cormacburke.me.ke

            With the premises of the previous chapter in mind, I shall try to offer in this chapter a framework for a theory on married personalism. The combination of personalism and a true protection of the ius connubii, both within the context of current canon law, leads me to a first move into the direction of Monsignor Burke's approach.

            In the second chapter, I based my construction of married personalism in canon law on one moment of indivisible consent, which as such, was purely contractual. Certainly, it was in the meantime also a lever for introducing personalistic thoughts into the system of marriage canon law. The "neutral", technical and purely contractual lever of consent, was a "merciless" lever for married personalism becoming juridically relevant. The "merciless" character of that lever-function, incidentally, has in its consequences not been accepted by the current Pope and therefore is unworkable at this stage.

            Unlike myself in some previous writings, Cormac Burke introduces personalism in all aspects of marriage, particularly in its content, which I also did. But also in its consent. Consent should not be characterized by extreme forms of contractualism. Even at the level of consent, marriage should be a contract and a covenant. Yet, I tried to explain in chapter three that Burke, in my opinion, introduces the covenant idea, or rather his idea of covenant and of personalism, at the expense of the contract, and of the depth of the contract and its real significance. Consent becomes a covenant based upon voluntaristic personalism. But as a contract, consent can only be reached by making use of a legal fiction.

            In summary, I think today that I should follow Msgr. Burke in expanding the idea of marriage as covenant peculiar to marriage as a whole, including to the consent, although the latter seems to be less obvious, given the indivisible and passing character so typical for consent.

            Yet, although I think Msgr. Burke should or at least could be followed inasmuch as the principle is at stake, I also think he should not be imitated in the concrete achievement of his project, leading to a weakened legal position of the contract. Once again, I recall the words of L. â•“rsy which I quoted above: "This new relationship between contract and covenant is best understood if the move from contract to covenant is considered as a move to a higher viewpoint". Then there follows the central sentence: nothing is lost, everything is enriched; the contract is contained in the covenant but does not exhaust it.

            Of course, one could argue that this idea is more or less realized in my own former theory described in the second chapter. In this theory, there is an interplay between contract and covenant. Certainly, the notions remain rather distinct, one from the other, yet the interplay takes place at the level of the mechanism, instead of at the level of content of marriage. Indeed, the mechanism makes clear that contract and covenant, without loosing any force concerning their own meaning, help each other to move to a higher viewpoint.

            But then again: I only realized this mutual enrichment at the level of the mechanism, not at the level of content. For instance, in my previous construction, consent as such remains purely contractual. As I said, Cormac Burke, conversely, comes to a deeper integration of contract or covenant, but not to their mutual enrichment.

            My purpose now is to reach both goals, namely (a) the enrichment of both contract and covenant which I think I realized in chapter two, and (b) the further integration of contract and covenant in all aspects of marriage, as Msgr. Burke managed to do in his leading essay. Moreover, the achievement of these two goals should take place within the context of the premises described in the previous chapter.

            In my opinion, more or less this is also the central question of marriage law in the church today, leaving aside perhaps my second string of premises concerning the content of personalism. Not everybody would support that string of premises.

            A first step, which to me, seems to be absolutely necessary in order to come to a workable theory of married personalism, is the legal relevance of the bonum coniugum.

            I know that, in this regard, Monsignor Burke has another opinion which he formulated, for instance, very well in an article published in The Jurist in 1989: "It is clear enough that the bonum coniugum is frustrated by the person who excludes indissolubility, or fidelity, or offspring; the marriage in such cases is null, however, in virtue of the exclusion of the traditional bona rather than of the bonum coniugum. The exclusion of the end (the bonum coniugum) is absorbed into the exclusion of the essential property".

            I am not saying that Msgr. Burke is mistaken by pleading for such an absorption. On the contrary: it is the logical consequence of his voluntaristic personalism. For him, the wholehearted acceptance of the other is a test which may be a tough one and in his eyes perhaps the ultimate one, of true marital love.

            On the other hand, is it equally true that personalism as I see it, including the openness for mature illusions and the just outcome of the legal treatment of marriage, namely point 2b and 2c of the premises explained in the previous chapter, requires a concrete and non-absorbed legal relevance of the bonum coniugum. Its absence in consent or the impossibility to realize it should under certain circumstances, lead to the annulment of marriage.

            Another question is how this making operational of the bonum coniugum in the context of marriage law should be made concrete. Here again, I agree to a large extent with Burke's analysis. He makes a clear distinction between the three traditional bona and the bonum coniugum, which is an end of marriage. His reasoning implies a certain idea of what bona are, but is as such fully correct. For instance, "fides" or the faithful exclusiveness of the relationship, is a bonum or attribute of matrimony. Coniuges, the spouses, clearly are not.

            Yet, the fact that the bonum coniugum is not a bonum in the sense of the three others, as well as the fact that the bonum coniugum is an end of marriage, does not imply that the bonum coniugum has no separate juridical relevance and therefore should necessarily be absorbed by other notions.

            I would see that difference in nature and structure between the bonum coniugum and the other three bona as being a positive point. These differences show that the bonum coniugum is a truly personalistic notion, including some juridical elusiveness, which makes it harder to control legally, and certainly harder than is the case for the three traditional bona. Even more so because although Msgr. Burke offers a well-developed theological foundation of what the tria bona could mean from a personalistic perspective, their legal relevance remains as "scant" as it was under the CIC 1917.

            The nice and attractive thing of the bonum coniugum is that it will never attain the degree of legal clarity that the other three bona have reached. The semantic river of law has to deal carefully with a rich but vulnerable personalistic notion such as the bonum coniugum. It should translate the notion into legal terms, but without betraying it. The dilemma of the canon lawyer in this regard is: how can the bonum coniugum be made juridically operational without impoverishing too much of its content. The bonum coniugum needs to be a juridically workable notion, yet also a notion with a content.

            In this regard, I see it as very interesting and even slightly amusing that even the most brilliant canon lawyers seem to be, up to a certain point, unable to legally domesticate the "wild" personalistic notion of bonum coniugum. After all, law is flowing into another semantic river than theology. Just including the bonum coniugum in the definition of marriage is not a guarantee for legal clarity.

            At this moment, the debate concerning the bonum coniugum is among canon lawyers extremely lively. A lot of interesting articles and contributions are published almost every month. E.G. Pfnausch offers a good status quaestionis of current jurisprudence, starting his overview by the via negativa, by portraying what the bonum coniugum is not. Firstly, the bonum coniugum is an institutional end of marriage and thus is not equal to the individual, personal desires of one or both of the parties. Secondly, the absence of the good of the spouses cannot be attributed to mere differences between the parties. Thirdly, the good of the spouses is not to be equated with the physical or sexual relationship between the parties. Fourthly, the good of the spouses does not pertain to accidental aspects of the living of marital life, such as different family backgrounds and physical beauty.

            It is positive that this via negativa seems to be the first and most obvious method for trying to deal canonically with the bonum coniugum. It demonstrates a few things:

            (1)        The approach is perhaps the best thinkable proof of the fact that the bonum coniugum is a personalistic notion connected with the idea of marriage as a covenant. This via negativa is often used in theology or poetry, also for instance to define poetry, but it is very unusual and rather new for a lawyer in search of rapid certainty.

            (2)        The approach shows once again how difficult it is to reconcile the idea of marriage as a covenant with its contractual structure, as Piet Huizing already evoked twenty or more years ago and as my theory on the semantic river tries to clarify.

            (3)        Typical for the via negativa is that it is a via. Rotal auditors or authors trying to make use of it, show by their choosing for a difficult road, that the ultimate goal, in this case a better canonical understanding of the bonum coniugum, is very valuable to them.

            Yet, in his interesting contribution, E.G. Pfnausch also tries to develop a positive approach concerning the canonical significance of the bonum coniugum. However, he immediately admits that the attempt to identify those elements as being essential to the good of the spouses, is much more difficult and complex than indicating what the good of the spouses is not.

            He comes to a few areas of agreement in jurisprudence, which are nice to take notice of, yet quite often remain rather vague. The first area of agreement, according to E.G. Pfnausch, is that the good of the spouses is an essential element of marriage. Second, the bonum coniugum is directly connected to the interpersonal relationship between the parties that is necessary to establish and sustain the consortium of life. This includes a few other elements such as the intimate connection between the bonum coniugum and the communion of life; the involvement of the undervalued secondary ends of marriage identified in the 1917 code and, last but not least: the good of the spouses involves psychosexual integration.

            It is quite obvious that the notion psychosexual integration is an ambivalent one. Courageously, Pfnausch tries to analyze it a bit deeper. He enumerates four ways the minimal psychosexual integration can be looked at. And each time he illustrates his point by abundant Rotal jurisprudence. The four points are:

(1)        The parties must possess a minimum affective maturity for marriage.

(2)        The parties must be capable of a minimal communication.

(3)        The parties must be able to establish a satisfactory sexual relationship.

(4)        The parties must be able to establish a 'tolerable' relationship.

            At the end of this round up, Pfnausch draws a parallel between the outcome of his research and the attempts undertaken by the Canadian canonist Germain Lesage to describe the canonically relevant community of life. Lesage undertook a first attempt in this regard in the 1972 issue of Studia Canonica. In that first study he proposed fifteen elements by which absence to a vital degree could endanger the existence of the consortium vitae conjugalis. Of course, fifteen elements are quite a lot, and some of them were pragmatical or just the opposite, that is, rather abstract. A few years later, Lesage refined his position and became more synthetical. In his second phase, he comes to five elements which are essential to conjugal communion. Pfnausch recalls them, since the indications given by Rotal jurisprudence are reminiscent of those old attempts by the Canadian canon lawyer. According to Lesage's refined position, five elements essential to conjugal communion are:

(1)        A balance and maturity proper to a truly human conduct.

(2)        A bond of interpersonal and heterosexual friendship.

(3)        An aptitude to participate in a proportionate manner to conjugal mutuality, that is, assistance and complimentarity.

(4)        Mental equilibrium and sense of responsibility necessary for decent material support of a family.

(5)        A psychic capacity to foster conveniently the welfare of offspring.

            Is this result satisfying? In other words, could one conclude that a positive description of the elements essential to the bonum coniugum, as derived from Rotal jurisprudence by Pfnausch and as listed in fifteen points, or in a refined way in five points by Lesage, is really adequate; and that it will be the cornerstone of canonical thinking on the bonum coniugum for the coming decades? Certainly, for Cormac Burke this approach does not offer the ultimate solution. In fact, in his essay, Msgr. Burke quotes the 1972 article by Germain Lesage but firmly disagrees with it: "Noting that the arguments proposing the 'essentiality' of such qualities are usually put forward in the name of the personalistic understanding of married life arising out of Vatican II, I would again contest the legitimacy of such a claim. It seems to me (...) that to make the possibility of contracting valid marriage depend on one partner's finding all the qualities of the 'ideal' spouse in the other, smacks of individualism, subjectivism, 'money-back-if-not-satisfied-ism'...: of anything but the unselfish and unconditional giving-accepting that characterizes the true marital personalism presented by the Council" .

            As I already pointed out, this criticism says perhaps more about Burke's extremely voluntaristic approach than about the content of Lesage's essential elements. I agree that they are vague: they are neither abstract, nor concrete; neither philosophically very deep, nor directly useful in the practical field... However they can be interpreted in a way so that individualism or "money-back-if-not-satisfied-ism" are not taken into consideration. One can interpret Lesage's points in a selfish way, but a good canon lawyer such as Msgr. Burke would also be perfectly able to interpret these notions in a truly personalistic way.

            Yet, Msgr. Burke has a point at another stage. Even if one does not make use of criteria as those formulated by G. Lesage, even if not individualism but real commitment remains the cornerstone of the system, even then the ius connubii could to a certain extent be endangered. There is some truth, and even more than just some truth, in what Burke writes concerning the canonical relevance of affective or sexual integration: "The over-facile equiparation of the 'good of the spouses' to their affective or sexual integration (...) risks reducing the 'bonum coniugum' to the level of natural 'compatibility' ".

            It is easy to understand that such an approach could possibly lead to a flow of annulments. In other words: the ius connubii, vigorously defended by Msgr. Burke, would be endangered if many more annulments than today would be possible. Yet, also for myself, the ius connubii should be one of the premises for a personalistic marriage law system. In my opinion it was the third of the three premises concerning the global construction.

            At this level, we really do have a problem. The old fears of Dino Staffa loom up once again. Does the combination of personalism and the existing contractual canon law system end up once more, in a clash between the requirements of true canonical personalism and the requirements of an authentic ius connubii, including a nullification practice which remains limited and/or under control? If so, one would possibly be obliged to conclude that Msgr. Burke's approach is the only one to harmonize both requirements, albeit at the expense of a consent depending on a legal fiction, of a rather unbalanced view of personalism too exclusively focusing on vigorous effort, and of a rather negative view on man...

            Yet, although I admit again that Burke's construction is technically an admirable one, I still think that canonical personalism and a limited nullification practice are possible together with more optimistic thoughts and with bonum coniugum being a canonically relevant notion.

            How can this be done? I shall try to explain.

            Indeed, one possibility for being unable to avoid a clash between canonical personalism and the ius connubii as Msgr. Burke is extremely well aware of, is the broad, open, and perhaps too ambitious content granted to personalism. Or to put it in another way, the more elements one considers to be essential to conjugal communion, the heavier become the entrance requirements for a marriage. A rather easy consent, as it is pointed out by Msgr. Burke, becomes inaccessible for people who are not that communicative, balanced or mature.

            Another reason, however, why this clash seems to be inevitable, is due to the monolithic way the notion tends to be interpreted by canon lawyers. The bonum coniugum for many of them, might be hard to describe. Yet, their paramount effort goes to finding out, detecting and discovering what are the essential elements of conjugal communion. In this regard, usually no distinction is made, for instance, between the three traditional bona and the bonum coniugum concerning their static content. Nothing of such a possible distinction between the nature of bonum coniugum on the one hand, and the three traditional bona on the other hand, can be read, for instance, in a decision coram Colagiovanni of 8 May 1990: "Canon 1056 specifies the essential properties of matrimony 'unity and indissolubility'. By a comparison of canons 1055 º 1, 1056 and 1101 º 2 ('If one or the other of the parties by a positive act of the will excludes marriage itself or some essential element or property of marriage, that person contracts invalidly'), we are able to infer that while unity and indissolubility are essential properties, the good of the spouses and the good of children are essential elements of marriage".

            A striking point here is that, while from a personalistic viewpoint it is nice to see that the bonum coniugum is considered to be an essential element of marriage, nothing shows or says that personalistic notions perhaps should not look the same as other notions once they become canonically relevant. In other words: the bonum coniugum reaches the summit in the canonical marriage structures, but once being there, only its content shows its origins, not the way it functions. I could compare it, may be a little bit too easily and in a rather cheap way, but also in a clear way I think, to Margaret Thatcher becoming Prime Minister of the U.K. Once she acceded to that high position, she certainly was a woman who reached the top in political life which tends to be dominated by masculine standards and values. Yet, although Mrs. Thatcher was and remained clearly a woman, she coped without any difficulty with the masculine standards of politics. Moreover, she confirmed the structures just the way they were by becoming the iron lady. Mrs. Thatcher was a woman who integrated herself in a system characterized by masculine values, but at the same time those values remained untouched. She did not feminise political structures, indeed one could even argue the opposite.

            Something similar could be at stake with a merely static interpretation of the bonum coniugum. Defining this notion as a fixed set of essential obligations to which matrimony is ordered by its very nature, means catching the covenant in a contractual framework. In other words, the bonum coniugum, as a symbol of the covenant, dissolves together in the semantic river of law. As a result of this, there is a lot of 'covenant' in the river. Yet, the river itself keeps its old susurrous. The content of the covenant reaches the legal level. The law, in this case canon law, continues to function the way it always functioned before, that is, based upon consent on static essential properties or essential elements of marriage.

            To describe it in yet another way, most Rotal auditors, with the exception of Msgr. Burke, agree that the bonum coniugum should henceforth flow in the semantic river of canon law. In all likelihood only few Rotal auditors would agree that the susurrous of the semantic river itself, could be changed by the introduction of personalism. Paradoxically, the latter is accepted by Msgr. Burke with his (voluntaristic) personalism which influences consent. As I described above, although I do not share Msgr. Burke's vision on personalism, I find it rather attractive the way he tries to introduce his personalism in the semantic river of canon law, leading to a change of its susurrous.

            What should be achieved then, concerning the bonum coniugum, is a double goal:

(a)        The bonum coniugum should be part of marriage consent. To a large extent, one can say that on this point there is agreement among canon lawyers. Msgr. Burke only recognizes it inasmuch as the bonum coniugum is absorbed by the traditional tria bona.

(b)        The bonum coniugum, becoming part of marriage consent, should remain a fully personalistic notion: not static, but dynamic; not with a fixed content, but with a flexible one. This second point has not been realized yet, and could be far from being realized in the near future. It entails a plea for not only introducing the covenant into a contractual system, but in moving this contract "to a higher viewpoint", as â•“rsy puts it.

            How can this second point be achieved in order to guarantee the full acceptance of the personalistic notion bonum coniugum into the system? I see only one viable way: the development of bonum coniugum as an essential part of marriage consent, but at the same time as a flexible notion, with a minimal and a maximal content. The real elaboration of the bonum coniugum, as part of the consent of a concrete marriage, should thus fluctuate between a minimum and a maximum. This situation could be compared to the position of currencies closely linked up to each other, fluctuating only a little bit within the limits of the snake. For instance, the relationship of the Belgian franc with the German mark can be characterized by such a snake-like approach. The value of the franc in comparison to the mark should fluctuate within the limits of an in this case rather narrow 'snake', limited by a maximum at the top and a minimum at the bottom.

___________________________ TOP VALUE IN GERMAN MARK

 

************** FLUCTUATING BELGIAN FRANC

 

___________________________ BOTTOM VALUE IN GERMAN MARK                      

            This is exactly how I see a true personalistic "canonization" of the bonum coniugum, fluctuating between a minimum and a maximum.

            The minimum could come very close to the requirements of the old contract, to that narrow juridical view of marriage embodied in the 1917 Code. It merely translates in a minimalistic way the bonum coniugum in the canonical field. The community of life shall probably be very scant. However the tria bona, for instance, are not excluded by a positive act of the will, and there is no incapacity. Some personalistic standards might be highly desirable or recommendable, but they are not included in marriage consent.

            The maximum would be the 'theological' dream of Gaudium et spes, including a high degree of achievement of all the goals of marriage. This would mean a marriage inspired by true, integral and unselfish personalism. In this regard, the refined position of Lesage, for instance, as well as many 'personalistic' Rotal decisions, could offer a lot of inspiration. What remains important however, is that this maximum is a truly personalistic and not an individualistic maximum. As I pointed out in chapter 4, in my opinion, true personalism includes the three premises concerning legal personalism: (a) commitment; (b) non-sentimental illusions; (c) covenantal justice at the end of law's semantic river.

            Between this minimum and this maximum, concrete marriage consent is given by two concrete people. Where exactly their consent should be situated, what exact degree of bonum coniugum they include, can in my opinion, depend on three factors: (a) the cultural context; (b) the personality of the partners; (c) the will of the partners.

(a)        Cultural context

The cultural context undoubtedly influences the room attributed to the bonum coniugum. A minimum has to be safeguarded, including free agreement on the traditional tria bona. Nevertheless, I can imagine that in a culture with an important number of more or less 'arranged' marriages, where a considerable role was envisaged for both families, the room for bonum coniugum might not reach the standards that for instance Germain Lesage (in a Northern American cultural context) thinks to be only a vital minimum. The cultural context, if (a) it is homogeneous enough and (b) does not add to the minimum elements which are opposed to personalism, could create a certain presumption about the degree of bonum coniugum included in a marriage between two people.

            However, the cultural context should be homogeneous enough in order that such a presumption, iuris tantum of course, can be established. In these times, culturally homogeneous cultures lose ground, because of extremely well-developed communication structures.

            It is also certain that the cultural contact only can be positively valorized canonically in case it does not endanger the idea of marriage as a covenant. For instance, one could argue that if a culture imposes extreme commitment to its members, a presumption including a consent on such a demanding bonum coniugum could be included in marriage consent. On the other hand, in a society where individualism dominates, fulfilment of purely egoistic desires could not be included as part of marriage consent, thereby entailing the possibility of an annulment in the event of those egoistic wishes not being met with.

            In the meantime I think that any cultural context adding some 'requirement' to the bonum coniugum as part of the consent of marriage, remains very questionable in the extreme culturally divergent western world. In the West, the unity of culture is lost. In the past, we had the dominating culture and a large receptive group of people, having no time nor money to duly develop its own subculture. Today, the formerly dominating culture, is lessened by the financial emancipation of lower and middle classes. For capitalism's sake, this emancipation was necessary. Hence, this newly 'emancipated' group, without controlling economic levers in society, nonetheless is dominant at the level of consumption, just because it is such a large portion of the population. In other words: the proletarian revolution which failed to gain cause at the economic macro-level (as capitalism and capitalists are still there) finally won the battle at the economic micro-level of consumption and general cultural flavour in society. This flavour is rather consumptive, a little materialistic, but in any case without a vital degree of homogeneity which could be important enough in order to create a culturally coloured presumption in favour of a "generally admitted western content of bonum coniugum".

(b)        Personality of the partners

            It is not realistic to assume, that even within exactly the same cultural context, every person whatever his or her emotional structure, degree of instruction and background etc. might be, could have the same perception of what the bonum coniugum can mean, as part of his or her consent to marriage.

            True personalism means, as I pointed out in chapter 4, premises concerning legal personalism, (a) commitment, that the human person should be considered in an integral and complete way, namely in all his essential dimensions and constitutive aspects. Among them: the relationship towards the world, towards the other, towards God...

            Of course, the more one also focuses on the personality of the partners, the more one is confronted with a varying concept of the content of marriage consent.

            I know this is a crucial point in the discussion. The traditional idea concerning marriage canon law is that consent should be given freely, but that the content of that consent should be marriage as divine law perceives it. How can one reconcile these ideas, namely the idea of a fixed content of marriage as God created it, with the idea of taking into account the personality of the partners, at the moment that the object of the consent in its detail, has to be determined? Again, there might be a clash between values, this time between true personalism and the fixed content of marriage.

            The answer to this dilemma, in my opinion, can be solved rather easily at a theoretical level, but entails a very fine and balanced analysis at the level of concrete judgment and decision-making. Obviously, the essential properties and elements of marriage, which should be included in the consent are: unity, indissolubility, the good of the spouses and the good of children. None of these four can be absent, as part of the consent. But whereas the three traditional bona have a stable and static content, bonum coniugum as a truly personalistic notion with no "contractual" history, has a varying and dynamic content. Thus, not only culture, but also concrete persons can entail a difference in the content of bonum coniugum, as it is part of marriage consent. Bonum coniugum is an essential element of marriage. The question however, as to what is essentially present within this essential element, is determined by both the cultural and the personal aspect of the concluded marriage. Of course, the wishes or desires of the concrete person, in order to be potentially canonically relevant, should be in line with personalism as described above.

            To put it briefly: consent has to include the tria bona and bonum coniugum. Yet the content of the latter varies as a truly personalistic notion. The susurrous of the semantic river of canon law is not completely the same anymore. An innovation is introduced: essential elements with a varying content. That is the influence of personalism on the semantic river of canon law.

            In the meantime, another unsolved but technical problem remains, and that is how to proceed in order to establish the influence of the personality of the partners on the content of consent. In direct opposition to what I wrote concerning culture, I think that with regard to persons, no presumptions can be admitted. For instance, it would not be wise to presume that someone who studied theology or canon law, for instance, would like to include an extremely high degree of commitment into the bonum coniugum. One never knows! Conversely, very simple people have sometimes high aspirations when it comes to the level of quality of their marriage.

            Consequently, the only adequate approach is the inductive method of careful case study. As a matter of fact, this is already the concrete approach taken at the Roman Rota, as Emilio Colagiovanni adequately describes in an article published in Monitor Ecclesiasticus in 1995. Making use of the inductive method in judging nullity cases, he says, is starting from a concrete conceptual framework. Marriage realizes itself concretely, namely in a personal manner between husband and wife, at one well determined place and time, between two psycho-social people, who are creatures of their interior and exterior environment, as well as creatures of themselves.

            And he continues: there is a dynamic aspect in psycho-social reality which we can call values and which is conducting people to their choices, to their decisions and to their actions. And those values are embodied in culture.

            I completely agree with E. Colagiovanni's words. He proves perfectly that the case study is the best method to deal with truly personalistic notions in marriage canon law.

(c)        Will of the partners

            At this stage we arrive at a delicate question. Should the will of the partners, apart from the cultural context and the personality of the spouses, also play a part as to the specific content of bonum coniugum in a concrete marriage?

            The question is delicate, because if a role is given to the will of the partners, this means that the content of marriage, or at least a small part of it, namely the bonum coniugum within the limits of the snake, can be decided upon by free consent among the partners. Analyzing the problem a bit more closely, concerning the role of the will of the partners, two interrelated, but separate questions can be asked. Firstly, does the bonum coniugum play a role at the level of consent as a whole, or should it be limited to incapacity cases? Only if the first question is answered in favour of a role of bonum coniugum in consent as a whole, a second question awaits an answer: does consent include only a general openness to the bonum coniugum, or does it also concern its content, within the limits of the snake? For myself, the answer to these questions is of paramount importance. They are a final test in order to know whether or not personalism really changes the susurrous of the semantic river of marriage canon law, or just flows into it and dissolves in it, with a resulting loss of its own identity.

            In my opinion the answer to the first question should be clear. I know that the bonum coniugum has only been discussed in Rotal decisions in cases of incapacity. But there are also indications, in both jurisprudence and canonical literature, that other juridical configurations are indeed possible.

            Bonum coniugum, in case it is a goal or an essential element of marriage, should deal with marriage as a whole and not only with one nullity ground or a string of nullity grounds. The good of the spouses should be included in consent, although it could be difficult to find out to what extent it was really included.

            It is obvious that measuring the canonical relevance of the bonum coniugum not at the level of incapacity, but at the level of consent in general, automatically leads to the entrance of the same bonum coniugum as a possible element in other nullity grounds. For instance, I fully agree with the Rotal decision Coram Di Felice of 19 June 1984, in which it is stated that according to the new Code, the exclusion of the bonum coniugum can be allowed as partial simulation. I think indeed that limiting the relevance of the bonum coniugum to the periphery of marriage canon law, to concrete nullity grounds instead of admitting it into consent as such, would be almost an open rejection of integral personalism. Only when one starts from a more limited and voluntaristic approach of personalism, the bonum coniugum could be absorbed by the tria bona. Yet, simply attributing canonical relevance to the bonum coniugum within the area of incapacity would not be an option. It would not be a consistent choice for making operational integral personalism. It would neither be an option in favour of absorption of the bonum coniugum by other notions as Msgr. Burke contends. It would merely be a weak compromise and logically extremely hard to explain.

            Given this answer, which should be further clarified by jurisprudence and hopefully in a positive and workable way, the second question needs to be tackled. As the bonum coniugum should be included in consent, should we also accept that the content of the bonum coniugum can vary within the limits of the snake and thus that spouses, to a certain extent, determine themselves what the content of their marriage could be? Or is that too alarming given the institutional characteristics of marriage?

            One could argue that such an interpretation has been contradicted, for instance, by the legislative history of marriage law in the 1983 Code. The commission for drafting the Code first spoke of the bonum coniugum as a way of signifying the finis personalis. This wording could have opened the gate for a juridic valorization of the subjective ends of the spouses. As Msgr. Burke rightly points out, in such an interpretation the bonum coniugum would come to mean the finis or fines operantis. In addition he also gives some examples of possible fines operantis: love, security, happiness, personal satisfactions, etc.. Later however, the commission itself clearly said that the finis personalis is intended in an objective and not in a subjective sense. For matrimony to be ordered to be bonum coniugum, is truly an essential element of the matrimonial covenant and not a subjective end of the person marrying.

            Does what precedes this, imply that the bonum coniugum should have one single and stable significance? Most authors probably would agree that it has not. They would argue that the bonum coniugum has a personalistic substance which can be redefined according to the sensitivity of a certain period in history. But then, the next step is seemingly one too far for many canonists: the will of the spouses partly determining the content of the bonum coniugum. Even those in favour of the legal relevance, at the same level in a dynamic way, of the bonum coniugum argue that excluding the goal, la finalitα, of the bonum coniugum would be legally relevant, but not the exclusion of certain single ways of behaviour.

            My problem with this viewpoint is not that an abstract finalitα is preferred over very concrete elements, but that the notion finalitα seems to be the same for everybody in a certain cultural setting and is left by no means to personal determination or decision of the partners.

            Yet, I think some room for the will of the spouses should be given. I know that we may not forget that it is God who is the author of marriage and it is He who endows it with various values and purposes. But then again, I am convinced that this absolute premise to any further theory does not endanger some autonomy for the spouses, in the defining of what the bonum coniugum in their marriage will ultimately be. Yet, this limited autonomy is only possible under two conditions which have to be very strictly observed:

            (1)        The autonomy is limited to the restricted free zone between the minimum and the maximum of the snake. There should be at least "some" portion of bonum coniugum included in marriage consent. Also, the maximum are the high standards set forward by Gaudium et spes.

            (2)        The autonomy is only possible within a fully personalistic framework. Thus, merely subjective fines operantis should not be taken into account. Here I agree with Msgr. Burke. Happiness or personal satisfaction may well be the result of bonum coniugum or the motive for which one strives to achieve it, but they are not the object of the bonum coniugum. This object needs to be a truly personalistic one and should be characterized by authentic commitment. As Pope John Paul II expresses it, in his letter Gratissimam sane. For him, bonum coniugum as it is present in the 1983 Code, implies love, fidelity, honor, and their duration until death follows. One easily sees the difference with the fines personales formulated by Msgr. Burke: they are less noble and to a much lesser extent connected with true personalism. Yet, it is within this personalistic understanding as pointed out by Pope John Paul II that I would situate the minimum and the maximum of the 'snake', determining thus the degree of autonomy concerning the elaboration of the content of bonum coniugum that the spouses enjoy.

            A similarity between a certain appreciation margin concerning bonum coniugum and condicio can easily be established. Not every condition in marriage canon law would or should be accepted. "For a circumstance to be a true condition, it must ordinarily have real and objective importance and touch upon the marital relationship. Yet a circumstance can be so subjectively important to a person that the validity of consent is affected, even if it is not verified".

            It is clear that Msgr. Burke does not like condition and he is very honest about it: "Such a conditioned approach would seem contrary to conjugal love. More particularly, it would seem to contradict the very essence of the marital commitment expressed in c. 1057: giving self and accepting the other, as each one is now, and he or she may turn out to be in the future". As already explained, this is a legitimate conclusion arising out of Msgr. Burke's rather limited or one-sided idea of personalism. Then of course, condition could equally well be a sign of a true personalistic desire for real commitment as it could be a sign of individualism, egoism, hesitancy or even a lack of true love. Msgr. Burke's objections against the place of condition in marriage law, could be countered (although probably not when beginning with Msgr. Burke's premises) by requiring this condicio to be truly personalistic in order to be accepted. Conversely, the condition should not be accepted when it does not respond or when it responds very badly to the Christian concept of matrimony.

            This very brief comparison between a certain appreciation margin concerning bonum coniugum and condicio reveals a few important points:

            (a)        The existence of a marriage created by God does not prohibit a certain degree of autonomy of the spouses at the moment of consent.

            (b)        Condicio adds an element which is part of consent, but which is not part of the content of marriage.

            (c)        On the contrary, an appreciation margin with regard to the content of the bonum coniugum means a direct possibility for the spouses to influence the content of marriage.

            (d)        Although condicio adds another element to the content of marriage, whereas "appreciation margin" deals with a minimal and maximal content, the final result is the same, that is, a varying weight of global consent.

            (e)        Condicio should not be against the Christian concept of marriage. In relation to the appreciation margin with regard to bonum coniugum, it is necessary to be even more severe: the appreciation margin as a whole should be situated in a field of true personalism. Why is this difference? Because condicio is important but not included in the consent about the marriage sensu stricto. Yet, an appreciation margin concerning bonum coniugum is included in the consent about the marriage sensu stricto.

            So far I have illustrated how the content of bonum coniugum can fluctuate between the minimum and the maximum standards of the snake. I am aware of the fact that the three elements influencing these fluctuations will not all be enthusiastically accepted by everyone. The second element (personality of the partners) shall be probably less obvious than the first one (cultural context). And the third factor (will of the partners), without any doubt, will offer the most difficult discussion topic as some might consider it to be dangerous for the institutional character of marriage. Yet, I think that the preceding pages make it clear that a certain appreciation margin for the spouses, does not affect the existence of two essential properties (unity and indissolubility) and two essential elements (the good of the spouses and the good of the children). Neither does it influence their content. The only thing is that, as far as concerns the bonum coniugum, this content, which at an abstract level is rather stable, is at a concrete level flexible within the limits of the 'snake'. Why is this so? Because the bonum coniugum is a truly personalistic notion and therefore it does not just flow into the semantic river of canon law by disappearing into it. It also alters somewhat its susurrous.

            Yet, some technical problems might remain. What about the proofs concerning the consensual content of part of the bonum coniugum? Under certain conditions, an influence of the cultural context could be presumed, as I pointed out above. This is not true for the two other factors, namely the personality of the partners and their will. Case studies might be indispensable. Periti can be useful, etcetera. But this is a technical matter, which should be and which is studied, but which is not at the heart of the matter of our discussion on married personalism.

            "Personalistic" consent consists of various levels. For the greater part, its content is a mandatory one, as marriage has been created by God. Yet, really taking seriously personalism as entering the semantic river of canon law, means that within the framework of stable institutions, some room is left for personalistic dynamics. All this leads to the following diagram of marital consent as a result of the acceptance of a truly personalistic covenant into the existing system of canon marriage law.

 

TOP

WILL OF THE PARTNERS

INFLUENCING BONUM CONIUGUM

WITHIN THE SNAKE

ADDITIONAL CONSENT,

NOT PRESUMED

 

ADDITIONAL CONSENT,

NOT PRESUMED

PERSONALITY OF THE PARTNERS

COLOURING BONUM CONIUGUM

WITHIN THE SNAKE

CULTURAL CONTEXT

COLOURING BONUM CONIUGUM

WITHIN THE SNAKE

ADDITIONAL CONSENT,

SOMETIMES PRESUMED

 

BASIS

ESSENTIAL ELEMENTS

ESSENTIAL PROPERTIES

/

\

/

\

BONUM CONIUGUM

AS A SNAKE

GOOD OF THE CHILDREN

UNITY

INDISSOLUBILITY

MINIMAL CONSENT

 

            The diagram also concludes this chapter. An attempt has been undertaken to build a theory of married personalism (a) which is based on the premises explained in chapter four, (b) which reconciles true personalism and respect for the ius connubii and (c) which brings marriage contract and marriage covenant both to a higher level, while nothing is lost.

            A first step to realize with regard to this project, lies in accepting the canonical relevance of the bonum coniugum as an autonomous notion, not as a notion legally absorbed by the traditional tria bona.

            Bonum coniugum is a truly personalistic notion and therefore not easy to reconcile with the existing semantic river of marriage law in the church. The notion can hardly be adequately described, and the via negativa offers better perspectives than a positive approach. Yet, certain areas of agreement can be found among canon lawyers. This leads to carefully established lists such as the one offered by E.G. Pfnausch based on recent Rotal jurisprudence.

            But then again, the old question, often focused on by Msgr. Burke, emerges once again. Quid with the ius connubii? Where is the limit of annulment practice? Does a canonical valorization of the bonum coniugum not automatically imply an increasing number of annulments?

            I think that this objection can be overruled by not giving to the bonum coniugum a monolithic, static and contractualist significance, but rather by granting it a true personalistic significance, regarding both its content and the way it functions. Although being part of canonical marriage consent, it should nevertheless remain flexible and dynamic, because otherwise it would betray its integral personalistic roots.

            That is why the concrete content of bonum coniugum should fluctuate as in the snake, between a minimum with a low personalistic profile and a maximum with a high personalistic profile. The concrete content of bonum coniugum fluctuates within the boundaries of this framework. Fluctuations are influenced by three factors and not all three are fully plausible in canon law at the present time. The three factors are (a) cultural context; (b) personality of the partners; (c) will of the partners.

            The final result in offering consent on bonum coniugum partly dependent on the will of the parties (at least within the limits of the snake with a personalistic minimum and a personalistic maximum) might be an ideal solution for solving all projected dilemmas at the beginning of the chapter. In any case, marriage as created by God is not endangered by the construction. Moreover, the true personalistic notion bonum coniugum has the effect that the susurrous of the semantic river of marriage canon law is not the same as before, as dynamic personalistic notions remain dynamic and flexible once they enter the legal system.

            What precedes might sound nice. But does it work? I shall discuss this question in the next chapter, by checking whether the promises of the premises are kept and whether seemingly contrasting requirements could indeed be harmonized. I shall also try to offer some perspectives for the future.