Canon Law> .... Rather than any hierarchy between them, it is their mutual
interdependence and inseparability which are now emphasized.
As I said above, I consider the new emphasis here to be a from the
teaching of Pius XI and Pius XII. If Polonaise chooses to see a contradiction rather than
a development, he should not mislead your readers by claiming that nothing has
happened in magisterial teaching at this point. In support of his claim, all he can
adduce from the last 35 years is a single reference, made in parenthesis and in passing,
in a Wednesday address of Pope John Paul II in 1984. He admits that Vatican II makes
no mention of any hierarchy. He fails to mention that neither does
Consortio>. He apparently either does not regard the 1983 Code of Canon Law as a
magisterial document (John Paul II refers to it as "the last document of the Council"), or
attaches no importance to its clear statement of two ends standing equally together:
marriage "is by it nature ordered to the good of the spouses and to the procreation and
education of offspring" (1055). But where he most misleads readers who wish to
achieve an objective view of this question is by his total omission of any reference to the
new<>, silencing completely the passages which I quote in the
Pastoral Review>.
When Polonaise writes: "However, there is no need for anyone to defend the
orthodoxy of the [new] Code," one gets the feeling he is perhaps trying to calm his own
misgivings. I trust he does not so doubt the orthodoxy of the new as not
to quote it.
THE "GOOD OF THE SPOUSES"
Polonaise evidently dislikes the expression , or "good of the
spouses," and suggests that if it has any meaning, it can only be found within the
notion of the hierarchy of the ends, and that of the "." Having failed to
understand the meaning of the term ""--having in fact got its
meaning wrong--he of course cannot see its richness or the importance of the horizons
for renewal that it opens up.
That this failure of understanding here is radical becomes apparent when he objects
that "it is simply not very easy to identify this good of marriage with an end of
marriage." Here he is indeed creating his own difficulty. Of course it is not easy (in fact
it is impossible), to make this identification, for the simple reason that the
coniugum> is not a , in the proper sense in which this term is
used in Canon Law.
Technical as the point may be, it is nevertheless an elementary error (and inexcusable if
one wishes to write seriously on this subject) to treat "good of the spouses" as if it
were in the line of the traditional three formulated by St. Augustine. As the
well known Italian canonist, F. Bersini, writes, "the has nothing to
do with the Augustinian <'bona>.'"
In the Augustinian view, the three traditional bona are "goods" or values of marriage
which particularly show its dignity and goodness. They are the (the
faithful exclusiveness of the martial commitment), the (its
permanence) and the (its procreative orientation). The Augustinian
refer to positive and essential features of matrimony that give it dignity.
Marriage is good because it is characterized by faithfulness, permanence, and openness
to having children. Each is predicated or or attributed to
mariage. Offspring is a and so is exclusiveness or permanence. It
is evident, then, that Augustine is speaking of the values or essential properties of
marriage, not of its ends or finalities. The term does not express a
value or property of marriage in any sense parallel to that of the Augustinian "goods."
The of this new term is not predicated of, or attributed to, marriage; it is
referred not to marriage (as if it were a value that makes marriage good), but to the
(as involving something that is good for them). It denotes not a property of
marriage (a ), but something--the "good" or welfare or maturing
of the spouses--which marriage should cause or lead to. This confirms that the
coniugum> is in the line not of property, but of finality or end.
Confused ideas generate confused ideas. I do hold, as Polonaise asserts, that the
Church presents marriage today as having "two equal and interrelated ends." It is he,
however, not I, who creates further confusion for himself when he goes on to assert (in
order to criticize my position) that these two ends "are the two goods mentioned in the
definition of marriage in the new Code... the , the good of the
couple, and the , the good of offspring." But canon1055 does not say
that the is an end of marriage; rather it says this of the
procreation/education of children.
The distinction between and "procreation" may again seem over-
technical or abstruse, but I can assure your readers that it is of no small importance. The
(or "openness to procreation") is an essential feature of the marital
relationship; no true marriage can be constituted if it is absent. Procreation is an
of marriage; a marriage can be valid even if that end is not achieved. The reason is
clear. It lies within a person's power to share his procreative potential with another; and
to be prepared to do so is necessary for valid marital consent. There is therefore a
ad bonum prolis>, a right that the other accepts the "procreativity" of the conjugal
relationship; to exclude the from one's marital consent invalidates it.
However, there is no right to actual procreation--for that does not lie totally under a
person's will, it depends ultimately on God.
It is true that some canonists have used the term as equivalent to
procreation. This has always been incorrect (confusing a property with an end); it has
become especially important today to avoid such incorrection. There is just one step
from saying, correctly, that there is an -- a right to openness to
offspring--to incorrectly positing a ius ad prolem, a right to actually a child.
Questions related to fertilization, for example, are seen by many people in
terms of such a "right." The new (2378) grasps the issue very firmly: "A
child is not something owed to one, but is a gift. The 'supreme gift of marriage' is a
human person. A child may not be considered a piece of property, an idea to which an
alleged 'right to a child' would lead." There is a right that one's partner in the married
covenant does not exclude what God may give; but each child in the end is a gift of
God.
Since it is probably of little interest here to go further into these important though
subtle distinctions, I would refer any reader wishing for a more developed exposition,
to a canonical article of mine, "The and the ; Ends
or Properties of Marriage?" in of 1989.
MARRIED PERSONALISM
Polonaise takes Canon 1057 of the new Code to task, with its new description of the
"object of matrimonial consent." He says that the object of the act of consent and the
"are now legal concepts about as broad as one can imagine, and
this is the key to understanding the explosion of annulments." If he feels so, why does
he not try to give concrete juridic content to these concepts, instead of dismissing them
as aberrations? It may be that in certain tribunals, as he suggests, "the
coniugum> and the mutual gift of self that constitutes the object of consent are defined
as including the right to a happy marriage, to a partner with a mature personality and
to whatever else pertains to this dimension of conjugal communion." If so, then these
tribunals have not formed a correct idea of the meaning of these terms; but I do not feel
that Polonaise's criticism will help them to see their actual positive content, and
therefore also their proper application for juridic purposes (which is the reason for their
inclusion in the Code).
Here, it could be noted, Polonaise tends to confuse three distinct concepts: the "good of
the spouses," the "self-giving and accepting" of marital consent, and the "communion of
life and love." The first two of these terms have been fully incorporated into the new
Code. The third--the --has not. It remains a very beautiful
phrase from , with great pastoral value, but without juridic
standing. So while married personalism certainly did find its way into the new Code, it
did so not in the phrase, , but most notably (along with the
) in the expression, , by which
canon 1057 describes marital consent.
Polonaise seems to regret the new Code, and to be particularly suspicious of the
concepts of "good of the spouse" and of "self-giving/accepting" as the object of conjugal
consent. I think we have an excellent Code (so long as it is understood and observed),
and find in these two phrases keys to a deeper and more human understanding of the
marital covenant which should have the effect of strengthening people's approach to
marriage and their way of living it. I have written on several aspects of this elsewhere,
and will limit myself to some brief ideas here. I would like to do so in the context of
that other problem which seems to me more important than the question of
annulments; the growing number of failed marriages.
SKEPTICISM ABOUT BINDING COMMITMENTS?
Some significant factors underlying this critical phenomenon can be suggested. One
that seems peculiar to our times is the growing rift between men and women. The
relationship between the sexes is marked more and more by suspicion and tension,
division, and even antagonism. The idea that man and woman are somehow made for
each other, and made for that particular type of union called marriage--an idea that has
come down the centuries--is under threat. Unions still occur or are attempted--in some
marital or quasi-marital form--but they tend not to last.
People, at least in Western countries, have become deeply skeptical about a permanent
husband-wife relationship. They are no longer convinced that it is worth making and
can be stuck to. This loss of faith in marriage, with the fundamental pessimism it
denotes about the possibilities of finding a happy and lasting love in life, implies a
major crisis for humanity.
Catholics too, in ever larger numbers, are coming to think that marriage-open-to-
divorce is better than marriage-bound-to-indissolubility. In theological terms, this
could be seen as a temptation against faith, since indissolubility is a defined dogma. As
such, it is no small temptation. Yet its possible occurrence should come as less of a
surprise when we recall the reaction provoked by Jesus when he insisted that according
to the original divine plan, the marriage bond is unbreakable. If things are so--his very
Apostles felt--then it is better not to marry (Mt 19,10). But of course they were wrong.
Things are so; and it is still good--a great good--to marry.
Current misgivings about the value of indissolubility have no less serious
anthropological implications, reflected in the idea that faithfulness to a lasting
commitment, however, freely undertaken, is not reasonably to be expected; it is
something beyond human nature and people are not capable of it. As this view
spreads, it creates a mindset hostile to any type of permanent commitment: the
priesthood and religious life included, as well as marriage. This is another major and
growing crisis of our days.
The idea that indissolubility is a bad thing--for which there must be a way out--has
effects on both people and pastors. Those contemplating marriage approach it less
seriously; and when they do marry, strive less to keep their marriage going, as it later
on becomes subject to stress. For their part, pastors and counselors may in pre-marriage
instruction tend to prepare couples less for the difficulties they are going to meet, and
may not be sufficiently positive and supportive with couples who are going through
the actual experience of difficulty. We are going way off track when the 'solution' being
offered for difficult marital situations is not, "try to make a go of it, pray, rely on grace,"
but more and more: "seek a way out, a 'good faith' solution, an annulment..." Things
will continue to deteriorate unless we can achieve a re-evaluation of the commitment of
marriage, which brings out especially the goodness and appeal of the permanent nature
of the conjugal covenant.
CHRISTIAN ANTHROPOLOGY AND MARRIED PERSONALISM
Vatican II sought to offer a renewed vision of marriage, of marital love and
commitment. How is it that this renewed vision seems so infrequently to have been
translated into practice? A main reason, I feel, is that much post-conciliar reflection on
marriage has not always grasped the Christian anthropology which is a key to conciliar
thinking about human realities, especially as applied to the marital covenant. The result
is that the understanding and presentation of marriage has been largely, though no
doubt unconsciously, colored by the secular anthropology dominant in today's world,
with its individualistic view of the human person, seeing the key to fulfillment in self:
self-identification, self-assertion, self-concern.
The current crisis about indissolubility--the tendency to look on it as an "anti-value"--
finds much of its explanation in this individualism, which is present outside and inside
the Church. Individualism fosters a fundamentally self-centered approach to marriage,
seeking to get from it rather than being prepared to give in it: will this--this union, this
liaison, this arrangement--make me happy? Then marriage becomes at best a tentative
agreement between two individuals, each inspired by self-interest, rather than a shared
endeavor of a couple who together want to build a home for themselves and for their
children. With that approach no marriage is likely to last.
Contrasted with this individualistic view, we have the distinctive anthropology of
Vatican II which includes the Christian personalism mentioned earlier. Developed in
great power by Pope John Paul II, it is fundamental to a deeper human understanding
of Christian life and of marriage in particular.
The essence of true personalism is expressed in (24): "Man can
fully discover his true self only in a sincere giving of himself." We can only realize or
fulfill our self, by giving our self. Here is a Gospel program of life in direct contrast
with the prescription for living so commonly offered by contemporary psychology:
seek self, find self, identify self, care for self, hold on to yourself, don't let go of
yourself.
While Polonaise may not like canon 1057 of the new Code, it does nevertheless seek to
find a valid juridic way of expressing this Christian personalism as it applies to
marriage. The Canon describes matrimonial consent as the act by which the spouses
"mutually give and accept each other in order to establish a marriage." The very object
of conjugal consent is thus presented in terms of mutual self-donation--in most striking
contrast with the phrase with which the 1917 Code expressed the same
object. The man gives self as man and husband, the woman as woman and wife; and
each receives the other as spouse. There is a scope and power in this new formula; there
is also a challenge to generosity, which seeks not just to receive but especially to give.
As Paul VI puts it in one of the less remembered passages of (9):
"Whoever really loves his marriage partner loves not only for what he receives, but for
the partner's self, rejoicing that he can enrich his partner with the gift of himself." It is
possible that the beauty and the demands of what is expressed in all of this have yet to
be fully appreciated in areas of seminary training and marriage counselling, and
perhaps also in some tribunal work on marriage cases (including psychological
assessments).
Married personalism equally characterizes canon 1055 when it speaks of the ends of
marriage. Both ends expressed--good of the spouses and procreation--are personalist;
just as both are institutional. This latter point should be stressed, for (contrary to some
ideas circulating) the is not presented as a personalist end, in
contrast with the institutional end--which would be procreation. The good of the
spouses is equally an institutional end, just as much as procreation. This is evident from
the dual account given by Genesis of the creation of man and woman. The first account-
-"God created man in his own image, in the image of God he created him; male and
female he created them... and said to them, 'Be fruitful and multiply'" (Gen 1:27-28)--is
clearly procreational. The second--"then the Lord God said, 'It is not good that the man
should be alone: I will make him a helper fit for him'" (Gen 2:18)--is clearly personalist.
Therefore, while the two ends can be distinguished, they should not be over-contrasted,
for both are institutional ends. That is why I hold that, more than any possible
hierarchy between them, it is their inseparability which needs to be understood and
stressed.
To me, perhaps the major need and challenge today is to see and present
indissolubility as an element that, corresponding to the nature of genuine human love,
makes (if its demands are lived up to) for the good of the spouses and for their
happiness and fulfillment as persons.
INDISSOLUBILITY AND THE 'GOOD OF THE SPOUSES'
God could have created the human race in a unisex or sexless pattern, and provided
for its continuation otherwise than by sex. Genesis seems to make it clear that creation
would have been less good if he had done so; "it is not good for man--or woman--to be
alone." So sexuality appears in the Bible as part of a plan for personal fulfillment, a
factor meant to contribute to the perfecting of the human being. The basic
anthropological point is that the human persona is not self-sufficient, but needs others,
with a special need for an "other," a partner, a spouse.
Each human person, in the awareness of his contingency, wishes to be loved: to be in
some way unique for someone. Each one, if he does not find anyone to love him, is
haunted by the temptation to feel worthless. Further, it is not enough to be loved; it is
necessary to love. A person who is loved can be unhappy if he is unable to love.
Everyone is loved (at least by God); not everyone learns to love. To learn to love is as
great a human need as to know oneself loved; only so can a person be saved from self-
pity or self-isolation, or from both.
To learn to love demands coming out of self: through firm dedication--in good times
and bad--to another, to others. What a person has to learn is not passing love, but
committed love. We all stand in need of a commitment to love. Such is the priesthood,
or a life dedicated directly to God. And such is marriage, the dedication to which God
calls the majority. To bind people to the process of learning to love was God's original
design for marriage, confirmed by Our Lord (Mt 19:8). The married commitment is by
nature something demanding. This is brought out by the words with which the spouses
express their mutual acceptance of one another, "for better or for worse, for richer or for
poorer, in sickness and in health... all the days of my life."
Therefore, one can and should find a natural and vital connection between the two
ideas--"good of the spouses" and marital "giving/accepting," although certainly not in
the way Polonaise connects them. Marital consent means not just to "give" oneself, but
also to accept one's partner--with his limitations. This is not easy, least of all for a
lifetime, but if tackled with the help of grace it can be achieved. And such a mutual and
demanding commitment powerfully matures the spouses--from which develops the
good implied in the . This is where Polonaise (and perhaps many
others) seem to pay insufficient attention to the precise wording of the canon in
describing the scope of marital consent: ""-"the
spouses give and accept each other." The giving of self proper to marriage is
complemented by the acceptance of the self of the other.
Each one gives as he is, defects and all; and has the conjugal right to be accepted so.
Just as the commitment of each involves the conjugal duty to accept the other as he or
she is, defects and all. The gift of a defective self has its noble marital complement and
correspondence in the acceptance of a defective other.
Human love, made faithful with God's grace, can turn the meeting and union of two
imperfect selves to great good for both. It is in learning to love each other in their
imperfection, that they can achieve perfection. No other realistic way of learning to love
is open.
SEXUAL INSTINCT: CONJUGAL INSTINCT
While this commitment is indeed demanding, it is also deeply natural and attractive.
Real love means it when it says, "I'll love you for always." Proper anthropology should
place clearer stress here on the fact that human beings, in distinction to animals, are
created not just with a sexual instinct, but with a conjugal instinct--that is super-added
on the human level to the mere sexual instinct. Animals seek a mate. Man and woman,
if they understand their own nature, seek a spouse.
The sexual instinct is natural, developing by itself and quick to make itself present.
More than development, it needs control; it is often more intense toward one person,
but not normally limited to one. The conjugal instinct is also natural, though slower to
make itself present; it needs to be developed; it scarcely needs to be controlled; it is
generally limited to one person.
The conjugal instinct draws man and woman to total commitment to one person, to a
permanent association or covenant of love, and to be faithful to that freely assumed
commitment. The widespread frustration in the area of sex which people sense today, is
a frustration of conjugality rather than of mere sexuality. As the conjugal instinct is
understood, developed and matured, it tends strongly to facilitate sexual control, by
inducing sexual respect. It is normal for a young couple in love to have an ideal of
marriage before them: each sees the other as possible life-companion, and mother or
father of one's future children: someone therefore who can be absolutely unique in
one's life. These are primary truths of conjugal sexuality which our modern world
seems to be losing sight of; hence the gradual loss of mutual esteem between the sexes.
While this applies reciprocally in the sexual relationship, it has a particular application
in how a man relates to a oman. If nothing so much as motherhood or potential
motherhood makes a man respect a woman, this is because it raises her above the
category of an object to be possessed and establishes her in that of a subject to be
revered.
MARITAL LOVE AND MARITAL DEFECTS
It is easy to love good people. The program of Christianity is that we also learn to love
"bad" people--people with defects. Within the context of marriage, its particular
program is that whoever freely enters the marital covenant of love and life with
another--no doubt because he or she sees unique goodness in that person--should be
prepared to remain faithful to the covenant, even if later on objective or subjective
considerations make the other seem to have lost any exceptional goodness and to be
characterized rather by a series of maddening defects. That is, I repeat, what lend a
particular force to canon 1057, with its insistence that true marital consent means not
only giving self, but also accepting the other: as each one is.
The discovery of mutual defects in marriage is inevitable; however, it is not
incompatible with the fulfillment of the good of the spouses. On the contrary, one can
say that the experience of mutual defects is essential if married life itself is to achieve
the true divine idea of the . As effortless romance fades, the stage is
set for each of the spouses to get down to the business of learning to love the other as he
or she really is. It is then that they grow as persons. Here lies the seriousness and
beauty of the challenge contained in marriage: this remains a central point to be
stressed in education and counselling.
Romance is almost sure to die; love however does not have to die with it. Love is
meant to mature, and can do so if that readiness for sacrifice implied in the original
self-giving of marital consent is alive or can be activated. "The idea that true love is
prepared for sacrifice strikes a chord which perhaps our catechesis, counselling and
preaching need to touch on more. As Pope John Paul II stated in a 1982 general
audience: "It is natural for the human heart to accept demands, even difficult ones, in
the name of love for an ideal, and above all in the name of love for a person." And
(34) says: "sacrifice cannot be removed from family life, but
must in fact be wholeheartedly accepted if the love between husband and wife is to be
deepened and become a source of intimate joy."
Human nature is a mixture and conflict of good and bad tendencies. Are educators,
pastors, counselors, appealing sufficiently to the good tendencies? Or do we yield at
times to the temptation to think that the bad are more powerful? We need to strengthen
our faith not only in God, but also in the goodness of his creation, recalling what St.
Thomas Aquinas teaches, "." Good is more
powerful than evil, and its appeal strikes deeper into our nature, for goodness rooted in
truth remains the most fundamental need of the human person.
Contrary tendencies can be natural. In the face of danger it is natural to feel tempted to
be a coward and run away. But it also natural to want to be brave and face the danger.
A mother or father may have a natural tendency towards selfishness; yet they have a no
less natural tendency to care for their children: a maternal or paternal instinct.
Similarly, while it is natural for stains to develop between husband and wife, it is also
natural for them to want to preserve their love from the threat of these strains. What we
have called the conjugal instinct calls them to be faithful; whereas a person senses
something soft, mean and selfish, in a refusal to face up to the challenge of fidelity.
As against this, there would seem to be little that is natural, and nothing that is
inevitable, in the phenomenon that two people who at one moment thought each other
absolutely unique, should end up five or ten years later unable to stand one another.
"My love for him has died..." If such were to happen, it would have been a gradual
death and one that could often have been prevented by good counsel from relatives,
friends, pastors.
It is easy to make the marital commitment. It is not easy to maintain it, to perfect it, so
reaching, as says, "that maturity in self-giving to which human
freedom is called." Along with prayer and the sacraments, people need to be reminded
of a main key to success in conjugal love (the love, I repeat, that binds together two
defective persons); learning to forgive and asking for forgiveness. Each time husband
and wife acknowledges his defects to the other, hebecomes more human, and therefore
more lovable. The husband and wife who denies his defects or seeks to justify them,
becomes more proud, more isolated; less loving and less lovable.
Not only the spouses themselves, but their relatives and friends need to be taught to
understand and respect the demanding beauty of the conjugal relationship, in the life-
long task of learning to love. People need support: from relations and friends first; and
then from pastors and counsellors. There is need for a constant catechesis which shows
a new appreciation of the commitment involved in marriage, especially of the goodness
of the bond; so that the very beginnings of trouble are met with positive help and
advice, not with encouragement to seek an annulment (which may not be granted in
the end). Friends and neighbors need all to be reminded of their grave responsibility to
be a help and not a hindrance to the perseverance of married persons.
In conclusion then, and to return to Polonaise, the real problem, as he sees it, is that
some irresponsible people (including myself) are suggesting that the Church has in fact
abandoned the older teaching of "primary/secondary" ends n favor of two equally
ranked ends, and are making the matter worse with meaningless personalist
phraseology.
For me, the real problem is that we have lost sight of the full value and purpose of
marriage, which is not only the begetting of children, but also (in very close connection)
the growth and maturing of the spouses--their good--in mutual and faithful self-giving,
and in shared parental dedication to their children.
For me too, the Christian personalism--also and very particularly as incorporated into
Canon Law on marriage--is far from meaningless, and also far from "lax." It does not
open the doors to a flood of annulments, as Polonaise claims (although it certainly
seeks to cover all the cases in which in justice a nullity should be declared), but it does
present a much more appealing, though no less exacting, idea of the covenant of
marriage.
At the heart of this problem is a growing loss of faith in love, and in the possibility of
any permanent commitment to the task of loving. A loss of faith in love, threatening not
only couples, but also at times counselors and pastors. I doubt, however, that people
can disbelieve in love for long; or that it is so hard to restore that belief, where it has
been lost. Nevertheless that must still be classified as a theoretical consideration. And
when facing a problem of these dimensions, theoretical analyses of it or theoretical
answers to it, are not enough. It will only be solved by those who, supported by God's
faithful love, learn to love faithfully. Their practical example can restore belief,
emulation, and happiness in others.
Msgr. Cormac Burke is a judge of the Roman Rota, the highest appeals court within the
Catholic Church. Raised in Ireland, and trained in both civil and canon law, he has
taught in schools in Europe, North America, and Africa. A prolific author, he is the
1995 recipient of the Linacre Award of the National Federation of Catholic Physicians.
Can. 1055 §1. The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized.
