cormacburke.me.ke

            Professor Torfs not only offers a very richly nuanced response to my original exposition, but presents an alternative and highly suggestive view of married personalism in its canonical application. I am intrigued by many of his suggestions and wish to ponder them further, but cannot do so here. Since our agreement was that replies at this stage should be brief, I must limit myself to the following points regarding his appreciation and criticism of my stance - which obviously involves some counter-criticism of certain of his alternatives.

Our agenda

 

 

            Professor Torfs is fairly sure we share three major premises which he places at the basis of his own theory of married personalism: "(a) the acceptance of current law as a starting point; (b) the necessity of including personalism in marriage law of the Church; (c) the preservation of the ius connubii by limiting the number of annulments". We are certainly in agreement about the first two. The third (neither in the positive nor in the negative aim it states) was not however a premiss to my study. If, with hindsight, I were to assign myself a third premiss, it might be "a deeper personalistic approach on the part of spouse would result in fewer marriages failed due to selfishness". Whether it would affect the number of nullities or not, is quite a separate question and was not part of my agenda [1].

            In fact I must confess to some disappointment that in a discusssion on "Married Personalism; Code and Council", Rik Torfs's response to my study should be so largely occupied with the question of nullities. The purpose of the Council was to give guidelines for a renewal of ecclesial life in general, and (as far as concerns us in this book) of married life. Many aspects of its presentation of marriage can properly be called "personalist", as is true of the subsequent magisterium of Pope John Paul II. That the juridic application of its personalistic ideas would lead as a matter of course to a greater number of null marriages seems axiomatic to Professor Torfs ("the problem of personalism entering into canon law and as a consequence making valid marriages harder to conclude"...). This strikes me as a most unusual proposition and is certainly one that I do not share. However, given the importance he attaches to the point, I will return to it later.

Our concepts of personalism

 

 

            If it is true that philosophers look for distinctions whereas politicians rather seek compromise, then jurists are philosophers more than politicians. So much the better. Distinctions if properly achieved make for clarity: something that jurisprudence can always benefit from, perhaps never more than in the present moment. A first point which emerges from Professor Torfs's response is that while we are indeed both keen on married personalism, also in its application to canon law, we hold somewhat different notions of the essence of that personalism ("although I do not share Msgr. Burke's vision on personalism"): a factor that has no small effect on our debate.

            Regarding the conciliar basis of his personalism, he refers simply to Gaudium et spes, no. 48. With regard to its content, he restricts it to the bonum coniugum. I see both points in a broader light. Married personalism, whether in its pastoral or canonical applications, is an expression of the overall christian personalism which the Second Vatican Council proposes in its view of man. The central principle of this personalism as presented in the Council and developed by the Magisterium of John Paul II, is expressed in Gaudium et spes 24 (a text that my friend passes over completely): "man can fully discover his true self only in a sincere giving of himself" ("In these words of the Council one can say that the whole of christian anthropology is summed up": John Paul II: Encyc. Dominum et Vivificantem, no. 59). In a specifically married context, this personalism also takes account of Gaudium et spes 12: "This partnership of man and woman constitutes the first form of communion between persons. For by his innermost nature man is a social being; and if he does not enter into relations with others he can neither live nor develop his gifts".

            To my mind the personalism of the Council, while certainly regarding each person as "original" (an "original" divine work), is centered more on the fulfillment of each one, because each is still an "incomplete" original. Married personalism too has this fundamentally teleological note, looking to the fulfillment of persons which marriage can bring about. The uniqueness of marriage is that it brings two single originals together in order to form an "original duality". So, marriage involves a basic commitment to put "us" before "me". Janssen's principle quoted by Torfs - "each and every person must fulfill himself according to his own personal originality" - is true enough in a general sense, although it easily lends itself to individualistic applications. I would be hesitant, however, about presenting it as a norm for married personalism, all the more so in its canonical application.

Changing concepts of the "content" of marriage, of marital consent?

 

 

            Personalism for Rik Torfs "changes the content of canonical marriage". The question of a "varying concept of the content of marriage consent" is a "crucial point in the discussion". A main conclusion he reaches is that the influence of personalism on canon law is to introduce "essential elements with a varying content".

            As I see it, rather than changing the content of marriage, christian personalism offers new parameters to help achieve a deeper and richer analysis of the basic content which marriage must always have. While the history of each married couple is existentially unique, the essential content of marriage itself, as it was in fact given from the beginning, is unchanging, although we can understand it from different angles and in varying depth.

            I have some trouble with the idea of a flexible or varying content which he assigns to marital consent, and attributes also to the bonum coniugum, which can range between a "maximum" and a "minimum".

            In her evangelizing work the Church always encourages people towards "the maximum" (love the Lord with your whole heart...). It is only logical however that canonical consideration of issues such as the validity of matrimonial consent tends rather to center on what is minimum. In his 1987 Address to the Roman Rota, John Paul II warned against "mistaking a psychic maturity that represents the ultimate goal of human development, with canonical maturity which rather signifies the minimum point of departure for the validity of marriage" (AAS vol. 79 (1987) 1457: emphasis added).

            Nevertheless, according to Torfs, a necessary consequence of the personalism of the Council is that married consent is now "partly flexible", and that spouses can (or should be able to) determine at least partially its content within a minimum and a maximum. Does this novel idea not tend to confuse the will to marry (which, in order to generate valid consent, must not exclude any of the essential properties or elements of marriage, or either of its two institutional ends) with the incidental hopes or aspirations of the spouses? These hopes and aspirations can certainly be flexible (one or both spouse can be "minimalists", expecting little of marriage, or "maximalists", expecting very much); but I would not go along with the suggestion that a new element of flexibility has been introduced into the essence of consent itself (surely this would "lead to a weakened legal position of the contract": one of the negative consequences he finds in my personalist views).

            The notion of a flexible bonum coniugum, to his mind, "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 [2]. In the end, his position is that people with few illusions - i.e. with little concern for any particular standard of the bonum coniugum - can contract validly, whereas a person seeking a high-quality bonum coniugum (the quality being "determined" by him or her in consent), if disappointed, could have good grounds for obtaining a declaration of nullity. I find this position peculiarly elitist, and in general strange.

            As I see it, the will of the partners cannot determine the essential content of the bonum coniugum (any more than it can determine the nature of marriage); it can accept it or exclude it, in its essence, at the moment of consent. In the different moments of married life later on, that same will of the spouses can continue to pursue the goals (ends) proposed and accepted at consent, or can neglect or turn away from them. Jurisprudence, in applying church teaching, has always held that if a competent person accepts marriage in its fundamental nature at the moment of consent, no subsequent change of attitude can nullify the bond already created.

The bonum coniugum

 

 

            This is obviously a major concept for both uf us, though once again we have somewhat different approaches and interpretations. There is a very first point where our lines seem to have got crossed and need unravelling. Professor Torfs writes that an "absolutely necessary" first step "to come to a workable theory of married personalism, is the legal relevance of the bonum coniugum", and then surprisingly goes on: "I know that, in this regard, Monsignor Burke has another opinion", which he later sums up: in "his view on the bonum coniugum, [Burke] sees it as canonically absorbed by the three traditional bona". In support of this, he quotes from a 1989 article where I wrote: "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" ("The Bonum Coniugum and the Bonum Prolis; Ends or Properties of Marriage?": The Jurist 49 (1989), 708). He comments: "I am not saying that Burke is mistaken by pleading for such an absorption. On the contrary: it is the logical consequence of his voluntaristic personalism".

            The 1989 Jurist article considered general aspects of the bonum coniugum. The passage Rik Torfs quotes is from a brief section where I touch on its exclusion as a grounds of nullity. I indeed offer some possible instances of such exclusion; simply noting, in the words quoted, that while an exclusion of the bonum coniugum can of course be said to occur when one of the augustinian "bona" is excluded, sound procedural economy suggests that it would be preferable to treat such an exclusion of the bonum coniugum as absorbed into (or more easily handled under) the exclusion of the augustinian "bona".

            This is not even remotely to suggest that the bonum coniugum itself is canonically absorbed into the three augustinian "bona" - a proposition that I consider as absurd as my learned friend obviously feels it to be. Being strongly of the opinion that the bonum coniugum has its own absolutely separate legal relevance, I have always maintained that there is a radical difference between the "bona" of St. Augustine and the new term given to us by the 1983 Code, as must necessarily exist between essential properties and an institutional end (cf. Chapter 10 of my exposition).

            The distinction between the bonum coniugum and the three augustinian "bona" is a necessary presupposition to their inter-relationship. In a rotal sentence of Nov. 26, 1992, I suggested: "One can conclude that the augustinian "bona" which fundamentally characterize marriage, also provide the basic structure on which the bonum coniugum can be built" (Rotae Romanae Decisiones, vol. 84, p. 583; Studia canonica 27 (1993), 501); that is certainly not to identify the two, much less to absorb one into the other. I do not find Torfs's view of the interrelation between the "good of the spouses" and the augustinian "bona" wholly consistent. His suggestion towards the end of his Response - "Maybe the three traditional bona only make sense when they are canonically based upon the bonum coniugum" - is interesting. My view tends rather to invert the connection and dependence, as, for instance, does a recent rotal decision coram Defilippi, "the bonum coniugum is naturally connected with the "bona" of fides, sacramentum and proles, in such a way that these "bona" generate conditions favorable to the bonum coniugum itself" (Sentence of Dec. 1, 1995: no. 9). Here are matters for further investigation.

            In any case, I am in total agreement that establishing "the legal relevance of the bonum coniugum" is absolutely necessary for working out the practical implications, in canon law, of this major personalistic term. I would of course add that the formula of c. 1057. § 2 is to me of no less relevance to canonical married personalism than the bonum coniugum). Until both its theological and juridical nature are established, little real progress can be made in examining or judging issues of its exclusion, or of consensual incapacity in its regard.

            Here another of Torfs's remarks invites comment. "Burke does not like a juridical functionalisation of the bonum coniugum. His approach is that it should not be at the basis of possible nullity grounds". As I have indicated, my interest in married personalism (and concretely too in the bonum coniugum), is certainly not centered on the possibility of its providing new grounds for nullity. Such grounds can of course be conceived and should be looked into (cf. again the 1989 Jurist article, pp. 708-709, where I suggest some possible instances). They are seldom adduced however, and will probably always remain infrequent. If we are in too much of a hurry to base cases of nullity on the bonum coniugum, before we have a fairly precise notion of what this new term involves, I fear we may settle for a restricted and even negative understanding of an immensely rich and inspiring theological and canonical concept.

            While not quite sure what Professor Torfs means here by "juridic functionalization of the bonum coniugum", I think its juridic categorization could be an easier and certainly a prior point to clarify. Ultimately of course the major question is the juridic nature of the "good of the spouses". however since, to my mind, the new legislation leaves litle doubt about the category or classification of the bonum coniugum in canon law, a brief consideration of this point may solidify the ground for investigation of its nature, and hence of its possible juridic function and effects.

            There can hardly be any doubt about the juridic categorization of the bonum coniugum (Jurist 1998 p. *). It is an end of marriage. It is not a property of marriage. It is not a fourth matrimonial "bonum" in the sense of the three augustinian "bona". Professor Torfs seems to agree with this latter point (not everyone does), accepting "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". Yet, in his first paragraph on p.* , he seems to classify the bonum coniugum with "the other essential properties and essential elements of marriage". In my 1998 Jurist article, I draw attention to importance of maintaining proper terminological distinctions in this respect). Incidentally, since the "good of the spouses" (just as procreation) is an end of marriage, marital consent cannot exclude it. A positive orientation to the bonum coniugum, just as to offspring, must be present in valid consent (cfr. Jurist 1998 p. *). So, he has quite mistakenly drawn the impression that in my view "no bonum coniugum should be included in marriage consent".

            Once we leave the relatively simple question of the juridic categorization of the bonum coniugum, and venture out into the broad issue of its nature and content, our paths at times seem to criss-cross, and at other times to be quite divergent.

            For Rik Torfs the bonum coniugum seems to consist in a certain "degree of communication, of mutual commitment and mature illusions" which, like consent itself, can vary between a minimum and a maximum. He favors giving the will of the spouses a part in determining the [nature or content of] the bonum coniugum, admitting that this is a "delicate" question. In his final summing up, he leans more to an ideal system whose "cornerstone is a consent which contains a notion of bonum coniugum partly dependent on the will of the parties". He acknowledges that "the most difficult point" would seem to be "the combination of a marriage created by God" with this marriage whose essence is also partly determined by the spouse. He adds "however, that problem can be resolved"; but I am not sure if he has explained how.

            A highly satisfactory relationship between the spouses (no misunderstandings, plenty of mutuality, no disillusions...) is certainly to be desired and needs to be worked for; yet it is seldom easily achieved. In fact it is not to be expected that christian marriage, with its indissoluble bond, should be easy. The bonum coniugum, as an end of marriage, does not refer to the ease and comfort of the spouses, but to their good; and, even more in particular, to the good that God projected ("non est bonum homini esse solus") as fruit of this "consortium totius vitae", whereby a man and a woman bind themselves to share the whole of life together.

            God certainly wants the spouses to get on; in a special way I think he wants them to learn to get on. Seen from that angle, marriage can more properly be described as a school of love, than a haven of love. People are in marriage, as all of us are in life, to learn to love; success in doing so brings about our real good. In any christian view, all the challenging and maturing vicissitudes of married life - met positively by the spouses and used wisely by God for his purposes - necessarily enter into the scope of the bonum coniugum. This also means that while the accomplishment of the bonum coniugum is indeed very much in the hands of the spouses, it is even more in the hands of God, with his individual plan of growth and maturity for each marriage.

            Professor Torfs offers some interesting theoretical cases to illustrate possible canonical issues arising from the bonum coniugum. I am not altogether satisfied with the analysis he suggests of case three; and, on the basis of the facts outlined, would not share his opinion that it offers any grounds for nullity deriving from the bonum coniugum (Although he laters says "the third case is, for me, the test of the authenticity of the system"). The girl, before the wedding, knew that her fiance's conversion to marxism-leninism would make for substantial difficulty in their married life together: "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... She admitted implicitly that different people with different ideas could marry". Therefore there was no deceit in the case. What she wanted was a "quality" marriage - defined according to her standards: "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". But he remained "as he was" - a convinced Marxist-Leninist; and after three years of effort she found she no longer loved him, or could accept him as he was.

            My colleague argues that "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..."

            Peculiarly, so it seems to me, he puts the invalidating element in the fact that the girl did not find in her partner the comitment - the "quality" of bonum coniugum - that she expected ("for her any marriage without a high degree of commitment was impossible"). But what was there to stop her from living her own high degree of commitment, even if - in her opinion - he did not live his? "She wanted a marriage with a person to whom she could give more... than this man whom she loved so much". But could she not have given him more? This would have been too one-sided? So? I don't doubt the girl's sense of frustration; but I am not sure of her personalism. If one party does not live up to some aspect of the married commitment, does that make the corresponding commitment of the other impossible to live? If this were so, then infidelity by one party would automatically relieve the other of any obligation of fidelity.

            Professor Torfs, defending the girl's right to invoke "error regarding a personal quality" (c. 1097 § 2), holds that to do so would not be "self-centered" on her part. Transeat; but it is certainly not generous either. Does the marriage commitment consists just in accepting the other party "for as long as one is not disappointed with him or her", or "for as long as one is able..."?

            "The personalism I believe in... is based on the originality of each person". He feels that this "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". Frankly, while sympathizing with the girl in the case given, I do not particularly find a "higher degree of commitment" in her; nor a greater respect for the "originality" of the individual she chose to marry (however jejune his marxist-leninist originality might be). The girl's sentiments seem to be reasonable enough; but also rather calculating and self-centered. She accepted the man "as he was", and then wanted to reject him, claiming a nullity, because he remained "as he was" and she failed to change him to suit her requirements. Is this really personalistic?

            The case given could illustrate another difficulty behind the principle, "the degree of bonum coniugum included in consent can vary between a minimum and a maximum, even as a result of the free will of the partners". If the girl can condition the validity of her consent on having a maximum of bonum coniugum, why can the man not respond that he conditioned his on having a minimum - and insist the marriage is valid? It is the whole concept of hedged or conditioned commitment that I find non-personalist and contrary to the renewed concept of consent proposed in c. 1057 § 2.

Consent: canon 1057 as marking a major personalist innovation

 

 

            Both of us are very keen on the personalistic implications of the bonum coniugum, though we offer different analyses of the meaning or content of the term. This leads to a major difficulty I find with Torfs's analysis of canonical married personalism. "Personalism is not in consent", he writes, "but in content". In other words, if I have followed him rightly, the married personalism of the Code is to be found in c. 1055, and not in c. 1057, § 2. If this is in fact his position, then I would register disagreement. Married personalism is expressed BOTH in the bonum coniugum (c. 1055) AND in a complementary and no less important way in the act of consent by which "a man and a woman, through an irrevocable covenant, mutually give and accept each other" (c. 1057, § 2).

            In my original exposition I tried to investigate and highlight the great personalist importance to be attached to this notion of "mutually giving and accepting each other". In my opinion, as an expression of married personalism incorporated into the Code, this notion holds at least equal importance with the bonum coniugum. It is no easy task to pin down the exact anthropological meaning, and above all the fundamental canonical parameters, of this marital "self-gift/other-acceptance". The analysis I attempted in Chapter Three (Developed at greater length in my book: L'Oggetto del Consenso Matrimoniale: un'analisi personalistica, Giappichelli, Turin, 1997) suggests that the personalist uniqueness of the marital commitment is most shown in the mutual exclusive acceptance of each other, in a "for better or worse" union open to children and until death.

            Professor Torfs suggests that such an analysis turns the object of consent into something exaggeratedly difficult, with "an extremely demanding content: open to all the variations of the future". He considers that "this is more than just for better and or for worse, as it refers to the vulnerability of the condition humaine". I would maintain my analysis, adding simply that not I but the spirit of the ages has conceived the married commitment so. The pledge, "for richer or poorer", "in health and in sickness", "for better or worse", which popular feeling has always put at the heart of the marital covenant, is surely meant to cover precisely the vulnerability of the human condition. Otherwise it doesn't involve a real commitment to the other spouse at all. Or it simply means a calculated and ultimately self-centered commitment: "I'll accept you for as long as you measure up to the standards I find acceptable or tolerable, or for as long as you are not too vulnerable, and your wounds do not ask for too much healing and care on my part". Is this personalistic? Is a husband entitled to abandon his wife because she has become a paralytic, or a wife to abandon a husband whose business has gone bankrupt or who has been sentenced to jail? ("Are people prepared to promise to be true to the partner in good times and in bad, in sickness and in health? I think they are. Are they accepting that they will be open to all the variations of the future? I think they are not". I would question the logic as well as the personalism of this).

            In developing his criticism of my ideas and in proposing his own thesis, he leans heavily on a novel distinction between the "quality" and the "quantity" of consent. "His [Burke's] 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... agree by the very fact of giving their consent on accepting all the variations of the future".

            From the juridic viewpoint, I am not too clear about the application of measurements of "quality" and/or "quantity" to consent. In any case, it seems that in Rik Torfs's eyes I defend a "low-quality" consent. I am not sure if it follows that he is in favor of "high-quality consent" or, if so, what exactly this might imply (consent that is "hard" to give?). Paradoxically, within the "low-quality" consent that, in his view, I propose, the "quantity" of what people consent to is "impressive" (or perhaps more accurately excessive), since "by the very fact of giving their consent they agree to accept all the variations of the future" - which he holds to be non-personalistic as asking too much. It appears to follow from this that, within his personalistic view of marital consent, people marrying want and consent to less. Elsewhere he makes this more explicit: "people do want commitment, but within reasonable limits". There seems to be a certain lack of consistency later on when, summing up what he considers "real personalism, and not a weakened version of it", he says, "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". In any case, the reader must decide which commitment proposed involves higher demands and which lower; which personalism is real, and which a more weakened version).

            Do people marrying really say to each another: "I promise to love you - but within reasonable limits", "I'll be faithful to you - within reason"? Is such a notion of married consent not too "reasonable" - more cartesian than human? Apart from this, I doubt that "reasonable limits" constitutes a workable standard for use in canonical judgments or practice.

            Here, in any case, he sees two views of consent, one that "asks too much", and another that reduces that excessive commitment to reason. I would question whether the diluted alternative he suggests - a hedged commitment, "within reasonable limits" - is an expression of personalism. To me it smacks much more of defensive individualism.

            The impression I get of the more reasonable marital commitment he proposes, is that the spouses consent to some sort of "community of life", which has a lot of "interpersonality", but does not include (or else attaches little importance to) perpetuity, exclusive fidelity, openness to life... If so, I can find nothing distinctively conjugal about such a commitment or such a community of life. Within such terms, temporary marriages, contraceptive marriages, trial marriages, homosexual marriages, would all qualify to be marriages. Surely it is Professor Torfs who makes the object of consent so open or "broad" that it allows any type of commitment, however unstable, however ill-defined, to be called a marriage?

            So, while firmly holding that the bonum coniugum is a vital aspect of the new personalist vision of marriage, I consider that the "self-giving/other-acceptance" of marital consent (c. 1057, § 2), which clearly has a dynamism that carries over to the whole of married life, offers another necessary reference for married personalism, being at the same time much more solid and serviceable in the handling of canonical nullity cases, whether under canon 1101, canon 1098 or canon 1095.

            It could be noted that not a single case has been heard before the Rota on the grounds of the exclusion of the bonum coniugum or of incapacity regarding it, whereas, despite hesitations, jurisprudence has made no small progress in re-seeing the exclusion of one of the augustinian "bona" (i.e. cases of simulation), in terms of - as Msgr. Serrano so aptly puts it - "the inadequate or untruthful gift of self", which is indeed a highly personalistic way of expressing what is meant by simulation or by the new grounds of dolus.

            As I wrote in chapter 11 of my first exposition, the bonum coniugum appears to me "as something which fundamentally results from the dedication aspect of the matrimonial alliance - precisely from the mutual pledge of giving and acceptance that the spouses make to one another". To my mind, then, the juridic-personalist analysis of the bonum coniugum is intimately linked with the sese tradere/accipere of c. 1057, a possible connection that Rik Torfs ignores completely. So when he speaks of "Msgr. Burke's rather limited or one-sided idea of personalism", my reaction can be none other than to return the compliment. A personalism which ignores c. 1057 § 2, and concentrates on a vague notion of the bonum coniugum, seems to me also limited and one-sided. Clearly our respective horizons need broadening.

The personalist value of the augustinian "bona"

 

 

            Professor Torfs is quite right in saying that for me, canon law has been marked by a "persistent negative view of the bona", whereas "a positive view of the tria bona is truly personalistic in Msgr. Burke's opinion". Indeed, I do hold the augustinian "bona" or values to be highly personalistic; and maintain that married personalism needs to redeem them from the negative import cast on them by canonical tradition. In fact, rather than concentrate almost exclusively on the bonum coniugum, I would have liked to see him give a more specific opinion about the personalist reinterpretation which I attempted to give to the "bona".

            According to my analysis of c. 1057, the heart of the marital self-gift between the spouses (the object of their consent) appears in its most personalist light in the triple commitment involved in the three "bona" which St. Augustine saw as giving peculiar dignity to marriage. My experience is that theologians and moralists, and pastoral counselors too, have no special difficulty in seeing this. However not a few canonists do [3]. Hence their feeling - and it appears as a feeling more than a reasoned position - that any "defense" of the "bona" marks a regression to the past. To them I would respond: it is in large measure the canonical praxis of past centuries that hinders us from seeing the "bona" under any other aspect than that of the pathology which may affect them (as happens in the case of simulation). But their value cannot be measured in function of periodic pathology.

            For me, the "dynamics" of married personalism - both at the moment of consent and throughout subsequent married life in which the bonum coniugum is achieved - finds its first singular expression, and later draws its sustaining power, in the totally unique relationship established by the "bona". Those who weigh, understand and accept what is involved in each of these values impregnate their marital relationship, from its inception to its term, with the most fundamental dynamics of personal conjugal commitment.

            Professor Torfs does not see this ("Marriage [he is referring especially to the "bona" as institutional aspects] has been created by God. Yet... some room is left for personalistic dynamics"). For him and for not a few other canonists (a fact that continually puzzles me) the properties expressed in the "bona" possess a static or inert character which has little or nothing to offer to any personalist analysis. As against this he seems to see greater personalism, of a more dynamic type, in a commitment where the force of the "bona" is reduced, and what becomes decisive - even for determining validity - is the subjective content which the will of the partners (or, as so often happens in practice, of one alone among them) sees in the bonum coniugum, or which they ask of it.

            Do married couples always (or even generally) regret the indissoluble nature of the bond between them? Surely, to be bound together "for ever", is what conjugal love naturally seeks? And surely again, each spouse's conviction of having chosen another and been chosen by him or her, until death, is a powerful inspiration to be faithful in the process of learning to love, and to realize that the temptation to quit, which comes to all married persons as to anyone pledged to an allegiance, is a temptation to renege on love. Do all couples regret having children? Is it not rather what they want? And does each one, husband and wife, not take on a new hallowed status in the eyes of the other, a status of singular glory, as father or mother "of my children", of "our children": of those children whose presence "greatly contributes to the good of the parents" (Gaudium et spes 50), also as a dynamic motive urging them to fidelity?

            My friend insists; and may I do the same. He writes: "the dynamic way the bonum coniugum is part of consent, differs from the more static way in which the traditional tria bona are perceived". While repeating that I have never perceived the augustinian "bona" as static, but rather filled with the dynamism of interpersonal conjugal commitment, I agree fully about the dynamism of the bonum coniugum (although inclined to hold that this dynamism appears more in the "in facto esse", than in the "in fieri" aspect of marriage), but doubt that there will be any lasting dynamics in a marriage where exclusive fidelity, permanence of commitment, and openness to the natural fruit of conjugal love, are considered institutional burdens and not privileged personalist values. Rik Torfs seems to equate "dynamic" and "flexible". I don't find the idea of an indissoluble bond - I promise to be yours till death - very flexible (I promise to be yours unless I change my mind...?); yet, for me, it is a reality filled with dynamism - the dynamism of those truly in love.

            On this point, then, our appreciations are certainly quite different. "There might be a clash between values, this time between true personalism and the fixed content of marriage". To me, precisely if personalism is true, the danger of such a clash is less. The truer one's personalism in the spirit of the Council, i.e. the more one understands "fulfillment" as the consequence of the sincere gift of self (Gaudium et spes, 24), the more readily will one grasp that the "fixed" content of the essentials of marriage (and precisely too its permanency as a self-gift) corresponds to the deepest aspirations of human love.

            Professor Torfs rightly notes that despite certain pre-Code suggestions which would have blurred the distinction between "matrimony in fieri" (consent) and "matrimony in facto esse" (the bonded relationship) [4], the distinction has been retained in the new Code and remains a cornerstone of Catholic understanding of marriage. I have the impression that he is not too happy with this idea of "one unique static consent" [Static? It is certainly taken in one moment, as so many critical decision in life. But its effects are filled with dynamism; see below]. When he remarks that the present centrality of consent in the Church's system "is necessary for theological reasons, namely for safeguarding the principle of indissolubility", I wonder if there is an implication here that "if it weren't for theology", the Church could happily get rid of indissolubility? But could it? Should it? Indissolubility is not a theological constituent, but an anthropological one, an essential human element of anything that can really be called a marriage. Aunt Betsey was not echoing theology in her reply to David Copperfield's complaints about the deficiencies of the very immature girl he had married: "You have chosen freely for yourself, and you have chosen a very pretty and a very affectionate creature. It will be your duty, and it will be your pleasure too, to estimate her (as you chose her) by the qualities she has, and not by the qualities she may not have. The latter you must develop in her, if you can. And if you cannot, you must just accustom yourself to do without them.... This is marriage" (David Copperfield, Ch. 44).

            The Second Vatican Council presented an ideal of married life and love which can serve as a model for the renewal of that particular calling of the vast majority of Christians. Canon law has its function in protecting that ideal, but obviously cannot take its juridic parameters from it. As we read in a rotal sentence coram Serrano: "although all men are called to marriage so as to experience certain good and great joys (cf. Gaudium et spes, 49), a wholly perfect [marital] relationship, pervaded with happiness, is not the existential image of christian matrimony" ("quamvis homines omnes ad matrimonium vocentur ut quaedam eaque maxime humana et bona gaudia experiantur (cf. Gaudium et spes, 49), perfecta undequaque consuetudo, beatitudine perfusa, non est imago exsistentialis matrimonii christiani": Nov. 22, 1985: R.R.Dec., vol. 77, 523). The 1983 Code seeks to trace out the legal norms that can protect marriage in its existential reality, so that it is genuinely constituted between two capable persons in the exercise of their ecclesial and human rights (cf. c. 1058). Canon law therefore must be concerned with the essentials and with the ends of marriage - not as ideally realized but as validly constituted.

            And yet, while I would not like to see canonists work from an over-idealised view of human nature or of marriage, I do consider that their work may suffer if accompanied by a certain skepticism about the goodness of marriage, or about man's natural attraction to it, or his capacity, with the help of grace, to achieve its ends, giving himself and so opening himself to the gift of God. Like Msgr. Serrano, I do not think that canonists (and especially ecclesiastical judges) can legitimately apply "ideal" parameters, when it is a question of judging the validity or not of the married bond. In suggesting that they would gain if they viewed the augustinian "bona" as values (therefore with their positive and attractive aspects), and not just as obligations, I am pleading for a richer anthropological view. I am not saying that a canonist who simply sees the "bona" as obligations will be a bad canonist or, as the case may be, a bad judge. That does not follow. Yet I do feel that his or her approach to the essential characteristics or properties of marriage, and hence also to its ends, may be lacking in depth.

            So I am not arguing here for an idealized view of the commitment of marriage, but simply for one that is truly human. Judges are not meant to be idealists, but realists. Like doctors, however, since their work is so frequently taken up with pathological situations, they do need to be on their guard lest they end up by thinking that the pathological is normal.

My "voluntarism"?

 

 

            Professor Torfs qualifies my personalism throughout as a "voluntaristic personalism". I am not quite sure what to make of this. I certainly think that the will has a major part to play in married love. And just as certainly I do not think that a "non-voluntaristic" personalism - which (if it is not simply rationalistic) presumably means one guided by feelings and not by will - is truer to the nature of human love, or more likely to achieve its aspirations. If one must use an adjective here, the assigning of a greater place to feelings over will in calibrating the quality of true love, will engender a "sentimental" or "emotional" personalism.

            Feelings of married love are not always at a person's command. Actions, which show that love, generally are. There is nothing paradoxical in the fact that it is easier for a person to be constant in will, than to be constant in feeling. This works in a double direction. A person may not feel love, and yet may love; just as (and it is no less important) a person may not feel loved, and yet be loved.

            Feelings usually play the major part in the love that leads to marriage. It is not necessary that such feelings disappear, but they often do. The will has the major part to play in the love that keeps people in marriage, and achieves the bonum coniugum. The greatest danger to married people is not to lose their feelings of love, but to cease to exercise the will to love.

            Within my "voluntaristic personalism", so Rik Torfs considers, "the wholehearted acceptance of the other is a test, which may be a tough one ("tremendously difficult", he writes) and in his [Burke's] eyes perhaps the ultimate one, of true marital love". The acceptance of one another in marital consent must certainly be willed; an unwilling or unwilled consent would be invalid under c. 1103 or c. 1095. If we wish to further apply Torfs's terminology, c. 1057, § 2 would justly be classed as a "voluntaristic" canon, in as much as it says that "matrimonial consent is an act of the will by which a man and a woman mutually give and accept each other..."

            As noted, Professor Torfs has no little difficulty with my idea that truly personalist consent is "open to all the variations of the future". He comments: "whatever the exact significance of the sentence might be, it remains quite a burdensome notion. A question then could be how a simple human being can cope with those standards which are quite high. Monsignor Burke has an answer to this question: vigorous effort" (Since one of the major criticisms he directs against "my" personalism is that it is obsessed with the need for "vigorous effort", I was prompted to do a word count. I use the phrase exactly once (Ch. 9) in my exposition; Professor Torfs repeats it thirty five times in his criticism).

            While Rik Torfs does share with me "the idea that effort is extremely important and that it can be one of the keys to happiness", he finds that in my personalism it "becomes too overwhelmingly important". He in fact contrasts "vigorous" effort with "real effort". I would ask him to qualify the effort he believes is necessary or useful to maintain married love: moderate effort, slight effort, an effort when one feels like it...? He warns against "effort for effort's sake"; I agree. It is not that, however, but effort for the sake of love, that I think true personalism calls for.

            He insists: "he [Burke] repeats and repeats the importance of hard struggle, dedication and sacrifice". The word "struggle" appears twice in my whole text. The word "sacrifice" appears once in chapter nine, and three times in chapter ten, where I say, "The love that is not prepared for effort or sacrifice, is not sincere love". I would question that there is anything pessimistic, unrealistic, or excessively "voluntaristic" in the passages where it appears in chapter 11: "It is through dedication, effort and sacrifice, especially when made for the sake of others, that people grow and mature most; that way each one comes out of himself or herself and rises above self. Loyalty to the commitment of married life - to be mutually faithful, to persevere in this fidelity until death, and to found and rear a family - contributes more than anything else to the true good of the spouses"; and a little later: "all the effort and sacrifice involved in fidelity to the unbreakable character of the bond - in good times and in bad, etc. - serve to develop and perfect the personalities of the spouses".

            The only place where I combine "struggle" and "hard", is in Chapter 11: "Many happy married unions, I would repeat, are between two persons of quite different characters who have clearly had to struggle hard to get on. It can be rightly said that these marriages are the most "successful", for they have matured the spouses most". I do think that a real commitment at times must involve the courage to face up to a struggle, even if hard. In Rik Torfs's "third case" referred to earlier, it seems to me that the girl who "decided to marry him and to accept him as he was" would have shown herself, or become, a more mature person, with more "bonum" in her, if she had continued to accept her husband "as he was" (without prejudice to her right to help him be better...). When he writes, "Real commitment can in extreme cases mean the courage to quit", the phrase is nicely turned; but, when applied to the commitment of marriage, it strikes me as more individualistic than personalist.

            According to Professor Torfs, I am excessively "voluntaristic" in asking too much of the will. Curiously, he may not ask so much of the individual's will, yet in effect he makes that same will all-powerful. In a good positivist vein, he presents a will that should have the power not only to conform to the law or to transgress it, but actually to model the very nature of law, particularly the nature, content and object of marital consent. While "people do want commitment, [they want it] within reasonable limits", he says; not to accept this, is to "lose touch with healthy legal thinking". May I be allowed, in good humour, the suggestion that one of his affirmations on the same page seems to have worked rather loose from healthy legal thinking: "it is clear that, once the object of the consent is not fitting with the will of the people contracting marriage, it also vitiates the consent itself". The relation of the will to the object of consent is of particular importance in cases of simulation; and there jurisprudence has always held that nullity is produced in precisely the opposite way to what Professor Torfs suggests, i.e. when the will of those contracting (or one of them) does not conform to the (essential) object of consent.

            Basing himself also on the Council's use of the term "covenant" rather than "contract" to describe marriage, he concludes that this leads to a juridic situation where a higher degree of mutual commitment is now required for the validity of consent [5]. I do not find this conclusion justified. The Code, in giving juridic expression to the Second Vatican Council's notions on marriage, is careful (in the very first canon on marriage: c. 1055) to describe it indifferently as a covenant or as a contract [6]. There is nothing in the Council or the Code, or elsewhere in modern magisterium, to suggest that the Church is proposing an "elitist" model of marriage, a model in which consent, in order to be valid, requires the acceptance of a more demanding content than was formerly necessary. Such a suggestion could well be called a "legal fiction" drawn from an exaggerated voluntarism.

More nullities as a consequence of personalism?

 

 

            The relationship between Rik Torfs's personalism and the likely incidence of nullity of marriage is interesting. A major criticism he makes of my view of personalism (as he sees it) is precisely that it does not translate "into the possibility of new or renewed possibilities for annulments". As already said, I see no evidence that the personalism of Gaudium et spes was intended to open up new possibilities of nullity. It would be strange if a conciliar program for the renewal of married life should have the necessary juridic consequence of multiplying the number of null marriages. If one holds such a thesis - and Torfs seems to take it as self-evident - it would seem to call for stronger and clearer arguments in support.

            Nevertheless he is much concerned with the "newly born dilemma" resulting from the introduction of personalism into canon law: "How can one legally valorize personalism and covenant, without first having to accept a strongly increasing number of annulments?": "How can one be a true personalist also in the legal field, and yet plead in favour of a restrictive policy concerning the declaration of nullity of marriages?". This is a central problem for him; a "tremendously difficult question"; a dilemma perhaps beyond any real solution; although he suggests that I may have rather ingeniously found a way around it.

            I cannot evaluate his solution - or rather the solution he attributes to me - because I simply do not see the dilemma. Personalism as such, has nothing to do with nullities; and I say this though I also hold that personalism has facilitated the introduction of a new grounds of nullity into the Code - canon 1098, on deceit - which I consider a long over-due addition.

            Rather than being in favor of a more restrictive policy on nullities, I am in favor of one that is more just, more in keeping the provisions of the new Code and of christian anthropology. I do believe that there is an anomalous excess of petitions for nullity on grounds of consensual incapacity, and that this excess, besides not being in accord with c. 1095 of the 1983 Code, is undermining the credibility of our marriage tribunals and of the important function they have to play within the Church's munus regendi. Tribunal practice more in accord with the terms of c. 1095 would undoubtedly result in a great drop of declarations of nullity on the grounds of consensual incapacity.

            Would such a change result in fewer overall declarations of nullity? I cannot say. Fewer on the grounds of consensual incapacity would, to my mind, be accompanied by more on the grounds of simulation (c. 1101, § 2), i.e. the deliberate exclusion of one of the essential properties or elements of marriage. Given both the diffidence about commitment as well as the contraceptive mentality that abound today, I have little doubt that there has been a great increase of vitiated marital consent through the exclusion of indissolubility or offspring; and that simulation therefore offers much more likely grounds of nullity in today's society. Yet in all my years at the Rota, I have seen no more than two, perhaps three, cases from the anglo-saxon world which were not based on incapacity to consent to marriage. Does this correspond to reality? I cannot think so. If cases under c. 1095 were reduced to, say, 15%, and those under simulation increased to something like 60%, would the overall result be less declarations of nullity? Again I cannot say. Yet I am convinced that we would avert the danger of appearing to move within a sort of canonical "virtual reality", and place ourselves back in the world of the real pathology afflicting modern marriage.

            While it may be said that I am speaking here as a backward-looking conservative, that is not my own feeling. I am rather trying to speak as one deeply concerned at the real (though seldom admitted) loss of prestige and credibility that occurs when the administration of the Church's laws concerning nullity is not rooted in a synthesis between faith and sound anthropology. Our tribunals need to reflect more; and also to weigh more deeply the consequences for the christian life and belief of the people, when they sense that one of the major means by which Christ's will should be mediated to them is not taking the Faith, or even human reality, seriously.

            I repeat that I do not share Professor Torfs's conviction that the logic of personalism inevitably leads to more nullities. It certainly may be true that some canonists, if they accept the clear tenor of the papal addresses to the Rota of 1987 and 1988, "need to make some adjustments" in their interpretation and application of the law. When he adds the comment, "This may be not in order to be a sound thinker, but just in order to be a sound lawyer", my own feeling is that sound thinking, within sound law, will not be inclined to preempt the question of whether personalism leads to more nullities. The danger is greater that unsound law or unsound jurisprudence, perhaps due to unsound thinking, could do so.

Legal positivism; legal fiction?

 

 

            Given what he considers my "agenda", Professor Torfs reaches some quite interesting conclusions. Working from the two components he distinguished in consent, "its quality and its quantity", he stated: "one can already draw some conclusion concerning Msgr. Burke's vision on personalism and consent. Consent can be achieved rather easily, but paradoxically its content is tremendously difficult".

            Particularly intriguing is his judgment that I am basically a "legal positivist". The gap which he finds in my combination of consent "easily" given, with "a difficult object" of what is in fact consented to, "can only be filled by presuming the mutual agreement. So, consent, in its extreme voluntaristic version, becomes a legal fiction. In that regard, Msgr. Burke is, in my opinion, legally speaking a positivist, at the same time he is all personalist when it comes to his underlying ideas".

            What should I make of the charge of being a positivist? As I understand it, the positivist tends to take the letter of the law without seeking to relate it to its deeper theological or anthropological basis. In a recent article, Professor Torfs describes positivism as involving "une approche où chacun tente de détecter le sens propre des mots à partir de ses propres idées" ("Propria verborum significatio: de l'épistémologie à l'herméneutique": Studia canonica, 29 (1995), p 190). I do feel (but on this point, my friend and I seem in full agreement; see * above) that the new legislation given us by the Church contains norms that in not a few cases call for further interpretation, while major guidelines for this task of interpretation are offered not only in the theology but also in the particular philosophy - christian personalism - that the Council and subsequent magisterium have put forward (1998 Jurist art. *). On this basis, I try to use juridical-anthropological criteria in proposing legal analyses or interpretations. Of course my interpretations, like everyone's, are undoubtedly over-colored by my own ideas. But I try to verify these ideas against the objective criteria just mentioned. Whether I succeed or not is definitely a matter for legitimate debate. For the record, nevertheless, I will take the opportunity to disclaim being a positivist.

            In the text just quoted, Torfs considers that to justify a positivist stand that consent is "easy", I must make use of "legal fictions". I find neither my agenda nor my thought reflected in this comment and its further development. Surely he misreads me? I certainly defend (as does the Church) that marriage is natural and should be open to all. That is not the same as affirming that marital consent is easy. I do not think that it is, and I am not aware of ever having said so. If it is true consent, then (however natural) it is quite challenging to give, precisely because of the commitment it involves (If a person is seriously deficient in his or her discretionary understanding of what the married commitment essentially involves, the consent would be null under c. 1095, § 2).

            The question of the legal "fiction" he repeatedly attributes to my position kept puzzling me right to the end of my friend's response. Then the equivocation became clear. "He has to presume that people entering marriage intended and accepted the burdensome consequences [of the augustinian "bona"] which are for Msgr. Burke a necessary element of consent" [7]. But it is the Church, not I, that presumes the intention of accepting the "bona"... The legal "fiction" he attributes to me turns out to be the legal presumption of canon law itself, which has passed intact from the 1917 Code to that of 1983: "The internal consent of the mind is presumed to be in agreement with the words or signs employed in celebrating matrimony" (c. 1101, §1). A legal presumption can be disproved. It can and does happen that one or both parties do not internally intend what they externally profess (cf. c. 1101, § 2). But in such a case the presumption is not thereby turned into a fiction; it is simply judged not to have been justified in that concrete instance. I am relieved at all events to find that it is a common presumption of canon law which is being ascribed to me under the title of a legal fiction.

            What my sparring partner from Louvain attributes to me was certainly not on any conscious agenda of mine; nor do I think there is any chicanery about the presumption (the Church's presumption, I repeat, not mine) that those marrying are to be taken at their word when they promise to accept each other until death. Nevertheless, maybe Rik Torfs is ultimately touching here on something peculiar, something that might well be called a "stratagem" introduced by Nature itself (and not by the Church) into that intriguing process by which people fall in love and are drawn to marry.

            Some people are quite conscious of their own defects; many are not. Blindness to one's defects usually proceeds from vanity or pride; it is of course an added defect in its own right, and as a rule renders relations with others more difficult. Blindness to the defects of others is a very different matter. It may be due to naivete, it may eventually lead to disillusionment, but - whether considered a talent or a handicap - it tends to facilitate rather than to upset interpersonal relations.

            "Love is blind", the saying goes. To my mind, the saying is not quite accurate where love is sincere. In relation to one's own defects, sincere love is by no means blind; it rather makes one more sharp-sighted about those defects, more vigilant to overcome them, so as to please. The saying is quite true, however, regarding the defects of the loved one. Most people in love see few if any defects in their lover... Of course this is a sort of blindness; and later on they may become more clear-sighted and wiser. Yet it seems to be the way of Nature, which has consistently made lovers prone to be fooled in this way and so ready - if the loved one accepts - to embark blissfully on that crazy life-commitment-together which the world, despite everything, still keeps thinking that marriage should be.

            What is one to make of this peculiar human phenomenon? Is it a sign of a grave lack of discretion? Is it a motive for declaring consent given out of love invalid? Certainly it is a reason for parents, relatives, etc. to advise people to be wise in their choice of a married partner. Yet experience is that people don't pay too much heed, and continue to appear rather blind in their choices. Must it absolutely be said that this is a bad thing? If everyone were purely rational and cartesian in their assessment of a future husband or wife, perhaps few would ever marry. Like Rik Torfs I believe we ought not, ultimately, to be disappointed in our dreams; but if our dreams are really as big as they should be, their fulfillment is not possible here on earth. David Copperfield can again help us here. Disappointed in not finding any mature support in his "child-wife", Dora, he senses he has "missed the realisation of my dreams"; that she could have done more "to fill up the void which somewhere seemed to be about me, but I felt as if this were an unearthly consummation of my happiness, that never had been meant to be, and never could have been" (Chapter 44). A gleam of Dickens' weak theology appears here below the abundance of his human good sense.

Pessimistic views?

 

 

            Professor Torfs reaches the conclusion that in some way I do "solve the dilemma of combining canonical personalism with a limited nullity practice"; but that I only manage it through a well-thought out but flawed construction that "needs a legal fiction concerning content, and is built upon a rather one-sided voluntaristic personalism as well as on a pessimistic vision of man". Remarking that "The price of Msgr. Burke's construction is high", he adds: "Personally, I am not ready to pay this price".

            I have tried to show that what he calls a "legal fiction" of mine is simply a normal (rebuttable) juridic presumption of canon law. I certainly propose a voluntary personalism, inasmuch as christian personalism, and concretely the personalist dedication of marriage, require constant use of the will. Perhaps the point here is that if the values - the "bona" - of marriage are understood in all their positive and worthwhile character, the effort they call for finds its motivation in love; and, as St. Augustine says, "for the one in love, nothing is burdensome" [*]. The more the "bona" are seen just as burdens, the greater the effort which they will call for; and then people are no doubt left in a "voluntaristic" situation. What might then help them best is not more will-power, but simply clearer insight.

            "Burke quite often criticizes modern pessimism about marriage. Christian anthropology is proposed as a remedy to go against this trend... Yet, I have the impression that Msgr. Burke's optimism about marriage, which I do not cast into doubt, goes together with a rather deep pessimism about man... As far as I can see, however, Msgr. Burke remains too pessimistic, which of course partly does explain his focusing upon effort and sacrifice". One might as well say that the good news of the Gospel is pessimistic, since it certainly calls for effort and sacrifice. In any case I do not see why the view that man has some need of effort and sacrifice and is capable of it, is to be qualified as pessimistic. Pessimistic about man? Is it pessimism that spurs an athlete to the effort necessary to win an Olympic medal?

            If my personalism does in fact ask more of man, then surely it is because I believe he is capable of giving more. I am optimistic about the nature God has given us; and also about the presence, at times despite appearances, of goodness in the world; and of its power and attraction for all who seek it. One of my favorite phrases is St. Thomas Aquinas' "bonum est potentius quam malum" (Summ. Theol. I, q. 100, art. 2): good is more powerful than evil. That all optimisms fail without the use of God's grace, is of course true; but only a lack of faith interprets that as a negative factor.

            I would hope that neither I nor Rik Torfs are pessimistic about man. We certainly enjoy arguing together, which is generally a good sign. He defends illusions in love, although not "naïve illusions". I will go along with that; but don't think the point at issue is between optimism or pessimism about marriage or about man. He twice brings up words which I quoted from a secular pscyhologist, C. Maltas, suggesting that "Perhaps a marriage can only fully become a marriage after illusions are lost, the possibility of separation is faced, and one chooses to stay". I quoted these words not because of their canonical validity ("a marriage can only fully become a marriage"...?), but because I think they contain an anthropological truth. In any case I am in full agreement with my friend that mature illusions of love should remain throughout married life. I would in fact say that the very process of maturing illusions (purifying some, eliminating others) forms part of the achievement of the bonum coniugum.

Higher ideals or more stringent juridic requirements?

 

 

            The question of "quality" and "quantity" of consent is central to Professor Torfs; but still has me puzzled. My personalism, as he reads it, apparently makes it very easy for people in consenting to marriage to give too much. Truer personalism, he holds, should make it very difficult for them to give what - to me - seems rather indeterminate, but certainly less. He nevertheless considers that the personalism he proposes "lead(s) to higher demands in the field of commitment and not to lower standards". I am not sure if this is proposed as a juridic conclusion, with implications for issues such as the validity of consent. The Second Vatican Council, as already noted, undoubtedly proposes higher ideals for married life and love: ideals that pastors do well to put before people in all their appeal. But I do not think that the Council, and even less so the 1983 Code, wished to raise the requirements for the validity of marital consent. If that point is sufficiently clear, I am happy to remain wondering whose personalism is really more demanding; and, precisely because more demanding, more likely to bring the person out of self to fulfillment.

Some last points

 

 

            It was our plan and intention to open a debate rather than to close it. So I will conclude with a brief reference to some other topics that might be examined more deeply, if space permitted.

            Speaking of "what he expects of personalism", Professor Torfs offers one criterion which I find peculiar: "it should not only be evaluated at the level of its content, but also at the level of its eventual legal result". I have denied that to make nullities more difficult was any part of my agenda; here however, it seems to me that Rik Torfs does invoke "making nullities easier" as a valid criterion for evaluating personalism. I think this is evident not just from his words here but from his whole exposition. Such an "a priori" stance seems to me to prejudice the analysis of a phenomenon as rich as married personalism which, per se, has certainly nothing to do with the whole question of nullity of marriage.

            Rik Torfs takes the suggestive image of a river, to mirror in some way the flow of thought in the Church: "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". I too like the image. But I think that he uses it less aptly later on in saying: "theology and canon law are flowing in different rivers". I see theology and canon law as different currents within the same river of Catholic life and thought. Different rivers can move in different directions. Different currents, within the same river, represent separate forces and vitalities, but they move in the same overall direction.

            Professor Torfs argues elsewhere that canon law suffers today from the absence of a common theology ("Propria verborum...": Studia canonica, 29 (1995), pp. 184; 188). I agree; but feel that it suffers even more, as indeed does theology itself, from the collapse of a common christian anthropology - a phenomenon which passes much more unnoticed.

            He writes that, between the ends of marriage, "there is no interconnection, and of course no hierarchy" [8]. In my view the magisterium no longer presents a hierarchy of the ends [9]; whereas I do indeed think there is an intrinsic interconnection between them, and it is this connection which needs emphasis and illustration.

            If in a personalistic view, marriage entitles one to find a high degree of sympathy, integration and support from one's spouse, then Council and Church would not only be proposing a pastoral ideal for married couples to strive for, but would justify a canonical position according to which only such "quality" or "elite" marriages are valid. When, within this view, the bonum coniugum is understood as the achievement of adequate personal satisfaction in marriage, the possibility is certainly favored of obtaining a declaration of nullity of all but the few marriages which actually do achieve the fullness of such expectations of personal satisfaction.

            As I see it, married personalism is not about claiming or demanding or being entitled to, but about giving and accepting. Professor Torfs's thesis that a person has a constitutional right to have his or her "mature illusions" satisfied in marriage, seems to me juridically questionable; philosophically it appears to be based more on individualism than on christian personalism.

            "Dynamic" (just as "static") is a physical rather than a philosophical adjective. Yet, like Rik Torfs, I too feel it is an expressive [10] if rather vague term for use in our discussion. I am inclined to think however that he and I give a somewhat different meaning to the term. When I consider the three augustinian "bona" dynamic, I wish to underline the powerful and vigorous source of values that I see in them. When Professor Torfs speaks of the bonum coniugum as dynamic, he is - I feel - emphasizing that it is a notion subject to evolution and change. The ultimate perspective for his married personalism (which, however, he himself says he has not reached) hypothesizes that "all [matrimonial] properties, elements and nullity grounds become dynamic in their content" being influenced by the level of bonum coniugum that the partners want to include in their consent [11]. I may be wrong, but I find it hard to distinguish this from the thesis that marriage may eventually become a "self-defining" thing; i.e. whose content is in all essential respects determined by the spouses. "Self-definition", as a philosophy, has never appeared to me to have much real dynamism to it.

            In my chapters six and seven, I defended "dolus" (c. 1098) as a newly introduced grounds for nullity with a personalist basis to it, and criticised the already existing grounds of "condicio" (c. 1102) and "error regarding a person's quality" (c. 1097 § 2). My criticism of these latter grounds has nothing to do with their "theological foundation" (for they have none), but rather with their sheer contractualism - which I find in contrast with genuine personalism. Rik Torfs appears to defend them, and regard them as free from contractualism and acceptable within a personalistic view of marriage [12]. Later, he does qualify his defence of "condicio": "... provided it is "truly personalistic". But can the "quality" (or "quantity") of a conditioned consent, such as described in my chapter seven, be ever personalist? It always means saying to the other, "I accept you provided you fulfil my requirements"; which is not accepting him or her as the person he or she is, but as the person I feel will suit me. That has certainly nothing to do with personalism as I understand it, and everything to do with calculated individualism.

            Law "should not leave man alone in his deepest dreams"; "it should never disappoint man in his deepest dreams"; "Law should listen to the deepest dreams of people"; "'Personalistic' truth and covenanted justice should never disappoint man in his deepest dreams". I like the passionate conviction with which my many-talented friend writes; but surely he is expressing himself here more as a poet than as a jurist. Law and justice would not be human unless they sought to take account of the deepest dreams of people; yet they would not be practicable if they were never to disappoint some of those dreams. Only in an ideal society, made up of perfect people (including perfect judges), could one expect legal decisions never to leave anyone disappointed.

NOTES

[1] My study, as I wrote in Chapter 10, "is not about the pathology of marriage". "Nullity" or "nullities" is mentioned half a dozen times in each of four chapters of my presentation (Chs. 1; 7-9); while over the other seven chapters (2-5; 10-11), it is mentioned a total of nine times.

[2] "The very last idea here is of course expressed rather loosely. Unfortunately canon law must often enough take account of egoistic desires, which are generally at the basis of annulments due to simulation or fraud.

[3] "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". I do not think that their legal relevance was or is scant; it remains as it was (i.e. very important) for causes of nullity. My concern is focussed quite differently - on the "scant" appreciation of the positive and fundamental personalism of the "bona".

[4] Matrimony "in facto esse" properly speaking refers to the bond that results from consent, not (as some current writing tends to suggest) to the general tenor of subsequent conjugal life; cf. J. Hervada, Vetera et Nova, Pamplona, 1991, I, pp. 1ss; 562-569.

[5] According to Professor Torfs I posit an object of consent that is "too much" for the ordinary person and can only be achieved by an extraordinary effort. Yet I nowhere propose an object of consent that is juridically more demanding than before. At the same time, while objecting to my asking so much, he himself insists that "a higher degree of commitment" is now required for validity.

[6] I agree with Professor Torfs that "A theological covenant is not the same covenant anymore once it has been formulated, with exactly the same wordings, in a canonical text. This may be the fil rouge throughout my essay". I feel however that the use of "covenant" and "contract" in c. 1055 signifies very little by way of substantial change. To me, the really important personalistic terms are the bonum coniugum of c. 1055 and the "self-giving/other-acceptance" of c. 1057 § 2. These new terms are indeed charged with substantial juridical sense, the main purpose of our essays being to offer analyses of this sense.

[7] I am again struck by the emphasis on the "burdensome" consequences of the acceptance of indissolubility, exclusive fidelity and openness to children: a judgment that is in full line with that negative canonical view of the augustinian "bona" noted earlier. Once more I would question whether the bonds of marriage, precisely as expressed in these goods, appear as mainly burdensome to those in love.

[8] from what precedes these words in his text, he might seem to refer to "essential elements or properties"; from what immediately follows it is clear he is referring to ends.

[9] cf. Chapter Two of my exposition; I am surprised to find Professor Torfs apparently under the impression that I think otherwise.

[10] He proposes a "form of dynamic content"; so do I, as long as we mean dynamic in the same way. The Second Vatican Council was meant to be dynamic, inspiring a renewal of christian life. Short-lived "dynamics", unhinged from christian tradition, characterized many post-conciliar initiatives which eventually ran into deadends. I see the dynamism of Gaudium et spes and of the new Code as truly linked into tradition, with the dynamism to renew tradition and reinterpret or represent traditional notions (such as the augustinian "bona") in terms filled with vigor.

[11] "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".

[12] Because I criticise the canons on "error in qualitate personae" and on "condicio", Torfs says I "do not leave the contract intact". I would contest that; one is not undermining the contract, or the real ["sui generis"] contractual nature of marriage, by suggesting that "contractualist" canons should have little if any place in a personalist marriage law.