which explains for those who have to apply it. Not merely theoretical clarification, it has 23 yrs of rotal jurisprudence. RP would like to see sources for DC: rotal jurisprudence and private answers to bishops. Final draft by PCLT - three comissions, three drafts. References to canons are to a canon, a confront canon, or something new.
Preliminary
Applies to procedure, even if CSI law is difference. Law of CSI's present since 1990. DC2 reaffirms 780 of CCEO on choice of substantive law, e.g. on spiritual relationship. Non-catholic bound by 'natural law'. Pope distinguishes truth and the truth of the marriage; source of law is the belief of the person?
Competent Forum
Absolute incompetence: already pending, grade not observed (not right level), matter not observed (tribunal not competent for this type of case).
Relative incompetence: If no jurisiction over place of marriage, domicile of parties, place of best evidence. But if they take the case, both can agree, it's okay; or if both dont' agree, it's wrong, but still competent.
Ministers of the Tribunal
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Notary; NOTE: Advocate / procurator not menstioned.
DC 36 says if one of these roles is played @ first instance and appeal. But not invalid. Need also a relator to the public, director, chancellor, etc, can't be judge or defender.
Defender to propose everything that reasonably can be brought. Can. 1603 §1 When the pleadings and observations have been exchanged, each party can make reply within a brief period of time determined by the judge. - how can a party reasonably read the defender's arguments.
Ministers of Justice - before ministers of the tribunal, but justice includes advocates. Minister = service, head of tribunal isn't part of a trial, but serves the process. 1/2. JV - having JCL, & may be Adjunct JV; 3/4/5. Judges cleric or lay & JCL, presiding judge; ponens presents the case and writes sentence. 6. Auditor gathers testimony; 7. Assessor consultant, interprets evidence. E.g. expert in voodoo; but may be overused; 8. Promotor of justice - safeguard public good; 9. Defender of the bond
Representatives of the Parties
Canon 1606: remitting oneself to the Justice of the Tribunal, RP says doesn't include publication of the acts. This is also applied to DB. Also the remission modified in DC134 to require parties know: formulation of doubt, publication of the acts, decision, and right to change their minds.
Proofs
Declarations of Parties, Judicial confessons given special weight (declaration against one's interests, when public good (marriage) is involved, stronger proof is needed; declaration at non-suspect time is stronger.) Documentary Proof, Witnesses, Experts, Judicial Examination & Inspection.
building presumptions through a course of conduct.
Vetitum
1684-5. Vetitum might be imposed by appellate tribunal a definitive and executory sentence. Is not part of the sentence.
Publication of the Acts
Since a matrimonial case seeks a juridic fact, we are looking for the truth, not a contentious matter, so should this be a contentious procedures, and does not need juridical power. So a lay perons could be sole judge. Rather than the part of a college.
Presumption
CIC 1584-1586
DC 214-216
Readings:
American Commentary
Wren, L. Notes, but Mostly Footnotes The Jurist 30 (1970) 206-215 (esp with regard to DC216.2)
Beal, J. The Substance of things... The Jurist 55 (1995) 745-793 (not all)
Ludicke & Jenkins (short comments)
Comparison between:
presumption of the law & presumption of the judge (similarities & differences)
Work as teams of two - 3-5 pages 1 1/2 line space
Special attention to article 216.2 What does this mean.
ropage@rogers.com June 15, 2007.
Truth of the marriage that the chruch teaches is presumed the truth of the people themselves. Truth of the roman rota 216.2
Protestant is presumed to have divorce mentality, vs taking it as a question of fact.
Does AI make consumation?
Embryo: person, rights, canonical status?
Does a woman who wants surrogate mother exclude bonum prolis?
Vasectomy, but with frozen sperm, exclude bonum prolis?
AI legitimate: 1137
Contentious
Contention pretention.
Werkmeister
Marriage of Mary and Joseph
1. Were Mary and Joseph married? Jewish marriage two steps: Kidoushin - promised, and can't change mind. Nissouin - girl enters house of husband, couple passes under the canopy. The steps could be separated by several months. Double scandal, no right to living together and he wasn't father. Jerome had to invent a word to describe the situation: desponsatio. This didn't help understanding, they didn't know this situation. Barbarians had something similar, when they came they understood. But still the question remains of the consent and the living together. Jerome said they weren't married, same with Ambrose: hope of marriage. Hugh of St. Victor (> X > Albert > Aquinas) - they are married because they were in love; Coniunctio necessary. He said marriage better if virginal.
2. Did Mary take a vow of virginity? non-existent in Judaism. First introduced by Augustine. Did she break that vow? Gratian said she had a conditional vow: unless God changes his vow. Rome dispenses vows made to God. Some say vows are always conditional to Rome.
3. Did she consent to coniunctio? no bonum prolis, Gratian says she accepted, but Joseph agreed not to use right. So Joseph is author of virginity of Mary. Fulfilled bonum prolis, because she had a child. Peter Damien: virginal marriage is a true marriage. One theologian said two in one heart, not two in one flesh.
4. Did Mary divorce? at foot of cross: John, take Mary with you.
What is a sacramentum of marriage?
1. Signum sacrum - sign of the sacred. E.g. marriage as sign of love of God and humanity. Some saw marriage as bad, crimen, lust, contention.
2. Oath - oath of military. Marriage is an oath, like entering the army, bound for life. For this reason bonum sacramentum = indissolubility. Semel = once catholic always catholic, semel married, always married.
3. Efficient Grace
4. Sexual intercourse - consumation of hte marriage because marriage becomes definitive with consummation.
5. When church owned marriage, when state tried to come in, Trent said marriage is a sacrament, it is only a political meaning to say Church controls. Just means it is a spiritual matter.
—In the 12th century, for Gratian, consummation = marriage.
Three Questions
1. Canonical Form. 1653 - parish priest and witnesses required but using local customs. Gaulmin wanted marry, but parents of girl refused, Couple exchanged vows while priest leaving church, he heard and there were witnesses. Dispensation available: 1108, Ecclesia Supplet, 1112 lay presider, 1116 danger of death or one month; 1127 catholic and oriental; attempt marriage 8x; piece of paper can validate a marriage. Truth is that they are married anthropologically, theologically, but canonical truth is that it is not valid.
Since a number of list members have been following the Legion of Christ crisis, I thought I would draw your attention to the following thought-provoking theological and canonical reflection, by fellow list-member Michael Dunnigan, on how Fr. Maciel's duplicity touches upon the roots of the Legion's foundation as an institute of consecrated life:
![[WWW]](http://wikispot.org/wiki/eggheadbeta/img/sycamore-www.png){kind=small}
http://krestainthea fternoon. blogspot. com/2009/ 04/sign-and- counter-sign. html
2. Divorced and Remarried
3. Conflict of Competence between Church and State
Main cause of nullity: defect of canonical form. E.g. in Germany:
| Year | 1974 | 2004 |
| Marriages | 400,000 | 400,000 |
| Catholic | 135,000 | 49,000 |
Parish priest is competent to invalidate in this case. Canonical form is in only from 1653 and that for political reasons. Could we could lose this, and still keep theology and canon law. We recognize the civil marriages of protestants as sacrament. Protestants 2 sacraments, as we did before. 12th century pontificalizing canon law. They say it isn't established by christ, not clearly sacramental. Also what do we mean by sacramental marriage: permanence, church wedding.
Divorce is a more important question in the gospel. For the lack of a paper, you are denied communion. Marriage law doesn't address essentials, but only appearances. Canon 915. Manifest grave sin may be only forgetting that paper. Main sin is to go to the state not the church in marriage matters; and not recognize the exclusive competence of the Church in marriage matters.
Torfs
1. Translating theology to law is always difficult. Law seen as servant of Theology, law is seen as empty shell to hold theological ideas and this is dangerous, law is a different discipline.
Kundera - developed theory of semantic rivers, a word has a meaning based on context and background. Manifestation for the Czech is a prison of mind and body; for a Frenchie it was a freedom to express and throw off burden. Theology can reconcile and mutually enrich each other. However in law, these terms are contradictory: e.g. contract / covenant. Contract is primary in law, even though covenant is mentioned. Put covenant within contract? That would make it harder to actually intend the high level of the marriage. Thus it would make marriage harder to reach, and lead to more annullments. Consent should be free, and the starting point of a vigorous effort. Consent is starting to expand and become more complex as it tries to include a place for covenant.
Freedom of consent contains 2 elements: absense of constraint and effort to follow. Divorce Mentality = error that determines the will.
1. Positivism: Eliminate legal positivism. Formal requirements for canonical form. Consent without revocation needs formal convalidation. Sanatio in Radice only if they will probalby persevere. Matrimony enjoys the favor of law. Ratum sed non consummatum is a political solution only. 1148.1 you have to dismiss poligamous wives. Sending away wives is also problematic. Pauline privilege.
2. Gap with reality: truth vs reality. If annullment doesnt happen are marriage, so they still don't get together - there is no relationship, the only thing is a permission to remarry. Neo-thomism: focused not on procedure, but on results. Closed philosiphical system: Theo Beemer: common sense became a philosophical system that drifted from lived reality. Should absolute truth be exclusive truth? E.g. absolute beauty isn't exclusive.
3. Truth and time - Time is not a journey, but a whole to be captured. Changing truth: Res Judicata isn't possible, truth is stable, even if we don't know. Changing of 'divine law', and changing of God.
Canon 1088
Can. 1088 Those who are bound by a public perpetual vow of chastity in a religious institute invalidly attempt marriage.
IC XL 79/00, 73-98: P. Pellegrino: L'impedimento del voto pubblico perpetuo di castità in un istituto religioso nel nuovo diritto matrimoniale canonico (can. 1088 CIC; can. 805 CCEO). (Article) [86 2001/2] Ius Canonici.
IE XI 1/99, 193-222: P. Etzi: L'impedimento di voto (can. 1088 CJC): sua origine e qualificazione giuridica. (Article) [83 2000/1] Ius Ecclesiale
RDC 55 2/05, 325-339: Rémy Lebrun: L'empêchement du canon 1088. (Article) [100 2008/2]
CpR LXXVIII 4/97, 361-392: J. Abbass: Dismissal from Religious Institutes of the Latin and Eastern Catholic Churches. (Article) [84 2000/2]
CpR LXXIX 1/98, 121-151: J. Abbass: Transfer to another religious institute in the Latin and Eastern Catholic Churches. (Article) [84 2000/2]
// prohibitive impediment of simple vows 1058, diriment impediment of solemn vows 1073, and SJ diriment. private vows CIC83 1192 now an issue, not simple and solemn.
Vow must be perpetual // vow. not otehr bonds of 573.2 & 712. there was thought to have it based on all three vows. Said to be divine law impediment since vow is to God. But it's juridical law that prohibits. dispensation reserved to pope. MP de episcoporum muneribus, IX 12 of 1966.
Religiosu attempts marriage gets sanction 1394; and is ipso facto expelled: 694.1,2. And also equity and charity.
Can. 1394 §1 Without prejudice to the provisions of can. 194, §1, n. 3, a cleric who attempts marriage, even if only civilly, incurs a latae sententiae suspension. If, after warning, he has not reformed and continues to give scandal, he can be progressively punished by deprivations, or even by dismissal from the clerical state.
§2 Without prejudice to the provisions of can. 694, a religious in perpetual vows who is not a cleric but who attempts marriage, even if only civilly, incurs a latae sententiae interdict.
Canon 1394
CLSN 128/01, 25-30: G. Read: Archbishop Milingo. (Document and Article) [90 2003/2] Canon Law Society Newsletter, London.
Comm XXIX l/97, 17-18: Acta Consilii: Dichiarazione. (Document) [80 1998/2] Communicationes, Rome.
IE IX 2/97, 825-826: Pontificio Consiglio per l'Interpretazione dei Testi Legislativi: Dichiarazione, 19 maggio 1997. (Document) [82 1999/2] Ius Ecclesiae, Milan.
Canons 1394-1395
AA XIII (2006), 137-155: Javier Fronza: El celibato – don, propuesta y tarea (la necesaria madurez humana y el derecho). (Article) [99 2008/1] —Anuario Argentino de Derecho Canónico, Buenos Aires.
Can. 694 §1 A member is to be considered automatically dismissed if he or she:
1° has notoriously defected from the catholic faith;
2° has contracted marriage or attempted to do so, even civilly.
§2 In these cases the major Superior with his or her council must, after collecting the evidence, without delay make a declaration of the fact, so that the dismissal is juridically established.
RfR 61 5/02, 546-551: E. McDonough: Automatic Dismissal. (Article) [90 2003/2]
CpR LXXXI 1-2/00, 67-95: D. Borek: La dimissione dei religiosi a norma del can. 694 del Codice del 1983: è una pena espiatoria "latae sententiae"? (Article) [86 2001/2]
Canon 1112
Can. 1112 §1 Where there are no priests and deacons, the diocesan Bishop can delegate lay persons to assist at marriages, if the Episcopal Conference has given its prior approval and the permission of the Holy See has been obtained.
§2 A suitable lay person is to be selected, capable of giving instruction to those who are getting married, and fitted to conduct the marriage liturgy properly.
BEF LXXXI 846/05, 285-294: J. González: Invalid Delegation of a Religious Sister to Assist at Marriages? (Consultation) [95 2006/1] Boletin Eclesiastico de Filipinas, Manila.
RR 2005, 59-60: Eileen C. Jaramillo: Married Couple Entering into Religious Life. (Opinion) [96 2006/2]
Can. 643 §1 The following are invalidly admitted to the novitiate:
1° One who has not yet completed the seventeenth year of age;
2° a spouse, while the marriage lasts;
3° one who is currently bound by a sacred bond to some institute of consecrated life, or is incorporated in some society of apostolic life, without prejudice to can. 684;
4° one who enters the institute through force, fear or deceit, or whom the Superior accepts under the same influences;
5° one who has concealed his or her incorporation in an institute of consecrated life or society of apostolic life.
§2 An institute’s own law can constitute other impediments even for the validity of admission, or attach other conditions.
CIC17 542.1; conexos 587, 642, 735.2
Clerics
Canon 1087
CLSN 112/97, 40-44: G. Read: A Comment on the Recent Circular Letter from the Congregation for Divine Worship and the Discipline of the Sacraments concerning Dispensation from Priestly Obligations and of Deacons from the Impediment of Orders. (Article) [81 1999/1]
RR 2003, 21-22: Congregation for Divine Worship and the Discipline of the Sacraments: Divorced Permanent Deacon Seeking Declaration of Nullity and Remarriage Refused Permission to Continue in Ministry. (Document) [94 2005/2]
Previously 1072 of CIC 17, repeated also for married deacons, but see anglicans who come over and eastern discipline.
CCEO:
Canon 450 - Without prejudice to prescriptions of the typicon which require more, the following cannot be validly admitted to the novitiate:
1° non-Catholics;
2° those who have been punished with canonical penalties except those mentioned in can. 1426, §1;
3° those, who are under imminent threat of a serious penalty on account of a crime of which they are legitimately accused;
4° those who are under 18 years of age, except if it is the case of a monastery which has temporary profession, in which instance 17 years of age is sufficient;
5° those who are entering the monastery induced by force, grave fear or by fraud or those, who are admitted by a superior induced in the same way;
6° spouses, during a marriage;
7° those who are held by the bond of religious profession or by another sacred bond to an institute of consecrated life, unless it is a case of lawful transfer.
Canon 497 - §1. A member shall be held dismissed from the monastery by the law itself, who:
1° has publicly rejected the Catholic faith;
2° has celebrated or attempted marriage, even only a civil one.
§2. The superior of the monastery sui iuris, having consulted the council, shall in such cases without delay, after collecting the proofs, issue a declaration on the facts so that the dismissal is juridically established, and he or she shall inform the authority to whom the monastery is immediately subject of this as soon as possible.
Canon 762 - §1. The following are impeded from receiving sacred orders:
1° a person who labors under some form of insanity or other psychic defect due to which, after consultation with experts, he is judged incapable of rightly carrying out the ministry;
2° a person who has committed the delict of apostasy, heresy or schism;
3° a person who has attempted marriage, even only a civil one, either while he was impeded from entering marriage due to an existing matrimonial bond, sacred orders or a public perpetual vow of chastity, or with a woman bound by a valid marriage or by the same type of vow;
4° a person who has committed voluntary homicide or who has procured a completed abortion and all persons who positively cooperated in either;
5° a person who has seriously and maliciously mutilated himself or another person or a person who has attempted suicide;
6° a person who has performed an act of orders which has been reserved to those who are in the order of episcopacy or presbyterate while the person either lacked that order or had been forbidden its exercise by a Canonical penalty.
7° a person who holds an office or position of administration which is forbidden to clerics and for which he must render an account until he becomes free by relinquishing the office and position of administration and has rendered an account of it;
8° a neophyte, unless he has been sufficiently proven in the judgment of the hierarch.
§2. The acts which are mentioned in 1, nn. 2-6 do not produce impediments unless they were serious and external sins perpetrated after baptism.
Canon 769 - §1. The authority who admits a candidate for sacred ordination should obtain:
1° the declaration which is mentioned in can. 761, also a certificate of the last sacred ordination or, if it is the case of the first sacred ordination, a certificate of baptism and chrismation with holy myron;
2° if the candidate is married, a certificate of marriage and the written consent of his wife;
3° a certificate of completed studies;
4° testimonial letters of the rector of the seminary or the superior of the institute of consecrated life or the presbyter in whose care the candidate was entrusted outside the seminary, of the good morals of the candidate;
5° the testimonial letters which are mentioned in can. 771, §3;
6° testimonial letters, if it is considered expedient, of other eparchial bishops or superiors of institutes of consecrated life, where the candidate resided for some time, concerning the qualities of the candidate and his freedom from all canonical impediments.
§2. These documents are to be kept in the archive of the same authority.
Canon 795 - §1. The local hierarch can dispense the Christian faithful subject to him wherever they are as well as other Christian faithful enrolled in another Church sui iuris actually present within the territorial boundaries of his eparchy from impediments of ecclesiastical law except those which follow:
1° holy orders;
2° public perpetual vows of chastity in a religious institute, unless it is a case of congregations of eparchial right;
3° conjugicide.
§2. Dispensation from these impediments is reserved to the Apostolic See; however, the patriarch can dispense from the impediment of conjugicide as well as of the one of public perpetual vow of chastity made in congregations of any juridical condition.
§3. A dispensation is never given from the impediment of consanguinity in the direct line or in the second degree of the collateral line.
Canon 804 - Persons who are in holy orders invalidly attempt marriage.
Canon 805 - Persons who are bound by a public perpetual vow of chastity in a religious institute invalidly attempt marriage.
Canon 976 - §1. One is removed from an ecclesiastical office by the law itself:
1° who has lost the clerical state;
2° who has publicly defected from the Catholic faith or from the communion of the Catholic Church;
3° a cleric who has attempted marriage even if only civilly.
§2. The removal from office referred to in 1, nn. 2 and 3 can be enforced only if it is established by the declaration of a competent authority.
Canon 1453 - §1. A cleric who lives in concubinage or gives permanent scandal by publicly sinning against chastity is to be punished with a suspension, to which, other penalties can be gradually added up to deposition, if he persists in the offense.
§2. A cleric who attempts a forbidden marriage is to be deposed.
§3. A religious who has taken a public and perpetual vow of chastity and is not in holy orders, is to be punished with an appropriate penalty if he or she committed these offenses.
RRAO 2008: From CLSA, p. 127-128
Canon 1394, §1
Dismissal of a Priest from the Clerical State for Officiating at Marriages Illegitimately
A priest in our diocese was automatically dismissed from his religious community be-
cause he attempted a civil marriage (c. 694, §1, 2º). Unfortunately, this man is causing
harm and scandal among the faithful by unlawfully celebrating Mass, administering the
sacraments, and officiating at marriages. Is there a remedy in law to protect the faithful
and the good reputation of the Church?
opinion
In addition to being automatically dismissed from his religious community
by attempting a civil marriage, the priest lost by the law itself any ecclesiastical
office that he may have held (c. 194, §1, 3º), and incurred latae sententiae suspen-
sion (c. 1394, §1). Sad to say a number of priests, both religious and members of
the secular clergy in the same or similar situation, continue at their own conve-
nience to function unlawfully as priests, and even advertise their illicit services as
available to the faithful who cannot licitly approach an authorized priest, e.g., to
officiate at a Catholic marriage following a civil divorce. Of course, a Catholic
bound by canonical form cannot validly marry with such a priest officiating, since
the priest does not have the faculty to assist as the qualified witness at marriage.
However, some lay persons may salve their conscience by saying that their mar-
riage was “blessed” by a Catholic priest.
One could request the Holy See to dismiss such a priest from the clerical state.
However, the Code of Canon Law provides a remedy for the situation in canon
1394, §1. The ordinary could warn the priest to cease celebrating the sacraments
and officiating at marriages, declare by an extrajudicial decree the latae sententiae
suspension already incurred, and impose on the priest appropriate punishments,
e.g., prohibiting him from presenting himself as a priest. If the priest does not
heed the warning, and continues to give scandal, the ordinary could institute
a judicial penal process. Since only the Holy See can dismiss a cleric from the
clerical state by administrative process, the dismissal from the clerical state can
be imposed as an expiatory penalty only by a tribunal of three judges (c. 1425,
§1, 2º, a).
If the priest is found guilty and the tribunal imposes the dismissal from the
clerical state, once the time for appeal has elapsed, the tribunal can order the
execution of the judgment.
127
When the judgment is executed, the priest is dismissed from the clerical state
and freed from all the obligations of the clerical state except that of clerical celi-
bacy, which can be granted only by the Roman Pontiff (cc. 291-292). In most
places, depending upon the civil law of the particular state, such ex-priests would
no longer be recognized by the state as being able to officiate at marriages.
Rev. William H. Woestman, O.M.I., J.C.D.
