cormacburke.me.ke

            The previous chapter offered a model of married personalism made operational in marriage canon law. I tried to explain and defend its feasibility. Following on from this, though none the less an important question is whether the framework as elaborated in chapter five fits with the two strings of premises in chapter four. Indeed, a good model as such should not only be operational. It should also be in harmony with the preliminary targets.

            After this attempt at quality control, I shall try to formulate some thoughts for the future. Is the model as presented here the final stage in the translation process of personalist marriage from theology into canon law? Or is it only one step in an ongoing evolution, which could lead us to unexpected and until now undiscovered places? This is the ultimate question we have to ask ourselves.

            Yet, I would like to start this chapter in a much more empirical way. I shall briefly describe three cases I was confronted with as an ecclesiastical advocate. Each time, my question in retrospect will be: what would have been the decision concerning a possible invalidity of marriage in the event of the canonical framework for a theory on married personalism, as described in the previous chapter, was applied? Such an approach could, combined with the more theoretical quality control, reveal a lot about the construction as developed in this essay.

            Case one is typical for the affluent and consumeristic western world, "distorted by an immanentistic and hedonistic vision that undermines the real meaning of marital love", as Pope John Paul II characterized it in his allocution to the Roman Rota of 28 January 1991. Two people with a degree of Masters in Business Administration decided to marry, but with the intention that their marriage should not by any means interfere in their professional careers. They both decided against having children, as they considered it would be incompatible with full participation in international business life. Moreover, they considered children as a material obstacle to fully enjoy life.

            When after a few years the husband fell in love with a Japanese business partner, the wife asked for an annulment. In my opinion, it could be given easily in case the exclusio boni prolis were to be demonstrated. Here again I agree with Msgr. Burke that the exclusion can not be presumed and that a confession of simulation, often a cornerstone of the procedure, always provokes a certain suspicion, because by it a person acknowledges his or her own lack of credibility. But then again, in case the proof can be delivered, I am convinced that all canon lawyers will agree that the marriage was null. This is true in Msgr. Burke's system. It is also true in mine.

            Case two could also be seen as typical for a wealthy nation, with a lot of free time and a certain idolatry of material goods. A young female art historian from a prosperous family married a television presenter, who before had married only civilly and obtained a divorce. The presenter, some fifteen years older, was at the top of his popularity. During the wedding, many of her friends heard her saying: "Well, even if it is for only seven years, as long as it is fun, I will go on with it". A few years later, the presenter as he became older took to gardening. His wife wanted a more active and enjoyable life. She left and asked for the nullity of her marriage, having argued she was not willing (simulatio) or not capable (incapacitas), herself, to assume the bonum coniugum as part of her married life.

            In this case, would it be possible to come to an annulment? I am convinced that regionally, in many places, this could be possible in one way or another. In spite of this, I think there are no good reasons in pleading for an annulment. An exclusion of one of the three traditional bona by a positive act of the will is not at stake. Incapacity also seems impossible to prove. Difficulties yes, incapacity no. And the exceptional circumstances necessary to fulfil the requirements of canon 1095, in that regard, including the suffering from a grave personality defect, probably can never be proved in an adequate way. A last possibility then could be: exclusion of the bonum coniugum, within the minimum and maximum limits of the snake. Did the partners make any 'specific' consent concerning the kind of bonum coniugum they would like to reach? As I see it, they did not. The first motives leading them to marriage were hedonistic and inspired by individualism. How can I feel good about being the wife of a famous television personality? How can I enjoy it better? That might have been her idea, and he probably was very pleased with a young, beautiful and sophisticated woman at his side. So, although they might have had high aspirations concerning their own pleasure or self-satisfaction, they hardly had any common project together. The partner was only a tool in search of one's own happiness.

            Consequently, in this case, we can limit the content of the bonum coniugum as part of consent, as the absolute minimum. The bonum coniugum then, should remain a notion more or less defined by via negativa, with only a very little fixed content. It makes me think of some thoughts formulated by Ombretta Fumagalli Carulli some twenty years ago. She foresaw the possibility of the exclusion of (in those days) the community of life, but in a very limited number of cases. In order to illustrate this, she gave two examples. The first one was a marriage of a man who, although he accepted the tria bona, was inspired by only one motive and that was to make his wife suffer. And the second example concerns a man who married just to have children, in order to give his family name to them. Meanwhile, he had not the slightest interest in this wife who was only the tool in the process of reproduction.

            But are things really that bad in the case we are examining here? I think not. None of the partners had the intention to make the other partner suffer, as they both were just focused on their own pleasure. Therefore, there is no complete negation of any kind of bonum coniugum, it has just not been developed. As a result of this, in my eyes, the partners cope with the absolute minimum of bonum coniugum as was necessary to give a valid consent. The bonum coniugum was poorly present, but more was not intended, and it should not have been more; as with just a communicative minimum, the marriage would have been valid.

            It is clear that, as far as I am concerned, the marriage as described above (I know of course that a real case study demands more, as well as more detailed information) was completely valid. The bonum coniugum should be part of consent, but in its minimal form, including not much more, yet a little more in the line of Fumagalli Carulli, than just consent and capacity concerning the tria bona. As far as I can judge, Msgr. Burke, starting from his theoretical framework and without any separate formal relevance of the bonum coniugum, would reach the same conclusion.

            Case three, on the other hand, is characterized by a more complex mixture of facts and situations. Two young and idealistic students met at the university. He studied history, she studied theology. They both wanted to be teachers at secondary schools. In their lives, there was a lot of commitment for other people, for the weak in society, for each other. Sundays were spent in the youth movement or working with children. And she was also involved in parochial catechism for confirmation. They both intended to live a life full of commitment, without any materialistic ambition, but just with the idea that they would make each other and everyone else happy. The year before they married, she wrote her licentiate thesis on the relationship between theology and canon law, whereas he, after he had obtained his degree in history, went on to teach at a secondary school in the province. While they intended to marry in July, he met, in November, a colleague at school who was highly involved in the Communist Party. Then having made an appeal to the future bridegroom's idealism and commitment for society, the older colleague ended up convincing him about the value and truth of Marxism-Leninism (facts took place before 1989...). So, the bridegroom joined the party and gave all his free time to it. His future wife was aware of it, and even realized that this difference which suddenly emerged would be hard to cope with, yet she decided to marry anyway because she really loved him. After marriage, she was confronted, day after day, with the fact that his militant work for the party excluded any other activity, any closer contact, any communication, any discussion about another topic other than the absolute truth of Marxist syllogism. She tried again for three years to come closer to him, to convince him that they should talk about their lives, to ask him to consult a counsellor etc.: however to no avail. Over a three year period, he refused to discuss any other problem than the ultimate victory of Marxism-Leninism. Finally, she broke down and they split up.

            Looking at this marriage in the classic way as Msgr. Burke sees it, and given the fact that in the strict field of the tria bona, husband and wife can be reproached with nothing, this marriage would be valid. Yet, this does not seem fair to me. No one can deny that the girl made a vigorous effort to make marriage tolerable. Yet, it just turned out not only to be difficult, but impossible! The reason for the breakdown of the marriage for a great deal lay in the fact that the high aspirations which both partners had in the field of love and commitment, in the field of the bonum coniugum, were not met with because of the political volte face of the husband, which also absorbed all his personal emotions. At the moment of consent, she still had the high aspirations concerning the quality of marriage that she always had: the best proof being that she decided to marry him and to accept him as he was. She admitted implicitly that different people with different ideas could marry. Yet, what she absolutely wanted to include as part of the consent was a high degree of communication, of mutual commitment and mature illusions. She was also certain that her partner, notwithstanding his Communist ideas which, after all, were also guided by idealism, was inspired by the same notion of consent, including a rich and truly personalist bonum coniugum, close to the maximum of the snake. But then again, this turned out to be completely erroneous, and not in an accidental, but in a structural way as she tried extremely hard to solve the problem. In my opinion, true personalism requires that this marriage can be declared null. Various grounds could be considered. For instance, error in qualitate personae: a high degree of openness to personalist bonum coniugum, could be qualified here as a quality directly and principally intended. Invoking error in qualitate personae here, is not accepting canonically certain egoistic inclinations of the wife, who was instrumentalising her partner for some unilateral and self-centered end. On the contrary, the error consists partly also in the fact, that she wanted a marriage with a person to whom she could give more and with whom she could share more, than with this man whom she loved so much.

            In due course, also other grounds could be debated upon, such as simulatio partialis of the husband, as he may have excluded the bonum coniugum at that rather high level which he seemed to consent upon. However, delivering this proof might be more difficult including the problem of establishing exactly what were the will of the spouses, at which exact level of bonum coniugum within the snake, they had concretely met. Yet, although this may seem a rather annoying consequence of the bonum coniugum as a flexible notion, it is not impossible to develop in this regard a certain practice or jurisprudence.

            Now it is time to conclude this third case. The constat de nullitate of case 1, will probably not be a point of disagreement between Cormac Burke and myself. And the same will be true, I am almost certain, concerning the non constat of case 2. Yet, concerning this third case, there is a chance that we may disagree, given that there is indeed no problem at the level of the tria bona. In my opinion, this marriage should be declared null. Not because every marriage needs to be characterized by the high degree of commitment which the girl wanted to include in marriage consent, but because for her any marriage without a high degree of commitment was impossible. She deliberately and exclusively wanted a marriage including a degree of commitment, of bonum coniugum, which came very close to the maximum limit of the snake. She would never consent on a scant and almost nihilistic bonum coniugum, as the partners of case two did, without making any further problem.

            In other words, case three might show the consequences of the different premises and the different construction between Burke's theory and mine.

            Bearing these three cases in mind, I shall now proceed to the quality control of the ideas developed in chapter five. The first and at this stage predominant question is: does the construction as elaborated in chapter five meet with the premises as set forward in chapter four?

Chapter four was built around two strings of premises. The first concerned the global construction I intended to make. The second dealt with the content of canonical personalism as part of this global construction. Both strings of premises were subdivided into three parts.

1.         Premises concerning the global construction

a)         Current law

            The construction which I presented remains fully possible de lege lata. Not the slightest change in canon law legislation on marriage is required in order to concretize the ideas as they were set forward in the previous chapter. Easy speculations were left aside. Another question is whether, or to what extent, the construction, if applied, would need a complete volte face in jurisprudence. Here, I am sure that nothing dramatically new has been proposed in this essay. The only problem which in this regard could emerge is an apparent clash (in the eyes of some people) between (a) the sacred bond of marriage which does not depend on human decision but was created by God and (b) a marriage consent, which is not always fully aiming at exactly the 'same' marriage as the degree of bonum coniugum included in consent and can vary between a minimum and a maximum, even as a result of the free will of the partners.

            This is probably the most debatable point in my essay. Yet, one should avoid creating false paradoxes. I do recognize the bonum coniugum as a stable element of every marriage consent, but its concrete content is different from case to case. Not accepting the bonum coniugum as such as a stable element, would be denying the existence of a marriage bond not depending on human decision. Conversely, not accepting the partly flexible content of the bonum coniugum, would be denying the acceptability of real personalism into the semantic river of canon law. Thus, the construction, instead of breaking through the limits of marriage as an institution, tries to reconcile two aspects of marriage canon law today (institutionalism and personalism) which very badly need to be brought in harmony in such a way that neither of them suffocates the other.

            Hence, I think I can conclude that the construction (a) remains within the limits of actual marriage legislation and (b) is not suggesting jurisprudential novelties which might clash with long standing and even divine law institutional characteristics of marriage.

b)         Legal Relevance of Personalism

            Personalism is not just another notion suddenly showing up in a canonical context, asking for a place in it and finally being carefully integrated in it, and without any danger, while the semantic river of law flows as it has always been flowing, with the same seemingly eternal susurrous.

            It is not only the content of personalism which should be integrated into a system which basically remains contractual. Personalism not only changes the content of canonical marriage, but also the way of looking at it canonically.

            This has been very well illustrated by Monsignor J.M. Serrano Ruiz when he lectured at our Louvain Faculty of Canon Law the year after Monsignor C. Burke. (We are very lucky with guest professors teaching at our faculty!)

            Msgr. Serrano Ruiz compared two interpretative lines which allowed an examination of concrete marriage and its possible invalidity. The first one, more according to traditional inspiration, and even more enriched with new acquisitions of recent jurisprudence, started from marriage as an act generally grave and important, which required a sufficient use of reason. The other approach presented another way to arrive at a better and more precise comprehension of the said norms, adhering more to the very personal and interpersonal way of marriage.

            After having made an analysis of the two approaches, J.M. Serrano Ruiz came to an admirable conclusion: "If we try now to compare the two interpretative lines, quickly we can find that in the first one there is a starting point that can be abstract and a priori and that proposes to find in each marriage some categories, which must be present in all cases. In the second interpretation, we start first of all from the observation of each marriage in its single existential unrepeatability and discover whether in that case, taking into account the personal characteristics of the spouses and their relationship, one can either affirm or not the validity of that marriage. However, that is not to say, that in the last case we will not have a sure model of marriage: rather it signifies that we have a marriage model that precisely takes into account the personal and interpersonal character and which cannot support a previous figure, exactly a priori applicable: it faces the problems of the 'values', the 'aims' of the spouses, that as we have already said, does or does not embody the so-called properties of marriage and its finalities".

            In fact, what Msgr. Serrano Ruiz suggested here as a consequence of the personalist approach, just happened in the construction as presented in chapter five. Personalist notions did not just enter into the old and more deductive approach. They did not just flow into the old semantic river and dissolve in it. No, they also stood for another approach, another way of dealing with the basic mechanism entailing another susurrous of the semantic river. That is what happened in the proposed construction: the personalist notion became part of the content of canonical marriage. However, it also made the system function in another way than before, because consent on bonum coniugum became dynamic, as in the snake, situated between a personalist minimum and a personalist maximum.

            Especially here, the difference with Msgr. Burke's approach is striking. Personalism as he defines it also influences consent, but not its mechanism. Moreover, when dealing with personalism in the field of concrete nullity grounds, he focuses more on personalism as underlying those grounds, and often paradoxically leading to a stricter legalistic approach than before in their application. Typical is his view on the bonum coniugum, he sees it as canonically absorbed by the three traditional bona.

            Consequently, personalism in marriage law shows up at three levels, though one should be conscious of the varying content married personalism might have for Msgr. Burke or for instance for Msgr. Serrano Ruiz. Nevertheless, it remains important to distinguish the three fundamentally different levels.

level a:            Personalism is underlying, explaining and exploring in a new way traditional grounds. Canonically, in the practical field, few things change. For instance: Msgr. Burke and his interpretation of the canonical relevance of the tria bona, which remain canonically more or less unaltered, although today they might rely upon the bonum coniugum.

level b:            Personalism influences the content of consent, it constitutes new nullity grounds, such as, for instance, incapacitas assumendi or exclusio boni prolis, while influencing old ones such as error or simulation in general. Personalism flows into the semantic river of law. But the bed remains the same. At this level we can, for instance, situate pleas in favour of incapacitas relativa. Discussions focus on an increasingly personalist interpretation of an already personalist nullity ground. But they do not question the essential mechanism of the system, which remains essentially contractual, with stable notions and nullity grounds keeping essentially a fixed content.

level c:            Personalism continues influencing the content of consent, yet also challenges the system. Real personalist notions cannot be monolithic. So, it necessarily also influences the way of functioning of the system. This occurs to happen in the framework as proposed in chapter five: the dynamic way the bonum coniugum is part of consent, differs from the more static way in which the traditional tria bona are perceived. bonum coniugum forced canonists to introduce a flexible notion into the peaceful and unchanging semantic river of canon marriage law, based on well-defined concepts.

            Eventually, I think that the framework as presented in chapter five meets with premise 2b in quite a fundamental way. Level C is reached. In the meantime, and within his way of reasoning, Msgr. Burke also makes personalism relevant at level C, by insisting on the combination of an 'easy' consent and a burdensome content, and by presenting implicitly consent as legal fiction. Once again, although Msgr. Burke's interpretation of personalism differs a lot from the one I would be in favour of myself, he is consistent in his personalist approach. He does not just leave consent untouched in the fully contractual way it functioned before; he gives it a new dimension, coloured by his voluntaristic personalism.

            Finally, I do not pretend by any means, that my way of bringing personalism into the semantic river of canon law, and my way of allowing it to influence the bed itself of the same semantic river, is the one and only way.

            Other approaches are probably more than feasible. Without doubt, in the past, in the creative period between 1965 and 1983, beautiful attempts have been undertaken to reconcile personalism and the existing legal system of canon law. Some of these attempts would today not be possible anymore, at least not in a context de lege lata, which remains basic premise 1 a of this essay. For myself, it is impossible not to mention briefly the courageous attempt undertaken in the early seventies by the famous Strasbourg professor Jean Bernhard and his magical notion consommation existentielle.

            He sees a solution for personalism entering into the semantic river of canon law, by making use of in a creative way the possibility where the Roman Pontiff has to dissolve a non-consummated marriage for a just cause. For Bernhard, consommation was just much more than merely a biological act. His reasoning could be summarized in two steps.

1.         The old distinction between a consummated and a non-consummated marriage should be abandoned. This distinction is too unilaterally based on physical consummatio. It is better to make the distinction in another way, by recognising (a) a marriage which is instituted by consent and (b) a marriage which, through marital love is brought to human and christian fulfilment; such a marriage is consecrated.

2.         A marriage which in only instituted, fundamentally remains indissoluble, although it may in the case of an irretrievable breakdown, be dissolved by the church. In this case, and only in this case, the church can use its power of dissolution. A decision taken in this perspective has both a declarative value (the church assesses that the marriage failed) and a constitutive value (the church pronounces dissolution).

            It is impossible here to describe this interesting, yet already historical construction in detail. It introduces personalism in the semantic river of canon law by widening the difference between consent and consummatio, and thus by fundamentally adapting the birth of a consecrated marriage to the dynamic force of personalism. Consequently, one can easily ascertain that in his construction personalism does influence not only the content of canon law but also the bed and thus the susurrous, of its semantic river.

            Finally, Bernhard's ideas were not accepted. The dissolution by the Pope of the matrimonium ratum sed non consummatum has always been a difficult point to admit by many in the church. Although Gratian accepted already in a limited way a possible dissolution of non-consummated marriages, law practice went with 'the ups' and 'the downs'. In fact, 'the downs' dominated: for a certain period, only the entrance in a monastery was accepted as a reason for dissolution. Only during the pontificate of Pope Martin V (1417-1431), a more positive approach concerning the dissolution of a non-consummated marriage, became visible. Given these historical data, the fact that a revolutionary development of consummatio in the way that Jean Bernhard perceived it, was clearly asking too much. Certainly, canon 1061 says that a marriage is consummated if the parties have performed between themselves in a human manner, humano modo, the conjugal act... But as the Congregation of the Sacraments clearly wrote in a circular letter of 20 December 1986, humano modo just means virtually free, which needs to be seen as 'without force'. More ambitious interpretations of humano modo, seeing the notion as underlining the personal community of life, or as a real sign of love, un gesto di amore , became impossible. The circular letter brought to an end a fascinating story. The consommation existentielle, in whatever form, in Bernhard's ambitious approach or just as un gesto di amore, turned out to be a dead end.

            Yet, it remains a living example of how personalism could enter the semantic river of canon law, by both influencing its content and changing its bed. I am not pleading in favour of a revival of the consommation existentielle idea. De lege lata this would be impossible. But then again, the example illustrates my thesis that true personalism may extend far and that it should reach level B and just change, at least a little, the susurrous of the semantic river of canon law.

c)         Ius connubii

            A real issue in marriage canon law is the preservation of the ius connubii and the warning of Pope John Paul II against "the scandal of seeing the value of Christian marriage being practically destroyed by the exaggerated and almost automatic multiplication of declarations of nullity of marriage, in cases of the failure of marriage, on the pretext of some immaturity or psychic weakness on the part of the contracting parties".

            As reported above, Msgr. Burke is completely consistent and equally persistent in taking this recommendation seriously. Marriage cannot turn into someting elitist, only accessible for the 'happy few'. And he even manages to reconcile this requirement with a thorough elaboration of personalism, the way he sees it.

     Does the construction as offered in chapter five offer the same solid guarantees concerning the ius connubii? Or is this notion more or less sacrificed, as a result of a tolerant behaviour towards the mentalitα divorzistica? In my opinion, the proposed framework remains quite reluctant with regard to a 'generous' practice of declarations of nullity. The three cases described at the beginning of chapter six, clearly showed that a simple divorce out of a lack of real commitment, without serious efforts undertaken by the partners to save their marriage, will not be successful. Case two was in fact the illustration of a pure and simple divorce. One should not try to find a lot of mystery or a peculiar hidden agenda in order to plead in one way or another in favour of an annulment. A creative canon lawyer, like any truly creative lawyer, can prove anything. Yet, the final result would lack seriousness.

            In the meantime, I am convinced that chapter five's construction manages to harmonize a real respect for the ius connubii with an authentic personalist approach. Definitely, the fact that some more annulments might be pronounced than in case judges start from Cormac Burke's premises and construction. Case three, which led to an annulment would as far as I see it, be at least very questionable for Msgr. Burke.

            Yet, the (slightly) varying content of consent, makes it possible (a) to guarantee the ius connubii at a basic level for everybody and (b) to valorize canonically more elaborated personalist aspirations than just the rather voluntaristic and defensive one that is formulated by Msgr. Burke. In other words: looking not only to the content of personalism, but also to the way it influences the semantic river of canon law, means that variety, differences between marriages become also canonically relevant. The dilemma of making a choice between (a) high requirements concerning personalism leading to a difficult entrance of marriage and (b) an easy entrance for everybody leading to low personalist standards, is solved by making the content of consent, up to a certain point somewhat more flexible.

            What this really means is as clear as it is positive. By taking canonical personalism totally seriously, and by not only including its content in the old structures, the apparent problem of personalism entering into canon law and as a consequence making valid marriages harder to conclude, is all of a sudden completely solved.

            The minimum minimorum of the bonum coniugum, in the style of the two examples quoted by Fumagalli Carulli, will remain easy to reach and does not add a lot to the consent on the tria bona. Yet, one can strive for more, which could lead to an annulment on the already established basis.

2.         Premises Concerning Legal Personalism

a)         Commitment

            Of course, personalism requires commitment. As I already explained in chapter three, I agree with Msgr. Burke on the importance of vigorous effort and sacrifice. Yet, despite the real importance of commitment, it cannot be an abstract requirement with a massive force, which has to be fulfilled without truly considering the individual and his deepest aspirations.

            In the construction of chapter five, I think that the abstract norm, namely the obligation to take consent seriously, to be committed, to take one's responsibility, is clearly established. The mentalitα divorzistica just does not receive official recognition through an easily granted annulment. Only those who take their commitment seriously and try very hard to achieve a real community of life, possibly can obtain an annulment on the basis of problems with bonum coniugum as a part of consent.

            In short, the personalism I believe in, and which appears clearly through the construction as elaborated in chapter five, is based on the originality of each person, without abandoning the equality among people. Equality stands for the general system, which is equal to everybody, demanding and clear: basic consent including bonum prolis, fidei and sacramenti as well as bonum coniugum between the minimum and maximum limit of the snake. Originality stands for the margin in the snake, not equally applied to everybody, but nevertheless demanding.

            In that regard, my way of looking at the person is inspired by Louis Janssens'ethics. This author manages to take the originality of each person seriously, without abandoning any ethical commitment at a more general level.

            Janssens himself explains it quite admirably in an article published in Louvain Studies in 1970: "The question may be raised whether, in emphasizing the originality of each human person, personalism does not require a system of 'situation ethics', i.e. a moral system which maintains that each personal act is unique, that is behaviour in a unique and unrepeatable situation; thus each person must discover for himself the individual norms that correspond to his personal acts, and universally valid norms are either non-existent, or at best worthless".

            This picture shows clearly the problem many canon lawyers had in the period between 1965 and 1983 and even today, but they do not admit to recognizing it openly anymore, that is, to translate personalism into a traditional and basic contractual system. By rejecting the contract, they also rejected stability and very often also classical ethics. They erroneously thought that a choice between personalism and 'positivism', between marriage as a contract and marriage as a covenant was impossible to avoid.

            Yet, Louis Janssens is perfectly capable of reconciling situation ethics and universally valid norms:

            "The answer is found in the fact that personalism maintains both fundamental equality and the originality of the human person. Because we are basically similar, we find ourselves in a common situation that can be governed by universal norms valid for each and every person. Consider the fundamental norm (...); it is valid for everyone, since everyone is an incarnate spirit (corporality) with a conscious interiority (self-awareness) and intentionality open to the world, to the others and to God. Moral norms that express the human meaning and the Christian meaning of these common aspects are valid for everyone.

            But personalism also holds that, upon the basis and within the context of this fundamental equality, each person is a unique and irreplaceable individual. It follows that the application of universal norms is not sufficient to direct the concrete actions of personal existence. Within the context of our common situation, each of us finds himself in an individual situation".

            Here again, we can recognize these ideas in canon law. There are a lot of canonists, also today, who accept the current system of marriage canon law. After all, it exists, it has been renewed in 1983 and there are no real indications that, all of a sudden, it could collapse. But in the meantime, those canonists find solutions for concrete cases, by granting annulments too easily. Of course, they recognize the general norm, but they are creative enough to find an escape for almost any single situation. Yet by doing so, they do no connect equality and originality, they just disconnect both notions. In practice, they see originality as an exception of equality, instead of attempting a synthesis. Louis Janssens, however, very clearly sees equality and originality as convergent, and not as divergent notions:

            "This brings us to the statement of a second fundamental norm of morals: each and every person must fulfill himself according to his own personal originality. This norm also, is universally valid; it is applicable to everyone. But its statement is necessarily formal, since the content of personal acts depends precisely on the uniqueness of each person. Is this not situationism? Clearly not, since personalism emphasizes that the originality of each person is fulfilled within the context and upon the basis of our fundamental equality.

            By this very fact, personalism recognizes the existence of universally valid norms, in the sense that we may not, in any personal situation, act contrary to these universal norms - negative limitation. But personalism also maintains that, within the limits fixed by universal law, the originality of the individual can state its own demands for action, which the universal norms no longer express".

            The outcome of the link between universal norms and the recognition of the originality of the individual leads to a conclusion which to some might sound surprising. Taking into account that the individual or the concrete person does not lead to individualism, or to an acceptance of egoistic desires, but rather to more commitment, to these demands for action which the universal norms no longer express.

            My attempt in chapter five was to translate personalism as completely as possible into marriage canon law norms. This includes the canonical relevance of the originality and uniqueness of each man, and the moral demands inherent in his uniqueness. I tried to achieve this by introducing the snake concerning the content of bonum coniugum. In my opinion, it exactly elaborates what Louis Janssens suggested:

(1)        It expresses the originality and uniqueness of each man, as consent on bonum coniugum is a very specific consent, aimed at by two concrete individuals.

(2)        Having respect for the individual does not lead to individualism, but to a higher degree of commitment, to a new demand for action as a result of the originality of the individual. The individuals, in my construction, can not chose for less than the personalist minimum of bonum coniugum. Agreements made on self-fulfilment or hedonistic joy are canonically irrelevant. Yet, they can chose for more than the minimum, for a higher degree of unselfish commitment, closer to the ideals of Gaudium et spes, up to the maximum of bonum coniugum at the top of the snake.

My conclusion is clear. Real personalism together with real respect for the originality and uniqueness of each man, lead to higher demands in the field of commitment and not to lower standards. This real personalism, and not a weakened version of it, not a kind of scant skeleton, has to be expressed in canon law. In my opinion, the construction as proposed in chapter five tries to reach this goal as best it can.

b)         Non-Sentimental Illusions

            An ethics of responsibility on a personalist foundation does not remain trapped in subjectivism, but rather substantially holds to objective criteria: the human person being adequately considered in his essential aspects or constant dimensions.

            This implies that it is possible to take into consideration one's uniqueness, without losing ground, without abandoning an objective criterion. There is no reason anymore to see a contradiction between those two approaches.

            Marriage should not remain abstract. It should look at the uniqueness of people, in the meantime knowing well that such an approach is not dangerous in case canon lawyers start from a well elaborated theoretical concept of personalism or in case personalism is not an excuse for a lack of consistent ideas. Uniqueness of people, means uniqueness of people as a whole, including their non-sentimental illusions. Law should listen to the deepest dreams of people. If it does not, it might offer a dull framework of abstract rights and duties, in which concrete people do not recognize themselves. On the contrary, we have to look at concrete people and their dreams.

            In this respect, I fully agree with Msgr. Serrano Ruiz when he wrote: "We must recover this personalist sense for marriage through changing of the center of gravity of our reflection. Indissoluble, faithful, oriented to its sacred ends: yes, marriage is all this, but before anything else it is the creation of a bond, effectively a right and duty that is an interpersonal relationship before being qualified or finalized".

            In other words: we do not have to be afraid of a vision of marriage as a real interpersonal relationship. The general framework is strong enough to avoid individualism or egoism. So, there is no need in being too defensive, in requiring at any moment abstract notions to safeguard the system. Real personalism means that we look at marriage as the creation of a bond. That is the center of gravity. In this creation of a bond, mature and non-sentimental illusions have a place. They can be expressed in the way partners fill in the bonum coniugum as part of their consent, by remaining in the meantime, of course, within the limits of the snake. Even if the center of gravity changes, leaving a lot of space to the concrete bond with a lot or with only very little mature illusions, the institutional limits remain. Yet, they will often remain almost invisible in the background. The minimum and maximum of the snake of bonum coniugum are not the norm of concrete, mature or non-sentimental illusions. They just are the framework. As long as non-sentimental illusions find their expression in consent, in such a way that the limits of the framework are not in danger, one might not even be aware of the existence of such limits. They only appear clearly in case of danger. For instance, when illusions are immature ("my partner has to be a perfect husband, otherwise I do not give my consent"), or incompatible with true personalism ("I want to live a leisurely and quiet life with a rich partner spoiling me"), then the center of gravity changes. The "illusions" of the partners will not be accepted as part of consent on the bonum coniugum.

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

            In chapter four, I concluded with the second string of premises by looking also at the outcome of the nullity process. I wrote that, in my opinion, covenantal justice includes the idea that the outcome of the process of legal reasoning does not only fit with formal justice, though it should fit with it anyway, but also with a deep authenticity. One could formulate this idea also in another way: personalism should enter into the canonical system at three different levels. (1) It should be a source of inspiration for the content of norms on marriage, for instance by introducing canon 1095, 2â–‘ and 3â–‘; (2) It should influence the way of functioning of the canonical system which includes a change in the susurrous of the semantic river of law, for instance, by accepting the system as described in chapter five with a flexible consent on the bonum coniugum; (3) It should influence the final result of marriage process, by accepting a truth which has not only to be just (that is a condicio sine qua non), but also authentic, which means in harmony with the deepest dreams of people who made in their lives that fundamental Christian choice - a consent to openness towards God fulfilled in a communion of Agape, in which God himself takes the initial step.

            In real terms, this means that the result of the marriage process has to be seen from all perspectives in order to establish what is just. One could argue: I want to defend marriage, the right to be bound. This is Msgr. Burke's approach. He also anticipates the accusation that he is defending the right to "remain married" of people who do not consider the bond between them to be valid, or precisely do not want it to be declared. He rightly says that this is not always the attitude of the parties, and that in most cases when a breakdown first threatens, it is one of the partners who wants to 'opt out'. In most cases? I would doubt it. Yet, Msgr. Burke has a point here. The right to be bound is important.

            But then again, the other side of the coin also counts. Most cases dealt with by church tribunals concern with marriages already broken up sometime ago. Civil divorce has already been pronounced. Quite often, the reason why the case is submitted to the church tribunal is the perspective of a new marriage.

            While evaluating the "quality" of a decision at the level of the outcome of the decision, both elements have to be taken into consideration. The right to be bound, the appreciation of vigorous effort: these are very important elements. But this is also true for the possibilities of annulment. As I see it, it would be unjust in the way as described above, to declare null the marriage of absolutely careless and completely materialistic or hedonistic people, and at the same time to remain merciless to those who tried very hard to achieve a marriage full of commitment, but who failed.

            This could be (I am not saying it necessarily is) the result of Msgr. Burke's construction. If one submitted him case one, case two and case three (of course with more details to make a fully nuanced approach possible), I would not be surprised if he would be in favour of an annulment only in the first case dealing with two selfish hedonistic people excluding children. After an annulment, they can have their second chance. The second case would probably not lead to an annulment, and there I agree: no real commitment can be discovered in this marriage, but neither has anything essential been excluded. Yet, the third case is for me, the test of the authenticity of the system. If here all dreams and expectations of the wife, that is all her attempts to bring her politically very radical husband to a minimal level of interpersonal communication, just lead to a non constat de nullitate and also to the impossibility of concluding later, a real marriage as a covenant, then I would not agree with this result as being deficient from a personalist viewpoint.

            In other words: even if everything should be done, more than it is today, to help people who are in trouble but whose marriage is not irremediably lost, we should also make sure that in case that a declaration of nullity, as a last resort, is investigated, then such a declaration leads to a just and an authentic result. It should not only help those who entered marriage with bad intentions; it should also help those who entered it with good intentions and mature illusions, those who tried very hard to built up a covenant, but who finally failed.

            I think that the best solution to achieve this result is a consequent choice for a truly personalist translation of bonum coniugum into the semantic river of canon law. The framework of chapter five protects the bond, in that it remains strongly opposed to the mentalitα divorzistica. Yet, it also takes care of the fact that annulments, if they have to be pronounced, are not only 'mechanically' and 'logically' just, but that they are also 'deeply' just, that is, in harmony with a Christian's most sincere dreams and aspirations. Of course, canon law and morals are not identical. However, the way canon law functions or seems to function as necessarily based upon its own dynamics, should never shock moral feelings.

            So far the quality control which was the main purpose of this sixth chapter, which consisted in a confrontation of the framework of the fifth chapter with the two strings of premises of the fourth chapter: the premises concerning the global construction; and the premises concerning legal personalism. The conclusion is that they fit together without serious problems. Quod erat demonstrandum.

            Does this mean that 'the' solution has been found? Is the construction, as it is worked out in chapter five, the final and absolute consecration of personalist marriage successfully entering into canon law? Of course it is not! I am convinced that personalism in marriage, also in canonical marriage, could go much further, into directions which at the present time have only been very little explored, but which now already are a complete possibility, within the framework of marriage law as it is expressed in the CIC 1983.

            While discussing personalism as one of the premises concerning the global construction of canonical marriage law today, I made a list of three different levels at which personalism can emerge in marriage law today:

LEVEL A:        Personalism is an underlying idea pertaining to notions of marriage law;

LEVEL B:        Personalism influences the content of consent;

LEVEL C:        Personalism influences the system of marriage law, in the church as a whole.

            Yet, one could also imagine a LEVEL D which would mean: Personalism completely dominates and colours the system of marriage law in the church. This level is not reached in the construction as I presented it in chapter five. Certainly, I admitted that (unlike Msgr. Burke) the separate canonical relevance of bonum coniugum as well as its atypical, personalist functioning, was characterized by a flexible content within the limits of a snake. But what I did not argue, was for an influence of the bonum coniugum on the other essential properties and essential elements of marriage. There is no more than a juxtaposition between them. The bonum coniugum, for instance, exists and is canonically relevant, and so does, for example, the bonum prolis, but both essential elements function canonically in a way rather independent, one from the other. There is no interconnection, and of course no hierarchy.

            Of course, no hierarchy! Vatican II has been very clear in this regard. Conjugal love does not dominate other values in marriage. Therefore, strict equality between the bonum coniugum on the one hand, and procreation and education on the other hand, could be a logical consequence of this conciliar viewpoint. That could be also the conclusion of a canonist. And often, it is his conclusion.

            In spite of this seemingly obvious solution, not all canon lawyers look at it that way, one of them being Msgr. Burke who, as I explained at the beginning of chapter five, comes to the conclusion that the exclusion of the end, namely the bonum coniugum, is absorbed into the exclusion of the essential property: indissolubility, fidelity and offspring. At least at a theoretical level, I have no problems with this approach. Translating theological marriage into the context of canon law means that we arrive in yet another semantic river which makes an apparent total similarity with theological ideas sometimes highly questionable.

            Yet, I also think one could see things obversely. Cormac Burke is right by saying that the bonum coniugum has not the same structure as the three traditional bona. He solves his problem by denying true canonical relevance to the bonum coniugum, which is absorbed by the three traditional bona. But why does he not choose the opposite route? When one takes the bonum prolis, fidei, sacramenti and coniugum all together, then the bonum coniugum is the most truly personalist one. In fact, the bonum coniugum just has been introduced by personalist thinking on marriage. The three traditional bona have, at least canonically, not the same tradition. Certainly, Msgr. Burke tries to give them new theological blood by returning to St. Augustine. However, one cannot deny that the bonum coniugum does not even need such an operation to be and remain a fully personalist notion. Therefore, a consistent application of personalism in canon law means that, in case there is a conflict between the bonum coniugum and one of the three traditional bona, preference should be given to the first. Of course, let us not exaggerate this possible opposition. Almost always none the four bona will ever contradict each other.

            Yet, in my practice as an ecclesiastical advocate, I have had a few cases, where I was of the opinion that there was a clash between the bonum coniugum and the bonum prolis. And I am convinced that, especially in one particular case I had, preference should be given to the bonum coniugum. I described the case more in detail in the Revue de droit canonique of 1995. I briefly repeat the facts here. A woman, who for a long time merely took care of a successful professional career, at a certain moment wanted to have a child. Inspired by her own opinion and education, but even more by the idea that the status of unmarried mother would be professionally harmful to her, she decided to marry. She found a partner, himself also being a busy professional. They married. At the level of the three traditional bona, no problems occurred. The only thing was that she had not the slightest interest in her husband. After a while, however, the husband got fixed up with another girl and they separated.

            My question here is: would the fact that the wife entered into marriage with the single goal of procreation lead to a possible annulment? I would be tempted to say yes. One could argue for such an annulment by pointing out that the bonum coniugum, even in its most limited way, at the minimum of the snake, had not been included in their consent. But one could also argue in a more radical way: should not every aspect of consent be based on a real personalist approach, in other words, on a minimal acceptance of the bonum coniugum? Should the bonum coniugum not be the interpretative line for all the other elements being part of the consent? Maybe the three traditional bona only make sense when they are canonically based upon the bonum coniugum, instead of conversely absorbing it.

            One can immediately measure the consequences of such a truly personalist approach. The essential elements or essential properties of marriage should, as well as all nullity grounds, if the premise of the bonum coniugum as canonical basis is accepted, all include canonically the minimal (or sometimes less minimal) bonum coniugum. This also implies that, through the lever function that the bonum coniugum in this configuration obtains, all properties, elements and nullity grounds become dynamic in their content: indeed, they will be influenced by the level of bonum coniugum, within the limits of the snake, that the partners want to include in their consent.

            This approach would be rather far-reaching. It would also require a shift of ideas in jurisprudence. I am not pleading in favour of it. But then again, I think it would be the ultimate consequence of a truly personalist thinking entering into the system of marriage canon law.

            To make clearer what this would mean, I shall try to illustrate these ideas by making use of a diagram which, together with offering possibly somewhat more clarity, also has a tendency of oversimplifying things a little, which is a characteristic of diagrams that one hardly is able to avoid. Anyway, what the diagram repesents, are the four levels I described above, namely LEVEL A, LEVEL B, LEVEL C and LEVEL D.

LEVEL A   Personalism as an underlying idea to the tria bona

static content

UNITY        INDISSOLUBILITY       GOOD OF THE CHILDREN  

essential properties

This is the model as Msgr. C. Burke described it in The Jurist in 1989. The bonum coniugum does not appear in the diagram, as at the canonical level it has been absorbed by the three traditional bona.

__________________________________________________________________________________

LEVEL B   Personalism influences the content of consent

static content

UNITY        INDISSOLUBILITY       GOOD OF THE CHILDREN   GOOD OF THE SPOUSES    

essential properties                      essential elements

 

This model today, has become the dominant one and is more or less generally accepted. It can be found, for instance, in coram Colagiovanni of 8 May 1990. However, the 'personalist' good of the spouses is still just absorbed by the semantic river of canon law without changing its susurrous.

__________________________________________________________________________________

LEVEL C     Personalism influences the system of marriage law, in the Church as a whole

static content                    dynamic content

UNITY        INDISSOLUBILITY       GOOD OF THE CHILDREN   GOOD OF THE SPOUSES    

essential properties                          essential elements

This model remains, concerning the content, unchanged in comparison with level B, although the name given to the components (essential properties or essential elements) for some might perhaps not matter that much. The good of the spouses has now a dynamic content and thus influences the susurrous of the semantic river of canon law in a truly personalistic way.

 

____________________________________________________________________________

LEVEL D                                      Personalism as the absolute cornerstone of the system

influenced by dynamic content

essential properties

and

essential elements

UNITY        INDISSOLUBILITY       GOOD OF THE CHILDREN  

GOOD OF THE SPOUSES    

 

dynamic content

 

Personalism does not only influence the semantic river of law anymore. It completely changes it! No property, element, notion nor nullity ground can be looked at without taking into account as a legal basis the content of the bonum coniugum, which itself can be different between the minimum and the maximum of the snake. Question: is this the susurrous of the semantic river of matrimonial canon law in the next millennium?

____________________________________________________________________________

            What precedes, clearly shows that the limits of personalism finding its way into marriage law have not yet been reached. At least not its logical limits. Shall they be reached one day? I am not giving an opinion on this point. In any case, the evolution should remain organic. It should never become a revolution. Revolution, by the way, is as a notion, opposed to the idea of the semantic river and one of the cornerstones of my theory. A river goes on flowing. It moves. But at the same time it remains the same river. This is an image I like, and it also offers what man tends to love: movement, yet movement without a rupture with tradition.

            While I can see that personalism, at least at the level of concrete canon law, could be more radically achieved than in the framework I described in chapter five, I nonetheless stick to this framework. It fulfills the promises of the premises. It is truly personalist, yet it remains extremely close to the old semantic river of canon law. Very close, but not without offering something entirely new, namely a limited form of dynamic consent. Meanwhile, the model offers enough stability to protect marriage adequately and not every question that occurs at any one moment should be an open question. In that regard, I describe level D as maybe the most consistent one, although up to this point it is less balanced and less plausible than level C.

            In fact, looking back at the quality control as it took place in this chapter, one still remains confronted with a few difficulties. I did not focus on these, because in my eyes they can be situated at a rather practical level. They do not touch the framework in its essence, but they do exist. The following problems could be evoked:

1.         In general it is quite certain that the framework as proposed requires a very careful, detailed and inductive analysis of marriages. It requires excellent canonists, with a lot of feeling for law, for man and for underlying values. At the level of the Rota, this is no problem. Locally, in certain countries, it might be a problem to find judges able to cope with this increasingly demanding task.

2.         Technically, we shall be confronted with the task to describe exactly, in canonical terms, the deficiency in the bonum coniugum as a flexible notion within the limits of the snake. For instance, in case three, evoked at the beginning of this chapter, error in qualitate personae could be a possible nullity ground. But quid iuris, for instance, if there is just disagreement among the partners on the quality of the bonum coniugum that they include in their consent ? In case, for instance, the wife wants the maximum and the husband wants the minimum, do we then have consent ? I think not. But what could be the nullity ground ? Could it be simulation ? Yet, nobody simulated, they just had a different will. What about incapacity ? No, because nobody should be capable to reach the maximum which would, by the way, endanger the ius connubii. Probably, error in qualitate personae, or sometimes even condicio, two nullity grounds Msgr. Burke does not particularly like, could play a role in this regard. A further possibility would be to ascertain that there was merely an absence of consent.

            As one can see, the introduction of a truly personalist, dynamic notion, in the peaceful semantic river of canon law has far-reaching consequences. Far-reaching, but technical, and easy to solve by jurisprudence, although this may not be fully achieved without some trial and error.

            Yet, in my opinion, this technical problem, is not a weakness of the framework as elaborated in chapter five. On the contrary, it proves that the theory that each semantic river has its own susurrous, and that the consequent acceptance of personalism including the covenant into canon law is not just a matter of repeating and rewriting theological notions in codes or other legislative texts. Futhermore, trying to reconcile the ôoldö system with these new requirements, is something every canon lawyer in love with his profession enjoys. This has been proven eloquently, over the last decades, by the very creative jurisprudence of the Roman Rota.

            In brief, the difficulties, often pleasant difficulties, I have just described, by no means eclipse the advantages of the model described. I think that this idea is the outcome of the quality control which took place in this chapter. To summarize it very quickly, one could sum up three very positive points:

1.         The two strings of premises, both the premises concerning the global construction as the premises concerning legal personalism are fully met with.

2.         The semantic river of law receives another susurrous by fully introducing personalism, not only at the level of the content, but also at the level of the system.

3.         This change in the susurrous of the semantic river, exactly takes place in the way Ladislas â•“rsy interprets the new relationship between contract and covenant. It is a move to a higher viewpoint. Nothing is lost, everything is enriched.

            For all these reasons, I think that the framework as described in chapter five, might be able to translate personalism adequately into the semantic river of canon law. Of course, once again, by no means do I believe that other models are not possible. However, I also do believe in the one I have described.