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Published online by Cambridge University Press: 31 July 2008
Judges need guidance if they are to apply the law in particular circumstances with an even hand. For Roman Catholics, Canon 19 of the 1983 Code of Canon Law provides this guidance by reference to the practice of the Roman Curia and by the constant opinion of learned authors. Useful as these supplementary sources are, they mean that judges have to trust that those responsible for making decisions in the Roman Curia and the learned authors have drawn their conclusions on a sound basis. This study considers what happened when a specific document was misunderstood in the Roman Catholic Church for almost four hundred years. The document, a letter from Pope Sixtus V to his Nuncio in Spain in 1587, responded to a specific query concerning the capacity for marriage of men who had been castrated. The interpretation of the letter defined the Roman Catholic Church's concept of marriage in general and its understanding of the impediment of impotence for four centuries. In the twentieth century, several Roman Catholic judges and canonists refused to take at face value the conclusions offered by other judges and learned authors, and decided to carry out their own analysis of the document in question. This resulted in a complete reversal of the way in which marriage cases were considered by the Apostolic Tribunal of the Roman Rota, and contributed to the emergence of a much richer and more integrated theology of marriage.
1 Canon 19 states: ‘If on a particular matter there is not an express provision of either universal or particular law, nor a custom, then, provided it is not a penal matter, the question is to be decided by taking into account laws enacted in similar matters, the general principles of law observed with canonical equity, the jurisprudence and practice of the Roman Curia, and the common and constant opinion of learned authors’.Google Scholar
2 In Roman Catholic Canon Law, the term ‘jurisprudence’ refers to the understanding of law based on actual judicial decisions.Google Scholar
3 This point was stressed before the promulgation of the 1983 Code in a Rotal decision before Egan, 9 December 1982: Apostolici Rotae Romanae Tribunalis Decisiones, vol LXXIV, pp 612–618.Google Scholar
4 Pope John Paul II, Address to the Roman Rota, 30 January 1986, in Woestmann, W (ed) Papal Allocutions to the Roman Rota 1939–2002, (Saint Paul University Ottawa, 2002), p 190.Google Scholar
5 Decision before Masala, 7 October 1980, Apostolici Rotae Romanae Tribunalis Decisiones, vol LXXII, pp 604–640.Google Scholar
6 Decision before Serrano, 27 January 1986, Apostolici Rotae Romanae Tribunalis Decisiones, vol LXXVIII, pp 49–55.Google Scholar
7 V, Sixtus, ‘Cum frequenter’ 27 June 1587Google Scholar in Gasparri, P (ed) Fontes Codicis Iuris Canonici, vol I (Typis Polyglottis Vaticanis, 1923), pp 298–299.Google Scholar
8 Details of the correspondence and contemporary comments by theologians and canonists are found in McGrath, A, A Controversy Concerning Male Impotence (Editrice Pontificia Università Gregoriana, 1988), pp 14–15.Google Scholar
9 Sanchez, T, De sancto matrimonii sacramento disputationes, tome 2 (Apud Nicolaum Pezzana, 1754), lib 7, disp 92, nn 15–17, pp 256–257.Google Scholar
10 The first explicit mention of this formula is found in Gasparri, P, Tractatus Canonicus de matrimonio, (Gabriel Beauchesne et Socii Parisiis, 1904), vol 1, p 390.Google Scholar However, it has been claimed that the origins of the identification can be traced to the work of Franciscus Schmier in 1716 (cf Gullo, C, ‘Interpretazione autentica o abrogazione della legge?’, II Diritto Ecclesiastico 90 (1979) II, p 212.)Google Scholar
11 Cf for example Wernz, F, Vidal, P, Aguirre, P, Ius Matrimoniale (Romae apud Aedes Universitatis Gregorianae, 1946), pp 288–293.Google Scholar
12 Holböck, C, Tractatus de Jurisprudentia Sacrae Romanae Rotae (Officina Libraria Styria, 1957), p 55.Google Scholar
13 Ibid.
14 Ibid 56–57.
15 Eg Decision before Sabattani, 10 April 1959, Monitor Ecclesiasticus 84 (1959), pp 616–634.Google Scholar
16 Eg Cappello, F M, De Matrimonio (Domus Editorialis Marietti, 1947), p 352.Google Scholar
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20 Cf McCarthy, J, ‘The impediment of importence in the present day Canon Law’, Ephemerides Iuris Canonici 3 (1947), pp 112–123.Google Scholar
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22 Cf Haring, J, ‘Eine interessante Ehesanation’, Theologisch-praktische Quartalschrift 93 (1940), p 145;Google ScholarKing, JP, ‘Procedure to be followed in obtaining permission for marriage by the doubly vasectomised’, The Jurist 23 (1963), pp 454–455.Google Scholar
23 The text of the correspondence and responses are to be found in Canon Law Digest, vol 6, pp 616–618.Google Scholar
24 Cf Canon Law Digest, vol 6, pp 618–620.Google Scholar
25 Pontificia Commissio Codici Iuris Canonici Recognoscendo, Coetus Studiorum de matrimonio, Conventus diei 16 februarii 1970, ‘De impotentia matrimonium dirimenti’, Commimicationes 6 (1974), pp 178–191.Google Scholar
26 Knox, J R Cardinal, ‘De copula coniugali inconsummativa matrimonii iuxta doctrinam et praxim S Congregationis pro Sacramentis et Cultu Divino’Google Scholar, in Marchetta, B, Scioglimento del matrimonio canonico per inconsumazion, (CEDAM Padova, 1981), p 396.Google Scholar
27 The text of the Decree is as follows: ‘The Sacred Congregation for the Doctrine of the Faith has always held that persons who have undergone vasectomy and other persons in similar conditions must not be prohibited from marriage because there is no certain proof of impotency on their part. And now, having examined that practice, and after repeated studies carried out by this Sacred Congregation, as well as by the Commission for the Revision of the Code of Canon Law, the Fathers of this Sacred Congregation, in the plenary assembly held on Wednesday, 1 lth May, 1977, decided that the questions proposed to them must be answered as follows: 1. whether the impotence which invalidates marriage consists in the incapacity to complete conjugal intercourse which is antecedent and perpetual, either absolute or relative? 2. inasmuch as the reply is affirmative, whether for conjugal intercourse the ejaculation of semen elaborated in the testicles, is necessarily required? To the first question: in the affirmative; to the second question in the negative. And in the Audience granted to the undersigned Prefect of this Sacred Congregation on Friday, the 13th day of the said month and year, the Supreme Pontiff, Paul VI, approved the above decree and ordered that it be published. Given at Rome from the offices of the Sacred Congregation for the Doctrine of the Faith, 13th May 1977: Acta Apostolicae Sedis 69 (1977), p 426.Google ScholarThe English translation is a modified version of that found in Canon Law Digest, vol 8. pp 676–677.Google Scholar
28 Details of the variety of views on the Decree are to be found in McGrath, A, A Controversy Concerning Male Impotence, pp 264–273.Google Scholar
29 Decision before Serrano, 27 January 1986, Apostolici Rotae Romanae Tribunalis Decisiones, vol LXXVIII, pp 56–59, 63, 66–70.Google Scholar
30 Paul VI, address to the Roman Rota, 28 January 1978, in Woestman, W (ed) Papal Allocutions to the Roman Rota 1939–2002, pp 146–147.Google Scholar
31 Eg Decision before Raad, 9 March 1978, Ephemerides Iuris Canonici 34 (1978), pp 363–365.Google Scholar
32 Eg Decision before Pinto, 17 November 1978, Monitor Ecclesiasticus 104 (1979), p 417.Google Scholar
33 Details of these authors and their various views can be found in McGrath, A, A Controversy Concerning Male Importence, pp 57–111.Google Scholar
34 Decision before Serrano, 27 January 1986, Apostolici Rotae Romanae Tribunalis Decisiones, vol LXXVIII, p 62.Google Scholar
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