Exploring our Erroneous Zones: Developments in Jurisprudence on Determining Error Since 1983

Abstract

* Professor of Canon Law, School of Canon Law, Catholic University of America 1 Canon 1099 of the1983 code, the principal focus of this essay, addresses the juridic relevance of errors about the unity, indissolubility, and sacramental dignity of marriage. In the interest of avoiding verbosity and complicated syntax, the focus here will be on errors about the unity and indissolubility of marriage. However, the principles developed here are applicable, mutatis mutandis, to errors about its sacramental dignity. 516 The Jurist 69 (2009) 516–561 EXPLORING OUR ERRONEOUS ZONES: DEVELOPMENTS IN JURISPRUDENCE ON DETERMINING ERROR SINCE 1983 John P. Beal I. From “Simple Error” to “Error Determining the Will” Ever since Jesus challenged the Mosaic allowance of divorce as a concession to human hardness of heart and at odds with the creator’s original intention, the Church’s teaching on the nature of marriage has been “counter-cultural.” It has insisted against its cultured detractors that marriage is not merely a product of cultural evolution which can be shaped to conform with passing human desires and fashions, but a divinely given institution with its own ontological structure which includes as essential properties unity and indissolubility.1 Throughout the first millennium of Christian history, the Church could maintain its prophetic stance with regard to marriage without worrying unduly about the status of marriages entered by those outside its boundaries. This uneasy co-existence between Church and world ended in the twelfthcenturywhentheChurchuseditsnewlyacquiredjurisdictionover matters matrimonial to define marriage in accord with Roman law as a relationship arising from consent alone and to analogize this consensual relationship to a contract.As a result of these developments, marriages, like all other contracts, could now be judged valid or invalid, legally binding or not; and the Roman law of contracts provided the conceptual tools for making these judgments. However, these developments left a nagging question in their wake: how could someone who firmly believed that marriage could be dissolved by divorce or that polygamy was not only permissible but perhaps even a religious duty consent to and thereby bring about a marriage characterized by unity and indissolubility? 2 Innocent III, decretal Gaudemus, X.4.19.8. 3 John T. Noonan, The Power to Dissolve: Lawyers and Marriages in the Courts of the Roman Curia (Cambridge, MA: Belknap Press, 1972) 264. 4 Ibid. 5 Holy Office, decree of July 17, 1669, cited in Noonan, 272. exploring our erroneous zones 517 A. The Status Quo Ante: The “Simple Error” of Canon 1084 of the 1917 Code The question could not be avoided for long. In 1202, Innocent III was confronted by a question from the Kingdom of Jerusalem, which touched on the status of the marriages of Muslims and Jews who, it was reported, accepted both divorce and polygamy. Noting somewhat anachronistically that the Apostle Paul had accepted the validity of the marriages of unbelievers, Innocent held that, when such unbelievers converted to Christianity, they were to be treated as already married to one wife;2 but he made no effort to “explain how, in a society where polygamy and divorce went hand-in-hand, a man could intend to give individual fidelity to one woman and enter into an indissoluble union with her.”3 The decision was no doubt politically astute. The fate of the Kingdom of Jerusalem, a strip of the Palestinian coast precariously held by the Crusaders, was of deep concern to Innocent III. Legislating for this state with its religiously mixed population, would it not have been madness to have declared all non-Christian unions nullities? If the choice had to be between saying that all were indissoluble and all were null, was not indissolubility the wiser policy?4 Nevertheless, Innocent’s decision was intellectually and pastorally disappointing , containing flaws that insured that it was a decision that would be frequently revisited. The flurry of missionary activity that accompanied theAge of Discovery occasioned a revisiting of the decretal Gaudemus in the sixteenth century . Missionaries in Asia, Africa, and the Americas were encountering peoples whose ancestral customs included divorce and polygamy and for whom prior marriages or even multiple still existing marriages were an obstacle to conversion. Prodded by the missionaries and their superiors in Rome...