The Nullity Crisis and the Hermeneutic of Continuity

In my article “Unhappy Marriage, Invalid Marriage?” published on 23 January 2025,¹ I argued that the 1983 Code of Canon Law introduced theologically inaccurate definitions of marriage and matrimonial consent, thereby causing an extreme increase in the number of affirmative declarations of nullity granted by tribunals. Rather than treating marriage as a contract established when both parties exchange the exclusive and perpetual right over the body as regards the act suitable for the generation of offspring, canon 1055 defines marriage as the establishment of a “partnership of the whole of life,” and canon 1057 §2 defines consent as the parties’ giving and accepting of “each other.” This obscures the fact that the partnership between the man and woman results from the contract, which essentially refers only to the primary right over the body, thereby treating the exchange of secondary rights, such as the sharing of bed and table, as essential for validity.

Because of these new definitions, a canonist with a certain agenda can easily exploit the now-infamous canon 1095 2° and fairly easily make the case that most unhappy marriages are in fact invalid marriages. The ambiguity of the phrase “lack of discretion of judgment,” which has often been taken to refer to some vague concept of psychological immaturity or poor judgment in general, introduces a loophole that makes consenting to marriage seems like such an arduous task that is no longer easily possible for the average human being. In addition, the “essential matrimonial rights and duties” spoken of in canon 1095 2° have been expanded to include secondary rights, based on the erroneous definitions of marriage and consent contained in canons 1055 and 1057. Therefore, almost anything that renders it difficult for the parties to live together peaceably—alcoholism, financial irresponsibility, or even a generally unpleasant temperament—can be theoretically cited in favor of granting a declaration of nullity.

As a result of these factors, nearly every unhappy marriage in which the spouses possess any character flaws that prevent them from fully giving their whole selves to each other can be construed as an invalid marriage, and this has led to the outlandish number of declarations of nullity granted in recent decades. In my article, I briefly mentioned Raymond Cardinal Burke’s argument that “the lack of discretion of judgment is simply a more purely juridical term for insanity”² but concluded that the serious theological problems in the 1983 Code render such calls for stricter interpretation inadequate. I concluded: “Ultimately, the solution lies in a return to sound theology on marriage, along with a restoration of the fontes of canon law and a proper sense of respect for canonical tradition.” Having covered the theological issues in the previous article, which I summarized above, it is my intention now to turn to the canonical, namely, why the fontes of law has been undermined in the first place.

Based on his conclusion that the phrase “lack of discretion of judgment”³ simply refers to insanity, along with his lamentation that this definition was not properly established early on,⁴ Burke concludes that there is no real novelty introduced by canon 1095, and that the nullity crisis was caused by misinterpretation. In other words, Burke appeals to a hermeneutic of continuity, a sentiment that would be echoed a few years later by John Paul II, the pope responsible for the promulgation of the 1983 Code. John Paul II was cognizant of the fact that many modern declarations of nullity were granted dubiously, and he even drew a connection between this situation and a general disdain for canonical tradition. Addressing the Roman Rota in 1993, he criticizes this attitude and restates the necessity of reading the new law in light of the old:

…in interpreting the present Code one cannot hypothesize about a break with the past, as if in 1983 there had been a leap into a totally new reality. In fact, the legislator positively recognizes and unambiguously asserts the continuity of canonical tradition, particularly where his canons refer to the old law (cf. Code of Canon Law, c. 6 §2).⁵

Unfortunately, John Paul II ultimately overlooks the fundamental problem, which is that this is not simply a matter of bad interpretation, but of bad law. No one is hypothesizing about a break with the past; the simple fact is that with the 1983 Code came new definitions of marriage and matrimonial consent. Surely, part of the blame for the nullity crisis falls upon canonists and judges who abuse canons 1095 and 1098, but the primary responsibility can only belong to legislator, who himself—culpably or not—created a break with tradition while simultaneously denying it by putting the onus upon others:

…the constant concern of the interpreter and of the one applying canon law must be to understand the words used by the legislator in accord with the meaning that long-standing tradition attributes to them in the Church’s juridical system, using well-established doctrine and jurisprudence.⁶

Now, nothing in this passage is incorrect as a matter of principle, but it simply cannot be properly applied to many canons of the 1983 Code. Even after having followed a proper interpretation in accord with “well-established doctrine and jurisprudence,” many problems still remain. There is no kind of interpretation that can ever change the fact that canons 1055 §1 and 1057 §2 simply contain theological and factual inaccuracies to begin with. As for the newly-worded grounds of nullity, particularly the one based on the “lack of discretion of judgment,” why is it that the majority of canonists and judges have “misinterpreted” or “misapplied” them? While antinomianism has been on the decline in recent years, the fact remains that until canons 1055 and 1057 are corrected, there will always be a loophole that allows canon 1095 to be “misinterpreted.”

More fundamentally, what is the source of the general disregard for tradition that permeates much of canonical jurisprudence in the modern era? If the so-called hermeneutic of rupture has been so popular, it is because this hermeneutic has been encouraged by the 1983 Code itself. Canon 6 begins by listing the categories of laws that are abrogated; no matter how much of the old law was re-legislated, the attitude presented—that of wiping the slate clean—was a distinct break with the past. This predisposes the entire Code to be interpreted in accordance with the hermeneutic of rupture whenever terms are found to be vague or ill-defined, and it is not wayward legal scholars, lawyers, or judges who established this hermeneutic, but the law itself. The blame shifts from the interpreters of canon law to the one wrote it and built these flaws into the system to begin with. In light of this, canon 6 §2, which mentions “canonical tradition,” is only a rather poor attempt at damage control.

In contrast to this, canon 6 of the 1917 Code declares that for the most part, the Code preserves the discipline previously in force while making some opportune changes. Even laws in the Code that are only partly consistent with the old laws must be assessed in light of tradition (3°), and laws that are implicitly contained in the Code are still considered to remain in force (6°). Despite the imperfections of the 1917 Code—and regardless of how one may view the very codification of canon law to begin with, looking back over one hundred years later—, no one can deny that succinctly codifying the corpus of canon law while taking pains to maintain continuity with prior legislation is a remarkable achievement.

Given the problems with the current canon 6, it is a bit ironic that John Paul II laments that with regard to marriage law, there has been an “attempt at a none-too-well defined humanization of canon law,” and that “there is frequently an intention to endorse its excessive relativization.”⁷ These observations are accurate, but the reason why marriage law has been subverted is that he himself redefined marriage and reversed its two ends! The relationship that results from the marriage contract has now entered into the object of matrimonial consent itself, making it easy to equate an unhappy marriage with an invalid one—and this is the primary driving force behind the outlandish number of declarations of nullity granted each year, not simply procedural laxity on the part of tribunals and judges.

When there has been this kind of substantial change, the legislator cannot blame others for allegedly hypothesizing about a break with tradition; objectively speaking, this rupture simply exists. Thus, the nullity crisis cannot be solved simply by demanding that the law be properly interpreted and strictly followed, if it is the law itself which is defective and enabling these de facto “Catholic divorces.” In addition to the theological problems presented by canons 1055 and 1057 and the juridical problems presented by canon 1095, the broader issue here extends far beyond the nullity crisis alone. By minimizing the importance of canonical tradition, canon 6 has the potential to affect the entirety of Catholic jurisprudence by negatively influencing the mentalities of those studying or practicing canon law.

1. D. Ludwig-Wang, “Unhappy Marriage, Invalid Marriage?” The 1568 Project with Dorothea Ludwig-Wang, 23 January 2025, https://dorothealudwigwang.com/p/unhappy-marriage-invalid-marriage.

2. R. L. Burke, “Lack of Discretion of Judgment: Canonical Doctrine and Legislation.” The Jurist, 45 (1985), 181.

3. I have kept Burke’s translation of canon 1095 2° as “lack of discretion of judgment” rather than “grave defect of discretion of judgment” to maintain stylistic continuity, both in this article and my previous article, although “grave defect” is a more accurate rendering of the original Latin, which states: “Sunt incapaces matrimonii contrahendi: […] qui laborant gravi defectu discretionis iudicii circa iura et officia matrimonialia essentialia mutuo tradenda et acceptanda.” The connotation of “grave defect,” however, is arguably less severe than “lack,” which only reinforces arguments that this canon is too vaguely- and broadly-worded and responsible for enabling the nullity crisis.

4. Burke, 185.

5. John Paul II, Address of His Holiness John Paul II to the Tribunal of the Roman Rota (29 January 1993), 5.

6. Ibid.

7. Ibid., 6.