The Role of History and Context in Church Law: The Instruction Dignitas Connubii as One Case in Point

THE ROLE OF HISTORY AND CONTEXT IN CHURCH LAW: THE INSTRUCTION DIGNITAS CONNUBII AS ONE CASE IN POINT Robert J. Kaslyn* In January, 2005 the Pontifical Council for Legislative Texts issued Instruction to be Observed by Diocesan and Interdiocesan Tribunals in Handling Causes of the Nullity of Marriage, Dignitas connubii.1 The text elicited much canonical commentary and reflection in reference not only to its content but also to its canonical antecedents and its relationship to the Code of Canon Law.2 This study will focus on the latter: the historical and canonical antecedents to and legal context of Dignitas connubii, emphasizing its importance as a canonical text as a whole rather than concentrating upon its content and application. Thus, we will approach the text primarily as an instruction issued by a dicastery of theApostolic See, one that is addressed to diocesan and interdiocesan tribunals. More specifically, this analysis will approach Dignitas connubii from two distinct perspectives. The first perspective focuses on the foundation of the text through its remote, proximate, and immediate origins. To approach this perspective clearly and systematically, we will first need to demonstrate the role of history in the application and interpretation of law. Such a demonstration will serve as the necessary introduction to the ensuing analysis of the text’s origins. Having analyzed these origins, the second perspective approaches the Instruction specifically as a canonical text; thus this perspective includes the text’s description within the ius canonicum; its issuing authority and competency; and its relationship to law in general and to the Code of The Jurist 70 (2010) 1–28 1 * Dean, School of Canon Law, Catholic University of America 1 For the text of the Instruction, see, e.g., Pontifical Council for Legislative Texts, Dignitas Connubii. Instruction to be Observed by Diocesan and Interdiocesan Tribunals in Handling Causes of The Nullity of Marriage [-Instruction], (Vatican City: Libreria Editrice Vaticana, 2005). For an English translation with commentary, see, e.g., Klaus Lüdicke and Ronny Jenkins, Dignitas Connubii: Norms and Commentary, (Washington, D.C.: Canon Law Society of America, 2006). Finally, for the sake of consistency, we will use the present name of the Council. 2 Such canonical reflection and commentary include “Dignitas Connubii: TwoYears Later,” Spring Canonical Seminar, March 23–24, 2007, sponsored by the School of Canon Law, The Catholic University of America. The present study is adapted from this author’s presentation at that Seminar. Canon Law in particular. The two perspectives taken together provide the necessary historical and canonical background by which we can begin to understand the canonical purpose of the text. Without such a background , any canonical text—and the Instruction in particular—remains abstract, unspecific, and divorced from the particular circumstances that affected its origin. This analysis is antecedent to the specific interpretation of each article of Dignitas connubii governed, for example, by canons 9–21 of the current code.3 Introductory Note: The Role of History in the Interpretation of Law A proper understanding of and appreciation for history is essential in the theological and canonical fields as well as in scientific enterprises. In his article, “The Code of Canon Law in Historical Perspective,” Stephen Kuttner acts upon this premise, directly in reference to the 1917 Code of Canon Law and to Cardinal Gasparri’s role in the development of that text. But his remarks, insightful as they were then, are also important today and are as applicable to the present code, to Dignitas connubii, and to other ecclesial legal documents. Referring to the process by which church law was codified, Kuttner states, One becomes aware of history as an unending texture; in other words, of the fact that even this Code, to which [Cardinal Gasparri ] gave the best years of his life, remains a contingent historical phenomenon. In the last analysis, it was but another step leading towards that ultimate harmony and perfection of the Church’s life to which all positive legislation, judicial action and legal doctrine—past, present, or future—can always give only transitory form and expression.4 The “contingent historical” dimension of Church law offers many opportunities for approaching and understanding the place and role of ecclesiastical legal texts. For the...