cormacburke.me.ke

            What are the juridical consequences flowing from the view of marriage found in the Pastoral Constitution Gaudium et spes? This is the central question of my essay.

            It is a difficult question, as theology and canon law are flowing in different rivers. Translating theology into law is not just repeating theological notions in a Code or a statute. This difficulty explains that in the period between the end of the Council (1965) and the promulgation of the new Code (1983) many attempts were undertaken to achieve such an adequate translation. Some theologians and canonists thought it was just virtually impossible to translate theological personalism into canon law. Others did not reject such a translation, but in their opinion the input of personalism necessarily had to lead to shifting paradigms in canon law, including the recognition of irretrievable breakdown of marriage.

            These two options however, were not the options of the legislator. In spite of apparently serious problems and questions (covenant versus contract; institution versus contract), the legislator chose in favour of a canonical approach of marriage combining the old contractual thinking with the idea of marriage as a covenant. As a consequence, this is the focus of this study. As it is a study de lege lata, which begins with the current Code as a basis and as a canonical framework, it nevertheless does not reject the merits and possible legitimacy of the attempts of the past which failed to reach the Code.

            That is one of the conclusions of chapter one. Another conclusion of this chapter is that the canonical discussion does not stop, but just starts with the promulgation of the CIC 1983. Taking the semantic river-theory seriously, accepting that theology and canon law are flowing in a separate semantic river with a proper susurrous, implies dealing with the following question: how do words, definitions, notions, canons of the Code, in the field of marriage law, rustle in the semantic river of canon law as a wholeá?

            This question concludes chapter one.

            Chapter two is a first, but somewhat incomplete attempt to cope with theological personalism in canon law. This requires a close reading, from a canonical perspective, of how the structure of marriage canon law in the CIC 1983 really is. The old distinction between the matrimonium in fieri and the matrimonium in facto esse still exists. Consent, given at one single moment, despite being undivided, still remains the cornerstone of the system, that is its absolute lever. Any deficiency in marriage has to be brought back to the moment of consent and needs to be evaluated at that specific time. In case the marriage has been concluded in a formally correct way, the only possibility of obtaining an annulment is vitiated consent.

            Bearing this in mind, I developed, a few years ago already, a syllogistic argument which, in my opinion, was or should be applicable to current marriage law. The argument goes as follows: consent is the lever of the system, yet consent remains as it was before: both indivisible, concrete and present at one single moment. On the other hand, the content of marriage is richer than before, a real covenant being required. Combining a stable consent with a more demanding content, leads to more marriages for which this consent could not be given or has not been given by the partners. Conclusion: an increasing number of annulments can hardly be avoided.

            Yet, the results of this argument (more than the argument itself, it seems) are not easily accepted. Already in the period between 1965 and 1983 there was some criticism. Msgr. D. Staffa for instance argued that new trends in Rotal jurisprudence launched by auditors such as L. AnnΘ and J.M. Serrano Ruiz could eventually lead to the annulment of every unhappy marriage. In spite of this criticism, the CIC 1983 gave a canonical status to personalistic marriage. But then again, the idea that marriage as a covenant would more or less automatically end up in more annulments was firmly rejected. Pope John Paul II clearly warned against the 'scandal' of such a generous practice of nullification of marriages. Especially his 1987 and 1988 allocutions to the Roman Rota, though not offering an authentical interpretation of the law, rightly turned out to be extremely influential. In any case, Rotal jurisprudence today tends to be more restrictive than it was a few years ago.

            In the meantime we see ourselves confronted with a tremendously difficult question, which emerges as a result of the clash between the syllogistic argument and the clear standpoint formulated by the Pope that annulments should not be too widespread. The question can be formulated as follows: how can one be a true personalist, also in the canonical field, but nevertheless plead in favour of a restrictive policy concerning the declaration of nullity of marriagesá? And so, chapter two also ends with a question mark.

            The question of how to combine true personalism and a limited number of annulments is answered in chapter three. On that question, a first possible answer has been brilliantly formulated by Msgr. Cormac Burke in the essay which opens this book.

            Msgr. Burke admits that marriage is a covenant and a contract. But the contract should be a contract without the weaknesses of extreme contractualism. His reflections on consent are remarkable, since they are characterized by a striking difference between the quality and the quantity of consent. The quality: consent can be given rather easily, which is necessary to preserve the ius connubii. Yet, paradoxically, the quantity of what consent includes is quite impressive. People who happen to give their marriage consent, perhaps a little immature but not immature enough to be incapable of marrying, agree by the very fact of giving their consent on accepting all the variations of the future. This demanding nature of consent, according to Msgr. Burke, can be achieved through a personalism which happens to be very voluntaristic.

            In other words, as I see it, Burke's argument (roughly summarized) can be described as follows: Personalism, instead of leading to more annulments as a result of higher quality requirements in marriage, leads to more valid marriages, as it æautomaticallyÆ includes higher standards in the consent. Moreover, personalism includes the strength to overcome difficulties through vigorous effort. The higher requirements of personalism which I was wrestling with in the previous chapter, are not found in the object of the consent. This would mean, through the lever function of consent, more declarations of nullity. Conversely, higher requirements are found in the consent itself. By consenting, one agrees on more than one did in the days before æpersonalismÆ was included into marriage canon law. So, as (a) you agree on more (quantity) and (b) you rather easily can give consent (quality), it not unnaturally follows that annulments should become more difficult than in the past.

            A more detailed analysis confirmed the construction. The next question is whether Msgr. Burke's analysis should be considered as the solution for the dilemma which concluded the previous chapter: how to combine true personalism with a limited nullity practiceá? In any case, Cormac Burke offers a solution. He is consistent in his argument. And I highly admire the creative construction he suggests. Yet, three aspects or elements of his model are, in my eyes, not fully acceptable.

a)         The notion of consent. In order to bring together the low entrance requirements of marriage with a rich content of consent, Msgr. Burke needs a legal fiction. He has to presume that people entering marriage intended and accepted the burdensome consequences which are for Cormac Burke a necessary element of consent. Paradoxically, the idea of a legal fiction fits better with a positivist system, which Msgr. Burke rejects, than it does with a personalistic system which in fact he promotes.

b)         Vigorous effort. Although effort is a positive notion, Msgr. Burke makes it too absolute. It dominates his entire idea of personalism, which should be broader. For instance: marriage should remain tolerable. In extreme cases, vigorous effort could even be undertaken within a relationship which is clearly a null marriage. Eventually Burke gives the impression that for him vigorous effort is more important than the question whether a marriage ultimately is valid or invalid. His voluntaristic personalism leads to a very defensive approach of marriage canon law, with a lot of suspicion cast upon nullity grounds such as error in qualitate personae or condicio, which in his eyes are quite easily a result of selfishness.

c)         Vision of Man. "Perhaps a marriage can only fully become a marriage after illusions are lost, the possibility of separation is faced, and one chooses to stay". Here, I do not agree. Mature illusions should remain. It is clear Msgr. Burke's rather pessimistic vision of man, necessarily influences his concept of personalism as well as the way he translates personalism in the legal field.

            What precedes leads to a double conclusion: (1) Msgr. Burke indeed solves the dilemma emerging at the end of the previous chapter, and he combines canonical personalism with a limited nullity practice; (2) The price of Burke's construction is high, as it needs a legal fiction concerning content, and it is built upon a rather one-sided voluntaristic personalism as well as on a pessimistic vision of man.

            Personally, I am not ready to pay this price, although I highly admire Msgr. Burke's construction. That is why, at the end of chapter three, I announce my intention to make my own construction. Of course, this construction is only one model among many other possibilities.

            After the formulation of this intention, chapter four is the starting chapter of my own model. Yet, to be perfectly clear that what I try to develop is not any kind of absolute truth, but just a workable model, it is necessary to formulate clearly the premises which I hold to. I see such premises in the sense of starting points of my reflexion, and also as goals that should be achieved through the construction.

            In fact, I have two strings of premises. One string concerns the global construction I want to make. The other deals with the content of canonical personalism as part of this global construction.

            The premises concerning the global construction are three.

(a)        Current law should be the starting point of any construction, which means a full and joyful acceptance of the CIC 1983.

(b)        Personalism should be made canonically relevant. This relevance should be as total as possible, including as such, an influence on the semantic river of canon law.

(c)        The ius connubii should be safeguarded. Marriage needs to remain open to a vaste majority of people. The number of annulments should remain under control.

            The first string of premises seems to be quite a reasonable one. As I see it, it is broadly admitted by most canonists. This might not be completely true for the second string of premises, which is more coloured by my personal ideas on personalism. The premises concerning personalism, once again, are three.

a)         Personalism requires commitment;

b)         Personalism should leave enough place for non-sentimental and mature illusions;

c)         True personalism also requires that the result of an investigation in every annulment is just. Just means true, but also refers to authenticity. ôPersonalisticö truth and covenanted justice should never disappoint man in his deepest dreams.

            Therefore, having explicitly formulated the two strings of premises, chapter four comes to an end. It is now time to formulate the construction itself, by accurately making use of the premises as they have been set out.

            Chapter five tries to elaborate a solid framework for a theory on married personalism. Together with the premises I am trying to realize, I bear in mind the wisdom of two outstanding canon lawyers. L. Orsy writes that contract and covenant bring each other to a higher level, the result being that nothing is lost. C. Burke introduces his view on personalism deeply into the semantic river of canon law, as it also touches the consent.

            Therefore an attempt is undertaken to build a theory on married personalism (a) which is based on the premises explained in chapter four, (b) which reconciles true personalism, entering into the system as a whole, and has respect for the ius connubii and (c) which brings marriage contract and marriage covenant together while nothing is lost.

            A first step in elaborating a good construction consists in accepting the canonical relevance of the bonum coniugum as a legally autonomous notion, and not as a notion that is legally absorbed by the tria bona, as is the case in the thinking of Msgr. Burke.

            But then again, bonum coniugum is a truly personalistic notion which is hard to reconcile with the existing semantic river of marriage law in the church. A description, by making use of the via negativa, offers better results than a positive approach which nonetheless seems to slowly develop in Rotal jurisprudence.

            At this stage, however, the old question, often focused on by Msgr. Burke, emerges again. Quid with the ius connubii? Does a canonical valorization of the bonum coniugum not automatically imply an increasing number of annulmentsá?

            I tried to demonstrate that this legitimate objection can be overruled by not attributing to the bonum coniugum a monolithic, static and contractual significance, but by looking at it as an overly personalistic notion. In fact, one should see the bonum coniugum as truly personalist in two ways. Its content should be personalistic. But also the way it functions in the semantic river of canon law should also be. In other words: even when being a part of marriage consent, the bonum coniugum should remain flexible and dynamic, because otherwise it betrays its integral personalistic roots.

            Precisely for this reason, for the sake of keeping up with the standards of true personalism, the concrete content of bonum coniugum as included in marriage consent should fluctuate in a snake, moving between a minimal content with a low personalistic profile and a maximal content with a high personalistic profile. The concrete content of bonum coniugum fluctuates within the boundaries of this framework. Fluctuations are influenced by three factors, not all of them fully plausible yet among contemporary canon lawyers. The three factors are (a) the cultural context; (b) the personality of the partners; (c) the will of the partners.

            The final result reached in chapter five could be an ideal solution for solving all those dilemmas, which seemed so threatening at the beginning of the chapter. The cornerstone of the system is a consent which contains a notion of bonum coniugum partly dependent on the will of the parties, at least within the limits of the snake, between a personalistic minimum and a personalistic maximum. The construction does not endanger marriage as created by God: the margin for personal initiatives of the partners leaves untouched, in any case, bonum coniugum as an essential element of marriage. In addition, the personalistic notion bonum coniugum has the effect, that the susurrous of the semantic river of canon law is no longer completely the same as before: dynamic personalistic notions remain dynamic and flexible, even after having entered into the legal system.

            In its entirety, chapter five seems to end in an atmosphere of moderate euphoria. Yet, is there any reason for cherishing such a dangerous feelingá? Chapter six will reveal all. It takes care of the ultimate quality control. Does the framework as elaborated in chapter five, meet with the premises as set forward in chapter fourá?

            Chapter six starts with three briefly summarized cases, to make the quality control more concrete, to offer more tools of comparison than only the rather abstract reasoning of the previous chapter. The cases show that the model would lead to an annulment on the traditional grounds, which is readily obvious, but also to a non constat de nullitate for a simple divorce of people with a low degree of bonum coniugum, as part of their marriage consent. Conversely, people entering marriage with high ambitions in the field of covenant and commitment, but trying very hard yet then failing altogether, could have more chances to obtain an annulment than they would have had in Cormac Burke's construction.

            Chapter six starts with three briefly summarized cases, to make the quality control more concrete, to offer more tools of comparison than only the rather abstract reasoning of the previous chapter. The cases show that the model would lead to an annulment on the traditional grounds, which is readily obvious, but also to a non constat de nullitate for a simple divorce of people with a low degree of bonum coniugum, as part of their marriage consent. Conversely, people entering marriage with high ambitions in the field of covenant and commitment, but trying very hard yet then failing altogether, could have more chances to obtain an annulment than they would have had in Msgr. Burke's construction.

            After this brief case study, the quality control takes place. Firstly, the premises concerning the global construction are dealt with.

a)         Current law. It is clear that the current Code is the starting point for the construction. The most difficult point might be the combination of a marriage created by God and a limited but very real room for consent on the content of that same marriage. However, that problem can be resolved.

b)         Legal relevance of personalism. Personalism is part of marriage canon law, and not only at the level of its content, but also at the level of its functioning. The fact that consent is now a partly flexible consent, means that the susurrous of the semantic river of canon law really does change. This change could be compared to the one proposed in the early seventies by J. Bernhard: the consommation existentielle. Yet, the change of the susurrous proposed in my construction is quite possible under current canon law, which currently is not the case anymore with BernhardÆs construction.

c)         Ius connubii. The construction finds a way, just through flexible consent, to increase only slightly the possible number of annulments. It hardly offers more opportunities for those opting for a minimal bonum coniugum as part of their consent. It only gives more chances to people with more mature illusions concerning marriage as a real covenant.

            Secondly, the premises concerning legal personalism had to be analyzed.

a)         Commitment. True personalism, in a less voluntaristic way than Cormac Burke sees it, does not lead to an easy-going mentality. Personalism 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. This idea fits remarkably well, with the possible content of the bonum coniugum moving between the fixed limits of the snake.

b)         Non-sentimental, mature illusions. The snake makes it possible for people with few illusions and a minimal ambition concerning the bonum coniugum to conclude a valid marriage. Yet, mature illusions can also be canonically relevant. They can be included in consent, at least when they remain (i) realistic and do not go beyond the maximum limit and (ii) personalistic as egoistic desires cannot be taken into account canonically.

c)         The just result: where does the semantic river flow outá? The result of the process is not just true, but truly just. It is also an authentic solution. Annulment is not only a possibility for those having bad intentions. It could also be pronounced for those who, with a lot of good intentions have tried very hard. Moreover, it would not cover up divorces by calling them annulments.

            So, obviously, the quality control of the construction offered in the previous chapter, leads in chapter six to a confirmation of its value. In the meantime it is clear that the possible implementation of the construction requires two more problems to be tackled:

(a) One needs excellent judges for making a nuanced analysis of what the marriage consent was really like.

(b)        The canonical qualification of the deficient consent within the snake of the bonum coniugum is perhaps the first confrontation of personalism influencing the functioning itself, the susurrous of the semantic river of law. Thus, probably, some study is required to link the deficiencies in consent on bonum coniugum with the existing nullity grounds. A nice task, you might say, for a creative canon lawyer...

            I also mentioned, near the end of chapter six, the possibility of even going further in the personalistic approach of marriage canon law, by accepting the flexible bonum coniugum as the underlying legal basis to all properties, elements, notions and nullity grounds in canon law. I think such a construction would be possible de lege lata. Yet, it would be probably too far-reaching for the time being, as it would challenge all existing standards. It is uncertain that it would be able, at this stage of its development, to cope easily or just to cope at all with the two strings of premises which have been herein analyzed.

            As I have already said, I prefer the image of the semantic river of canon law as an absolute key notion, and not just because I favour the Kundera hypothesis as I appreciate also his particular and peculiar way of being a personalist. But that is another story.

            I like the semantic river of canon law for two different reasons and in two different senses.

            First, the notion semantic river of canon law shows that canon law has its own inner structure, dynamics and way of functioning, which has to be taken into account very carefully when new theological notions are introduced into the system. A theological covenant is not the same covenant anymore once it has been formulated, with exactly the same wordings, in a canonical text. This is may be the fil rouge throughout my essay. It also is the central question of contemporary marriage law in the church: which juridical consequences flow from the view of marriage found in the Pastoral Constitution Gaudium et spesá?

            Second, the notion semantic river of canon law also focuses on the word river, which refers to motion as well as to stability. There is a lot of movement of water in always the same river. And perhaps, sometimes, its susurrous might indeed change. In my construction, it does change a little, as a result of the introduction of personalism at the very level of the functioning of the legal system itself. Yet, to quote again Ladislas â•“rsy concerning the relationship between contract and covenant: nothing is lost, everything is enriched; contract is contained in the covenant but does not exhaust it. Thus, the river should remain the river. Changes should not be radical to such an extent, that for instance, the covenant is enriched but the contract gets lost. I am convinced that Msgr. Burke would not be entirely opposed to this last reflection. In any case, it is his extremely well-elaborated construction, his thoughtful and challenging ideas on married personalism and also his true love for law, which inspired me to make my own ideas a little more explicit. And the more I am developing them, the more the same sentence appears again and again, as the implicit cornerstone of my ideas: nothing is lost, everything is enriched. Or again, would this be too sentimental an illusion?