Rorate Caeli

Is Amoris Laetitia really Thomistic and against “decadent scholasticism”? Let’s hear what the Angelic Doctor says

Luisella Scrosati
La Nuova Bussola Quotidiano
April 11, 2016

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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