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He is Professor Danilo Castellano, one of the arch experts on the subject. He board the ameliorate as “contradictory and inconsistent.” But Basal Kasper doesn’t like it, either

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by Sandro Magister

> Lettera apostolica “Mitis Iudex Dominus Iesus”

> Lettera apostolica “Mitis et misericors Iesus”

Cardinal Walter Kasper himself, in fact, the baton of the innovators, charge accept taken the two motu proprio actual poorly, if he still holds to what he said in his memorable allocution at the consistory of February 2014.

On that occasion, Kasper agreed with Jorge Mario Bergoglio in celebratory that “many who accept the affliction of souls are assertive that a lot of marriages acclaimed in religious anatomy were not apprenticed in a accurate manner.”

And this ascertainment would already accompany up a few questions, because it manifests an abrupt accuracy in excluding, for abridgement of faith, the authority of abounding marriages, actually on the allotment of those who are best absorbed to award-winning the aboriginal assurance of faith, alike the best concealed, in the masses of Christians of the “periphery.”

But again the basal continued:

“It would be mistaken to seek the band-aid of the botheration alone in a acceptable amplification of abatement procedures. This would actualize the alarming consequence that the Church is proceeding dishonestly in acceding what in absoluteness are divorces. Abounding of the afar do not appetite such a acknowledgment of nullity.”

In effect, this is actually what has happened with the motu proprio promulgated by Pope Francis: both “a acceptable amplification of abatement procedures” and the boundless acumen that this is a amount of divorce.

To the abundant disappointment of the innovators, abnormally the best radicalized, who like Kasper cannot abide that their proposals for alteration the bridal article and practices of the Church should be bargain to a accretion and multiplication of the ecclesiastical tribunals.

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But aloft all to the accepted ache of bishops and canonists: the aloft aback assigned the accountability of acting as sole judge, in their corresponding dioceses, of the barrage of approaching abbreviated procedures of annulment, and the closing at grips with a new arrangement of bridal procedures that lends itself to a flood of criticisms:

> Forbidden To Call It Divorce. But It Sure Looks Like It

To the criticisms of the apostolic motu proprio bidding so far added amoebic ones will actually be added over the aing canicule and weeks, central and alfresco of the assemblage hall.

The afterward is a aboriginal sample of what may be said, in this regard, by a arch able on this subject.

The interviewee, the advocate Danilo Castellano, a aloft adherent of the illustrious Catholic philosopher Augusto Del Noce, is a adolescent in political aesthetics at the University of Udine, as able-bodied as the administrator of the annual “Instaurare omnia in Christo.”

And he is additionally the alone Italian of the nine acclaimed attorneys and magistrates of eight nations who appear aftermost month, in appearance of the synod, the book advantaged “De matrimonio” appear in Madrid by Marcial Pons and edited by Professor Miguel Ayuso Torres, at the activity of the Union Internationale des Juristes Catholiques:

> Nove giuristi di fama mondiale bussano alla porta del sinodo

The columnist of the account with Professor Castellano is Silvio Brachetta, a agent at the Istituto di Scienze Religiose in Trieste and a academic of the assize of Saint Bonaventure from Bagnoregio.

__________

A “CONTRADICTORY AND INCONSISTENT” REFORM

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Interview with Danilo Castellano

Q: Professor Castellano, is streamlining the procedures a absolute or abrogating affair in general?

A: The brevity of the activity is a appeal of justice. The brevity of the activity charge not, however, appear at the amount of the austere chase for truth, it charge not accompany into agnosticism the authoritativeness of the law, it charge not be prejudicial adjoin the rights of the parties in the procedure.

The procedure, aloft all the approved one, added than administrative charge be “giusdicente.” “Giusdicente” agency that the activity charge say what the law is in and of itself, acceptation what is just, not what is maintained to be appropriate according to the absolute norm, or what is artlessly legal. It, however, cannot agreeable itself with the alleged procedural truth; it charge authorize and acknowledge the accuracy of the facts and achieve with a book in befitting with this truth.

As far as bridal cases go, the brevity of the activity is appropriate by moral demands. If the alliance is null, the cohabitation of the “spouses” is appropriately a cohabitation of concubinage that charge be alone as anon as possible.

Q: So how do you appearance the brevity of the activity in the case of the present reform?

A: Certainly back reforms are alien their furnishings charge be considered, and additionally how they will be perceived. Innovations crave accurate prudential evaluations in adjustment not to actualize abuse and not to abode mistaken messages, as is accessible in the attendance of the motu proprio “Mitis Iudex Dominus Iesus” of Pope Francis, promulgated in a doctrinally ambiguous and socially difficult cultural context.

Q: In the ameliorate the “shorter” activity is alien alongside the accustomed one. Why? And what is to be fabricated of the “particularly axiomatic arguments” that would acquiesce recourse to the abbreviated process?

A: A benevolent estimation of the ameliorate fabricated by Pope Francis should advance one to advance that the brevity of the activity is dictated by the appeal of the truth: a alliance that is acutely absent should be declared to be such as anon as possible. Brevity, in these cases, would acquiesce – or should acquiesce – the after-effects of the accustomed activity to be accomplished after abortive abstract encumbrances. The benevolent interpretation, however, is abominably not the alone accessible estimation of this reform.

Q: Can you explain what is the authoritative ability of the bishop? On what occasions, afar from the new ameliorate of the approved process, does the abbey exercise it, if he challenge it?

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A: The accustomed of a area has duties of magisterium, of babyminding and jurisdiction, that he charge exercise with adequacy and activity for the acceptable of souls, acceptation for their sanctification. At assertive actual moments bishops accept acclimatized their “munera” alone partially. In some cases they accept acclimatized added authoritative functions than the duties/powers of the breed of the apostles. They accept acquainted themselves to be bald “functionaries” of the Holy See, not the recipients of an accustomed but abounding and actual ability to be acclimatized in acquiescence with the accepted ability able to the Roman pontiff.

After the academy of the apostolic conferences, then, the ordinaries accept generally buried themselves abaft a “collegiality” that can be advantageous and appropriate but that, if it becomes the alone archetype of activity for the bishop, distorts his function, reduces his power, and can advance him to unacceptable compromises of conscience.

The motu proprio “Mitis Iudex Dominus Iesus” of Pope Francis “restores,” back it comes to the authoritative aspect, adequateness to the action of the bishop. But acutely in this “restitution” there are additionally hidden dangers, all the added grave back the abbey is not abundantly prepared, or is confused, or, worse, uses his “munera” ideologically, and accordingly with no account for the truth. Even, at times, adjoin the truth. In these cases – currently they are not few – the abbey challenge his ability arbitrarily.

Q: The new canons 1675 and 1361, for the Eastern and Western Codes, say that “the judge, afore accepting the case, charge accept the authoritativeness that the alliance has irreparably failed, in such a way that it is absurd to reestablish bridal coexistence.” Is there not the crisis of disproportionately equating the abortion of a alliance with nullity?”

A: Reading the new canons cited, one is larboard disconcerted: the absent alliance is not a bootless marriage. Abyss is a acknowledgment of the non-existence of a marriage. The bootless alliance is not absent in and of itself. The canons cited are adverse alike with account to the conference of the motu proprio “Mitis Iudex Dominus Iesus.”

Q: And moreover: if the abortion stems from the chargeless will of the spouses, can an alien animal ability adjudge what in the close censor of the bodies has failed?

A: Alike if the abortion of the alliance is due to the decisions of the spouses, it cannot be declared absent by anyone, because it is not null. Not alike the pope has this power. On the contrary, if the albatross for the abortion rests with the spouses, it should represent an added agency in not facilitating shortcuts for liberating them from advisedly affected moral obligations. The abortion is a actuality of censor alone beneath the contour of moral responsibility. It has no acceptation beneath added aspects and cannot be invoked for declarations of abyss or for the abatement of marriage.

Q: The ameliorate seems advised to abode the affliction of those spouses who acquisition themselves in a adverse crisis. But would it not accept been appropriate for it to booty the affliction of the accouchement into application as well?

A: There is no agnosticism that there abide marriages that go through aching situations. This is generally due to animal ache and weakness; to the unpreparedness of the spouses (preparation and maturation that do not axis alone from the advice offered in pre-marriage courses); to the deficient or absent spirit of backbone that, in the alleged “civilization of rights,” it is difficult to exercise; to the way of activity proposed by a Western association that does not facilitate activity in common; to the alone claims and aspirations that advance to sacrificing the ancestors and generally to carelessness of the duties adjoin it.

Many marriages are in crisis in allotment because of the aftereffect of the admonition of “Catholic” ability that in contempo decades has astral individualism, generally translated into the alleged new rights of the ancestors alien by some states. This “Catholic” ability has preached Enlightenment-style adequation aural the family, an “emancipation” that eliminates the differences of roles and functions amid the spouses, and so on.

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To all this charge be added consumerism as the exercise of amusement for the account of amusement and generally of vice, which has led to the bounce of the actual abstraction of cede and aloft all of oblative love, the recipients of which in alliance are in accurate the children. Accouchement accept become playthings; in the case of break or divorce, acceding chips. Their rights accept been and are trampled aloft alike back they are proclaimed to be and allegedly are respected.

In this cultural and amusing altitude it is actually difficult to anticipate about the children, about the obligations adjoin them, about the affliction and accident that break and abatement abet in animal beings not yet able of accurate freedom and, therefore, decidedly traumatized by the capricious decisions of their parents.

Q: Sandro Magister has acclaimed two credibility of criticism on the reform. As for the accustomed process, there is the addition apropos the statements of the parties, which can accept the amount of “full proof.” As for the abbreviate process, there is furnished a abashed account of “circumstances that can acquiesce the analysis of abatement cases.” What do you think?

A: Magister has put his feel on a few abscessed spots of the reform. That of affidavit is a aerial problem, decidedly in our time in which proofs are calmly alternate with statements, indications, theorems. This applies not alone to the approved process, but additionally to this. An nut can accord an abstraction of the abashing and abnormal appliance of the pseudo-proofs that, at times, are taken for proofs. A few years ago, for a case of bridal nullity, some churchmen appropriate to the “spouses” that they accomplish statements that would about-face out to be ideal for “unblocking” the activity apropos them. One of the two “spouses” refused, because he maintained – accurately – that the catechism was not formal, but substantial: nullity, in fact, had been requested aloft all for moral reasons.

The motu proprio “Mitis Iudex Dominus Iesus” of Pope Francis imposes the acceptance of the administrative acknowledgment and the statements of the parties as “full proof.” It prescribes that these charge not consistently be upheld by witnesses. As if to say – absurdly – that they are “full proofs” in and of themselves. Not alone that. The adjudicator charge aspect the amount of affidavit to “indications,” which are not “full proofs.” There is the crisis of encouraging, in this way, the allowance that the pope says he fears, but to which he throws advanced the doors with the new assize 1678.

The botheration of the “etcetera” that the motu proprio adds at the end of the account of “circumstances that can acquiesce the analysis of the case of nullity,” in art. 14 of the procedural rules is, however, an absorbing question.

The “etcetera” can advance – and de facto, unfortunately, will advance – the acceptance of affairs and facts for the acknowledgment of abyss of the marriage, which will advance to an ethical-juridical allowance fostered by the admittance into the abbreviate activity of instances of nullity, some of which could accumulate the declarations of abyss of accurate marriages.

The actually bounden attributes of the proofs, nonetheless, responds to the demands of the administrative process, not of the activity of free what in actuality is the law. It is all-important to consider, in fact, that it is not the instance, acceptation the normative provision, that creates the fact, but it is the actuality in itself that takes on argumentative significance. The motu proprio accordingly presents a cogent artlessness (antipositivistic) and has acceptation not alone for the activity but for the actual apperception of the law.

Q: Do you accept it is actual to accept included the “lack of faith” as a “circumstance,” in the approved field, that allows the analysis of the case of bridal nullity? Are there added situations in which this happens?

A: No. This admittance is unacceptable, as additionally approved in a contempo article by Luís María de Ruschi, a celebrated alliance advocate in Buenos Aires and a adjudicator on ecclesiastical tribunals, independent in the anew appear book “De matrimonio,” appear in Madrid by Marcial Pons. It is unacceptable aloft all because it makes marriage, a accustomed institution, depend on faith.

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Q: What is your all-embracing acumen of this reform? What are its absolute and abrogating sides?

A: The ameliorate was rushed. It was alien into the approved arrangement at an adverse moment, both because the Church itself is discussing this question, presented as pastoral but in absoluteness doctrinal, and because civilian association has a hegemonic ability of liberal-radical brand that leads one to booty the ameliorate as a acknowledgment of the Church to the world, one that is additionally backward in coming.

Furthermore, the ameliorate was rushed because it was abundant on the base of ambiguous angle (like that, for example, bidding by the agency on the appliance of the abridgement of acceptance for the abyss of marriage) and of ambiguous choices, which should accept been accustomed analysis and deliberation.

The conception of the new canons is apparently adverse and inconsistent with account to the conference of the motu proprio itself. One gets the consequence that a “clerical” adjustment has been dictated, acceptation that it uses a alignment that proposes the chase for connected acceding with the world, which the Church is called, instead, to brighten and, if necessary, to contest.

The reform, nonetheless, additionally presents some absolute aspects (for example, as has been said: the brevity of the process, the complete or about complete abridgement of cost, the recognition/restitution of the ability of the bishop); absolute aspects that about – as generally happens and will apparently appear in the accepted ambience – will be able to be acclimated adverse to the aims of assize law and the article of the Church, and to the damage of souls. For example: the brevity of the process, conducted on the base of the new arrangement of proofs, will end up in the cutting majority of cases benign the “dissolution” of accurate marriages; abyss for abridgement of acceptance will be a array of “marital amnesty,” and so on.

__________

English adaptation by Matthew Sherry, Ballwin, Missouri, U.S.A.

__________

For added account and commentary, see the blog that Sandro Magister maintains, accessible alone in Italian:

> SETTIMO CIELO

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__________

3.10.2015 

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