cormacburke.me.ke

            The Autumn 1995 issue of your Newsletter carried an article on my jurisprudence by Prof. Rik Torfs, a translation of a paper that he presented some four or five years ago at a Flemish Canon Law Workshop. The trouble in responding to this article is that it is somewhat dated - certainly as regards the present state of discussion between myself and my respected friend and sparring partner, Prof. Torfs.

            Some time after the delivery of the paper (of which I had heard but had not read), Prof. Torfs and I happened to meet. We immediately started to argue, as I presume all Irish and Flemish do on meeting. Thus began what has proved to be an interesting, challenging, and very enjoyable friendship. When shortly afterwards Prof. Torfs became Dean of the Canon Law Faculty at the University of Louvain, he invited me - for the following year - to go there to give a course of lectures to their faculty. The original paper you reproduce having been published meanwhile ("De Huswelijksvisie van Cormac Burke": Het Huwelijk Kerkelijk en Werkelijk, Leuven, 1994, pp. 29-40), Prof. Torfs was thoughtful enough to send me a translation, so that I should know his thinking on my thinking (as both stood at that time). The outcome was that I spend a week at Louvain in 1995, dealing with the topic of "Canon Law and Married Personalism", spread over ten lectures to the Canon Law Faculty. Prof. Torfs again had the kindness and interest to attend the whole course; so this naturally opened up the opportunity to weigh deeper our diverging - or converging - viewpoints.

            At this stage, I cannot say if Prof. Torfs maintains all of the views he put forward in that much earlier appreciation you reproduce. Hopefully we will know in a year's time or so, as he and I are engaged in a joint venture, a book to be entitled something like, "Married Personalism: Code and Council"). To my views on the issue (such as they stand right now), Prof. Torfs is going to offer a critical reply. Then, according to our plan, each will have the opportunity of a briefer response. Fr. Frank Morrisey has kindly accepted to "chair" the debate; i.e. to write an introduction to the book and wind the affair up.

            I am glad to be engaged in debate with such a keen mind as Prof. Torfs' and look forward to the fruit of our further exchanges, which will no doubt help in the correction or deepening or better presentation of viewpoints. In our forthcoming book, I expect that much of his criticism of my positions will be different to (and more trenchant than) the rather vague assertions which largely characterize the article you publish. For instance, the contention that I do not share all of the ideas on the juridic relevance of married love as presented in earlier jurisprudence of the 1970s, particularly with its insistence on the centrality of the "consortium omnis vitae" or of the Gaudium et Spes expression of the "intima communitas vitae et amoris coniugalis".

            My ideas on these points do indeed differ from many of those early proposals of the 70s, which seem to me inadequate from both the juridic and the personalist-anthropological viewpoints. But I do not think that my stance marks a "regression", or any resistance to the renewal of ideas. Just the contrary; for that may I refer your readers to a recent article of mine, "Personnalisme et jurisprudence matrimoniale" (Revue de Droit Canonique, vol. 45 (1995) pp. 331-349); or to a book about to appear in Italian ("L'Oggetto del Consenso Matrimoniale: un'analisi personalistica", Giappichelli, Turin), of which an English version will hopefully soon follow.

            Prof. Torf's article as it appears in your pages does seem to suggest that as "a pioneer in putting forward a more rigorous jurisprudence" (his phrase), I am 'against nullities'. All of us have our theoretical positions, but (like every ecclesiastical judge, I imagine) I try to avoid letting my theories become prejudices in assessing each individual case.

            I am totally in favor of declarations of nullity, once the matter can honestly and conscientiously be considered proved. While allowing for the fact that Judges reasonably may and do differ about what constitutes adequate proof, I am certainly against declarations of nullity made without any proof at all, or with a travesty of proof. To my mind such declarations - and some such are given - are contrary to truth and justice as well as harmful to the real pastoral good of individuals. The "rigour" I would like to see is a clearer grasp of principles and a greater logic in applying them.

            On p. 30 he says "In one of his articles Burke clearly puts canon 1095 in its totality in a stringent framework", by holding that consent is invalid under the canon only if the incapacity in question: a) relates juridically to the essential rights or duties of marriage; and b) derives from some grave psychic anomaly. But this not a thesis invented by me. That essential rights or obligations must be involved, is specifically stated in both nos. 2 and 3 of the canon. Canon 1095, 2° deals with a particular cause of incapacity - lack of discretion of judgment - and specifies that in order to incapacitate, this lack must be grave. Number 3° of the canon speaks directly of a concrete type of incapacity - "incapacitas assumendi" - and refers more indirectly to its causes ("of a psychic nature"). The canon here does not speak of a "grave" incapacity, for it would be misleading to do so (an incapacity does not allow of degrees). This is common and established jurisprudence, confirmed by the Pope in his Address to the Rota in 1987-88, when he taught that incapacity can arise under either no. 2 or no. 3 of the canon only in the presence of a "serious psychic anomaly" (AAS vol. 79, 1457; cf. vol. 80, 1182).

            To distinguish between moral and juridic obligations is not hair-splitting. Every jurist must try to make the distinction, so as not to endow with legal force or effect what is simply a moral obligation. Is there an obligation on a spouse to be kind and patient towards his or her partner? Certainly. And if a spouse is deliberately unkind, then he or she indeed commits a moral fault and is in that respect at least less than a good husband or wife. But can the moral obligation to be patient be given the status of a juridic obligation, and concretely of an essential constitutional juridic obligation such that if a person does not appreciate the importance of patience or is unable to live it in a model conjugal way, then he or she is incapable of valid married consent? I think not. If one were to allow the opposite, then to my mind the only couple capable of exchanging valid marital consent were Adam and Eve before the Fall.

            The difficult and delicate matter is to determine which exactly are the essential juridic obligations of marriage. I certainly hold that these include the augustinian "bona" in the first place; and few, if anyone, disagree on this. Are there no other essential rights/obligations whose violation can vitiate marital consent? I too am inclined to think that there are. But the job of analysing them and spelling them out in meaningful juridic terms is far from easy. It is not enough to say that they are those "which derive from the community of life"; one has to seek a more precise analysis; otherwise lack of rigour leaves one in a juridic quagmire.

            Prof. Torfs, having rightly noted the "considerable difficulties" that such a noted rotal judge as Lucien Anné had "whenever he attempted, in his decisions of the seventies, to give concrete shape to the content of this community of life" (p. 27), goes on to recall the 1972 proposal of Germain Lesage that in order to marry validly people must be endowed with "maturity of conduct throughout the ordinary events of daily life", "self-control or temperance necessary for any reasonable and 'human' form of conduct", "stability of conduct and capability of adapting to circumstances", "gentleness and kindness of character and manners in mutual relationships", "mutual communication or consultation on important aspects of conjugal of family life", etc. Again, as Prof. Torfs notes, this analysis of essential rights or qualities never prospered, and was never accepted into jurisprudence. Prof. Torfs himself does not indicate whether or not he considers that lack of adaptability to circumstances or of good manners leaves a person incapable of exercising the basic human and ecclesial right of marriage.

            So he is quite correct in surmising that I feel something is wrong with jurisprudential tendencies or interpretations which turn marriage into something just "for an élite" - which, as he himself acknowledges, is the consequence of holding that persons with non-severe (mild or moderate) psychic or characterial defects (examples might be irritability, nervousness, claustrophobia, etc.) are incapable of valid marital consent.

            His 1992 text criticises me for dismissing the importance of the "communio" or "consortium totius vitae". But I don't dismiss it. I point out that it has been incorporated into the Code, in c. 1055, simply as a synonym of marriage. My difficulty with the Anné-Serrano-Torfs position is that it presents the "consortium vitae" or the "conjugal community of life" as a new or "independent" right with its own autonomous content, different somehow (but not saying in what way) from other indisputable essential rights such as that to fidelity. They and I would agree that marriage (or marital consent) confers an essential right to fidelity; and we know what we are talking about, and are fairly certain of how its juridic content must be measured. If they say that marriage also confers a right to a "conjugal community of life", I say I agree; but all we are stating by this is that marital consent simply confers a right to marriage. This, to me, marks neither analysis nor progress. On p. 30, Prof. Torfs speaks of "the juridic valorization of community of life as I have described it and as portrayed by Anné or Serrano..."; with all friendly respect I venture to remark that I find many mentions of "community of life" but little that seems to merit to be described as a "juridic valorization" of its content.

            Again, far from dismissing the importance of the Anné sentence of Feb. 25, 1969 (as Prof. Torfs suggests: pp. 25-26; 31 end), I have dwelt on the personalist implications of this rotal sentence, holding indeed that they were misinterpreted in much of the 1970 debates, but correctly incorporated into the 1983 Code (see Revue de Droit Canonique, loc. cit., pp. 341-342).

            As Prof. Torfs knows, I felt quite baffled at his concluding suggestion that I am a sort of "neo-positivist" (I have been called many things, but never that!), with an approach which tends to dissociate canon law and theology. This is intriguing, for I am more used to being criticised for putting too much theology or anthropology into my juridic reflections. I have found it difficult to follow his suggestion: in fact I am not sure if he still holds to it. The point may become clearer if our planned book sees daylight; then we will know if Prof. Torf still maintains his anathema and if I can possibly wiggle out of it.