https://doi.org/10.21697/im.2023.35.1.02
The author of the article attempts to compare selected provisions of the Code of Canon Law and Islamic law that apply to the formation of marriage, its nature and legal consequences, rights of the husband and wife, legal status of a married woman, and upbringing of offspring. This effort is carried out in the context of the ecclesiastical process for declaring the nullity of a marriage contracted by a Catholic party with a Muslim. Addressing the issue of potentially challenging the validity of a marriage due to matrimonial impediments, non-observance of the form of marriage, and lack of consent in marriage, the author presents significant differences in the legal regulations applicable to canonical marriage and Islamic marriage. Awareness of these differences, sometimes very radical, should be possessed by both the parties intending to marry, representing Catholicism and Islam, and judges ruling in cases for declaring the nullity of marriage with a Muslim.
An analysis of the laws of the Latin Church and Islam, in the perspective of the process for declaring the nullity of marriage, also reveals that the mentioned legal systems, in regulating the vast majority of issues related to marriage and family, are not only divergent but completely incompatible, contradictory, and irreconcilable. The author clearly emphasizes that the provisions of the CIC/83 regarding matrimonial, substantive, and procedural law, and those prevailing in Islam, are de facto reflections of two different cultures and civilizations. Although in both these ancient civilizations, marriage and family occupy a central and prominent place, the understanding of these institutions and their character, as well as the legal position of the husband and father, and wife and mother, defined in canonical law and Islamic law, are completely different. The author notes that while the legislator of canonical marriage law in the Latin Church explicitly highlights the subjective, natural, and inalienable dignity of the human person as the basis for equal rights of women and men as betrothed, spouses, and parents, the law prevailing in the Muslim community prominently places the superior legal position of men. If in civitas christiana, canonical law protects monogamous and indissoluble marriage as a natural and fundamental social institution serving the preservation of the human species and the multiplication of the faithful, then Sharia law, prevailing in Dār al-Islam, emphasizing the fundamental role of marriage, sees it above all as a means to satisfy the spiritual and sexual needs of men, prevent free unions and fornication, and ensure a predominantly female population the right to live in a polygamous marital community, effectively ensuring the increase in the number of Islam’s followers. Finally, the author states that while the provisions of canonical matrimonial law and the principles established by the judges of the Roman Rota in matters of declaring marriage nullity clearly serve to protect the equal subjective rights of women and men and preserve the character of marriage, Islamic law related to the effects of marriage and its dissolution undoubtedly protects the interests of the ummah and what has been stipulated in the marriage contract, determined by the representatives of the parties’ families.
A comparative analysis of selected provisions of canon law and Islamic law concerning marriage and family also allows defining some specific features of each civilization. For instance, the scientific interpretation of the provisions of Islamic matrimonial law provides a basis for presenting the following conclusions: a) Islamic civilization subjects the entire life of a person, including that pertaining to marriage and family, to the only true religion, which according to Muhammad is Islam; b) in Arab civilization, the subjective and natural dignity of women and their freedom is highly controversial; regarding the use of rights by women, including as betrothed, spouses, and mothers, in terms of freedom, including in contracting marriage, choosing a spouse, and determining the character of offspring upbringing, it is significantly restricted; c) the absoluteness in matters of religion, which is expressed, among others, in fanaticism, intolerance for non-believers, and unequal rights in terms of parental care and inheritance, give Islamic civilization an aspect in which injustice, discrimination, and oppression are tolerated and legitimized; d) the marriage of a man and a woman in Islamic civilization is based on a contract under private law, is not indissoluble or monogamous; e) in this civilization, thoroughly saturated with the sacred, all actions of the individual are subordinated to the good of the ummah, the community formed by all followers of Islam regardless of their origin and national affiliation. Meanwhile, the provisions of canonical marriage law contained in the CIC/83, which in some sense also reflect what is characteristic of Latin civilization, based, among other things, on the teachings of the Gospel, allow us to state, among other things: a) this civilization is thoroughly personalistic, highlights the inalienable, natural, and own dignity of the human person, its subjectivity, autonomy, and freedom; this principle also applies to contracting marriage, choosing a spouse, and determining the character of offspring upbringing; b) appropriate for this civilization is monogamous marriage, in which man and woman have equal duties and rights; c) Christian civilization appears to be favorable to the human being and his nature; it places the well-being of the individual first; in canonical law, the highest form of this good is the eternal salvation of man.
In comparing the collective life regimes typical of both mentioned civilizations, the following circumstance is crucial: the systemic differences mentioned above constitute legal and cultural barriers that cannot be overcome. Breaking these barriers and addressing conflicts in the event of a clash between these two civilizations is impossible, as Muhammad, whose tomb still houses the remains of the founder of Islam, and Christ the Lord, the Son of God, whose tomb is empty, cannot be placed on the same plane. An attempt to reconcile these two very different worlds, even if done in the name of the principle of reciprocity and tolerance, is not possible without violating the truth and glory of the one God.
It should be clearly emphasized that although Muslims today constitute the most numerous religious association, most people are completely unaware of the hermetic, expansionist, and extremist principles of Islamic law concerning marriage and the status of women, who do not belong to the ummah. Consequently, cases where women belonging to so-called revealed religions, who have married a Muslim, may feel depreciated in such a marital community and sometimes also deprived of appropriate freedom, may not be isolated. If Islamic law allows a Muslim to contract marriage with a Christian woman, it is quite right for Christians to know at least the basic principles of Islamic law concerning the formation of marriage, its character and legal consequences, marital and family life. To ensure this preparatory formation, pastors, particularly diocesan bishops and parish priests, should take care. An important place in facilitating this knowledge of the specific principles of Islamic matrimonial law also falls to catechists, chaplains of pastoral ministries and youth associations, and individuals involved in Catholic social media. Undoubtedly, the principles of canon law, which serve to pursue rights available to the faithful and their defense in the ecclesiastical forum, should also be the subject of this preparation. Pastors, especially parish priests, knowing that in the matter of the baptism of children – as stated in the instruction Erga migrantes caritas Christi – the religious laws of Catholicism and Islam are strongly contradictory, and thus the Catholic side will generally have a moral difficulty in fulfilling parental duties
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Jan Krajczyński
arising from God’s law, should – guided by the wisdom and realism recommended by the Conference of the Italian Bishops, emphatically advise the faithful against contracting marriages with Muslims. Such decisive and radical actions demand care for the highest law, which is the salvation of souls. Christ the Lord reminds his disciples of this urgent duty when he warns them against sluggishness in a situation where a neighbor leans toward what is evil (cf. Mt 18:15-16; Ez 33:7-9).
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