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"Giving oneself"

            The obvious answer to the question "what is the object of matrimonial consent?", is, "marriage itself". Just as obviously, however, this is not very enlightening from the juridic viewpoint which is interested in pinning down the specific, and above all the essential, rights and obligations that consent gives rise to.

            If we turn to the Code of Canon Law for enlightenment, we find that the first paragraph of canon 1057 (identical to paragraph one of canon 1081 of the 1917 Code) says: "Marriage is brought about through the consent of the parties, legitimately manifested between persons who are capable according to law of giving consent; no human power can replace this consent". The principle enunciated here is clear and elementary - only the personal and free consent of each of the parties involved can give rise to marriage. The second paragraph of the canon says that matrimonial consent is "an act of the will", i.e. a decision and a choice. Here once again the old and the new canons are identical. But when we read what follows - the words precisely telling us what is the object of this decision or choice - we find that the 1917 and the 1983 versions are startlingly different.

            Matrimonial consent under the old Code was described 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" (c. 1081, § 2). According to c. 1057, § 2 of the new Code it is an act of the will "by which a man and a woman, through an irrevocable covenant, mutually give and accept each other in order to establish marriage".

            Here indeed we have two very different formulations. In the 1917 Code, consent involved a "traditio iuris": the object of consent was the handing over of an essential right - the "ius in corpus". In the 1983 Code, consent involves rather a "traditio suiipsius": the object now seems to be the gift of one's self...

            The "ius in corpus", as object of matrimonial consent, possessed a very well defined juridic content; and the rights and duties it led to were quite clear. The concept of this "ius" was precise, but gave the impression of being very poor, suggesting an exclusively corporal and generative view of conjugal sexuality. The object of consent appears as reduced to a physical thing: the simple right to the act of intercourse.

            The newer concept of "traditio suiipsius" or "self-giving" is much richer and, in the line of the personalism of Vatican II, seems to suggest an understanding of marriage closer to its human reality. However, the precise juridic significance and content of this formulation are by no means immediately clear.

            It can therefore come as no surprise to find that the new formula has provoked diverse reactions and criticisms. On the rotal level, some judges have tended to ignore it, continuing to define the object of consent in terms of c. 1081, § 2 of the 1917 Code [1]. Others go to different extremes, either rejecting the concept of "giving oneself" as being juridically meaningless [2], or assigning no apparent limit to the extent of the matrimonial self-gift [3].

            Still others, preferring to depart from any parallel analysis between the 1917 and the 1983 formulations, skip over the phrase "mutually give and accept each other", and see the object of matrimonial consent in the finality of this "self-giving": the "establishment of matrimony" [4]. It is hard to avoid the impression of a tautology here ("the object of matrimonial consent is the establishment of matrimony"); as an analysis it seems less than satisfactory.

The gift of conjugal sexuality

            The phrase, "mutually give and accept each other" ("sese mutuo tradunt et accipiunt"), is already to be found in Gaudium et Spes, 48, where marriage is also described as an "intimate union, a mutual giving of two persons" ("intima unio, utpote mutua duarum personarum donatio)". Now it is clear that the concepts of "traditio suiipsius" - "gift of self" - or of "donatio personarum" - mutual donation of persons - , are not to be understood in a wholly literal sense. A true gift implies the transfer, from the giver to the receiver, of ownership of what is given. But it is obvious that each spouse does not transfer ownership of his or her person to the other. Such a transfer would in fact be impossible because no one is absolute "owner" of his or her person or "self". Similarly, the spouse receiving the conjugal gift does not become owner of the "self" of the other, entitled to dispose of it as he or she wishes. No spouse owns the other: not the "self" of the other, not even the body of the other.

            Working within the terms of the law in force up to 1983, jurisprudence was careful not to speak of a "traditio corporis" - a handing over of the body - , but of a "traditio iuris" - a handing over of a right, specifically of a "ius in corpus", a right over the body [5]. If by marriage one spouse does not become owner of the body of the other, less still does he or she acquire ownership of the other's person. The right that each spouse acquires is not (and cannot be) a right over every aspect of the other's person or life (for some of these aspects are inalienable: personal dignity, freedom, responsibility, etc.). It would therefore seem that the notion of the "traditio personarum" needs to be juridically refined into that of the handing over of a "ius in personam": a right over some personal element so proper to the individual, so "representative" of him or her, that its "traditio/acceptatio" constitutes the conjugal gift of self measurable in juridic terms.

            If we follow St. Thomas's teaching that the object of the wife's matrimonial consent is not so much her husband, as conjugal union with her husband (and similarly the husband's consent is to conjugal union with his wife) (Suppl., q. 45, art. 1), we can suggest that the right exchanged in consent is a right over the conjugal aspects or attributes of the person; i.e. over his or her conjugal and complementary sexuality. This of course demands further analysis; otherwise it remains on the level of a vague formula. Here we must try to establish what is really specific to the gift of conjugal sexuality and identifies it as such.

             To say, "I give you my masculinity... I give you my femininity...", is not yet to adequately express what is peculiar or essential to this gift of conjugal sexuality. Such statements or sentiments, which could be uttered within a purely platonic relationship, are not concrete enough for juridic analysis. They are but a step removed from the metaphor-filled affirmation, "I give you my heart, I give you my soul", by which lovers like to express their desire for self-donation.

            There is an affirmation however - "I give you my procreative power" - that has nothing platonic or merely metaphorical about it. To give to another a right over one's procreativity has a totally concrete character to it: one that is indeed subject to juridic appraisal or measurement. The gift of procreativity has, in particular, a unique capacity to express the gift of self and the desire for union with one's spouse. It is in fact the first element that truly specifies and distinguishes the object of matrimonial consent.

The personalist value of the "bona"

            A personalist analysis is specially called for here. Space permits only a brief reference to a thesis that I have more fully developed elsewhere [6]. Procreativity, far from being a matter of mere "biology" as some would maintain, pertains to the most intimate aspirations of human love and the desire for spousal union, and is therefore eminently personalist. In fact a personalist and a procreative view of marriage are not in opposition, as some seem to hold, but are rather inseparably linked within a truly human understanding of conjugality (cf. my "I Fini del Matrimonio; visione istituzionale o personalistica?": Annales Theologici 6 (1992) 227ss). The readiness to share one's procreative power personalizes the marital relationship in a way that no other act can. It shows that each spouse is truly unique in the other's eyes, for each is prepared to share with the other, and with no one else, the unique power which is actualized in the union of procreative complementarities.

            "What makes marital intercourse express a unique relationship and union is not the sharing of a sensation but the sharing of a power: of an extraordinary life-related, creative physical sexual power. In a true conjugal relationship, each spouse says to the other: "I accept you as somebody like no one else in my life. You will be unique to me and I to you. You and you alone will be my husband; you alone will be my wife. And the proof of your uniqueness to me is the fact that with you - and with you alone - am I prepared to share this God-given life-oriented power" (C. Burke: "Marriage and Contraception", L'Osservatore Romano, English Edition, October 10, 1988, p. 7).

            Thus we see how the "bonum prolis" can and should be reinterpreted in a personalist key, so that the mutual gift of conjugal procreativity is seen to uniquely express the "donatio personarum coniugatarum" or the "traditio suipsius" proper to marital consent. This bears out how modern insights, properly analyzed, do not break with tradition but rather link into it and enrich it.

The permanence and exclusiveness of the conjugal self-gift

            We could now reflect briefly on the "bonum fidei" and the "bonum sacramenti", so as to underline how these other traditional "bona" are also essential elements of the conjugal self-gift, object of marital consent.

            The sexual self-gift that the spouses make to one another certainly cannot be reduced to mere procreativity. If the gift of sexuality is to be truly human and conjugal, it must be characterized by the further elements or properties of indissolubility and uniqueness. What is implied in the matrimonial "sese tradere" is the gift of the fullness of spousal sexuality; and this gift cannot be full unless, besides being open to life, it is exclusive and permanent.

            It is possible to give one's generative power to another without any real desire or intention of giving oneself. This could happen in the less likely case of a person who wants to have sex relations outside marriage in order precisely to have a child. It can also happen in the case of someone who wants to "marry" and in fact means to beget children, but positively wills that the union he or she enters be soluble. In such a case the consent given is not to marriage. As Pope John Paul II said to the Rota in 1982: "If a gift is to be total, it must be made without any reservation or way out" (AAS 74 (1982) 451).

            A gift of self for a time - for a day or for five years - is not a real gift of self; it is at most in the nature of a loan. In a loan, one holds on to one's right to something; one wants to be able to claim it back. One does not really give it. One can only speak of a true gift when this is irretrievable; in other words, when there is a donation that cannot be reclaimed. The person who gives loses all right of ownership. Whoever reserves some right over a thing, with the intention of being able to reclaim the object of his or her consent, does not in fact consent to a true gift.

            In the conjugal donation, one either gives oneself permanently, or one does not give one's self at all. Therefore whoever consents to marriage necessarily gives irrevocable consent. "The intimate partnership of life and love which constitutes the married state. . . is rooted in the contract of its partners, that is, in their irrevocable personal consent" (GS, 48). To offer consent that can be revoked or retracted is not to consent to marriage. "non enim consensus ad tempus matrimonium facit" (St. Thomas, Suppl., q. 49, art 3, ad 4).

            The sexual-conjugal instinct urges man and woman to a total self-commitment and donation, which responds precisely to the intimate desires of human nature. The logic of the permanence or indissolubility of marriage corresponds to the aspirations of human love itself: "I love you for ever. I'll love you always". Familiaris Consortio teaches that "Sexuality by means of which man and woman give themselves to one another... is by no means something purely biological, but concerns the innermost being of the human person as such. It is realized in a truly human way only if it is an integral part of the love by which a man and a woman commit themselves totally to one another until death. The total physical self-giving would be a lie if it were not the sign and fruit of a total personal self-giving, in which the whole person, including the temporal dimension, is present: if the person were to withhold something or reserve the possibility of deciding otherwise in the future, by this very fact he or she would not be giving totally" (no. 11); and the same Exhortation describes indissolubility as "being rooted in the personal and total self-giving of the couple" (no. 20).

            There is in fact no middle term between permanent and transient. There is no middle choice between the lasting and unbreakable relationship of marriage, and what is no more than a temporary sexual liaison: between a spouse, to whom one gives oneself for life, and a sexual partner, changeable at will. If the norm for the human sexual partnership is that it can be not only entered upon but also broken as one or other partner wishes, then "marriage" has no particular meaning; or, rather, means nothing of any importance. It gives a legal form to transient alliances, but there is no reason - beyond social convention - why people should respect it, or why they should not prefer to remain in a non-formalised relationship.

            Conjugal fidelity or exclusiveness derives from the same logic, and corresponds equally to the nature of human love. One's "self" is indivisible and unrepeatable; one therefore cannot give it to several persons at the same time; one can only give it to one. "I give you my self" is the affirmation that characterizes conjugality. But if one spouse intends to confer the same gift of his conjugal self on other persons also - if he proposes to divide his conjugality - , then it is at the most a part of his conjugal self that he gives to each one. In other words, whoever gives his sexuality to different persons contemporaneously, gives it dividedly to each one, and does not give it wholly to any.

            The value - that is, the specific goodness - of the "bonum fidei" consists in the fact that each of the parties to marriage is the only spouse of the other. As we know, valid matrimonial consent requires the intention of binding oneself precisely in such an exclusive relationship. Nevertheless, to my mind, the "bonum fidei" is excluded only if one party reserves the right to have a conjugal relationship with a third person; that is, if he or she has the intention of conferring conjugal rights on another. The simple intention of having or maintaining a sexual relation with another, despite its evident immorality, does not necessarily prove the exclusion, in law, of the one-spouse-only aspect that constitutes the essence of the "bonum fidei" (cf. Sent. Romana, c. Burke, February 8, 1990, in Ius Ecclesiae 2 (1990):2, pp. 565-589).

A "ius in sexualitatem"

            We can synthesize our conclusions here. The distinctive self-gift which is the object of matrimonial consent, consists in the gift of conjugal sexuality; and this gift: a) in order to be sexual - i.e. in order to actualize shared and complementary sexuality - , must be open to life; and, b) in order to be conjugal, must be exclusive and permanent. So, the "traditio coniugalis" is the donation of one's sexuality, in its concretely procreative aspect, made in a permanent and exclusive way.

            The object of matrimonial consent being thus established, a concise definition of the right to which it gives rise could perhaps be a "perpetual and exclusive right over procreative conjugal sexuality" ("ius perpetuum et exclusivum in sexualitatem coniugalem procreativam").

            Our analysis therefore, applying the personalism of the Second Vatican Council and of Pope John Paul II, marks a line of continuity with tradition. The essence of conjugality is taken to be defined by the augustinian "bona"; and these three essential characteristics or properties of marriage specify the object of marital consent.

Sexual complementarity

            Now at this point it seems important to ask if conjugal sexuality is restricted to these three elements alone - procreativity, exclusivity, permanence - , or whether, as seems unquestionable, it extends also to other aspects of complementary sexuality between the spouses, since the complementary nature of married sexuality obviously covers more than mere procreativity, even within a permanent and exclusive relationship.

            There is no difficulty in admitting that conjugal sexuality includes other elements besides these three. Great difficulty emerges, however, if one wishes to endow these further elements with the juridic qualification of being necessarily embraced in the object of conjugal consent - in such a way that they give rise to rights and obligations that are essential for the exchange of valid matrimonial vows.

            P.A. Bonnet says that sexuality "fully involves only those elements which, inasmuch as they are capable of reciprocal completion, fit into that dimension of oneness in which man and woman participate, and for this very reason are the only ones that can constitute the object of a true and proper donation between the two" (L'Essenza del Matrimonio Canonico, 1976, p. 157). The problem however is precisely to determine which aspects of sexual complementariness enter necessarily and essentially into the donation made in emitting matrimonial consent, in such a way that consent confers a strict right to receive those concrete aspects and that, if the right to receive one or other of them is denied, it is null.

            Man and woman can be considered to complement each other in many ways. Typical masculine qualities include physical strength, courage and initiative; feminine qualities include affection, understanding, patience... Has a wife a right - a strict marital right - to find strength and courage in her husband? If so, how much courage? Is consent invalid, if he is in fact a coward, or makes up his mind to be a weakling? What degree of affection or intuition has a husband the right to find in his wife? If she qualifies her matrimonial consent with the reserve: "I mean to be as impatient or as bossy with him as I have been all my life with my brothers", does this invalidate?

            As should be evident, there is no way in which such sexual values can be juridically measured or quantified, for the purpose of determining the validity or otherwise of matrimonial consent. The ideal, no doubt, is that such qualities be present in every marriage; moreover if their absence proceeds from a deliberate choice of the will, this would certainly seem to show a defect of love. This perhaps provides us with the more precise context within which the matter should be examined. Suppositions (which people hesitate to make) of an essential marital "right to manly courage" or "right to tender patience", really correspond to the "right to love", which some canonists have in fact wished to regard as essentially involved in marital consent.

The "ius ad amorem"

            Here it is specially important to express oneself with great precision. Love, understood as an affective feeling or impulse, does not necessarily enter into marriage nor does it condition its validity. For a marriage to be valid, it is clearly necessary that each party accepts the other truly, and gives himself or herself truly, as spouse. That such a choice or act of the will must be there is evident; but this is not the same as saying that the motive of this choice must necessarily be affective love. A person can give valid consent to a marriage, even though he or she does not feel love towards the other. If this were not so, one would have to declare invalid all the arranged marriages of the past or present. An example taken from another field would be that of the marriage accepted by a woman in order to legitimize the child she has conceived or to assure a home for him.

            In an Address to the Roman Rota, of Feb. 9, 1976, Pope Paul VI dealt authoritatively with this subject. He reconfirmed the "very high and irreplaceable" importance of conjugal love in marriage. But he insisted that matrimony as a juridic reality created by personal consent: "subsists independently of love, and remains even if love is extinguished".

            Urbano Navarrete has strongly asserted the principle that love "remains a non-juridic or meta-juridic element" ("Structura iuridica matrimonii secundum Concilium Vaticanum II", Periodica 57 (1968) p. 215.; "Amor coniugalis et consensus matrimonialis", Periodica 65 (1976) p. 632). Carlo Caffara, considering to what extent a lack of conjugal love, in the moment of giving matrimonial consent, can invalidate marriage, concludes that this occurs if the lack of love is such that the parties or one of them exclude the unity or the indissolubility of the bond or the "ius ad actus per se aptos ad prolis generationem" ("Charitas Coniugalis et Consensus Matrimonialis": Periodica 65 (1976), pp. 615-618). As can be seen, he reduces the juridic essentiality of love to what is involved in the acceptance of the three traditional "goods".

            The fact is that a "ius ad amorem" does not appear to be a working principle for jurisprudence [7]. It seems to defy juridic analysis or definition, precisely because of the difficulty of qualifying or quantifying it. How much love - or what quality of love - would one have the right to receive in marriage? The difficulty of answering this becomes more obvious if we complement it with a parallel and necessarily connected question: how much love, and what quality of love, has one the obligation to give in marriage? Any "ius ad amorem" can only be evaluated in the light of a reciprocal "obligatio amandi". Some people would see love and duty as in opposition. But this is individualistic and false. There can be a duty to love, such precisely as is undertaken in marriage (and this duty also reflects the personalism of Vatican II, which says that "man can fully discover his true self only in a sincere giving of himself": GS 24). Love owed is among the obligations of marriage. The obligation to love, when it becomes conjugal, takes on special connotations of justice. It includes the duty also to accept the other person even when he or she seems no longer lovable, or no longer loves.

            Nevertheless I think that, in a certain sense, one can speak of a "ius ad coniugalem amorem". Matrimonial consent creates no right to emotive love, nor to other desirable qualities more or less connected with love [8]. No one can give a right to what does not lie under the power of his will, and it does not necessarily lie under the power of the will of one spouse to make the other feel good or loved. One cannot give a right to affective love; but one can give a right to conjugality, for conjugality does lie under the power of one's will. The conferring of the right to conjugality - the right to be object of an exclusive and permanent sexual self-donation - does show a unique appreciation of each spouse by the other. It shows, independently of all feelings, a unique determination of the will of each in relation to the other; and in this sense it is an act of love.

            As we have seen, the essential features which make that conjugal acceptance of another unique, are precisely its exclusiveness, its permanence and its procreative orientation. To determine to establish such a conjugal relationship with another person, accepting the obligations towards him or her which it implies, is to make that person the object of a privileged choice of predilection, in which one can find all the minimum (but, in themselves, very considerable) and essential elements of conjugal love [9]. The choice (the "e-lectio") proves the love (the "di-lectio").

            What is essentially and distinctively conjugal is what can and ought to be given to one's spouse, and cannot or rather must not be given to anyone else. One could here usefully recall the words with which Pius XI in Casti connubii expressed the essence of the «bonum fidei»: "what belongs to one of the parties by reason of the marriage contract... may not be denied to him or permitted to any third person" (AAS 22 (1930) 546). Mere kindness or patience or respect, therefore, are not essentially or uniquely conjugal, for these modes of behavior can and indeed ought to be observed towards everyone. In other words, only those elements that characterize conjugality, and not those that characterize mere friendship, enter into the essence of the matrimonial relationship, and are to be considered as integrating the essential object of marital consent.

            It seems possible therefore to distinguish three positions regarding the juridic relevance of love to the establishment of marriage. The first, rejected by Paul VI, proposed a "ius ad amorem" (love understood in an affective sense), as an essential juridic component of marital consent. The second maintains that love does not enter juridic field at all. A third can be suggested, insofar precisely as the self-donation involved in matrimonial consent is taken to be an act of love. Given this as premiss, one can posit a right to those aspects of conjugal self-donation - conjugal love - essentially and necessarily contained in genuine consent: exclusivity, procreativity and permanence.

Conclusion

            The object of matrimonial consent is therefore the reciprocal gift of conjugal sexuality. We have expressed the right to which it gives rise as the "ius perpetuum et exclusivum in sexualitatem coniugalem procreativam". We would make some further brief remarks on this admittedly tentative formula.

            In a certain sense, one can say that the adjectives "perpetual", "exclusive" and "procreative" are redundant, as being all necessarily implied in any true conjugal sexual relationship; for, according to our earlier analysis, they simply specify the essential elements of conjugality. But, given modern reductive understandings of the married relationship, it seems important to specify each element. In particular the aspect of procreativity or openness-to-life (which must be accepted also by probably or certainly sterile couples) needs to be emphasized, given the tendency today to propose a type of "contraceptive conjugality".

            When compared to the "ius in corpus", the proposed new formula may seem at first sight seem to suffer from a certain vagueness. Yet I would maintain that it is more concrete in what is essential to conjugality. It relates the right exchanged directly to the complementary procreative power of the other party; and does not allow it to be limited, for example, to a mere corporal act which might be accompanied by a permanent contraceptive or abortive intention: a possibility that has always troubled the interpretation of the "ius in corpus".

            It is arguable that the analysis given draws juridic and anthropological principles together in greater harmony. Marriage establishes a permanent relationship between a man and a woman, in which each gives to the other an exclusive right over personal procreativity, so denoting, in a totally unique way, the "gift of self" proper to conjugal consent.

NOTES

[1] c. Egan, March 29, 1984, RRD, vol. 76, p. 204; c. Huot, June 26, 1984, ibid. p. 433; July 26, 1984, ibid. p. 500; May 2, 1985, vol. 77, p. 225; c. Fiore, Dec. 4, 1984, vol 76, p. 593; Decree c. Masala, March 5, 1985, n. 5; c. Agustoni, Oct. 15, 1985, vol. 77, p. 437; c. Di Felice, Nov. 8, 1986, vol. 78, p. 599.

[2] cf. c. Egan, March 29, 1984, vol. 76, p. 205.

[3] "Matrimonium est profecto mutua, plena ac perfecta contrahentium donatio": c. Bruno, Dec. 17, 1982, vol. 74, p. 648.

[4] cf. c. De Lanversin, Feb. 28, 1984, vol. 76, p. 146, n. 6; cf. c. Pompedda, Dec. 4, 1984, ibid. p. 573, where one reads: "consensus obiectum, quod est constituendum matrimonium (cfr. can. 1057, § 2)".

[5] D'Annibale expressed the reason clearly: "through marriage one does not come to possess the body of one's spouse, in the sense of owning it; one acquires a right of use in its regard": Summ. Theol. Mor., vol. III, p. 368.

[6] "Matrimonial Consent and the «Bonum Prolis»": Monitor Ecclesiasticus 114 (1989-III), pp. 397-404; "Procreativity and the Conjugal Self-Gift": Studia Canonica 24 (1990), pp. 43-49.

[7] "non videtur dari posse «ius ad amorem», sed potius ius ad aliquas actiones quae generatim foventur ab amore" (Communicationes, 1977, p. 375).

[8] Gaudium et Spes says: "Outstanding courage are required for the constant fulfillment of the duties of this Christian calling: spouses therefore need grace for leading a holy life; they will eagerly practice a love that is firm, generous and prompt to sacrifice" (n. 49). If one takes Vatican II as a basis for saying that love is essential to the validity of marriage, one would have to go farther and say that firmness, generosity and self-sacrifice - by which the Council characterizes marital love - are equally essential to validity. Gaudium et Spes, it must always be remembered, is a pastoral Constitution; its purpose is to present pastoral and spiritual guidelines, not to give spell out juridic principles.

[9] As Caffarra points out, it is only if some such essential element is excluded in the moment of consent, that one can speak of an invalidating lack of marital love.