A historical approach to the question of psychic incapacity

Abstract

Is canon 1095 of the 1983 Latin Code a novelty in Church Law? From a formal viewpoint, the canon, which derives from canonical jurisprudence, certainly represents an innovation, since the former Code presupposed but did not explicitly treat the types of incapacity of the spouses with regards to marriage. Yet, from a substantial perspective, it is interesting to note that classical canon law already tackled the issue of psychical infirmity as a cause of incapacity to contract marriage, even though this was not said in a technical and precise way. For this reason, a brief analysis of certain historical sources, without pretending to be exhaustive, will make it clear that the canon in question is not a radical originality, but a technical precision of a clear awareness present in the marriage system of law since its beginnings. Besides, it will help us to understand the significance and the motives of the incumbent legislation.