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coming to this new position as a bit of a blank with my lack of judicial and tribunal experience being a considerable disadvantage. Msgr. Egan looked at me with a smile and said, “Perhaps it is not. Time will tell.” That was both intriguing and encouraging.

1 — Juridical Approach

Perhaps it worked both ways. My canonical formation immediately preceding my arrival at the Roman Rota was three years of intense study of the 1983 Code, which meant that certain mindsets were not carried over from the 1917 Code. There of course was much to learn, but not much to unlearn. Perhaps as a consequence of having no acquired mindset about established precedents, my tendency was to read earlier jurisprudence with an alertness not for ruptures but for continuity and development. New roads had been opened up, but how exactly to travel them was not always obvious. What was evident was the need to connect newer thinking with the ideas of always, i.e., to follow the guidance of Vatican II and to go back to the sources.

What I did have was a special enthusiasm for the documents of Vatican II. The 1983 Code, as Pope John Paul expressed it, was “the last document of the Second Vatican Council”; and three years of teaching it had helped me appreciate the great ecclesiological depth with which it seeks to present codified law in the light of the mystery of the Church¹, and also its embrace of the Council’s personalist way of thinking in areas such as ecclesial rights and duties, and very particularly in that of matrimonial law.

My years of service at the Roman Rota (1986-1999) happened to be of special importance for the development of canonical jurisprudence. The 1983 Code was meant to be and to my mind truly is a “Code of renewal.” It shows a fundamental continuity with the law matured over the centuries; and yet since it contains so many new approaches, concepts and expressions, it was clear from its promulgation that its interpretation would take time. It is important however to understand well what this implies. We are no longer in the period of the 1960s and 1970s, of the ius condendum, of an abundance of opinions and proposals for a new Code. We now have the new Code; we are in a ius conditum period where concrete options have been made. So, the task is no longer to suggest further options, but to understand and apply the concrete new law given to us. What I propose to do in this article is to comment, albeit briefly, on some of the more innovative and challenging aspects of this new ius conditum.

Cf. Optatam totius, no. 16.

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1.1 — Canon 1095

As might be expected, my initial observations will refer to canon 1095, but briefly, and for two reasons. On the one hand, few cases based on c. 1095 came to my desk at the Rota for the first year or two. This is logical enough since the common practice for a new auditor is to inherit many cases from senior auditors recently retired; cases not yet sufficiently instructed or matured for judgment. So at the outset, slightly to my surprise, I found myself with a large number of Italian cases, many taken over from Msgr. Di Felice, and these were largely cases involving simulation under 1917 canon 1101. Whether this was coincidental or providential, I can’t say, though at a later stage it certainly proved very helpful in maturing my thought.

The second reason for some brief comments on c. 1095 is practical: the simple fact that, despite so much continued debate on questions of consensual incapacity, mainstream rotal jurisprudence follows the clear criteria given by John Paul II in his addresses to the Rota in 1987² and 1988³: that a declaration of nullity under these grounds is only to be considered: a) in the presence at the time of consent of a grave psychic anomaly (however it may be described in technical or legal terms); b) which anomaly moreover seriously undermines the contractant’s capacity to grasp the essential rights or obligations of marriage or incapacitates him or her from undertaking such obligations.

When all is said and done, canon 1095 is a fairly logical development from the rotal jurisprudence of the decades of the 1950s, 1960s and 1970s. It takes earlier grounds of amentia or other serious psychic disturbances and fits them into a broad juridical determination of juridic incapacity due to some grave psychic deficiency. Hence, having briefly commented upon canon 1095, observations on some other canons which offer several totally innovative formulations will now follow. Canon 1098, on dolus, is of course another completely new canon of great interest; so much so that we will devote another presentation to it. But first let us consider the particular challenge posed by c. 1057, with its new way of expressing the object of marital consent, and canon 1055, which uses a new completely term - the bonum coniugum or “good of the spouses” - to describe one of the ends of marriage.

²       John Paul II, Allocution to the Roman Rota, February 5, 1987, in AAS, 79
(1987), pp. 1453-1459; English translation in W. Woestman (ed.), Papal Allocutions to the
Roman Rota 1939-2002, Ottawa, Saint Paul University, pp. 191-196.

³       January 25, 1988, in AAS, 80 (1988), pp. 1178-1185; English translation in
Woestman, Papal Allocutions, pp. 197-203.

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2 — The Object of Consent

2.1 — Canon 1057, §2

Canon 1057, §2 says:

Matrimonial consent is an act of will by which a man and a woman by an irrevocable covenant mutually give and accept one another for the purpose of establishing a marriage.

There is a striking contrast between this “personalist” formula and the corresponding 1917 CIC c. 1081, ‘2, which described consent as an “act of the will by which each party gives and accepts a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children.”

Few new canons of the 1983 Code gave rise to such a diversity of opinions and interpretations. Some canonists were inclined to question the whole concept of “giving self” as juridically meaningless. Others understood it to mean substantially the same as the old canon. Others again viewed it as assigning no apparent limit to the extent of the matrimonial self-gift. One rotal sentence goes so far as to say that “Matrimony is indeed the mutual, full and perfect [self-]donation of the contracting parties” (c. Bruno, Dec. 17, 1982)⁴.

In any case, the personalist formula of c. 1057 came to appear in this author’s view as a very clear call to integrate modern insights into the traditional understanding of marriage. I found myself leaning more and more to the opinion that this conjugal “self-gift” is what is involved in a full and genuine commitment to the three augustinian “goods” or bona of matrimony.

What is it to “give” oneself conjugally? First, any true gift is evidently forever; it cannot be taken back. A marital self-gift, moreover, must be exclusive; to “give” self to several persons at the same time is no more than to share oneself. Finally, the mutuality of the marital self-gift is uniquely and necessarily expressed in the sharing of the complementary procreative power. These are the “bona”, values or “goods” of matrimony that give marital consent all its character of a unique “self-gift”.

⁴ Rotae Romanae Decisiones, vol. 74, p. 648. 164. For a more thorough analysis of rotal approaches on this point, see my sentence of March 3, 1994 (Forum 6:2 (1995), pp. 141-146).This sentence can also be consulted on my website: http://www.cormacburke.or.ke/ node/447

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The more that I read the works of St. Augustine, the less I found of the pessimism about sexuality and marriage of which he has been often accused. Of course it is not possible to grasp the contrasts and richness of Augustine’s thought without bearing in mind the extraordinary life experiences he went through. In the latter part of his life he became deeply involved in combating the apparent and superficial “optimism” of the Pelagians in regard to sexual concupiscence which, as the Catechism of the Catholic Church teaches, is present and has to be countered also in marriage⁵. In his early days Augustine fell under the spirit of Manicheism, which was indeed pessimistic about sex and marriage. When he escaped from its influence, one of his first Catholic writings was De Bono Coniugali where he sings the praises of marriage, and lists the characteristics by which its fundamental goodness is seen. And so he enunciated the three bona or “values” of marriage which have remained at the very heart of Catholic thinking for more than 1500 years: exclusivity, indissolubility and procreativity. The negation of these three bona, especially indissolubility and procreativity, is a particular mark of the pessimism about marriage reigning in the modern world. I am more and more convinced that only by returning to a true appreciation of each of these elements as a “bona”, or as a value, something humanly attractive and worthy of admiration, can we renew our own appreciation of the true natural dignity of marriage.

2.2 — Reappraisal of the Augustinian Bona

Reappraisal of the value of the augustinian bona leads me to two considerations, one in the pastoral field, the other in the canonical field, that might seem surprisingly different.

2.2.1 — Founding a Family

On the one hand, constant catechesis on the goodness and attractiveness of a lifelong commitment to founding a family is a major and appealing pastoral concern today. Married people and people marrying need to be taught not mainly techniques of Natural Family Planning, but a pride in the human and divine goodness of the vocation in the service of generosity and life that they are called to, response to which so matures them in their ability to love.

CCC, 1606-1607.

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2.2.2 — Simulation as a More Likely Caput nullitatis

From the canonical point of view and in the light of the contemporary fear of any true commitment, simulation offers a more likely and less strained caput nullitatis for a plea of nullity than that of consensual incapacity. The vast majority of people — today as always — are quite capable of contracting marriage. But the fear of the different and essential commitments it involves may in many cases provoke a positive exclusion at the moment of consent.

It is from St. Augustine’s teaching that we have developed the canonical figure of simulation. The person who expressly excludes one of these properties from his consent does not give himself maritally. He consents at most to something less than marriage; in other words, his consent is insufficient to constitute a valid marriage.

Thus, canonists, who always have a pastoral role, are urged to give new attention to the augustinian bona. Only thus can we appreciate the likelihood or otherwise of exclusion of one of these elements in the giving of consent, and so begin again to consider the figure of simulation as (probably) the most likely modern ground of nullity.

3 —The bonum coniugum

Now let us consider the bonum coniugum of c. 1055, a term that cannot be properly appreciated without some idea of the “personalist versus institutionalist” debate that ran through the ecclesial thinking of the twentieth century and left its mark also on canonical writing both before and after the 1983 Code.

A brief summary of this debate must suffice. Early in the 20th century there emerged a so-called “personalist” view of marriage which held that the purpose and essence of matrimony consists in the mutual love of the spouses also in its bodily expression. This view ranged itself against the traditional teaching that procreation is the primary end of marriage, which it termed an “institutionalist” view. To my mind this was always an ill-proposed contrast. The poor reasoning behind it was rejected by the 1983 Code in c. 1055 (and later on by the Catechism of the Catholic Church, n 2363; cf. n. 2249) where the procreative and the personalist ends are put side-by-side (presented moreover without any hierarchy, because they are intrinsically interdependent).

That both are institutional ends is immediately evident once one adverts to the two accounts in Genesis of the institution of marriage: Gen 1,28 where God

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says to the man and woman after their creation, “increase and multiply”, and Gen 2,18 ff. where he says “it is not good [non est bonum] for man - or woman -to be alone.” One can reasonably describe the first narrative as procreative and the second as personalist, and yet both are evidently institutional. In other words, the “procreative” and the “personalist” aspects of marriage lend themselves to synthesis rather than to contrast. It is not any possible hierarchy between them but their intimate interdependence that needs to be stressed.

It is important to have this in mind if one is to weigh the meaning and juridical import of this new term “the good of the spouses” (bonum coniugum) which, it must be remembered, is a totally innovative importation, practically never to be found in canonical or ecclesial writing prior to its appearance in the new Code.

But first one needs to express surprise that some canonists still fall into the “morphological trap” of holding that the “bonum” of the bonum coniugum must be, or can be, fitted into the augustinian scheme of the three traditional “bona”⁶. The augustinian “bona” relate to marriage itself, to its intrinsic structure. They are qualities or properties inherent in every true marriage which show why the matrimonial institution itself is good. The “bonum” of the new phrase introduced in c. 1055 relates to the spouses, and expresses (just as does procreation) a purpose or an effect that should (but may not) result from marriage; the good effect intended here is that of making the spouses into better persons. It is by responding to the demands inherent in the fundamental properties of marriage (which they accepted in proffering matrimonial consent) that the spouses will achieve the goodness that God wishes for them and assigns as one of the ends of their married commitment.

It is against all logic (and hence is an endeavor destined to sterility) to treat the “bonum coniugum” as if it were a fourth “bonum” to be added to the three traditional matrimonial “bona” of St. Augustine. The latter are fundamental properties of matrimony, the former is an end. The most important juridic consequence of this obvious distinction lies in the fact that a marriage cannot be validly constituted if any of its fundamental properties is deliberately excluded, but its validity or otherwise has nothing to do with the actual achievement of its ends. A validly constituted marriage remains valid even if one of its ends is not achieved, as is borne out by canon 1084,§3 which lays down: “Without prejudice to the provisions of can. 1098, sterility neither forbids nor invalidates a marriage.” Thus, just as the non-achievement of the

⁶ Consider how mere verbal similarity has at times led some scholars into thinking that St. Augustine’s bonum sacramenti refers to the sacramentality of marriage, whereas in fact it refers simply to its indissolubility.

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end of procreation does not cause invalidity, the non-achievement of the good of the spouses (whatever that “non-achievement” may mean) gives no grounds for a declaration of nullity; nor does an alleged incapacity for the good of the spouses (again whatever such an incapacity might be held to mean).

At the risk of belaboring the obvious, let us recall that causes of nullity always refer to the marital consent originally given; i.e., at the constitutional moment of marriage; and that they hinge on the possible inadequacy of that consent, whether the person contracting is conscious of such inadequacy or not.

A would-be contractant may intend to give fully adequate consent but be unconsciously incapable of doing so; incapable, that is, of sufficiently understanding or assuming the essential rights/obligations involved in the marital covenant. It is within the figure of consensual incapacity (c. 1095) that jurisprudence specially considers the essential rights or obligations of marriage.

When in nullity cases jurisprudence turns from the rights/obligations of marriage to its properties and concretely to the essential properties of marital consent, it treats them under the figure of simulation (c. 1101, ‘2)⁷. These properties relate by definition to what is essential so that marriage, through an act of the will (c. 1057), can come into being. Their canonical importance always regards the moment of constitution. An end, on the other hand, relates to the future. It may or may not be achieved. Its jurisprudential relevance lies in that fact one of the two ends of marriage cannot be excluded at consent by a positive act of the will without invalidating that consent. But its simple non-achievement has in itself no bearing on nullity.

4 — What ‘Good’ is Intended for the Spouses?

Here the meaning of a term, especially of a totally new term in canon law, logically remains of decisive importance. Some consider that the bonum

⁷ Jurisprudence has consistently followed the augustinian scheme of the three bona in considering cases of simulation; positive exclusion of one of these invalidates consent. The 1983 Code in c. 1056 continues to list just two essential properties (unity and indissolubility), but then in c. 1101, ‘ 2 (in a certain though incomplete improvement on the wording of c. 1086 of the 1917 Code) joins an imprecise “matrimonii essentiale aliquod elementum” to the two essential properties of c. 1056. In line with jurisprudence, this phrase certainly covers the augustinian bonum prolis or the procreativity of marriage (whether it includes anything else of juridical relevance remains a matter of debate). One hopes that future legislation on this particular matter will be formulated according to a more coherent analysis.

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coniugum consists in achieving a highly integrated and happy marriage and depends fundamentally on a series of qualities that make for marital integration and happiness, and would even suggest that a juridic right exists to find such qualities in one’s spouse. However, another analysis can be proposed along different lines. It would see a certain logical tie-in with the mutual self-giving and accepting that canon 1057, §2 has now brought to the forefront in considering the constitution of marriage. In fact, simple pastoral experience is that many of the most “successful” marriages (i.e. those that have best achieved their end) are unions where the spouses have responded generously to the demands of the conjugal giving/accepting, so maturing as persons.

Thus it can be suggested that the only likely way to discover the core meaning of the bonum coniugum is to go back to the creation accounts in Genesis and ask what was the good that the Lord himself wished for man in providing him with a woman and vice versa? As in all of God’s doings, his purpose is to prepare (i.e., to mature) us for eternal life. What matures the spouses most in marriage is precisely their faithful mutual commitment, their loving each other in good times and in bad, their persevering dedication to their children; very often, it is the “bad” or harder times (serious illness, financial hardship, the drawn-out experience of mutual defects, the cares of family life, etc.) which most mature a person because they can indeed lead a person out of themselves and teach them to love. That, after all, is the ultimate purpose of everything God has created in regards to human beings: to lead us to heaven and prepare us for it. What is truly good here on earth is to learn to love. There are few better schools of love than marriage. Marriage is a particular call for two people to learn to love each other (with their defects), and to love the fruit of their mutual love and union, their children (also with their defects), and so to grow towards the infinitely perfect love of God.

5 — The Sound Anthropology of Certain Canons

Considerations such as these are in no way marginal to jurisprudence. Canon law can never be an instrument of truth and justice unless it is in fact based on sound Christian anthropology. Tribunal work inevitably centers the canonist’s mind on the possibility of defects in matrimonial consent which can render it null. However, it is doubtful that one can be a good canonical judge if one loses sight of the fact that such defects are exceptions and not the rule.

There is great human wisdom and sound sense in the simple presumption of canon 1101, ‘1: “The internal consent of the mind is presumed to conform to

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the words or the signs used in the celebration of a marriage”. This presumption is a tribute to people’s sincerity and a sign that the Church takes people at their word. The presumption can of course be rebutted if there is sufficient evidence. But I doubt that a judge can weigh the evidence properly if he is not convinced that marriage is one of the deepest aspirations of the human heart, and to give such consent genuinely is a most natural consequence of being in love. Not to be convinced of this can be a sizeable disadvantage in judicial work.

Perhaps the point here can be made clearer when expressed in another way. Having always been struck by the epoch-making nature of St. Augustine’s analysis of the three essential properties of marriage (the exclusiveness, the openness to life, the unbreakable character of the conjugal bond) as bona, i.e. “goods” or “values” given by God which are at the very heart of the goodness of marriage, I have in more recent times been equally struck to find not a few canonical writers apparently considering them as mala: as “bad things”, burdens, handicaps, which people would naturally want to avoid; or, if circumstances or impulses led them into an apparent exchange of marriage vows, would tend to exclude. This of course not only undermines the logical presumption of c. 1101, but also seems to reflect an over-pessimistic view of aspirations most common and proper to human nature.

Three canons in particular: canon 1055, about the nature and ends of marriage, canon 1057, ‘2 about the nature of matrimonial consent, and the presumption of c. 1101, ‘1 - reflect the belief of the Church both that the natural desire to form a lasting partnership with a member of the other sex, to form a home and a family, is present in every normal person (however latent or overlaid it may be by secularist ways or cultural persuasion); and that people, at least in serious decisions, normally mean what they say. In other words, the Church works from a double presumption: that most people are normal and sincere, and that there are certain serious commitments in life which the normal person looks forward to and does not take lightly. The law indeed allows that the presumption can be rebutted; but only by sufficient evidence. To work from contrary presumptions betrays a basic pessimism about human nature that this author finds difficult to share.

One of the great lessons of the pontificate of Pope John Paul II was precisely this: not to want to commit oneself or perpetuate self or to perpetuate love shows a lack of human vitality, of enthusiasm for life and of care for others. It marks a self-enclosed spirit, and in that sense pertains to the culture of death which John Paul II saw as gripping the modern world. The culture of life is

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much more attractive, though people may not always admit it or even realize it, unless they reflect deeply.

Conclusions

I rejoice at these new canons introduced by the 1983 Code which, provided they are properly understood and applied in justice, can and should deepen our understanding of marriage and facilitate our resolution of marital cases. But, in ending, I would also voice a certain dissatisfaction at the retention in the new Code of some matrimonial canons which in my opinion have little reason of justice behind them. I refer especially to canon 1097, ‘2: “Error about a quality of the person, even though it be the reason for the contract, does not render a marriage invalid unless this quality is directly and principally intended”.

While seldom applied, the “error in qualitate personae” notion enshrined here has at times produced curious results. In one case, for instance, it was the grounds of nullity advanced by a widower who married a woman for the principal reason, so he claimed, that she would prove a good mother to his ten-year old daughter, and when this did not work out so, he obtained a declaration of nullity. The law is there to correct injustices; and I do not see what injustice is suffered by a person who simply sizes up incorrectly certain qualities hoped for in his or her chosen partner. It is his or her mistake, but not an injustice perpetrated by the partner.

It seems to me that jurisprudence has not yet weighed all the importance of c. 1098, the new canon on dolus. That canon was not accepted in the old Code, mainly out of fear of its possible abuse. Those fears are understandable; but now that it has been accepted into church law, it can and should be seen as guarding against the abusive invoking of c. 1097, ‘2. I see no grounds in justice why a person should be released from a contractual decision into which, he asserts, his own mistaken judgment led him. It is totally different if he had been deliberately inveigled into his decision through the deceit of the other party about some matter tending of its nature to disrupt the partnership entered into. But with c. 1098 such cases of injustice are now fully provided for.

The same approach applies to the question of conditioned consent. While canon 1102 establishes that marriage cannot be validly contracted subject to a condition concerning the future (§ 1), it does says that “marriage entered into subject to a condition concerning the past or the present is valid or

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