For the “Hard of Heart” the Law of Moses Still Applies
So says an illustrious biblicist, with a new interpretation of the words of Jesus on marriage and divorce. But the Catholic Church has always preached indissolubility without exception. Will it come to admit second marriages, as in the East?
ROME, January 16, 2015 – There are not only the well-known arguments of Cardinal Walter Kasper in favor of communion for the divorced and remarried.
There are also those who are traveling new and original paths, in obedience to the assignment of the synod last October, according to which “the question must be examined further.”
This is the case of one famous biblicist and patrologist, Guido Innocenzo Gargano, a Camaldolese monk, former prior of the Roman monastery of San Gregorio al Celio, and professor at the Pontifical Biblical Institute and the Pontifical Urbaniana University.
In an article in the latest issue of the theology quarterly “Urbaniana University Journal,” Fr. Gargano shows how Jesus’ words about marriage are mainly prompted by what God says through the mouth of the prophet Hosea: “I desire mercy, and not sacrifice.”
And as a result he maintains that Jesus, when he affirms that “man must not divide what God has joined,” does not thereby cancel God’s forbearance with the “hardness of heart” of his people, for whom Moses had permitted divorce.
The keystone of Fr. Gargano’s argument is the statement of Jesus in the Sermon on the Mount: “I have come not to abolish the Law or the Prophets, but to fulfill them.”
In his judgment, the significance of this statement is that the two laws - that of “it was said to them of old” and the new one of “but I say to you” - both coexist in the preaching of Jesus and clarify each other.
So much so that Jesus, again in the Sermon on the Mount, does not exclude from the kingdom of heaven but brings in as the “least” even “he who transgresses the least of these precepts” and therefore - Fr. Gargano comments - also the one who makes use of the Mosaic concession of repudiation because of “hardness of heart.”
The author of the article develops these and other points at length and with acuity, without explicating the practical applications that could result from this in the life of the Catholic Church, not only on the “vexata quaestio” of communion for the divorced and remarried, but also on whether or not to allow second marriages.
He limits himself, in fact, to an exercise of New Testament exegesis and theology on texts in Matthew concerning marriage, with only minimal references to the subsequent developments of Church doctrine and practice in East and West, and with complete silence on the dogmatic canons of the Council of Trent and the pastoral constitution of Vatican Council II “Gaudium et Spes,” which confirm the absolute indissolubility of Christian marriage.
Of course, the discussion also remains open on the exegesis that Fr. Gargano makes of the saying of Jesus: “I have come not to abolish the Law or the Prophets, but to fulfill them.”
For example, this saying, as also the antithesis “it was said to them of old…but I say to you” that characterizes the Sermon on the Mount, is given a decidedly different and no less evocative interpretation by Joseph Ratzinger in the first volume of his “Jesus of Nazareth.”
Ratzinger demonstrates the originality of the relationship between the new law and the old law in two exemplary cases: the commandment on the sabbath and the other commandment, “honor your father and mother,” to which Jesus, without abolishing them, gives a new and broader significance.
And he then shows how in the old law two kinds of codes interacted: the “casuistic,” conditioned historically and susceptible to developments and corrections, and the “apodictic,” pronounced in the very name of God and of perennial value, whose “fundamental option is the guarantee offered by God himself on behalf of the poor.”
Jesus, Ratzinger writes, “contrasts with the casuistic, practical norms developed in the ancient law the pure divine will, as the ‘greater justice’ (Mt 5:20) that is to be expected from the children of God.”
And therefore, “do not love only your neighbor, but even your enemy.” And therefore “not only do not kill, but reach out to the brother with whom you have argued in order to be reconciled with him.” And therefore “no more divorce…”
The complete text of the article by Fr. Guido Innocenzo Gargano in the “Urbaniana University Journal" can be found on this other page of www.chiesa:
> Giustizia e misericordia nelle parole di Gesù sul matrimonio
While the following is an extract from it, taken from the middle part of the article:
“I DESIRE MERCY, AND NOT SACRIFICE”
by Guido Innocenzo Gargano
What interpretation should be given to the expression of Jesus in Mt 5:17: “I have come not to abolish the Law or the Prophets, but to fulfill them”?
How should we understand the reference to hardness of heart in Mt 19:8ab: “For the hardness of your hearts Moses allowed you to repudiate your wives”?
What force should accompany the observation of Jesus in Mt 19:8c: “In the beginning it was not so”?
In order to attempt a step forward in the reflection on this series of questions, let us recall first of all […] what Jesus himself said in Mt 5:19: “Therefore, he who transgresses even one of the least of these precepts and teaches others to do so will be considered least in the kingdom of heaven. But he who observes and teaches these commandments will be considered great in the kingdom of heaven.”
The first observation that asserts itself in this regard is that in Mt 5:19 Jesus is not talking about “exclusion” from the kingdom of heaven, but only about the situation of “least” or “great” in the kingdom of heaven.
The observation has its importance because Jesus says immediately afterward and with a certain solemnity, in Mt 5:20, “I say to you in fact: if your justice does not exceed that of the scribes and Pharisees, you will not enter into the kingdom of heaven,” in this latter case explicitly excluding from the kingdom of heaven those who simply stop at the justice pursued by the Pharisees and are unable to go on to the point of discovering mercy and acting accordingly.
The fact that Matthew should distinguish being in the kingdom of heaven from not entering into it at all cannot be without importance. In reality, the evangelist is telling us with this distinction that there are lesser precepts whose observance or lack thereof does not entirely remove the possibility of entering into the kingdom of heaven, that there are also basic attitudes that can completely exclude one from entering into the kingdom, and that among these attitudes are precisely those of the Pharisees, who, as we know very well from the whole debate between them and the disciples of Jesus, intended to defend above all, or perhaps solely, the aspects related to justice and to relativize or even exclude those connected to mercy. […]
Now, however, we must also ask ourselves which precepts Jesus is talking about and understand if this is a matter only of the observance of the written/oral Torah under the aspect of the fence of what are called the “mitzvòt”; or if the teacher of Nazareth also intends to include certain precepts understood instead as concessions, like that of making use of the permission to repudiate one’s wife, on the condition that the act of repudiation be written down as prescribed by the text of Dt 24:1.
In the beginning it was not so
The adherence to the act prescribed by Moses, maintained to be sufficient for remaining part of the people of God, could be understood as an observance of those “least precepts” which do not exclude from the kingdom although they characterize as “least” the one who enters by this path. And this would establish the difference with respect to those who, seeking only justice in the written/oral Torah without opening it to mercy, would inevitably remain outside. […]
It follows that all those would also inevitably remain outside who should not intend to make any room, with their rigid application of justice, for that particular leniency which Jesus requires as a necessary choice for entering the kingdom. Something that happens above all when one acts without taking into account the obvious consequences that fall, for example in the marital relationship, on the shoulders of the weaker person, exposing him to adultery or even worse, imposing an adulterous union on him (cf. Mt 5:32) that would entirely exclude the tenderness that necessarily accompanies mercy.
In this way we could maintain that the teaching of Jesus makes a close connection between the intention of the Creator, recalled by the words “in the beginning it was not so” (Mt 19:8c), and the correct interpretation of the leniency desired and decided by Moses: “For the hardness of your hearts Moses allowed you” (Mt 19:8a). And this not only in order not to detract at all from the power of the declaration of Jesus in Mt 5:17: “I have come not to abolish, but to fulfill,” but also in order to add the reprimand to a teaching, constant in the Christian tradition, that concerns the unity between God as Creator and God as Redeemer, united simultaneously with respect to justice and mercy, accompanied by none other than the primacy of mercy.
The primacy of mercy
The reflection that we have carried forward so far cannot help but develop itself by adding that, in these cases, one is always constrained not to remain only on the outside of a juridical consideration, but to consider with the greatest possible delicacy the involvement of the personal conscience.
In fact, we are always and in any case facing a reality that falls under the moral principle summarized by the saying: “De internis non iudicat Ecclesia.” This entails the necessity of entering into these things on tiptoe, with fear and trembling, as if one were in the presence of something profoundly sacred and inviolable, taking into account a principle of which Catholic tradition has always reminded pastoral agents: “Paenitenti credendum est.”
Jesus’ response in reality seems to authorize precisely such conclusions. At first sight, in fact, Jesus seems to rule out the idea that in the case of divorce one may speak of entrance into the kingdom, with the explicit reference to the text of Gen 2:24 that refers to the Law inscribed in the stars: “Let man not divide what God has joined” (Mt 19:6). But when those who are speaking with him ask, “Why, then, did Moses order the act of repudiation and to repudiate her” (Mt 19:7), Jesus, seeking the fundamental motivation of that first principle, realizes that in fact the Mosaic prescription manifested a leniency that is characteristic of God.
The result: on the one hand the observation that “for the hardness of your hearts Moses allowed you to repudiate your wives” (Mt 19:8); on the other the absence of any decision to eliminate this Mosaic prescription, in keeping with what he solemnly declared in the Sermon on the Mount: “Do not believe that I have come to abolish the Law or the Prophets; I have come not to abolish, but to fulfill” (Mt 5:17). Two attitudes that rule out the possibility of reading our pericope from a solely juridical or, even worse, compulsory perspective, as it tends to be considered in the Western Christian tradition and in that of Catholicism in particular.
In this case, in fact, we would be looking at an interpretation of the text that would dispense completely with the global context of the life and teachings of Jesus as they appear in the New Testament and from the cultural and religious context in which the teacher of Nazareth acted and taught, as emerges from the language analogous to that which is used by Matthew in the Sermon on the Mount, including the stereotyped phrase “but I say to you” (Mt 19:9).
It also cannot be denied that it is precisely leniency, and therefore the primacy of mercy, that characterized the teaching of Jesus and distinguished it from that of all, or almost all, the teachers among his contemporaries. It is the evangelist Matthew himself who informs us of the particular hierarchy of values pursued by Jesus in response to his interlocutors who, on other occasions, accuse him in precise and targeted words: “Your disciples are doing that which is not permitted on the sabbath," to which he responded in equally decisive and targeted words: “Have you not read what David did, when he and his companions were hungry?… If you had understood what it means: ‘I desire mercy, and not sacrifice,’ you would not have condemned persons without blame. Because the Son of man is lord of the sabbath” (Mt 12:1-8 passim).
Having said this and asking ourselves whether, according to the teaching and practical decisions of Jesus, there may be situations in which it is possible to act in a way different from what is prescribed by the Law inscribed in the stars, acting instead according to the Law inscribed in stone by Moses and interpreted (oral Law) by the Prophets, the answer could be: "Yes." On one condition: that the dynamic character of mercy be privileged over the static nature of the Law.
In fact, the constant teaching of the Law of Moses and of the interpretive tradition of the Prophets, made his own by Jesus of Nazareth, is that one must in any case privilege the value of mercy even at the expense of reference to a written Law that may not permit taking adequate account of the needs of man; needs that could be referenced in the decision of the companions of David, who were hungry and ate in transgression of the material requirements of the Law (cf. 1 Sam 21:1-6, Mt 12:1-8), or in the teaching of prophets like Hosea, who declared in the name of God: "I desire mercy, and not sacrifice” (Hos 6:6; Mt 12:7).
The removal of man from the rigid grasp of the so-called “littera” of the law is in reality a leitmotif of the whole teaching of Jesus of Nazareth. This is embodied, precisely by the evangelist Matthew, not only in the iconic Sermon on the Mount, but also, in the text just mentioned, in the solemn declaration of Jesus himself: "The Son of man is lord of the sabbath" (Mt 12:8).
The passage from the “littera” to the “spiritus”
We know that the Sermon on the Mount has typically been read as a sort of harshening of the prescriptions of the Law, but I am convinced that it is in reality a very generous program of liberation from the strictures of the “littera” of the written/oral Law transmitted by some in Israel. It permits, in fact, an extraordinary widening of the horizons, both internal and external, to which the pious and observant man of all times is invited to turn his gaze.
So this is absolutely not a matter of harshening, but rather of the request to exceed the narrow confines of duty in order to open them to the wide-open spaces of the gratuitousness of love, compared with the openness of the Father who allows himself to be directed by generosity to such an extent as to make no distinction between those whom we would call good or evil, just or sinners.
The refinement of heart and mind that Jesus asks for in his Sermon on the Mount would therefore do nothing other than refer, by extending it, to that logic intrinsic to the faith which had permitted Moses to take into account the “hardness of heart” of the members of his people, bending the Law with indulgence for the sake of their concrete situation, and thus permitting all to remain united with the whole people of God in spite of the falls and the different rhythm of each one's personal journey. […]
What should take precedence in Mt 19:3-9, in fact, is the same criterion used in the interpretation of the Sermon on the Mount, a criterion that does not remove but rather emphasizes the dictate of the written/oral Law, considering it valid and decisive, and nonetheless proposes a surpassing of it that is certainly not for all but nevertheless remains the objective intended by the Legislator and recorded in the Law inscribed in the stars, meaning in nature.
With one rather significant difference, however, in that the reference to the natural Law, founded on the authority of an expression of Jesus like the “but I say to you,” is presented as “more” with respect to what Moses had to accept in order to meet halfway his people’s hardness of heart. A difference that is a further confirmation of the debate underway in the time of Jesus between those who saw themselves above all as disciples of Enoch and those who insisted on referring to Moses.
Between “skopòs" and "telos”
The two Laws, the one inscribed in the stars and that of Moses, could therefore be presented in a complementary way, such that they could, in some way, clarify each other. […] Jesus does not deny the serious situation of those who are imprisoned in “hardness of heart,” and yet he does not explicitly condemn them. His decision is another: to accept their weakness and nonetheless never forget that the objective set (skopòs) is one thing, but the objective reached (telos) is another. […]
In other words: the “telos,” meaning the concrete attainment of the objective intended by God, must inevitably come to terms with the slowness that is characteristic of a human reality subject to time and space. A slowness that, in the specific case of the disciples of Jesus, cannot help but take into account the frailty due to sin. […]
One could therefore conclude that the “hardness of heart” (Mt 19:8a) revealed along the path of this passage from the “skopòs” to the “telos,” which had forced Moses to reinterpret the desire of God the Creator in such a way as not to impose upon anyone an unpleasant exclusion from the people of God, could interfere not a little in the realization or non-realization of the objective set.
This leads to his decision to allow repudiation in the specific case of a marital crisis, on the condition of the signing of a formal act. So could one ever imagine that Jesus, who came “not to abolish the Law or the Prophets… but to fulfill them” (Mt 5:17), could have abolished the concession of Moses, precisely on a point that clearly and decisively characterized his preaching, this point being mercy? […]
The pastoral guidelines that at first glance could appear to be new and even revolutionary would in reality be nothing other than the precise confirmation of the teaching of the New Testament, certainly received with a different sensibility in the East and in the West, but that confirms the unity of the breathing of the two lungs of the Church, both of them concerned with acting in everything and for everything according to the spirit of the one Gospel.
In all of this, in fact, there would be no change in the judgment of Jesus on the negative nature of a decision that would contrast the will of God as Creator, who inscribed his Law in the stars, with the will of God as Redeemer, who accepts the leniency of Moses toward a “stiff-necked” people.
The Fathers of the Eastern Churches understood this very well, since they always opposed the perfectionists and spiritualists of all kinds who did all they could to separate God the Creator from God the Redeemer. The solution, in reality, does not lie in espousing the rigidity of the spiritualists and fundamentalists of all kinds, but in making the just and necessary distinction between sin and sinner, which is one of the most valuable legacies of the New Testament.
The theology journal of the Pontifical Urbaniana University in which the article was published:
> Urbaniana University Journal
The current state of the doctrine and practice of the Catholic Church on the question most debated at the synod, in the summary of the prefect of the congregation for the doctrine of the faith, Cardinal Gerhard L. Müller:
> On the indissolubility of marriage and the debate concerning the civilly remarried and the sacraments
The preparatory text of the next session of the synod on the family:
English translation by Matthew Sherry, Ballwin, Missouri, U.S.A.
"...the Catholic Church has always preached indissolubility without exception." What is meant by the Catholic Church? Has it?
In Vatican II, two paradigms of the Catholic Church were endorsed side by side: that of Vatican I which saw the Church as a perfect, world-wide society, united by a jurisdiction centred on the pope, some would say, a jurisdiction that belongs to the pope who delegates it to all who exercise jurisdiction under him; and that of Vatican II, called "eucharistic ecclesiology", in which the fount of the fullness of Catholicism springs from the Eucharist which makes the Church the body of Christ, is the source of all its powers and the goal of all its activity (Const. on Divine Liturgy, 1, 10)
Before Orthodox readers begin to feel superior, it must be pointed out that they too have two paradigms for their understanding of the Church, although they haven't yet clearly distinguished them. The Orthodox equivalent to the Vatican I understanding which puts jurisdiction first is called "canonical communion". Much emphasis is placed on this by the Patriarchate of Moscow; so much so that people who belong to the uncanonical Patriarchate of Kiev can find themselves re-baptised or re-ordained if they go over to the Moscow patriarchate. However, as this ecclesiology does not fit all the facts, when they debate the orthodoxy of the Nestorian bishop and desert father, Saint Isaac the Syrian, they claim him as an Orthodox saint in spite of the fact that he was in schism.
No one is saying that there is no universal papal jurisdiction in Catholicism, nor that canonical communion is irrelevant in Orthodoxy, but eucharistic ecclesiology does change their importance relative to other aspects to the Church.
The relationship between these two paradigms is disputed. Some say that you cannot accept eucharistic ecclesiology without severely modifying the understanding of "universal ecclesiology" - I am one of these. Others say that equal importance must be given to both paradigms, and that each modifies the other. Then there are those whose vision of the Church and allegience is given to the Vatican I version and are only willing to recognise eucharistic ecclesiology in so far as it does not influence the pre-Vatican II interpretation of that version; and these are the so-called "conservatives". Vatican II left this for later generations to decide. Hence, all three positions have their place in the Catholic Church.
Nevertheless, these considerations are of enormous importance whenever Tradition is mentioned. In Vatican II, with the adoption of eucharistic ecclesiology came a new (and very old) understanding of Tradition. Its source is to be found in all the Eucharistic assemblies that can trace their roots to apostolic times. It is found, in the first place, in local and regional churches, because liturgy is always celebrated locally. Thus it takes different forms in different places by its very nature; and the tradition of the Roman Church is only one of these forms. The schism between East and West did enormous damage to both, because each side came to consider their tradition as norm, which it never was in the first millenium. Moreover, in spite of the schism, each side continues to celebrate the same Eucharist and thus to continue to live according to a living tradition with its roots in the same Christian Mystery, thus ensuring a basic unity between the diverse forms.
If we wish to appeal to Catholic Tradition, it must be Tradition in all its diversity. In the liturgical reform, we have done exactly this in our use of a number of eucharistic prayers that reflect other traditions. In drawing our attention to Eastern tradition on the subject of marriage and the family, Pope Francis is carrying on this major insight of Vatican II, doing for Moral Theology what has already been done for liturgy. There is a hermeneutic of continuity, as Pope Benedict would say, but a continuity with the whole of Tradition, not only that of Rome in artificial isolation from the rest.
Of course, this still leaves an important role for the Pope who has to discover new ways to exercise the Petrine ministry. That is what Pope Francis is doing in the Synod on the Family. In whatever form Tradition takes, there is an underlying unity in all its authentic forms, a unity that holds diversity together by the power of the Spirit. It is the Pope's job to identify and protect it with the help of the bishops who work with and under Peter: hence the Synod.
Tradition arises from the synergy of the action of the Holy Spirit and of the Church, a synergy that makes the Eucharist possible and the Church what it is. Even though the Mass is always local and embedded in various traditions, it is one and the same Eucharistic sacrifice throughout the world. Each assembly is the tip of the iceberg, because it is united to all who are one in Christ, in heaven, earth and purgatory. Thus, all who celebrate the Eucharist are united to each eucharistic assembly, across time and place. No one can divide from one another those who are united in Christ and are visibly represented by each assembly, whether they like it or not. Thus the Church asks the Father:
Humbly we pray that, partaking of the Body and Blood of Christ, we may be gathered into one by the Holy Spirit.
It is the Pope's role to be Christ's instrument in gathering all who share in the body and blood of Christ into one. But this can only be done if we listen to one another; and we will only listen if we love one another; and ecclesial love is the visible sign of the Holy Spirit's presence.
There is no substitute for ecclesial love which is that which gives legitimacy and force to ecclesiastical law. Unifying the Church by imposition of the papal will over the rest will result in a less that Catholic solution because it results in Roman Tradition smothering other traditions, and Catholic Tradition is multi-form by its nature. While there is schism between Rome and other churches that share the one Eucharist with us, Rome must neutralise the effects of schism as far as it can by listening across the divide. It must recognise that valid Eucharist means valid Tradition, and act accordingly.
"...the Catholic Church has always preached indissolubility without exception."
If it is interpreted to mean that there can be no change in the pastoral policy towards divorced people and communion, then this sentence is in accordance with the pre-Vatican II interpretation. This interpretation is legitimate, and hence Cardinal Burke etc are perfectly right to insist on it from their point of view. However, it is not the only point of view allowed by Vatican II; and Cardinal Walter Kasper and the above author have a perfect right to believe that it is not in accordance with the mind of Vatican II, and to look at the practice of the Eastern Churches to get a fuller understanding of Catholic teaching. Of course, in the end, the Pope and Synod will probably decide.