Mercy and Law in Amoris Laetitia
Gerald J. Bednar*
Listening for the voice of Jesus
With regard to Pope Francis’ Post-Synodal Exhortation Amoris Laetitia (AL), there are some among the faithful who fail to understand a subtle but important distinction between law and mercy that runs throughout the Exhortation. Some dissenters, for example, assert that Christians who divorce from a valid marriage and remarry with adequate knowledge and consent enter the state of mortal sin. They insist that God gives the justified sufficient strength to bear whatever difficulties that may arise, that married couples can endure what comes their way if they take advantage of the grace offered to them.
The positions adopted by such opponents, however, rely dispassionately on the sense of the law. The clarity of the law gives confidence and predictability to one’s actions. The directives of AL seem to give neither.
Famously, Pope Francis has championed mercy as the forgotten virtue in Christian thought and practice today. Although aware of abstract principles, mercy attends primarily to concrete circumstances. There is no law of mercy. No recipe exists for when and how it should be applied. Mercy subsists in a different realm. It pertains to concrete circumstances that need individual assessment. Mercy resists legal formulation. Nor is mercy an alternative to law. Mercy is rather a way of applying laws. Jurisprudence that attends only to abstract principles, therefore, can result in a mean-spirited application of the law. Mercy, on the other hand, listens for the voice of Jesus in the particular circumstances it faces.
Francis proposes that in appropriate cases, partners already in a second marriage may enter a period of discernment, accompanied by an experienced priest, so they can reflect on relevant issues. After a suitable period of time, they may celebrate a sacramental confession in which they accept an appropriate penance and receive absolution. Communion may follow that discernment and penance (AL 305). Such a case may involve, for example, a man who selfishly leaves his wife early in a valid marriage. He obtains a civil divorce and marries another. Years go by. Eventually, the man comes to his senses about the first marriage. He admits his sin, and seeks pardon and forgiveness. What does conversion require of him? Must he leave his second wife and their children to return to his first wife? What if his first wife has remarried? Is there no way for the repentant husband to stay in the second “marriage” and still receive Communion?
The traditional response to this unfortunate circumstance requires him and his second wife to live in a “brother-sister” relationship — denying to each other normal conjugal relations. Some circumstances may indeed call for such an arrangement. Some may not. Some couples may want their family to continue to grow, and may recoil at the very idea of simulating the sacrament. Can nothing be done?
In Mt 19:9, Jesus declares, “I tell you, whoever divorces his wife, except for porneia, commits adultery.” Notice that Jesus himself grants an exception to the rule against divorce, the exception of “porneia.” Most likely, porneia refers to null marriages. But here the issue becomes murky. Null marriages are not really marriages. Well, then, what are they? No one would say that such couples lived in sin before the annulment. Those marriages certainly looked valid at the beginning. They are certainly treated as marriages until a final declaration of nullity is issued. The categories of the law do not present the neat distinctions some would expect.
Most biblical scholars would say that the more primitive form of Mt 19:8-9 is found in Mk 10:11-12 where the Lord’s prohibition against divorce takes an absolute form (“Whoever divorces his wife and marries another commits adultery”). Matthew reformulates the question in a way that looks for an exception, “Is it lawful to divorce one’s wife for any cause?" (Mt 19:3). When Matthew reports the Lord's reply, he feels free to add the porneia exception. While the change leaves the prohibition against divorce intact, it renders it more nuanced. Are such changes legitimate?
It is not as if this sort of solution were without precedent. Saint Paul did the same sort of thing approximately 30 years before Matthew wrote his Gospel. If a married man wishes to convert to Christianity and his non-Christian wife resists. Saint Paul permits the man to divorce and enter a second marriage to a Christian woman (1 Cor 7:12-15). The privilege has long been recognized as an exception to the ban against second marriages.
Joseph Fitzmyer has noticed that when Matthew added the porneia exception to the saying of Jesus, the evangelist was still operating under inspiration, as was Paul when he devised his permission to divorce. If the Church remains a Spirit-guided institution, why can’t the Church of a later day make a similar exception as the occasion demands? Similarly, the Church has long recognized the Petrine privilege (based on the power of the keys, Mt 16:19), to dissolve certain marriages at the discretion of the pope. Both privileges are not so much commentaries on the indissolubility of marriage as they are affirmations of the centrality of mercy. Furthermore, the Church has long recognized that, if a just cause exists, the pope may grant a dispensation even from a valid sacramental but unconsummated marriage (Canon 1698). If the dispensation is granted, the partners are free to remarry without fear of committing adultery.
Law and mercy belong together in the Christian dispensation. One need only perceive the two correctly to discover their unity. The Christian never needs to choose between mercy and the law. Mercy is the sensibility with which Christians interpret the sense of the law. Sometimes mercy will produce a hug, and sometimes a rebuke. It depends on the circumstances.
Dissenters treat the Pope’s exhortation as if he were trying to fashion a new doctrine. He is not. He is trying to incorporate a merciful way of applying the law, and that cannot itself become a law. The part of AL that may, to some, appear like new doctrine is really the application of mercy, which itself cannot be encoded into another law.
In his Gospel, Matthew consistently features Jesus as applying the law, but with mercy. Matthew protects against legalism and authoritarianism by insisting that the voice of Jesus be heard in the application of any law. Jesus mercifully relaxes the application of the law in appropriate circumstances. For example, he will not allow a strict observance of the Sabbath laws to prevent a simple act of mercy that dispels the hunger of his disciples (Mt 12:1-12). Moreover, mercy sometimes demands more than the law. So Jesus will not allow the son to bypass his obligation to his parents by declaring certain property as dedicated to the Lord (Mt 15:3-6). Mercy in both of these circumstances overrides the law without overturning it. Jesus does not abrogate the law, but neither does he use it simply to condemn those who run afoul of its requirements. Pope Francis does the same in AL.
The issue is not whether divorce is permissible. Clearly it is not. The issue is whether a second marriage must be characterized continuously as adultery. That precise question has not been addressed before, not even in Familiaris Consortio.
Pope Francis shows mercy to those who come to realize all too late that their actions have offended the moral order. After they confess their sin, must they settle only for a simulated marriage? All agree that after a divorce from a valid marriage and upon remarriage, the guilty party should repent and reconcile. If there is no reconciliation, as years pass, the situation of the parties may change. Mercy may call for leaving the second marriage in place.
Opponents try to force sensibility into a rule that is compatible with the rest of the rules. They assume that Francis is trying to formulate a new law when in fact he is only trying to incorporate compassion into the application of the old law. The Pope’s position should not be viewed as a softening of the law — as if permission for divorce were being granted. AL does not treat divorce as any more virtuous or permissible than present law allows. It does not look forward to declare some divorces as “tragic but good.” It looks backward to see the mess caused by the sin, and to see whether mercy to contrite parties might make reconciliation and Communion possible again. It tries to help couples pick up the pieces, and resume the Christian joumey. Divorce is not only tragic, it is wrong. Mercy shown to those guilty of divorce does not make it right, but it can allow the parties to breathe again.
*Vice-Rector and Professor of Systematic Theology, Saint Mary Seminary (Diocese of Cleveland, USA)
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10 November 2017, page8
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