RDC 48/1, June 1998
Summaries Summaries résumés en français
Bernard Paperon, Divorce in Hebrew Tradition : Talmudic Sources,
RDC 48/1, 1998, p. 7-28.
Commentary on the Bible (Dt. 24, 1-4) by Rabbinic Schools. The School of Chamai aims at preserving marriage and does not envisage a dissolution except in the case of adultery. On the other extreme, Rabbi Aquiba permits the termination of marriage for quite trivial causes. The School of Hillel holds the middle ground: a husband may divorce his wife for adultery but he may divorce her also for other grave transgresssions. The legislation follows essentially the opinion of Hillel. The commentators such as Maimonide or Rachi (XI-XV Centuries) attempts to reconcile these points of view by distinguishing a first marriage from remarriage. The law acquired its definitive form in the XVIth Century in the "Choulhan Aroukh" which admits of the dissolution of a first marriage only in the case of adultery (every effort must be made to retain "the wife of one’s youth"). It is more lenient in regard to the dissolution of second marriages.
Rik Torfs, The Right of Defense in Marriage Nullity Process. Some reflections regarding a book of Ann Jacobs,
RDC 48/1, 1998, p. 35-57.
In her book (« The Right of Defence in Marriage Nullity Processes », Paris, Ed. Cerf, 1998), Ann Jacobs expounds a somewhat restricted concept of the right of defence in canonical matrimonial processes. In her view, the principal objective of these processes is the discovery of the truth; there is no question, therefore, really of a contentious process and the right of defence is a private right which should be weighed against the common good, namely the search for the truth. This is at variance with developments in secular juridic systems in the area of the protection of human rights. It advances an idealised view of Canon Law which is sometimes far removed from the reality of matrimonial processes.
Jean Werckmeister, Access to the Sacraments for Remarried Divorcees,
RDC 48/1, 1998, p. 59-78.
Unlike the code of 1917, the code of 1983 does not deal with remarried divorcees and does not prescribe a penalty against them. The silence of the present code in this matter raises a question and requires interpretation. In virtue of Can. 843, as a general principle, access to the sacraments should not be refused. In the case of the sacrament of order, however, there is a question of irregularity and in the case of marriage there is the impediment of the bond of a previous marriage. With regard to the Eucharist, Can. 915 imposes certain restrictions on its reception but it is not explicit about who is concerned and can not be applied indiscriminately to all remarried divorcees. The ministers of Holy Communion, therefore, do not appear to have canonical sanction for refusing them, except in the case of grave scandal.
Piet Stevens, Preaching in the Code of Canon Law. Some critical observations,
RDC 48/1, 1998, p. 79-94.
A detailed analysis of Can. 747 and 746-772 dealing with preaching indicates that the terminology employed is not consistent. The commission for the Revision of Code used the sources (Code of 1917, Vatican II, etc.) separately for each canon without paying sufficient attention to its relevance to the other canons. It took the theological terms of the conciliar documents without adapting them to the exigencies of legislation. There is a weakness, an inconsistency and a lack of clarity regarding the preaching of the word of God. There is also an absence of specific penal norms in regard to breaches of the law. This does not accord with the high value placed by the Code itself on the preaching of the word of God.
Jean-Georges Boeglin, The Status of religious communities other than Catholic in Italy,
RDC 48/1, 1998, p. 95-111.
Having set out "accords" made between the Italian State and different religious bodies, the article deals with religious bodies with whom an "accord" has not been made and who are subject to the legislation of 1929-1930. It examines the problem of equality of treatment in regard to the different religious bodies and ends with some observations concerning "laicism Italian Style", Laicism which was initially a liberation from the dominance of the Catholic religion, safeguards religious freedom in the context of religious pluralism. The Italian system could win widespread acceptance in Europe.
Laurent-Marie Pocquet du Haut-Jussé, With regard to "Church and Papacy". A Tribute to Fr. Yves-Marie Congar,
RDC 48/1, 1998, p. 113-133.
Dealing again with the various topic included in the work of Fr. Congar "Church and Papacy", the article investigates especially the concepts of "populus christianus" (Christian people), "Ecclesia" (Church) and then the concepts of "Ius divinum" (Divine Law), and magisterium. It goes on to analyse in a critical fashion the ideas of Fr. Congar concerning three hotly debated points in present ecclesiology: The Pope as patriarch of the West, the relationship between "romanity" and Catholicism and the concept of "reception".
Florea Duta, A frexh look at the identity of Scythian Theologians : John, Bishop of Tomis,
RDC 48/1, 1998, p. 135.
Through its contacts with the Latin and Greek worlds (today in Rumania), Scythia Minor experienced a blossoming of theologians from the IVth to the VIth century (John Cassian, Denis the Small…). The identification of John, bishop of Tomis, raises problems. A detailed study of the manuscripts and of the situation in Scythia Minor at the time leads to the conclusion that one must distinguish between two men who bore the name John: the first, who was the author of the "Instructio" against the Nestorians and the Eutychians (published as an annex), was bishop of Tomis in the Vth century, one must not mistake him for a second John (perhaps Maxence John) who was bishop of Tomis in the VIth century.
Peter Landau, A Tribute to Rudolf Weigand,
RDC 48/2, 1998, p. 227-232.
Rudolf Weigand, professor of canon law and of the history of canon law at the University of Wurzburg, died on the 21st of June, 1998. A specialist in Glosses of the Decree of Gratian, he prepared also the edition of "The Summa Lipsiensis" and two Summas of Honorius. His writings also dealt with medieval matrimonial law and with the theory of canon law (especially the Natural Law) – also with the local history of Franconia. He will be remembered as one of the greatest historians of canon law in the XXth century.
Peter Landau, Burchard of Worms and Gratian: for a study of the direct sources of Gratian,
RDC 48/2, 1998, p. 233-245.
The principal sources used by Gratian are the Panormia, the Tripartita, Anselm of Lucca, the Polycarpus and the Collection in Three Books. In 1981 the author has pointed out that Gratian did not use the Decree of Burchard. This was the contrary to the opinion which was held up to that time and should be reviewed today. Gratian (shorter version) certainly used Burchard, although not a lot, in ten canons at most. A detailed study of these canons helps one to get a precise idea of the type of manuscript of Burchard which Gratian used. At present only one manuscript (Vat. Lat. 1355) has been discovered which manifests all the requisite characteristics. Further studies are necessary to determine whether that was the manuscript which Gratian had before him.
Jean Gaudemet, The Sources of the Decree of Gratian,
RDC 48/2, 1998, p. 247-261.
In this article, by "sources" one means the authorities cited in the Decree: 979 patristic texts, 762 conciliar canons, 726 pontifical decretals, 239 secular texts (not taking into account De Consecratione and De Penitentia). These texts are frequently regrouped in series (e. g. 28 patristic texts in C. 32), series taken generally from former collections (Panormia, Tripartita). Attribution in sometimes deliberately changed; thus many conciliar canons are attributed not to the Council which voted on them, but to the Pope who presided over the Council.
Pierre Racine, Bologne in the time of Gratian,
RDC 48/2, 1998, p. 263-284.
Having treated of the social, political and cultural developments in the city of Bologna, which were marked by the influence of the countess Matilda, during the first half of the XIIth century, the author describes the development of the profession of notary and addresses problems relevant to the appearance of the schools of civil and canon law and to the slow emergence of the university.
Anders Winroth, The two Gratians and Roman Law,
RDC 48/2, 1998, p. 285-299.
The discovery of the first version of the Decree of Gratian throws light on the teaching of law in Bologna in the XIIth century. Gratian I in the years around 1130 scarcely knew the Law of Justinian; Gratian II (towards 1150) appears to have had a much better training in Roman Law and does not hesitate to correct Gratian I. To explain Gratian I’s lack of knowledge regarding the Law of Justinian, one must admit that, contrary to accepted views, this law was not taught by Irnerius from the beginning of the XIIth but rather by Bulgarus in the middle of the XIIth century. Around 1130 the school of Roman Law was only in its infancy. Its development was very rapid. Gratian II and his disciples, such as Rufin, bear witness to this.
Jean Werckmeister, The two versions of "De matrimonio" of Gratian,
RDC 48/2, 1998, p. 301-316.
The recent discovery by Anders Winroth of a short version helps one to get a better understanding of the formation of the Decree, notwithstanding unresolved problems of dating. In Causes 27 to 36, which constitute a treatise on marriage, the thinking of the first Gratian appears to be well structured and expounded in a clear and concise manner. Lack of clarity is generally the result of small additions made by the second Gratian. However, these additions have not been made without a purpose: the second Gratian maintains a doctrine or stance which is clearly different from that of the first Gratian. It appears certain, therefore, that the two versions have different authors.
Pierre Nobel, A medieval translation of the Decree of Gratian,
RDC 48/2, 1998, p. 317-347.
Manuscript 9084 in The Royal Library of Brussels contains a French translation of the Decree of Gratian. The Brussels manuscript can be dated around 1280 but is not the original. The translation, therefore, is older. The editor of the Manuscript, Mme L. Lofstedt, ascribes it to Thomas Beckett († 1170) but her arguments are not sufficiently convincing. The date of the translation should be rather the XIIIth century and it should probably be attributed to a Picard-Norman origin. It is a complete translation but without the paleae. The work is of good quality in a concise and simple style. The translator must have been an accomplished bilingual cleric, undoubtedly a canonist who wrote for lay readers who had not a knowledge of Latin.
René Heyer, The question of time in the formation of the marriage bond in Gratian,
RDC 48/2, 1998, p. 349-361.
Gratian distinguishes two stages in the making of a marriage: the exchange of consent and consummation. However, it is not these two stages which are important as such but rather the fact that time intervenes in the process. Furthermore, in Gratian’s dialectical thinking, the two stages are not interchangeable. Consent, which finalises an initial process of formation, finds expression in the present tense (verba de praesenti) and brings about the marriage. The consummation stage is different; according to the officially accepted doctrine, consummation does not bring about the marriage but renders it indissoluble… with exceptions.
Jean Werckmeister, Studies on the Decree of Gratian: attempt at assessment of the present situation and the future,
RDC 48/2, 1998, p. 363-379.
The most important new discovery is that of the short version of the Decree of Gratian. Have the two versions the same author? Probably not. What was the date of composition of the two versions? Opinions differ. The question of the sources of the Decree is difficult to clarify before the publication of the collections used by Gratian (Panormia, Polycarpus, Tripartita, Collection Three Books and also the Decree of Burchard). As of now, one has only to hope for the early publication of the short version of the Decree.
Alphonse Borras, Parish Renewal and Religious Marriage,
RDC 48/2, 1998, p. 381-414.
Parish renewal which is taking place invites reflection on pastoral involvement in marriage, the canonical pre-nuptial enquiry and the celebration of the sacrament. This renewal takes different forms. A closeness to the parishioners must be maintained and the theological and canonical formation of the laity officially involved is necessary. There arises also the question of the minister and of registers. A matter of particular importance is the safeguarding of the ecclesial dimension of marriage against those who would deem it to be a private matter.