On Divorce: Ratzinger Then and Benedict Now

On Divorce: Ratzinger Then and Benedict Now December 9, 2014

It seems that Pope Emeritus Benedict has changed his mind, and wants to make it  known that he is repudiating an argument he made forty years ago.   Six years ago the Pope asked Gerhard Mueller, then Bishop of Regensberg, to oversee the publication of his collected theological works.  Benedict was  a prolific theologian, and his opera omnia  are being published in German in a 16 volume set.    (The first(?) volume of an English translation has been published by Ignatius Press.)   Three weeks ago, Vatican Insider, the Vaticanista column at the Italian paper La Stampa, called attention to the fact that in the republished version of his writings, Benedict had made major revisions to an article then Fr. Ratzinger had written back in 1972 on divorce and remarriage.

In this article, Ratzinger sketched out an argument in favor, in certain limited circumstances, of allowing the divorced and civilly remarried to receive communion without either an annulment or the promise of living as “brother and sister” in their new marriage.  The argument bears some similarity to the Orthodox justification for allowing remarriage and was referred to by Cardinal Kasper in his now famous speech last February.  (An English transcript of parts of that speech can be found here.)  Il Stampa argued that the original article was published at a critical time in Ratzinger’s theological evolution, after he had broken with the “progressive camp” (with whom he had been aligned) at Vatican II.

One of my favorite Vaticanistas, Sandro Magister, has published the text of the conclusion of the original article and the revised version.   They are worth reading in full as I think they encapsulate two major perspectives on the question of communion for the divorced and remarried.   Here I will extract a couple key passages to highlight the change in tone and argument.

In the original, Ratzinger made it clear that he wanted to move beyond the strictures of canon law, which he felt yielded an incomplete approach to the problem:

One must expressly remember the margin of latitude that is to be found in every process of annulment. This discretional margin and the disparity of opportunity that inevitably stems from the cultural level of the persons involved, as also from their financial resources, should put one on guard against the idea that justice could be perfectly satisfied in this way. In addition, many things simply are not judicable, even though they are real. Juridical questions must necessarily be limited to that which is juridically demonstrable, but precisely for this reason they can overlook decisive facts. Above all, in this way the formal criteria (errors of form or  intentional disregard for ecclesial form) become so prevalent as be able to lead to injustices. Overall, from the juridical point of view the fact of focusing the question on the foundational act of marriage is inevitable, but nonetheless it constitutes a limitation of the problem that cannot fully render justice to the nature of human action. The process of annulment indicates practically a group of criteria to establish if the parameters of marriage between believers cannot be applied to a particular marriage. But it does not exhaust the problem and therefore cannot advance the claim of that rigorous exclusivity which must be attributed to it in the domain of a particular form of thought. (emphasis added.)aa

Benedict, on the other hand, very much grounds his argument in canon law.  After a brief discussion of the Pauline and Petrine privileges—which he makes a point of noting were not included in the 1983 revision of canon law—he begins a detailed argument based primarily on canon law itself:

Over the course of time there developed more and more clearly the awareness that a marriage apparently contracted in a valid manner, because of juridical or practical defects, cannot really be concretized and therefore can be null. To the extent to which the Church has developed its marriage law, it has also elaborated in detail the conditions for validity and the reasons for possible nullity.

The nullity of marriage can stem from errors in juridical form, but above all from a lack of understanding. In dealing with the reality of marriage, the Church recognized very quickly that marriage is constituted as such through the consent of the two partners, which must also be expressed publicly in a form defined by law (CIC, can. 1057 § 1). The content of this joint decision is mutual self-giving through an irrevocable bond (CIC, can. 1057 § 2; can. 1096 § 1). Canon law presupposes that adult persons know on their own, on the basis of their nature, what marriage is, and therefore also know that it is definitive; the contrary must be expressly demonstrated (CIC, can. 1096 § 1 e § 2).

It is not surprising that a theologian of Benedict’s depth would change his mind over the course of a 50 year career:  if  Augustine can do it, so can Benedict.   But in reading the original and revised arguments, two things did surprise me.  The first was the way in which the argument changed.  Forty years ago, Ratzinger saw serious shortcomings in basing an approach to divorce strictly on canon law, and tentatively proposed an alternative.  Today, Benedict pretty much bases his entire argument on canon law.    Though he does not say so explicitly, my interpretation is that he sees marriage primarily as a disciplinary matter and that any changes in practice must be done in this context.  For instance, when discussing whether in the modern setting sacramental marriages actually occur, he frames the question of “understanding” in terms of a pre-condition given in canon law.  He then immediately warns against determining the nullity of a marriage based on psychological grounds, precluding any approach to this question that is not juridicial.

What is not clear is why he views canon law as the privileged for viewing what really is a multi-dimensional problem.  As the highlighted quote above makes clear, in 1972 Ratzinger felt that the law is important, but there are some questions which are not juridicial in nature.    To be fair, in his conclusion Benedict looks at the pastoral dimension more broadly, quoting John Paul II on the urgent need for pastoral care for the divorced in our midst.   He also ties his concerns closely to a more general concern that people are receiving the Eucharist too frequently and unworthily.  (This leads to the curious suggestion that perhaps it would be better to encourage people to receive communion less, in part so that they could be in “solidarity with divorced and remarried persons”.)  I would not go so far as to call this passage an afterthought, but it does appear to me to be a codicil to the main thrust of his argument.

Second,  Benedict does not engage with his younger self in any meaningful way:  he does not explain why his original argument was incorrect or incomplete.  Indeed, he seems to pretty much ignore it.  After rereading the revised version several times, I found only one passage which seems to address his previous argument:

At the same time, the Church must continue to seek to plumb the breadth and boundaries of the words of Jesus. It must remain faithful to the mandate of the Lord, and cannot even stretch it very much.

I infer from this that he feels that his younger self was “stretching” (distorting?) the gospel with his proposal, but he does not say so directly.  This approach to rethinking his original ideas strikes me as somewhat disingenuous:  he cannot simply consign his former position to the memory hole.  I think it would have been much more interesting had he published a postscript explaining more directly why his earlier proposal did not “proclaim the message of faith in a convincing and comprehensible way and seek to open spaces in which this can be truly lived.”

I am not going to comment in detail on the specific proposals of Benedict today versus his younger self.  I will note that, as I have said earlier, that the suggestion laid out in the 1972 article is interesting but I am not sure that it can work in our current Western culture without a significant recalibration of how Catholics view marriage and the Church.   And the solution Benedict seems to favor rests on preserving the status quo; here I agree with Bishop Tobin that this is no longer possible.  (Such a position reminds me of Zizek’s arguments about the obscene underbelly of the law, but that is a subject for a different post.)

I want to conclude with a question about the nature of this revision.   I am sure that many commentators will regard this as Pope Benedict re-entering the debate about communion for the divorced and remarried (though, interestingly, Fr. Z emphatically denies that this is the case).  I think there is a certain element of this, especially since his earlier words are being used to support a position he now strongly disagrees with.  But I think that the way he is doing this reveals a man who is walking a narrow path.  He wants to comment, and perhaps feels that he has a duty to do so.  On the other hand, I am sure that he is keenly aware that his unique status as “Pope Emeritus” puts him in an awkward position with regards to his successor.  I get the sense that a lot of folks would like him to be the leader of the “opposition,” however defined.   Indeed, the mutterings about defects in the election of Pope Francis (whatever their extent–see the comments to my earlier post here) seem to be based in some wish that the clock could be turned back and Benedict’s resignation rescinded.  Following the example of St. Augustine and making corrections to a position taken decades ago is a via media between saying nothing and directly entering the discussions.  If my interpretation is correct, then I admire him for taking this path.  For all my criticisms of the content of the revision, the form may be the best choice possible.


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