Marriage and the Juridical Relevance of Pastoral Language

The revised Code of Canon Law promulgated in 1983 (CIC-83) brought with it a definition of the consensual incapacity for marriage. This formula is a kind of juridical innovation given that it did not exist prior to the CIC-83 and literally breaks the normative silence that surrounded this capita nullitatis for centuries. Consensual incapacity in canon 1095 is a distinct category of nullity of marriage consent, grounds that are finally and explicitly separated from all association to canonical illiceity, sanctions, or impediments.

The previous Code of Canon Law of 1917 (the first attempt of codification of ecclesiastical law, in effect until the revised Code of 1983) implied but did not define these grounds. This left canonists and judges with the task of determining their own judicial headings of nullity when the effect of mental illness was believed to have rendered an individual’s consent for marriage invalid. In other words, canonists knew that gravely defected consent is invalid, but linking the cause of bad consent to mental illness had to be made without concrete guidance from the law.

One hundred years later, the Church has a revised Code and a formulation meant to provide this concrete guidance. This formula confirms the possibility of linking psychology to the reality of the marriage bond, and this is unanimously accepted. Yet the interpretation and application of consensual incapacity for marriage in American jurisprudence reveals the tendency to erroneously legalize pastoral language.

The acknowledgement of psychic influences on the power to give consent leads to a gradual recon­sider­ation of this same consent in its aspects that render it foun­dational to the marriage bond. One must keep in mind, however, that it is not because it is a fact of legislation that consent establishes the bond; rather, because its object — namely, the conjugal relation — is by its nature realized when consent is properly rendered. The marriage bond only appears in law because it is real, it is ius. (So much more could be said here on this topic and its sacramental status, but it exceeds the scope of this reflection.)

However, canonists gradually begin to ask, if psychic influences alter the capacity to give consent, is this not the same as rendering impossible the object of consent? When interdisciplinary sources convince a large number of canonists that the marriage rela­tion­ship, the interpersonal union, is as real and distinct as the bond itself, this question obtains a whole new level of relevancy because in scholarship, when the object of consent becomes the marital interpersonal relationship, psychic anomalies will be appealed to as a source of nullity far beyond the dictates of canon 1095.

It is worth noting that with the CIC-83 a new definition of marriage consent was offered (canon 1057) but no canon would receive as much attention as canon 1095, even though it was the discussion of consent and its object that gained momentum in canonical theory. Why? As Rotal judge Cormac Burke suggests, perhaps the precise terminology of conju­gality in canon 1057 (the giving and receiving of self between spouses, which relies on a notion of selfhood that is often rejected in post-modern thought) was too difficult to reconcile with the pastoral projects and socio-political initiatives that used canon law as an instrument for doctrinal influence prior to, and in the wake of, Vatican Council II. In any event, there was a lack of attention given to the definition of consent and its explicit portrait of conju­gality. Canonists instead designed a different image of marriage consent that centered on the disposition of persons more than the actions upon which a conjugal union is created. Presently, the commanding trend with respect to consensual incapacity reflects this perspective that subtly alters the object of consent to include persons not just in their power to consent, but in their goodness or badness as spouses. Psychological phenomena not only relate in some way to the power to consent, but canonists extend this same relation to the power to cultivate an interpersonal relationship. Broadening the object of consent to both a conjugal and interpersonal relation makes it inevitable that the affirmation of a link between psychology and the power to consent will also and necessarily require analysis of the relationship that springs from the bond. The language of Gaudium et spes is ushered into jurisprudence not because it is cited in the canons as a description of marriage’s sac­ramental status in canon 1055, but because this language is needed to assess the marri­age in facto esse. And, indeed, jurisprudence uses Gaudium et spes far more than its basic representation in canon 1055.

The personal incapacity indicated in canon 1095 refers to the marriage relationship only indirectly because, juridically speaking, this canon links consent to the creation of the marriage bond and the bond includes the two-fold reality of its creation: the moment of the exchanged consent for the marriage union (marriage in fieri) and the union that emerges and perpetuates because of it (marriage in facto esse). In other words, the reach of the law to relationships only occurs because the relationship is not one among many distinct objects of consent, but one aspect inherent in the object of consent itself. Nevertheless, canonists have looked beyond the definition of marriage consent and interpreted canon 1055 as a juridical definition of marriage itself because the language it uses, taken almost directly from Gaudium et spes, fits the campaign to elevate the interpersonal union to a place of distinction alongside the conjugal union.

The Code of Canon Law, however, gives a definition of consent for marriage in canon 1057 — canon 1055 is not in fact a veritable juridical definition, and only provides a certain description of marriage. When canonists apply pastoral language as such and appeal to the fact that the law does so as well, it seems that the law suddenly becomes authoritative on the dynamics of the marriage relationship. There are three major consequences of this relevant to this reflection: a) conjugality is implicitly understood per se as not in possession of an interpersonal dimension; b) marriage is, then, implicitly understood as something not wholly defined by the concept of conjugality; and c) canonical jurisprudence begins to make unbelievably believable claims, such as the juridical importance of love: “Though consent makes marriage and not love, love is the object of consent.”

This is, however, not a unanimously accepted practice, and has been acutely condemned, for example, by the late Edward Cardinal Egan. Cormac Burke, former Rotal auditor, argues that the present Code of Canon Law contains juridical terms that should be used instead of the pastoral language given in Gaudium et Spes, and canonists should rely on the former notions in any canonical presentation of marriage. Raymond Cardinal Burke, official of the Apostolic Signatura, proposes that any use of Vatican Council II teaching in relation to juridical categories unfold within a consideration of what he calls the “psychology of the Christian vocation.”

Cardinal Egan — a member of John Paul II’s private, final group of canonist-consultors for the revised Code of Canon Law — made it very clear that the language of marriage read in Vatican Council II documents and renewed theological teachings was not intended for direct use within the canonical discipline.

The Pastoral Constitution “On the Church in the Modern World,” of the Second Vatican Council on more than one occasion referred to marriage as a mutual gift of self by the married; and lest perchance anyone fail to appreciate the patently non-legal character of these references, the Fathers of the Council reminded one another over and again on the Council floor, at Commission meetings, in observations (modi) submitted to the Council secretariat, and in response to the observations from the Council secretariat, that they were not in their Pastoral Constitution speaking in “juridical terms or categories.”1

Lawrence Wrenn, on the other hand, was an American canonist enormously influential in his own position that the pastoral language of Gaudium et spes is in fact juridically important. But he also asserted that Vatican Council II rejected Gratian’s treatment of marriage and that canonical personalism is related to democratic thinking that favors the individual over the monarchical mentality that prioritizes the institution. He also suggested that those who rejected the importation of pastoral language into law are guilty of “compartmentalization” and would ultimately become irrelevant.

It must be reiterated that the use of pastoral language is frequently related to the perception of a definition of marriage in the CIC-83. Canonists who see a definition of marriage approach the bond in pastoral terms, as a relationship nourished by the theological elabor­ations of person­hood and community. A reliance on pastoral language and descriptions as juridical indications in light of a “renewal of Christian life”2 allow canonists to treat marriage as a symbol of sanctifying grace precisely when it facilitates these same descriptions and a perceived, or experienced (affective), renewal.

Some authors equate the bond and the community of life and love, which associates the capacity for consent with the capacity to maintain communion. Yet the bond is itself the instrument of grace, and John Paul II exhorts that the CIC-83 is fully consonant with the teachings of Vatican Council II, and it is already the “translation” of Council teaching in the manner fit to be applied in the form of positive law.3 That is, the law as promulgated stands on its own feet as representative of Church doctrine without the direct importation of Gaudium et spes to determine cases of marriage nullity, for example.

The new direction, the “new mentality,” of jurisprudence hinges on the identification of marriage as the indissoluble partnership, or community. This indissolubility is not derivative of conjugality, but instead of measurable communion. This position claims:

The reason why marriage is special according to the present teaching is the claim that the bond continues despite the demise of the relationship. But, as we have argued, that claim ignores the development of theology of marriage approved by Vatican II. In conciliar theology the bond of marriage is the relationship between the wife and the husband. Remove that relationship and the bond is an abstraction, with no rootedness in a human matrix. If the bond does not exist there is nothing left to which the trait or character of indissolubility may be said to adhere.4

Essentially, these authors believe that the bond of marriage is not properly an object of the law and so it becomes necessary that marriage canons be interpreted only in a theological-pastoral context, and the outcomes do not seek justice but self-communication. The majority of canonists offering commentary in the United States in the immediate wake of Vatican Council II, among them K. Himes and J. Coriden, assert that, despite the Pontifical Commission for the Revision of the Code of Canon Law’s lack of support, the perception of marriage as both and distinctly conjugal and interpersonal was embraced in jurisprudence “despite the resistance of those who argue that because Gaudium et spes was a ‘pastoral’ document it ought not to be used for doctrinal change.”5

Cormac Burke, in his historical reflection on the matter, suggests that “[t]o continue to work from the pastoral terms of Gaudium et spes and not from the juridic terms proposed by the 1983 Code, no longer seems the best way to make progress in the relevant areas of juridic science. After all, the Code not only gives definite options, but also presents quite a number that are so provokingly new as to call for full attention and study.” The period of creativity in jurisprudence, so to speak, has produced something now to be understood, which means the use of pastoral language has already been given a specific task or service within the canonical inquiry. With respect to marriage, canonists must rely on the juridical definitions of consent proportionate to marriage and the categories of its invalidity. There is no juridical definition of marriage given, and certainly not one that is understood as essentially two-pronged — namely, that interpersonality is distinct from and equal to conjugality. Therefore, reliance on pastoral language in canonical judgments is difficult to explain, and rightly causes one to suspect the soundness of premises read in these same judgments.

Additionally, this reliance is almost always motivated by non-canonical initiatives or questions, such as the desire to resolve the problem of the divorced and remarried Catholics desiring the Eucharist or the installation of communitarian legal paradigms in the Church. (These non-canonical motivations were discussed in a previous article.) In the end, one supposes that the favor given to pastoral language in jurisprudence — and not hiding the fact that it is utterly pastoral — manifests that strange desire for a just outcome that soothes the feeling of conflict but cannot name or identify the realities of justice.

  1. E. Egan, “The Nullity of Marriage for Reason of Insanity or Lack of Due Discretion,” Ephemerides Iuris Canonici 39 (1983): 22–23.
  2. Apostolic Constitution Sacrae disciplinae leges, 25 January 1983, AAS 75 (1983): VII–IVX. The term “renewal of Christian life” is the English translation (The Code of Canon Law in English translation, London, Collins, 1983) of the documents original “rei christianae scilicet restaurandae.” This expression might also be translated as “restoring, precisely, those things belonging to Christians.” Although the official translation is considered by scholars to be more fitting in a general sense, the proposed translation here for the purposes of this presentation allows for a precision that refocuses the canonical inquiry on the basic objective of the law. I am grateful to Professor D. Gallagher (Cornell University) for his comments regarding the Latin text and the use of these expressions in ecclesiastical texts.
  3. Sacrae disciplinae leges, xx: “Instrumentum, quod Codex est, plane congruit cum natura Ecclesiae, qualis praesertim proponitur per magisterium Concilii Vaticani II in universum spectatum, peculairique ratione per eius ecclesiologicam doctrinam. Immo, certo quodam modo, novus hic Codex concipi potest veluti magnus nisus trasferendi in sermonem canonisticum hanc ipsam doctrinam, ecclesiologiam scilicet conciliarem.”
  4. K. Himes and J. Coriden, “The Indissolubility of Marriage,” Theological Studies 65.3 (2004): 490.
  5. Himes and Coriden, “Indissolubility,” 481. The authors rely on L. Wrenn’s work.
Catherine Godfrey Howell, JCD About Catherine Godfrey Howell, JCD

Catherine Godfrey Howell, JCD, is a canon lawyer, editor, and translator. Her dissertation, completed at the Pontifical University of the Holy Cross, is a profile of consensual incapacity to marry in American canonical jurisprudence. She presently lives in South Bend, Indiana, with her husband and three children.


  1. Avatar Patrick Cullinan says:

    Is canon 1095 good or is it evil?

  2. Hi Catherine, The object of 1095.2 is the consent, but isn’t the object of 1095.3 the aspects of the marriage itself (those who, because of causes of a psychological nature, are unable to assume the essential obligations of marriage)? Is being ordered toward “the good of the spouses” (c. 1055) an essential obligation of marriage? Is being ordered to the “procreation and education of offspring” (c. 1055) an essential obligation of marriage? Cardinal Raymond Burke talked about how the orientation toward the good of the spouses in the 1983 code, in this context, can only mean “mutual help” as was stated in the 1917 code. [Cardinal Burke, Presented August 10, 2011. Canon Law Conference, August 9 and August 10, 2011, Shrine of Our Lady of Guadalupe La Cross, Wisconsin.]

  3. Avatar Sheryl Temaat says:

    I dont know of a Declaration of Nullity that soothed anyone’s feelings except two self-centered adults who wanted the right to divorce and remarry in the Catholic Church. Rejected spouses have suffered unspeakable torment, and children who are forced to live with Mom’s new man and Dad’s new honey are cruelly abused by the Church which has adopted this “pastoral” approach which, as you say, has no reality in justice.

    I am sure that tribunalists will argue that some Declarations of Nullity are just and leave all affected subjects better off. They can argue that, but those cases, if they exist, do not justify the widespread abuses.

  4. Avatar JOHN FARRELL says:

    “outcome that soothes the feeling of conflict but cannot name or identify the realities of justice.” I’m thinking that this is because virtually 100% of American separations are illigitimate, but are “annulled” anyway.


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