cormacburke.me.ke

            The first three chapters gave a more or less external description. In the first chapter the principle of the juridic semantic river was discussed. The options of the legislator concerning the juridic status of marriage (a combination of contract and covenant) were explained. But then the concrete significance of these choices require to be developed further.

            The second chapter tried to focus more on the real significance of the acceptance of personalism into the legal system. Logically, I came to the conclusion that a combination of personalism and the old contractual structures of marriage lead to a strongly increased number of annulments. Yet, this final result, feared for already by some in the sixties, is finally unacceptable to Pope John Paul II. This means that techniques, structures and constructions have to be found which combine both the juridic valorization of personalism and the requirement of a restricted number of annulments.

            Bearing in mind both these conditions, Cormac Burke's ideas were analyzed in the third chapter. He is successful in combining personalism with a limited nullification practice. The cornerstone of his system is a new vision of consent, which is less contractual than before, and which is characterized by an easy entrance of the contract, as well as by the very burdensome object and obligations resulting from it. In my opinion, consent as seen by Msgr. Burke is a legal fiction. However, it combines admirably the juridic valorization of (in Burke's case voluntaristic) personalism and a limited number of annulments. In spite of this positive result, some criticism could be formulated. I particularly objected against (a) consent as a legal fiction, (b) unbalanced personalism being too voluntaristic and (c) Msgr. Burke's, in my eyes, too negative vision of man.

            Despite this, one cannot deny that the construction of Msgr. Burke, once you admit his premises, is admirably well built. Hence, everybody wanting to criticize Burke's ideas should not limit himself to disagree with a few premises or with certain isolated points, but should also be aware of the fact that, by putting into doubt certain points, premises or presuppositions, the whole beautiful construction could well be endangered. And the ultimate magic combination, that is, real personalism and few nullities, eventually could be completely lost.

            So, whoever formulates criticism, should also be able to present an alternative, which is what I am going to attempt. Again, I do not wish to replace Cormac Burke's model with mine: given his premises, his model is fully logical and consistent. In that regard, it can hardly be improved.

            But maybe my premises are not fully the same as Msgr. Burke's. To some extent, they certainly are. In any case, I want to make more implicit the open and even partly hidden nature of my premises. What then are the elements I would like to include in my vision of a truly personalist marriage canon law?

            I have two strings of premises. One concerns the global construction I would like to make. The other deals with the content of "legal" personalism as a part of this construction.

1.         Premises Concerning the Global Construction

a)         Current Law

With regard to the global construction, I absolutely want to stay within the limits of current canon law. Everything I suggest should be possible without any change of law. This does not mean, as I already wrote in the first chapter, that other approaches of dealing juridically with married personalism as it has been expressed in Gaudium et spes would have been impossible. Nevertheless options have been made. Maybe not for ever, but at least for the time being. It would be too easy to argue continuously in an atmosphere de lege ferenda. A lawyer should be able to be creative within the limits of the law. Overly fantastic constructions are often the best sign of a lack of real imagination.

            Consequently, I fully accept the CIC 1983 as the framework from which I develop my ideas.

b)         Legal Relevance of Personalism

The CIC 1983 introduced personalism into the marriage law of the church. One should be aware of the fact that personalism is an open notion. Defining it is betraying it. In my opinion, certain aspects of personalism, certain characteristics of it can be emphasized, as long as one does not want to completely reduce his or her personalism to one's own way of thinking.

            The cornerstone of canonical personalism at this moment should be marriage as dealt with in the Second Vatican Council, especially in nâ–‘ 48 of Gaudium et spes: "The covenant, or irrevocable personal consent of marriage sets up an intimate sharing of married life and love as instituted by the Creator and regulated by God's law. Thus the human action in which spouses give themselves to each other and accept each other results in an institution which is stable by divine ordinance and also in the eyes of society. This sacred bond, aimed at the good of the couple and their children and of society, does not depend upon human decision".

            Every further reflection should find its starting point there and should, at least, not be opposed to this conciliar view.

            Furthermore, legal relevance means that the ongoing discussion should focus on personalism in the semantic river of law, and not on continuing theological reflection which eventually could illegitimately narrow the legal expression of personalism or covenant as they are received in the CIC 1983.

c)         Ius Connubii

The legal relevance of personalism should not lead to an elitist marriage or one only open to a limited number of very generous people with a strong character. Marriage should be accessible to the great majority of people. This includes the right to 'remain married', and as such it is also opposed to the mentalitα divorzistica so often rejected, and rightly so, in Catholic documents.

            In summary, my basic goal remains the same one that I already mentioned, as the first aim to be achieved by canon law covering marriage today. This is, how to reconcile personalism with an adequate protection of the right to marry, including a limited number of annulments?

            Within this framework, I come to a second string of premises, which is more personal and therefore could be even more debatable.

2.         Premises Concerning Legal Personalism

a)         Commitment

Personalism as a notion is merely an empty shelf if it is confused with self-fulfilment and egoism. The notion does not mean that the concrete individual himself, with his sometimes egoistic inclinations, should always come first. I see personalism in the sense that people like Louis Janssens defined it, especially when commenting on personalism in Gaudium et spes. For this author, discovering whether an act is dignified or morally good, is only possible when the human person is taken as the decisive criterion, and then only as the human person in an integral and complete way, namely in all his essential dimensions or constitutive aspects. What the latter notions exactly mean, has been carefully worked out by Janssens. In order to do so, he makes use of a few distinct but not really separated components such as the fact of being a subject, the relationship towards the world, the relationship towards history, the relationship towards the other, the relationship towards God.

            Obviously, such an approach in which the other plays a crucial part, sees commitment and the gift of self as an integral part of personalism.

b)         Non-sentimental Illusions

            Personalism should be understood in a way which includes a deep respect for mature illusions, of a non-sentimental nature. Only mature people, who are capable of caring for and respecting the needs and interests of the partner as much as they are concerned with their own, are capable of the mutual relatedness of adult love. However, maturity does not mean old age. Neither does it mean living without illusions. One should lose the bad illusion that egoism and selfishness make people happy. But one should never lose the good illusion that life and marriage are both more than defensive voluntarism.

c)         Into Which Sea Does the Semantic River of Law Flow Out?

The last of these premises linked up with personalism may sound a little unusual, as it is not connected with the content of personalism, but with its end result. A difference between merely contractual and personalist thinking can be that the contract is governed by the internal logic of its structure based upon one moment of consent, yet the personalist approach including the notion of covenant double-checks as to what legally happens. Not just the unique, indivisible moment of consent is looked at. Also the final result plays a part. What really matters, is the outcome of a juridical process of thinking.

            To put it in another way: with few exceptions, pure contractual thinking accepts the results of one indivisible moment of agreement. Pacta sunt servanda, even if executing the contract can be a tough enterprise. If so, people simply should have been thinking twice at the moment they decided to conclude the contract. Not that the hard outcome of a contract is totally unjust. Justice might lie in consistency and taking responsibility for one's own action.

            But then again personalist thinking should offer more. The final result should not only be logically just, but also satisfy the heart. It should never disappoint man in his deepest dreams. If it does, it is bad canon law, no matter how technically well elaborated it may prove to be. Of course, canon law cannot really translate the beauty of the message of Jesus into legal norms. But it should never betray it. I agree with Msgr. Burke where he writes that law is at the service of the truth, and more concretely of justice. And I still agree with him, of course, when he quotes Saint Thomas saying that justice is at times called truth, quandoque iustitia veritas vocatur. Quandoque. The term alone already suggests that veritas is not a synonym of justice, and that it by no means circumscribes it in an exhaustive way.

            I would put it in another way. Contractual justice will probably be not much more than just truth in the classical and ontological sense of the word. Yet, covenantal justice should go together with a form of truth having a richer content. Covenantal truth should be a truth including genuine love and authentic feelings. It should never disappoint man in his deepest level of aspiration, in that place where he is extremely vulnerable and incredibly close to the hard core of his being. At this level, truth should be more than formal truth, justice more than formal justice.

            This rather abstract reasoning needs to be illustrated by a concrete example.

            Imagine a "hard" pacta sunt servanda approach. The object of consent is very demanding. And consent itself can be given rather easily, because otherwise the ius connubii would not be guaranteed any longer. A direct and honest approach in this way of thinking would be that, only those people who still are not able to cope with the minimum conditions for entering marriage, can obtain an annulment. For instance, people suffering from amentia, or people being incapax. Worse still, people meeting with the standards of various forms of simulatio partialis, in case they are successful in delivering the proof. Furthermore, there might be some borderline cases. Was the anomaly, in an incapacitas case, really gravis? Was an essential property of marriage really excluded by a positive act of the will? What might very often be at stake here, is just a marriage, with a low level of motivation and with no real commitment.

            Some marriages however, still according to this "hard" pacta sunt servanda approach, will hardly have any chance to be nullified, namely marriages of people who really wanted their marriage to be a covenant, who perhaps have tried extremely hard, with vigorous effort, to make it work, but who finally failed.

            If one works with a notion of truth which remains formal, one probably can cope with the idea that those who were the most committed ones do not receive an annulment. Yet, a gap between law and morality could be the result of this way of reasoning.

            Covenantal justice, in my opinion, includes the idea that the outcome of the process of legal reasoning does not only fit with formal justice (though it also should fit with it), but also with deep authenticity.

So far, a brief explication of the premises at the basis of my theory of married personalism.

            A first string of premises concerns the global construction. Perhaps not in detail, but probably to a greater extent I think I am sharing them with Msgr. Burke. Anyway, the premises are three, namely (a) the acceptance of current law as a starting point; (b) the necessity of including personalism in marriage law of the church; (c) the preservation of the ius connubii by limiting the number of annulments.

            A second string of premises is more personal. It focuses on what I expect of personalism. It entails, in my eyes (a) commitment and (b) openness to mature illusions. And (c) it should not only be evaluated at the level of its content, but also at the level of its eventual legal result. It should offer a deeper justice than just merely formal justice; and it should not disappoint man in his deepest aspirations.

            I am convinced that, by formulating those premises, I am not only talking about marriage, but also about myself and my deepest aspirations in life. Whether one should see them in the context of marriage or not does not matter so much. I am convinced that, inevitably, the same happens in Cormac Burke's essay. I do not see this self-portrait element as something dramatical or negative. Nor does it endanger the search for the truth. On the contrary, human sciences should rely upon both a clear explication of one's premises and a lot of rigor combined with self criticism at the moment that 'syllogistic arguing' begins.