Folia Canonica 12. (2009)
STUDIES - Piotr Kroczek: Does obligatory canonical from of marriage contribute to salus animarum?
24 PIOTR KROCZEK tinually distributes in His body, that is, in the Church, gifts of ministries in which, by His own power, we serve each other unto salvation so that, carrying out the truth in love, we might through all things grow unto Him who is our Head (Lumen gentium 7). It is clear that the ultimate aim of canon law is to bring to people salvation and lead them to God2. It is certainly the principle Ivo of Chartres (fill 6) had in mind when he wrote that Omnis institutio ecclesiasticarum legum ad salutem referenda sit animarum3. The principle well known in form salus animarum suprema lex appears expressis verbis in CIC 1983 in can. 1752. It has general character and must be regarded as the fundamental principle of the entire code. It is obeyed in the process of legislation, interpretation, and application of canon law. Without it the aim of the law of the community of believers would have no justification and would be completely pointless4. In this article, salus animarum suprema lex refers to those results of canonical norms, which stimulate pastoral activity in encouraging the faithful to open themselves to the Divine grace and to persist in it5. II. The History and the Present Time of Canonical Form of Marriage Before the Council of Trent the Church did not impose any specific ceremonial manifestation of marital consent. There was no imposition of any specific external formality. The validly of marriage was independent from the form expressing will. The decree Tametsi approved in 15636 changed that policy. It ordered to consider marriages as invalid in case of lack or defect in the prescribed form of celebration. This solution with some amends7 was in force until decree Ne temere8. Next it was adopted by can. 1099 in CIC 1917. Also today can. 1108 § 1 in CIC 1983 reaffirms the line initiated in Tametsi. The supreme legislator orders that matrimony must be contracted in a specific form, that is, in the presence of a qualified witness (the local Ordinary or parish priest or of the priest or deacon delegated by eiuier of them), who is active and asking for matrimonial consent and receiving it in the name of the Church, and two witnesses. Validity of marriage depends on the form. Some expectations are applied. 2 Cf. R. Sobanski, Zbawcza funkcja prawa koscielnego, in Sl<\skie Studia Historyczno-Teologiczne 6 (1973) 157-169. 3 Ivo from Chartres, Epistula 60, PL 162, 74. 4 Cf. Sobanski, Ko sciât, 79-80. 5 Cf. E. Rinere, The Exercise of "cura animarum" Through the Twentieth Century and Beyond, in The Jurist 65 (2005) 31-54. 6 The Trident Council, Scsio XXIV, Canones super reformatione circa matrimonium, in Dokumenty Soborów Powszechnych, vol. IV, 1511-1870, A. Baron - H. Pietras (ed.), Krakow 2005, caput 1. 7 Swiçta Kongrcgacja do Spraw Soboru rozluznila to prawo dokumentem Declaratio: Matrimonia z dnia 4 listopada 1741 r., in Codicis iuris canonici fontes, tom V, P. Gasparri (red.), Romae 1930, nr 3527. 8 ASS 40 (1907) 525—530. It came into force on 19.04.1908 r.
