Tkompli r-riflessjoni dwar l-Epikeia

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MILL-KUMMISSJONI TEOLOĠIKA (7)

18 ta’ Ġunju 2012 – Tkompli r-riflessjoni dwar l-Epikeia

Il-Papa Benedittu XVI, meta kien għadu kardinal, kiteb artiklu awtorevoli fl-1998 biex jintroduċi l-volum On the Pastoral Care of the Divorced and Remarried, ippubblikat mil-Libreria Editrice Vaticana. Huwa jistqarr:

“Admittedly, it cannot be excluded that mistakes occur in marriage cases. In some parts of the Church, well-functioning marriage tribunals still do not exist. Occasionally, such cases last an excessive amount of time. Once in a while they conclude with questionable decisions. Here it seems that the application of epikeia in the internal forum is not automatically excluded from the outset. This is implied in the 1994 Letter of the Congregation for the Doctrine of the Faith, in which it was stated that new canonical ways of demonstrating nullity should exclude ‘as far as possible’ every divergence from the truth verifiable in the judicial process (cf. n. 9). Some theologians are of the opinion that the faithful ought to adhere strictly even in the internal forum to juridical decisions which they believe to be false. Others maintain that exceptions are possible here in the internal forum, because the juridical forum does not deal with norms of divine law, but rather with norms of ecclesiastical law. This question, however, demands further study and clarification. Admittedly, the conditions for asserting an exception would need to be clarified very precisely, in order to avoid arbitrariness and to safeguard the public character of marriage, removing it from subjective decisions”.

Ħsibna li biex ikollna stampa aktar sħiħa tas-suġġett tkun ħaġa tajba li naqraw ukoll il-preżentazzjoni tal-moralista Mons. Angel Rodríguez Luño. Fir-rigward tal-epikeia, huwa ma jsegwix il-linja Aristotelika-Tomista, imma dik ta’ Platone u ta’ Suárez.

  1. Suárez emphasises legal certainty more than justice, and the legislator’s will more than reason. Put simply, Suárez shifts epikeia from a virtue to a sophisticated interpretation of the law in extraordinary circumstances when the law is too general. Unlike Aristotle and Aquinas, who understood epikeia as belonging to every rational human being, Suárez maintained that only legal experts are entitled to act in the sense of epikeia.

In relation to St Thomas Aquinas, Suárez narrows down the content of epikeia in two ways: The realm of epikeia is not the whole area of law, but only the laws of the state. For Thomas epikeia was the virtue that enabled everybody to act “praeter legem” in extraordinary circumstances through recourse to higher principles. When Suárez quotes St. Thomas, he uses “contra legem” in the sense of acting against the law of the state. For Suárez it is impossible to act independently of the legislator, because the binding power of law comes from the will and intention of the legislator.

  • Angel Rodríguez Luño, “L’epicheia nella cura pastorale dei fedeli divorziati risposati”, in L’Osservatore Romano (26.11.1997), p.9.

Available in English at http://www.eticaepolitica.net/famiglia/arl_epi%5Ben%5D.htm

This article serves to throw more useful light on the moral concept of epikeia. It is one interpretation of the concept of epikeia from the perspective of Plato and Suárez.

One occasionally encounters moral theologians who present the concept of epikeia as a relaxation or a watering down of moral norms. In fact, the author commences his long article in the Vatican daily newspaper by stating: “In various quarters the hypothesis has been put forward that the traditional doctrine of epikeia might provide a different moral solution to the problem of the divorced and remarried faithful” (column ‘a’). Rodríguez Luño commences his contribution by providing the basic principles on the subject. He refers to the authors who have studied the theme: Albert the Great, Thomas Aquinas, Scotus, Cajetan, Suárez, the Carmelites of Salamanca and Alphonsus de’ Liguori. The following are the main points of the article:

  • The study of the classical sources leaves no doubt on the fact that epikeia has been understood as a moral virtue (cfr Aquinas, Summa Theologica, IIa-IIae, q.120, a.1). In other words, epikeia is understood as a quality belonging to “la formazione morale compiuta dell’uomo” (col. a). This has two important consequences: (i) epikeia is a principle regarding choices which are not only good, but which are excellent and the best possible choices. For Albert the Great, epikeia is superiustitia. Therefore, epikeia does not lead to the choice of a lesser good – a sort of mitigatio iuris or a “discount” – which in certain cases can be tolerated; (ii) transferring epikeia to an epistemological or ethical context which is diverse from classical virtue ethics requires several clarifications.
  • Luño explains that the proper context to understand epikeia is that of the laws regulating the life of the polis, in other words perfectible human laws. Basing himself on Aristotle and Aquinas, Cajetan synthetically explains that epikeia entails a directio legis ubi deficit propter universale. The well-formed human being does not only know which behaviour is ordered or prohibited, but also knows the reason why this is so. Moreover, since the law is a universal norm, it can be the case that a particular situation is not covered by it. The virtuous man realises this because he understands that a literal observation of the law leads to an action which goes against the ratio iustitiae or the communis utilitas which have inspired every law and legislator. It is therefore the duty of the human legislator, in these cases to give a direction to the application of the law in such a way that what should have been originally contemplated in the law be now included in it, had he envisaged the case in question. The scope of this action is not only to improve the law, but to avoid unjust behaviour which wounds the common good. This explains why epikeia is not a question of benevolence or tolerance. Rather, it becomes the rule which must necessarily be followed. In fact, Aquinas explains that epikeia is “a kind of higher rule for human actions” (ST, IIa-IIae, q.120, a.2). This does not mean that epikeia is superior to the good and the bad, but that when the common criteria of judgement cannot be applied, epikeia provides a direction to judgement, what Aquinas calls “gnome” – this being inspired by higher principles. Epikeia “is a ‘higher rule’, since it appeals directly to a higher level of moral principles in order to evaluate exceptional cases” (col. a).
  • The author reminds us that all great moral theologians are in accordance that a law is not to be observed when, even because of a single case, that law is defective. A law is not to be observed if it leads to a behaviour which is contrary to justice or to the common good. In this case, epikeia is not invoked. Rather, Aquinas insists that when the application of a law is harmful to the common good and the danger is not imminent, recourse must be made to the legislator. It is important that recourse be made to the legislator because if each individual were arbitrarily to decide for himself, this would lead to a “free-for-all” situation and the dissolution of the entire legal system, both civil and ecclesiastical. The debate between moral theologians lies – Rodríguez Luño affirms – on when to consider a law to be defective. He presents, on the one hand, the opinion of Aquinas and Cajetan, and on the other, that of Suárez (col. b). He also demonstrates the positions of these authors with regard to the natural moral law, and whether epikeia can be invoked to correct it. Despite the diversity in their mode of reasoning, they agree that it is clear that no natural precept requires the directing role of epikeia (col. b). An action which goes counter to the natural moral law can never become licit through the application of epikeia (col. c).
  • The complex points raised in the article by Rodríguez Luño seek to address the discussion among theologians regarding Familiaris Consortio 84 and the Letter to Bishops by the CDF (14.9.1994), both presented in previous issues of this series of theological subsidia by the Interdiocesan Theological Commission (Malta). The author reiterates that unfortunately a number of writers and speakers have confused epikeia with tolerance and understanding (col. d). He studies in detail the provisions of canon 1085 § 2,[1] especially in the light of incorrect interpretations of this canon. Rodríguez Luño explains that this canon offers a guarantee against any form of subjective arbitrariness regarding the validity of the marriage bond, and seeks to protect the ecclesial and the public reality of Christian marriage (col. d). The author explains that the ecclesial legislator has never intended to leave judgement regarding the validity of a marriage bond to the private judgement of one of the spouses. In this regard, he refers to the Allocution of Pope John Paul II to the Roman Rota (10.2.1995) where this was, once again, made clear. Care is to be taken to avoid easy solutions in the internal forum to difficult situations regarding the validity or invalidity of marital consent (col. e).
  • According to Rodríguez Luño, there is practically no case when epikeia can be applied in the situations being described. He allows only this exception: “It would be possible to appeal to epikeia only if, due to exceptional circumstances, a capable person were denied the exercise of the ius connubii, in a way not foreseen or foreseeable by the lawgiver and without it being required by the common good of the faithful, the common good that – perhaps today more than ever – calls for the careful safeguarding of the indissolubility of marriage” (col. e). Further on in his article, Rodríguez Luño explains that the subjective conviction of one or both of the spouses does not authorise one to conclude that the ecclesiastical law (regarding marriage nullity processes) is defective (col. e-f). Recourse to the opinion of an expert priest or to some other diocesan body regarding the nullity of marriage is untenable, and he explains: “It is hard to understand, then, how a priest or a diocesan office could arrive at a veritas rei, which, on the other hand, could not be reached by a tribunal of the same diocese or a tribunal of the Holy See” (col. f).
  • Towards the end of the article, Rodríguez Luño discusses the question of reception of the Eucharist by remarried divorcees whose first marriage union was certainly valid. He explains that although many a time the discussion is centred on whether they can receive the Eucharist or not, in actual fact, the issue is whether they can validly receive sacramental absolution. The latter question must also be studied with regard to other past faults of the individuals in question (in other words, not only with respect to the sin of adultery, but also to other grave sins). He affirms that with reference to the necessity of the state of grace to receive the Eucharist, it is not possible to invoke the concept of epikeia because here we are talking of the divine law. (Note that as seen in the beginning of this resumé, the use of epikeia concerns only perfectible human laws, and not divine laws.) Furthermore, the author reminds us that an act of perfect contrition is required for valid sacramental absolution which includes the penitent’s resolution to go to confession as soon as possible (can. 916) and to avoid the same sin in the future. In the case of remarried divorcees, how is this possible?
  • The conclusion to Angel Rodríguez Luño’s article gives us a summary of his presentation: “At the end of these considerations, we can note that epikeia is the moral virtue that identifies the action to be taken in individual situations, which, by their exceptional nature, do not fall within the ordinary provisions of canon law. The recent proposals regarding the divorced and remarried faithful invoke it instead as a possible basis for an alternative solution to a general problem, which shows that their appeal to epikeia is very inappropriate and certainly foreign to the great tradition of Catholic moral theology. What these proposals envisage is a new general criterion of tolerance, whose compatibility with the indissolubility and sacramentality of Christian marriage remains to be shown, and seems rather to stem from an idea of consience that the Church cannot accept (cf Veritatis Splendor, nn 54-64)” (col. f).

Fil-paġni li ġejjin qegħdin inwasslu l-artiklu sħiħ li semmejna fil-bidu: l-artiklu tal-Papa Benedittu XVI. Dan l-artiklu reġa’ nġieb minn L’Osservatore Romano f’Diċembru li għadda.

Dun Hector Scerri

Kummissjoni Teoloġika Interdjoċesana

[1]Can. 1085 § 2: Even though the previous marriage is invalid or for any reason dissolved, it is not thereby lawful to contract another marriage before the nullity or the dissolution of the previous one has been established lawfully and with certainty.

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