Luisella Scrosati
La Nuova Bussola Quotidiano
April 11, 2016
After the publication of the Apostolic Exhortation Familiaris Consortio (1981), as likewise the Letter to the Bishops
of the Catholic Church on the Reception of Eucharistic Communion by the
Divorced-Remarried of 1994, an appeal has been made to the principle of epikeia, in order to “bypass” the prohibition
present in these documents, regarding the admission of the divorced and
remarried to the Sacraments, basing it on the fact that particular cases cannot
simply be deduced by universal laws.
According to its contesters,
the positions expressed in such documents – as those likewise clearly taught in
Veritatis Splendor – would represent
a very legalistic vision of the Christian life, which would neither take into
account the complexity of situations nor mercy. Similar observations we have
heard a number of times in the words of Cardinal Kasper, who appealed for a
broader vision, more attentive to people’s concrete life situation, more
merciful. In that context the German
Cardinal indicated the road to follow was the principle of epikeia. These are attractive considerations, as each of us would
like to share, at a deep level, a prospective which doesn’t create man for the law, but the law for man.
At the same time however, we need to leave the dynamic of slogans and actually
see how things stand.
The 1994 document of the Congregation for the Faith, which establishes “the
structure of the Exhortation [Familiaris
Consortio §84, related to the impossibility of the divorced and remarried
receiving the Eucharist, who are living more uxorio n.d.a.] and the tenor of
its words intimate clearly that such praxis, presented as binding, cannot be
modified on the basis of different situations”, cannot be reduced easily to
opinion, nor can be lightly branded as a legalistic and pharisaical
interpretation of morality.
In Amoris Laetitia, particularly
in chapter 8, (Accompanying, Discerning and Integrating Weakness) Cardinal Kasper’s reasoning from February 20th 2014, seems to
resound. In particular, it is worthwhile to focus on the problematic use of the
principal of epikeia. Let’s look at
§304:” It is reductive simply to consider
whether or not an individual’s actions correspond to a general law or rule,
because that is not enough to discern and ensure full fidelity to God in the
concrete life of a human being”.
So the Pope requests a re-reading of a consideration by
St. Thomas (Summa Theologiae I-II, q. 94, art. 4), which refers indirectly to epikeia, then used again by the Pope in
these terms: “It is true that general rules set forth a good which can never be
disregarded or neglected, but in their formulation they cannot provide
absolutely for all particular situations. At the same time, it must be said
that, precisely for that reason, what is part of a practical discernment in
particular circumstances cannot be elevated to the level of a rule. That would
not only lead to an intolerable casuistry, but would endanger the
very values which must be preserved with special care.”
Nonetheless, what is this epikeia so
clamored for? It is a virtue which permits living according to the good
indicated and protected by the law, wherever this results defective on the
grounds of its universality. The law, in
fact, is by definition, universal: it indicates the common good, without being able
to take into account all the imaginable case histories. Thus, unforeseen situations may be presented
by the legislator, in which, in order to maintain faithful to the mens of the law (which is the good), it [may]
be necessary to act contrarily to the letter of the law.
St. Thomas
himself gives a simple but very clear
example: “Thus the law requires deposits
to be restored, because in the majority of cases this is just. Yet it happens
sometimes to be injurious—for instance, if a madman were to put his sword in
deposit, and demand its delivery while in a state of madness, or if a man were
to seek the return of his deposit in order to fight against his country” (Summa Theologiae, II-II, q. 120, a. 1). It is clear: in order to
attain the common good promoted by the law, in this case its literal
application must necessarily be contravened. St. Thomas explains:
Wherefore if a case arise wherein the observance of that law would be hurtful to the general welfare, it
should not be observed.” (Summa
Theologiae, I-II, q. 96, a. 6).
From what has been said, even if necessarily brief, it results clearly that
epikeia:
1. is not an exception to the law, nor tolerance of some evil, nor a
compromise: it is on the contrary, principle of an objectively good choice and
is the perfection of justice;
2. it is a virtue which comes into play only when the application of the letter of the law is harmful to the
objective good and not when the observance of the law would result difficult or
demanding in some cases;
3. it concerns
only a concrete case, which, on the grounds of the universality of the law, was
not possible to foresee in the norm and cannot thus derogate from other particular
cases already provided by the legislator.
4. the last and most important: there are moral norms – called absolute morals
– which by their very nature do not admit exceptions of any kind; norms in
which literal transgression can never achieve the ends of the law itself, i.e.
the good, and for this reason can never be admitted. In these cases the
principle of epikeia, would have no
sense, as in the transgression of the letter of the law, the moral good would also be
inseparably transgressed.
These are those acts which the
moral tradition of the Church defines as intrinsece malum: “If acts are
intrinsically evil, a good intention or particular circumstances can diminish
their evil, but they cannot remove it. They remain "irremediably"
evil acts; per se and in
themselves they are not capable of being ordered to God and to the good of the
person. "As for acts which are themselves sins (cum iam opera ipsa peccata sunt), Saint Augustine writes, like
theft, fornication, blasphemy, who would dare affirm that, by doing them for
good motives (causis bonis),
they would no longer be sins, or, what is even more absurd, that they would be
sins that are justified?". (Veritatis Splendor, § 81).
It is somewhat singular that
this article by St. Thomas alone is referred to in the text of the Exhortation
[A.L.], omitting other passages wherein Aquinas explains well the existence of
absolute morals and of the impossibility, in this sphere, of appealing to the
principle of epikeia. In his Comment
to the Letter to the Romans (c. 13, l. 2) for example, Thomas asks for what
reason St. Paul, in Romans, 13, 9, reports only the negative precepts of the
second table of the Mosaic Law, the one regarding the precepts towards our
neighbor, omitting however the commandment “Honour thy father and thy mother”,
and he responds:
“Given that the negative
precepts are as universal as the situations […]given that negative precepts are
binding semper ad semper (always and
in every circumstance). Under no
circumstance in fact, can one rob or commit adultery. The affirmative precepts,
by contrast, are binding semper, but not ad semper, but according to the place
and circumstance”.
In the Summa Theologiae just
after the article cited in the Exhortation, Thomas explains why an appeal to epikeia cannot be made regarding
absolute morals: “precepts admit
of dispensation, when there occurs a particular case in which, if the letter
of the law be observed, the intention of the lawgiver is frustrated.
Now the intention of every lawgiver is directed
first and chiefly to the common good; secondly, to
the order of justice and virtue whereby the common good is preserved and attained. If
therefore there by any precepts which contain the very preservation
of the common good or the very order of justice and virtue, such precepts contain the intention of the lawgiver, and
therefore are indispensable.”(
Summa
Theologiae, I-II, q.
100, a. 8).
Again in another passage, Thomas
explains that “Epikeia corresponds
properly to legal justice” (Summa
Theologiae, II-II, q. 120, a. 2, ad. 1) and cannot therefore be taken into
consideration in the sphere of natural law, it being superior to legal justice
“it is not better than all justice”. (Ivi, ad. 2).
We have to be careful moreover trotting out the virtue of prudence, as if
this was a virtue which enables finding exceptions: “In the case of
the positive moral precepts, prudence always has the task of verifying that
they apply in a specific situation, for example, in view of other duties which
may be more important or urgent. But the negative moral precepts, those
prohibiting certain concrete actions or kinds of behaviour as intrinsically
evil, do not allow for any legitimate exception. They do not leave room, in any
morally acceptable way, for the "creativity" of any contrary determination
whatsoever. Once the moral species of an action prohibited by a universal rule
is concretely recognized, the only morally good act is that of obeying the
moral law and of refraining from the action which it forbids.” (V.S. 67). It is this principle that has brought many to
martyrdom, rather than commit an evil act.
Why? Because prudence does not concretize the universal norm by adapting it
to particular cases, but it is the virtue that guides concrete action for it to
achieve the good, which is proper to “her”. Prudence, in a certain sense,
“recognizes” in a concrete action the good to be attained, the good which is
indicated by the law and therefore “she” pursues it.
In our case, the moral act of
having sexual relations outside matrimony, always comes within the moral
category of adultery or fornication. There are no situations or circumstances which
can modify the moral category. As Professor Angel Rodriguez Luño wrote twenty
years ago: “it is not exact to say that
these actions are in themselves bad independently from their context [as
otherwise, in this case, the accusation of abstractism and legalism would be legitimate,
n.d.a.], since in reality they are actions which bring inseparably a context
with them”. (Acta Philosophica, 5, 1996,
fasc. 1, p.72).
A sexual type of relationship
is intrinsically bound to the donative and procreative dimension and therefore
requires the context of matrimony.
If we begin to hypothesize
that, in the situation of the divorced-remarried, “many people, knowing and accepting the possibility of living “as
brothers and sisters” which the Church offers them, point out that if certain
expressions of intimacy are lacking, “it often happens that faithfulness is
endangered and the good of the children suffers” (Amoris Laetitia,
note 329) then a clamorous inversion is being worked and the sense of the moral
law is no longer understood. If I authorize thinking that, in certain
situations, for a good end, adultery loses it evil connotation, I am implicitly
using this reasoning: 1) general principal: the sexual act is evil; 2) concrete
application: matrimony is the sole exception recognized in which the sexual act
is not evil; 3) there might be other concrete situations in which the sexual
act is not evil.
In contrast, the correct position is the following: 1) the exercise of
sexuality is a good thing which intrinsically signifies the nuptial donation;
2) the exercise of sexuality in a non-matrimonial context contradicts the
intrinsic importance of the act; 3) thus, adultery and fornication are semper et pro semper intrinsically evil.
This is why there is no sense in appealing to epikeia and the virtue of prudence, since it would be like saying
that in certain cases, a little bit of injustice can be admitted or a little
bit of lust etc. And this is why the search for some exceptions reveals in
reality a moral system of a very legalistic setting (which paradoxically, is precisely the one that is meant to be
rejected!) which does not begin with the equation – the moral law = good,
but from a vision of the moral law as a limit. Therefore, the search for some
situations in which to free people from the moral law, that for them would be
oppressive – appears – falsely – like an act of mercy.
For those who are
divorced-remarried and cannot for grave reasons separate, continence is not a
praiseworthy goal, but the only modality to attain their own good and the good
of the person with whom they live.
[H/T: "Il Timone"]
Translation: Contributor,
Francesca Romana
