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Canon Law for Today

By Rev. Frank Morrisey


Rev. Frank MorriseyThe synod on family introduces renewed emphasis on notion of the ‘internal forum’


Much has been written in the religious and secular press about the recent synod on the family. This has been a sign of the particular interest that this topic has raised. Obviously, not everything written about this event corresponds to the full reality of the situation, but these writings enable us to gather some insights into what was being discussed. 

There is also the fact that some writers decided that two or three specific points were the only issues of interest in the entire procedure. This reduction certainly falsifies the thrust of the synod, whose purpose was to focus its attention on the overall pastoral care of families, rather than taking certain flash points and simply giving a “yes” or a “no” answer.
One of the points that caught public attention was the so-called effort of the German-speaking bishops to restore the practice of the “internal forum.” However, many people are uninformed as to what this really means. So, a few words on this topic might be helpful.
Governance in the church is usually exercised on the level of the “external” forum, that is, through those things which can be seen, measured, evaluated, and which, in one form or another, can be verified. However, not everything that affects a person is external. There is also an “internal” dimension, which is particularly that of conscience. 

The most evident example of the internal forum is sacramental confession. What takes place there can never become external; nor can it be evaluated by the same criteria used for external matters. But, no one would deny for a moment that the internal forum plays a most important role in the life of the faithful.

There are other instances which, while not involving the sacrament of reconciliation, can also exist. The Code of Canon Law, for instance, speaks of certain dispensations from matrimonial impediments which can be granted in the internal forum, when it would not be advantageous to make such situations public (see, for example, canon 1082). In traditional Catholic theology, the use of the internal forum signified a call to a reliance on a person’s conscience to determine whether a given situation was right or wrong. Of course, this implies that a person’s conscience has been properly formed.
But, in the context of the recent synod, we can ask ourselves what do we really mean by this renewed emphasis on the place of conscience? A bit of history might help us reach an understanding.
On April 11, 1973, the Congregation for the Doctrine of the Faith sent a letter to all bishops of the world (Prot. No. 1284/66; 139/69) in which they invited them, when dealing with the admission of the divorced and remarried to the eucharist, to use the “right means,” that is, the various procedures foreseen for the church’s marriage tribunals. However, if, for one reason or another, these could not be applied, then the bishops were to resort to “the church’s approved practice in the internal forum.” 

While the letter acknowledged the existence of an approved practice, it did not determine in what this practice consisted. The U.S. bishops subsequently wrote to the Holy See and received a reply dated March 21, 1975, in which it was stated that, in addition to observing other points of moral theology (such as taking steps to form one’s conscience correctly), these couples could receive the sacraments on two conditions: that they try to live according to the demands of Christian moral principles, and that they receive the sacraments in churches in which they are not known so that they will not create any scandal.
A few years later, in 1981, Cardinal J. Ratzinger, who was then prefect of the Congregation for the Doctrine of the Faith, wrote that as a result of the debates in the 1980 synod on the family, when juridical proof is not available, in conformity with a judgment based on conscience, and provided that scandal be avoided, admission to to the eucharist may be authorized.
However, St. John Paul II, in the Apostolic Exhortation Familiaris consortio (Nov. 22, 1981), decided that such a practice was not acceptable, and could be applied only when the couple agreed to refrain from having sexual intercourse together — often called the “brother-sister” arrangement). This has remained the norm in effect in the church. We should keep in mind that this is not a question of dogma, but of pastoral practice.
Nevertheless, in spite of Pope John Paul II’s reply, on July 10, 1993, some German bishops issued a pastoral letter on ministry to the divorced and remarried. In it, they stated a preference for a return to the former practice of recognizing the legitimacy of the internal forum practice. But their position was not accepted at this time.
What arose at this recent synod was a renewal of the call for an approach similar to the one authorized in 1973, given the fact that in many countries there are no functioning marriage tribunals, or that, in some instances, although the internal conviction of nullity was there, proofs were not available.
Pope Francis recently tried to obviate these two difficulties by radically simplifying the rules governing the procedure to be observed in marriage tribunals, and by extending the types of proofs that could be acceptable. These steps, if properly implemented, could certainly help resolve a number of situations.
Nevertheless, we all recognize that, at times, there are situations that simply cannot meet the requirements for the external forum. For instance, the first marriage took place so many years ago; there is no way of contacting the other party; there are no witnesses available, and so forth. Such situations could arise, for instance, in the case of those who were married in another country and have since been exiled from their homeland.
In the proposal accepted by the recent synod (par. 86), we note that the synod fathers spoke of a “conversation with the priest, in the internal forum.”  They did not make mention of any specific instances when this procedure could take place. But they did state that such a procedure “contributes to the formation of a right judgment on that which blocks the possibility of a full participation in the life of the church and about the steps that can favour it and make it grow.” It could possibly apply to admission to the sacraments, but could also apply to eligibility for certain church offices.
It is essential to keep in mind that, at present the synod does not have legislative authority in the church. Rather, it makes recommendations to the pope, who remains free to determine which ones he accepts, which ones he would like to modify, and which, if any, he would not accept. We have been told that it is the pope’s intention to issue a document on this subject in the relatively near future. Only then will we know whether he has accepted this recommendation and, if so, how he is presenting it.
It has been a generally held principle that we never consider using the internal forum for marriage cases without having first exhausted all the possibilities of the external forum, keeping in mind that the faithful have the right to have their status in the church recognized publicly. But, for those instances where such recognition is not possible, there might remain the possibility of taking another approach.

We simply have to wait and see what the Holy Father will decide. 

Morrisey is a professor emeritus of canon law at Saint Paul University, Ottawa, and has been very active over the years in the field of canon law, especially as it applies to dioceses and religious institutes.