cormacburke.me.ke

Progress in juridic science

            Juridic science must progress, just as any other science. Otherwise it stagnates and loses vitality. By means of continuous reflection it needs to seek deeper insights on major questions that have always been at its very basis, such as the relation of truth and justice; or on the juridic treatment to be given to what may be considered new but are certainly not secondary themes, such as the definition and legal protection of human rights; or again on lesser but still important topics, such as the way of accelerating legal procedures without violation of due process or detriment to justice.

            This century has been a period of remarkable progress in church law and in ecclesiastical jurisprudence. Two great landmarks are the 1917 Code of Canon Law and the Code that replaced it in 1983. Which of the two Codes involved the greater scientific-academic effort? Probably the first. Which holds greater interest for us? Obviously the second. Are the two Codes interrelated, or do they stand in complete contrast? Certainly there are contrasts, and notable ones; this logically suggests many points for consideration and study. But there is also continuity in many aspects, precisely because in the great majority of cases the new ideas or formulations have their roots in the old. What holds good for understanding and interpreting the Second Vatican Council itself, applies here. If one dwells too onesidedly on the newness of the Council and its apparent rupture with what went before, without seeking links and points of continuity, its spirit and message may not be grasped in depth and its application may fail to achieve full effect.

            Between 1904 and 1917, under Pius X and Benedict XV, an immense effort was made to reduce the whole corpus of church legislation developed over the centuries to the dimension of a relatively brief compendium or code of common laws. The object was to facilitate the administration of justice as well as its further research, providing an authoritative reference for judges, legal practitioners and scholars throughout the world. The achievement consisted in synthesizing an immense mass of interconnecting and overlapping (and often contradictory) laws, into one reasonably concise and coherent whole.

            The structure of the 1917 Code reflects a roman law conceptual division of "norms, persons, things, procedures, penalties". This structuring was accepted at the time with no particular difficulty, since the study and treatment of canon law had for long tended to follow such a scheme. The decades that followed 1917 were marked by a sustained work of interpretation of the codified laws and clarification of their application.

            As was logical, critical assessment of the pio-bendictine Code also began to set in. Among other major points, the adequacy - for an ecclesial reality - of the conceptual division based on roman law began to be questioned. A deeper ecclesiological inspiration was considered desirable. The 1917 Code seemed unnecessarily disconnected from a theological understanding of the Church, particularly with respect to the emerging notion of "communio", that is, of an interpersonal communion of Christ with each one, and of all with him and with each other in him. On another level, the modern emphasis on the personal dignity of each individual, on ecclesial roles, rights and duties, seemed poorly reflected in the 1917 Code. With regard to matrimonial law in particular it was growingly felt that little or no account was taken of modern reflection on marriage, particularly in the personalist field.

            It was no accident that the convocation of a new Ecumenical Council and the proposal to revise the Code of Canon Law were announced on the same day in 1959. No doubt it was intended (and in any case was inevitable) that the documents and spirit to emerge from the Council would have a profound effect in shaping the new Code. In fact only after the conclusion of the Council was the Commission charged with the revision really able to get to work, with the wellnigh explicit mandate that the forthcoming Code should reflect the conciliar spirit in a juridical key [1].

            An ecclesiology of "communio" and a philosophy of personalism inspire Vatican II's presentation of christian life within the Church. The two are in fact dynamically interconnected, personalism calling us to self-fulfilling giving of self to others and welcoming of them in us, and "communio" providing a common and universal goal for this effort to come out of self so as to find self and others in Christ, in a dynamic and apparently paradoxical combination of unity and diversity (cf. C. Burke: Authority and Freedom in the Church, Ignatius Press, 1988, 196-211; "Personalism, Individualism, 'Communio'": Osservatore Romano (English Ed.), April 28, 1993, pp. 7-8).

            Almost twenty years elapsed between the end of the Council and the promulgation of the 1983 Code. This period of "ius condendum" was one of particular creativity - years marked by a flood of ideas advocating varied juridical applications or interpretations of Vatican II and, insofar as matrimonial law was concerned, of major concepts present in the Pastoral Constitution Gaudium et spes, Part II, Chapter 1.

            The new Code seeks to present and organize the norms of ecclesiastical law around the mystery of the Church (Cf. Vatican II, Decree on the Training of Priests: Optatam totius, no. 16).) insofar as this is juridically possible. The central structure no longer follows a roman law model, but builds around the scheme of the three munera or "missions" of Christ - and of the Church as continuing his work. Thus Book Three of the Code is on the "Teaching Mission of the Church", Book Four on its "Mission of Sanctifying", while the "Misssion of Governance" occupies an important part of Book Two ("The People of God"), with elements of this latter mission also spread through the other books more occupied with the technicalities of a legal system. One notes how the faithful have their corresponding rights, roles and duties defined in regard to each of these missions [2].

A new stage

            We have gone through the years of preparation for the new Code, followed by its promulgation. Definite options have been made. The planners, drafters and architects have done their work; so too have the builders. The result is there, an edifice to be explored and occupied. The stage we are now in is not that of the 1970s - of proposals for a project - but one of understanding and application of an instrument made for use.

            The promulgation of a new law (and more so, of a "corpus" of laws, such as is a code) marks a milestone for a jurist; one stage is passed, and a new one entered upon. The signposts with which it is marked (the canons) need to be read; and where their meaning is not immediately clear, to be re-read in search of greater clarity, with due heed to the specially qualified sources of interpretation: the "mens legislatoris" (also when freshly expressed), the declarations of the Pontifical Council for the Interpretation of Legislative Texts and, in their proper field, the consolidated jurisprudence of the Apostolic Signatura and the Roman Rota (cf. cc. 16-19).

            No doubt some of the laws promulgated in 1983 will be modified in the near or distant future; but it is scarcely likely that they will be many. As for an entire reform of the whole new Code, that certainly cannot be precluded, but there seems little ground for expecting that the present Code will not have as long a life as its predecessor.

            The 1983 Code has not escaped criticism. Some say it has gone too far: others that it has not gone far enough. To my mind, it is an excellent Code overall, and a powerful instrument of renewal according to the spirit of Vatican II. Excessive criticism of this new law would be as out of place as ignoring it. Avoiding these two extremes, and directing their energies towards understanding and applying the new Code, jurists can make a major contribution to the implementation of the Second Vatican Council [3].

            In this context, the 1984 papal address to the Roman Rota has not lost any of its relevance. "After the promulgation of the Code", the Pope said, "it cannot be forgotten that the period of ius condendum is over, and that now the law, even with the possible limitations and defects that may accompany it, is an option already made by the legislator, after deep reflection, which therefore calls for full acceptance. Now is no longer the time of discussion, but of application" (AAS 76 (1984) 646). No doubt one can immediately comment: - but application too takes discussion. Of course it does, which is why these 1984 remarks of the Pope should be read as indicating the positive focus and direction our reflections should have; the Pope's purpose is to reorient discussion rather than to limit it. He is suggesting that we need to focus our study on the actual content of the Code, on the concrete (and frequently very new) specific or generic formulae it provides. We have a new Code and it is on its just interpretation and proper application that our current discussion naturally centers.

            At the same time, one should not take from the force of the Pope's remarks. General discussion about possible normative options (such as characterized the 1970s) should not now occupy centerstage in canonical debate; for the options have been made. Discussion in 1970 terms may easily turn out to be "dated", for that discussion itself yielded its fruits which are incorporated into the Code. The normative options made need to be the object of particular study, aimed at producing an adequate juridic analysis. So, yes, in a sense, the Pope's words contain a negative indication, which might be expressed as "In these years (at least until a new revision of the Code is launched) don't let your attention center on abandoned projects of the 1970s, or chart your course by roads explored in the immediate post-conciliar period but now omitted from the map, either because they were seen to lead nowhere, or else to lead somewhere but in too round-about or confusing a way, while alternative and better routes - formulae and expressions - have been found".

            To continue to work from the pastoral terms of Gaudium et spes and not from the juridic terms proposed by the 1983 Code, no longer seems the best way to make progress in the relevant areas of juridic science. After all, the Code not only gives definite options, but also presents quite a number that are so provokingly new as to call for full attention and study. It has been remarked that "the Second Vatican Council did not radically alter the notion of marriage in its teaching in the pastoral constitution Gaudium et spes" (A. Mendonça: "Consensual Incapacity for marriage" The Jurist 54 (1994), 510). This is true; nevertheless the 1983 Code does introduce some radically altered notions into the canonical presentation of marriage. The researcher should neither overlook the radicality of these notions nor, when analyzing their deeper content, fail to look for posssible continuity with past thought. Development in a line of enriching homogeneity has always been a sound guideline for research in the different fields of ecclesial science.

            The 1983 Code, especially in its canons on marriage, is marked by a number of broad new concepts whose proper and more particularised application in law will take time and prudent research and interpretation in doctrine and jurisprudence. In his 1984 address to the Rota, the Pope made explicit reference to this: "In the new Code... there are canons of special importance for matrimonial law which have of necessity been formulated in a generic way and await further determination, to which solid rotal jurisprudence above all can validly contribute" (AAS 76 (1984) 648). However qualified the role of the Rota in this task of giving a more juridically concrete form to what is still generic, doctrinal studies from other sources have also a major role to play in the deeper reflection and analysis needed for genuine scientific progress.

Two of the major options made.

            Setting our focus on matrimonial law, it is natural to begin with what appears most innovative. It is not likely that any serious scholar expected the new Code to offer a presentation of marriage marking a complete break with the past. Yet probably very few anticipated such a totally renewed vision as in fact emerged, at least in fundamental aspects. Here I am not thinking principally of c. 1095 for, although it is new, its general concepts and parameters were already established in rotal jurisprudence. Canon 1098 undoubtedly merits more attention than it has so far received, for it also is quite new and marks an important volte-face in law. There are two canons however which stand out, not only for introducing new ideas, but fundamentally for changing legal expressions hitherto universally accepted. Would any canonists 30 years ago have considered it a serious possibility that the new Code would alter the legal formulation of two such basic notions as: 1) the ends of marriage; and 2) the object of matrimonial consent? Here nevertheless the Code introduces two major concepts which can be regarded as complete novelties: the "good of the spouses" of c. 1055, and the conjugal "mutual giving and acceptance of each other" of c. 1057.

            Both these expressions are new, strikingly so in the case of the "bonum coniugum", because it is practically speaking an original term in general ecclesial parlance (cf. C. Burke: "Marriage: a personalist or an institutional understanding?": Communio 19 (1992), 284). The "sese mutuo tradunt et accipiunt" is drawn directly from Gaudium et spes (no. 48), but had not until now acquired juridical status.

            After the introduction of the new Code, jurisprudence and doctrine were so taken up with the interpretation and application of c. 1095 that rather scant attention was devoted to these two new concepts. Regarding the "bonum coniugum", the situation has improved over the past five or six years, and if the analyses being made do justice to the richness of the new formula by which one of the ends of marriage is expressed, this will be progress indeed.

            Curiously, however, very little attention has been directed to analyzing the juridic meaning and effect of the strikingly new formula by which c. 1057 § 2 expresses the object of matrimonial consent, that "act of the will by which a man and a woman... mutually give and accept each other in order to establish a marriage". The reason can hardly be that the analysis of the "sese tradere/accipere" is more difficult than that of the "bonum coniugum". Both are difficult; and both lend themselves to inadequate interpretations. Moreover the two concepts seem to call for a parallel and contemporaneous analysis, there being good ground for considering them intimately connected.

            In what follows some tentative ideas will first be offered for a personalist understanding of the "bonum coniugum"; and then consideration given to the new formula expressing the object of marital consent.

            I. The "bonum coniugum".

            It is curious to find that this particular term has practically no precedent in theological or canonical writings, to express an end of marriage. Its insertion into the draft of what was to become the present c. 1055 was accepted unanimously and apparently without any difficulty by the Consultors of the Pontifical Commission for revising the Code, in a session of February 1977 (Communicationes, 1977, 123). The 1983 Code is the first magisterial document where the "bonum coniugum" is used to express one of the ends of marriage. At the same time, its subsequent introduction into the 1994 Catechism of the Catholic Church ("The spouses' union achieves the twofold end of marriage: the good of the spouses themselves, and the transmission of life" (no. 2363; cf. no. 2249).) means that it cannot be treated as a merely canonical term, but has passed into general magisterial teaching and offers itself as a notion of considerable theological interest.

            The theological analysis of the "bonum coniugum" will have a broader range than investigation into its juridic scope and consequences. Canon law must be given the credit for the introduction of such an innovative and enriching term [4] into the Church's vocabulary; but it is no longer just the patrimony of canonists. It would seem unwise on the part of canonical doctrine and jurisprudence to pursue a juridic analysis of the "bonum coniugum" independently of theological reflection. Only when its theological parameters have been established will they be in a sound position to determine - for the proper purposes of canon law - the main questions posed by the "bonum coniugum": its juridic nature and content, the mode and effects of its exclusion, the essential constitutional rights/obligations to which it gives rise, etc.

            A) The juridic categorization of the "bonum coniugum"

            Given the wholly innovative nature of the term, the content of the "bonum coniugum", especially its juridic content, is still logically a matter of debate. In his address to the Holy Father on the occasion of the 1998 annual papal audience, Msgr. Mario F. Pompedda, Dean of the Rota, mentioned the "scope and rigorously juridic content of the bonum coniugum" as one of the major interpretative problems that still call for deeper examination (L'Osservatore Romano, Jan. 19, 1998, 2).

            As a totally new concept, therefore, the "bonum coniugum" offers many challenges to the analyst. But while an on-going debate is needed regarding what is not clear in the concept, the debate will suffer unnecessarily unless what is clear in it is accepted as a common term of reference for the discussion. Now, what is clear beyond question is that the "bonum coniugum" was introduced into canon law as one of the two institutional ends of marriage (c. 1055 § 1; this is confirmed in the new Catechism: no. 2363). Hence the juridic categorization of the "bonum coniugum" is that it falls by definition within the category of an end.

            Already before the promulgation of the Code, the legislative intention regarding the "bonum coniugum" as an end of marriage had been made explicit in two major respects. The first is that the new term is intended to designate the personal(-ist) end of marriage (Communicationes, 1977, 123). The second (a no less important clarification) is that its description as a personalist end is in no way intended to identify it with the subjective end or ends that one or both parties may have in marrying. In one of its 1983 sessions, answering some commentators who had identified the "bonum coniugum" with the subjective ends of those marrying, the Pontifical Commission specifically stated: "The expression ad bonum coniugum should remain, because the ordination of marriage to the good of the spouses is truly an essential element of the matrimonial alliance, and in no way a subjective end of the person marrying" (Communicationes, 1983, 221). So the term is to be understood in an objective, not a subjective, sense; i.e. in the sense that pertains to the inherent, institutional ends of marriage as ordained by its Creator [5]. As Anthony Dewhirst states, "it is evident from canon 1055 §1 that the "bonum coniugum" is an end of marriage (and even an institutional end)..." ("Consortium Vitae, Bonum Coniugum and their relation to simulation" (The Jurist 55 (1995) 804). The addition of "even" in his parenthesis may denote some nuance of surprise; cf. the last note).

End and essence

            Any juridic analysis of the "bonum coniugum" needs to set out from this evident fact - that it is an end of marriage. This paves the way for a next clarification. If it is an end, it cannot be an essential property or element of marriage. While this too should appear as logically evident, I realize it may cause some initial surprise. Therefore we could take a moment to recall some elementary notions regarding essence ("essential" means what necessarily pertains to the essence), properties and ends.

            The essence of any reality is its irreduceable nucleus (stripped of all accidental aspects) without which the reality cannot be. What is essential to any thing must be present, at least in its constitutional moment; otherwise the thing cannot itself come into existence. This helps us to see the relationship between essence and end. As one of the best-know modern canonical theorists writes in relation to marriage: "the essence is something different from the end, and so they may never be confused, nor can one fall into the error of understanding the end as essential, in the sense of being part of the essence. It is necessary therefore to carefully avoid any confusion between the essence of marriage and its ends; this is an elementary precaution which some authors nevertheless have not always kept in mind. By dint of speaking without due precision of essential ends (the expression is correct if one means by it that the ordination to them is essential, but absolutely inappropriate if it is used to suggest that the end is constituent of the essence), it is not infrequent that, at least in certain contexts, one falls into confusion between end and essence, with all the inaccuracies and errors that this leads to" (J. Hervada: Vetera et Nova, Pamplona, 1991, I, 357).

            The essential properties or elements of a being qualify its essence in a fundamental (constitutional) way. If any of the essential elements is missing, the being itself cannot come into existence. An essential quality or property of friendship is the readiness to help each other mutually. Friendship is naturally ordered to mutual help, and actual help given is one of its natural consequences or ends. Even if two friends are separated and totally lose touch, their friendship remains intact for as long as their mutual disposition continues, even though actual mutual help is no longer possible. If the readiness to help is missing on one or other side, then (whatever the appearances) there is no true friendship.

            It follows that while each reality is ordered to an end, it does not depend for its existence on the end. This is why the end is said to be extrinsic to the essence, while the essential properties are intrinsic. At the same time, the very fact that a reality is ordered to its ends means that although the ends as such do not enter the essence, the essence cannot be without an "ordination to" its ends [6].

            Are these not rather subtle distinctions? Indeed. Are they not over-subtle? No; and if they are not grasped, a proper juridic understanding of the "bonum coniugum" becomes impossible. We find them present in one of the first post-code analytical references to the "bonum coniugum". In 1984 the well-known rotal judge J.M. Pinto wrote: "Even if the end of a created thing is outside its essence, the ordination to offspring is essential to marriage, but [and?] in this the ordination to the good of the spouses is also included" ("si finis rei creatae est extra essentiam, ordinatio ad prolem est matrimonio essentialis, sed in hac ordinatio ad bonum coniugum includitur": "Incapacitas assumendi matrimonii onera": Dilexit Iustitiam, Rome, 1984, 23). Despite the fact that Pinto seems to see the end of the "bonum coniugum" subordinated to that of procreation (I see them as equal and interdependent), one notes how this early analysis clearly distinguishes between the end (which falls outside the essence) and the ordination to the end (which is essential) [7].

            This is why an end can not be an essential property or essential element. Each being or reality must have its essential properties within it. Without its essential elements or properties it cannot exist. Each reality also has an essential ordering to an end. The properties necessarily enter the essence; so too does the ordination to the end. But the actual end itself remains extrinsic to the essence, for the end may fail ever to be achieved, without the essence failing in its existence.

Essentiale aliquod elementum

            Canon 1101 § 2 states: "if either or both parties through a positive act of the will should exclude marriage itself or any essential element of marriage or an essential property, such party contracts invalidly". Canonists were well used to the idea of "essential properties", which are mentioned in our present c. 1056 in the same terms as in c. 1013 of the 1917 Code ("the essential properties of marriage are unity and indissolubility"). But "essential element" is a new term whose meaning has to be clarified. Bearing in mind that in order to be essential, an element (just as a property) cannot be some minor or accidental characteristic, what exactly does the term "essentiale aliquod elementum" cover? What is or are the essential element(s) of marriage? Obviously the term is intended to cover something distinct from the "essential properties" (mentioned separately in the canon). In what way is it distinct from them? The clarification of these questions is important not so much to determine the nature of the "bonum coniugum", as to analyze cases of the exclusion of the [natural ordering of marriage to] the good of the spouses (for the subject matter of c. 1101 is simulation through a positive act of exclusion of something essential to valid marital consent).

            To begin with, one needs to take full stock of the newness of the expression "essentiale aliquod elementum" of c. 1101 § 2. It is not to be found anywhere in the 1917 Code; and we are certainly not yet in a position where its canonical meaning can be taken for granted. It surfaced officially for the first time in 1971 when the Consultors of the Commission charged with revising the Code accepted a provisional draft in which a "ius ad vitae communionem" was placed among the "elementa essentialia" whose exclusion would invalidate consent (Communicationes, 1971, 75). After long debates about this formula, there was a change of mind in 1977 when the Commission voted to drop it, introducing instead a "ius ad ea quae vitae communionem essentialiter constituunt" (Communicationes, 1977, 375). Finally in 1983 the Consultors decided to omit this latter expression too, as well as the "ius ad coniugalem actum" which had been hitherto carried over from c. 1086 § 2 of the 1917 Code (both expressions were present in the 1977 draft), and to speak simply of the exclusion of "some essential element". The Acts make it clear that this new expression was intended to cover both the "right to the conjugal act" (whose juridic content was solidly established) and any new or autonomous juridic right that the discarded phrase concerning the "communio vitae" might eventually be shown to possess [8].

            Jurisprudence and doctrine are unanimous that the phrase "essentiale aliquod elementum" covers the old "omne ius ad coniugalem actum", or the "bonum prolis" to express the matter in augustinian terms [9]. But as yet there is little developed opinion whether it covers any other distinct essential right (The 1985 Commentary on the Code of the Canon Law Society of America says that "ordination to the good of children" is "foremost among the essential elements" (785); but it does not list any others).

The "bonum coniugum": an essential element of marriage?

            Can the "bonum coniugum" be classified as an "essential element" of marriage under the terms of c. 1101 § 2? This is too important a question to be answered lighty; and an adequate answer must bear in mind the relationships of essence, property (element) and end outlined above. As we have suggested, all the logic of philosophical and juridic discourse, working from these fine but clear distinctions, makes it evident that since the "bonum coniugum" is an end of marriage, it is not and cannot be one of its essential elements or properties. Unless this rudimentary point is grasped as a guiding principle for discussion, one cannot proceed with any coherent analysis of the "bonum coniugum". Nevertheless, suggestions are still made to the effect not only that the "bonum coniugum" is an essential element of marriage rather than an end, but even more peculiarly that it is indifferently an essential element and an end at one and the same time. While these suggestions do not stand up to examination, they are to be found and constitute a source of considerable confusion.

            An author usually as careful as Mendonça writes, "canonical doctrine and jurisprudence seem to have peacefully recognized the bonum coniugum as an essential element of marriage" (op. cit., 521). If any one thing is clear regarding the "bonum coniugum", this is its status as an end of marriage; and so (repetition seems necessary here) it cannot be an essential element. For the rest, extremely little is established about it in rotal jurisprudence [10]. It is worth bearing in mind that the expression used here by Mendonça ("peacefully recognized in rotal jurisprudence") is normally applied after some question has been thoroughly debated in rotal decisions over decades, and a solidly thought-out position has emerged as dominant. This is certainly not the case with the "bonum coniugum", where the thinking process is still in its very initial stages, and opinions (including mine) remain extremely tentative. There is no thought-out consensus on the point, and progress is not furthered when the opposite impression is given.

            Mendonça finds me at divergence with the opinion he considers to be peacefully established: "Cormac Burke seems to propose a different view. According to his theory... bonum coniugum is not a property but an end" (op. cit. ibid). That the "bonum coniugum" is an end of marriage, is no "theory" of mine, but express teaching of the Church, evident in c. 1055, and explicitly taught in no. 2363 of the new Catechism.

            But, in the process of revising the Code, did the Pontifical Commission itself not describe the "bonum coniugum" as an "essential element"? This impression seems widespread enough [11], but is groundless. It can only derive from careless reading of a very precise statement of the Commission whose precision illustrates the fine, but fundamental, distinctions we have sought to draw attention to. Let us recall the words of the Commission: "The expression "ad bonum coniugum" should remain, because the ORDINATION of marriage TO the good of the spouses is truly an essential element of the matrimonial alliance". So what the Commission asserted to be an essential element is not the "bonum coniugum", but the ordination to it. Is this splitting hairs about words? No, I am afraid it is not; it is to make distinctions which, while they may call for some thought, are quite clear; nor can one proceed profitably unless they are adequately grasped. Just as one cannot properly analyze questions relating to procreation, the other end of marriage, unless one distinguishes between ordination to procreation (the "bonum prolis"; an undisputed essential element) and actual procreation (an end that may be achieved or not, but without which marriage can subsist).

The "bonum coniugum": a fourth "bonum" in the augustinian sense?

            There is a secondary point regarding the adequate juridic categorization of the "bonum coniugum" which, however secondary, is still at times a source of confusion. This is the relationship of the "bonum coniugum" with the three augustinian "bona". Leaving some positive aspects of this relationship for later consideration, I would here emphasize that, for the purpose of analysis, the "bonum coniugum" is not a "fourth bonum", to be added to the augustinian triad ("bonum fidei"; "bonum prolis"; "bonum sacramenti").

            Back in 1985, Francesco Bersini, one of the first authoritative Italian canonists to comment the matrimonial norms of the new Code, unhesitatingly affirmed that the "bonum coniugum" "has nothing to do with the three augustinian bona" (Il Nuovo Diritto Canonico Matrimoniale, Turin, 1985, 10). U. Navarrete similarly insists on the radical difference between the "bonum coniugum" and the augustinian "bona": "the term «bonum» of c. 1055 § 1 has a completely generic sense and in no way the specific meaning which the word has in the augustinian trilogy" [12].

            It is to remain on the surface of the matter to let a linguistic similarity confuse fundamental differences of category and meaning. In the augustinian view, the three "bona" refer to "goods" or values of the married state: they are positive features of matrimony that show its worth and dignity. Marriage is good because it is characterized by faithfulness, permanence and fruitfulness. Each "bonum" is predicated of or attributed to marriage. The readiness to have children is a "bonum matrimonii" and so is exclusiveness or permanence. It is evident that Augustine is speaking of the values or essential properties of marriage, not of its ends or finalities.

            It helps if this is presented schematically:

            - bonum fidei: exclusive fidelity is a "bonum" or attribute of matrimony;

            - bonum prolis: "openness to having children" (what St. Thomas calls, "proles in suis principiis", which could also be termed procreativity.) is a "bonum" or attribute of matrimony;

            - bonum sacramenti: indissolubility is similarly a "bonum" or attribute of matrimony.

            As will be immediately evident, we cannot proceed to add the "bonum coniugum" to this list. It would make no sense to say that "coniuges" - the spouses - are a "bonum" or a value of matrimony. The fact is that the term "bonum coniugum" does not express a value, property or attribute of marriage, in any sense parallel to that of the augustinian "goods". The "bonum" of this new term is referred not to marriage (as if it were a value that makes marriage good), but to the spouses (as involving something that is good for them). It denotes not a property of marriage (a "bonum matrimonii"), but something - the "good" or welfare of the spouses - which should result from marriage. The augustinian "bona" are fundamental qualities or properties that qualify and describe aspects of the essence of marriage; the "bonum coniugum" is an end of marriage, an effect that marriage should produce on the persons of the spouses themselves. It is predicated not of marriage (a "bonum coniugii"), but of the spouses ("bonum coniugum"), as something that marriage ought to cause or lead to (cfr. C. Burke: L'Oggetto del Consenso Matrimoniale: un'analisi personalistica, Giappichelli, Turin, 1997, 91-92). If carelessness in thinking is let create confusion here, any adequate analysis of the meaning and force of the new term is made unnecessarily difficult, and can result impossible.

            None of this means that there is not an interrelation between the augustinian "bona" and the "bonum coniugum". On the contrary, it is only logical to find a close connection between the different aspects of marriage: properties, elements, ends. I consider the "bonum coniugum", as an institutional end of marriage, to be intimately linked to the three augustinian "bona". They are clearly distinct - end as related to properties - yet stand in close interrelationship. In fact I do not think one can make any adequate analysis of the "bonum coniugum" which does not see it as an end of marriage achieved in the first place through the force and effect of the three "bona". Further comment on this can be left for later reflections concerning c. 1057.

            B) The content of the "bonum coniugum"

            One thing is the juridic classification of the "bonum coniugum", another is what the term itself actually denotes, and in particular what it essentially involves. Here we are once more in an ongoing process of reflection aimed at clarification.

            Rotal judges have shown little initial inclination to broach the analysis of the content of the new term. This may be a prudent reflection of a similar slowness on the part of doctrine. Up to 1994 or 1995 the term is in fact mentioned rather than studied, and there does not appear to have been any serious attempt to analyze its content. This came home to me in a rotal case where the "bonum coniugum" was invoked by an Advocate, which prompted me to attempt some sort of longer analysis in the "In Iure" part of the Sentence (Sentence of Nov. 26. 1992: R.R.Dec., vol. 84, 577-587; cf. English version in Studia canonica 27 (1993), 496-505). I say this not to claim any special merit for the very tentative reflections I develop there, but simply to illustrate the fact that, as late as 1992, canonical analysis of the "bonum coniugum" had scarcely begun. In the past five or six years things have improved. There is evidently a keener feeling that we are here faced with a new term of utmost importance, which does indeed demand careful analysis and classification; and now one is witnessing a rapidly growing body of literature [13].

            A study of the literature however confirms that the required analysis is still in its beginnings. There are many ideas, as is natural at the start of any investigation into what is so new; but not all of them appear to build on a sufficiently solid basis. Juridic science can be over-rigid; but it is not true to its own nature unless it seeks that minimum of clarity and precision which must characterize any legal formulation that is going to prove workable and useful in practice.

The "bonum coniugum" and the "communio vitae"

            The unprecedented suddenness with which the term "bonum coniugum" made its appearance in no way takes from the fact that it was a major end-result of the post-conciliar efforts, especially in the 1970s, to give juridic relevance to what were considered the more personal aspects of marriage. We have touched on this earlier when speaking of the history of the "essentiale aliquod elementum". Let us return to the complex and multi-facetted debates of twenty five years ago. In the name of a more personalistic approach to marriage, new concepts and new rights were suggested for juridic recognition and configuration. Subjects as distinct as "ius ad amorem" [14] and "existential consummation" were among them. But the most debated topic was undoubtedly that of the "communio vitae" (or "communitas vitae") which (especially following the well-known sentence coram Anné of Feb. 25, 1969) seemed to offer a possible outlet for a properly juridic rendering of the vivid and appealing Vatican II description of marriage as "intima communitas vitae et amoris coniugalis" - "the intimate community of conjugal life and love" (Gaudium et spes, 48).

            The preparatory Commission for the new Code pondered this question in depth, as we noted earlier. The most important proposal was to include the "communio vitae" in some way among those essential aspects of marriage whose exclusion invalidates consent. As noted, the Commission, rejecting the proposal to give status to a simple "ius ad communionem vitae", did for a time accept a "ius ad ea quae vitae communionem essentialiter constituunt" among those elements (Communicationes 1977, 375.), but this phrase also was eventually omitted from the canon, as being too indeterminate (ib. 1983, 233-234).

            No real progress has marked subsequent attempts to extract some concrete and autonomous (i.e. not otherwise derived) right or obligation from the "communio vitae". It is more and more accepted in jurisprudence that it does not seem possible to translate a right to the conjugal communion into workable juridical parameters. It is true that doctrine (more than jurisprudence) has not altogether ceased to invoke the "communio vitae", as a separate source of rights; but that is to ignore the real difficulty already acknowledged in 1985 by M.F. Pompedda. He wrote that consideration of the right to the communion of life, in both doctrine and jurisprudence, "still seems very far from having attained any evident juridical formulation" ("Incapacità di natura psichica", in AA.VV. Matrimonio Canonico fra Tradizione e Rinnovamento, Bologna, 1985, 146). Not long after, in a rotal sentence, the same author reiterated: "we readily acknowledge that a clear notion of this communion of life in its substance has not yet been provided" ("libenter concedimus hucusque nondum traditam fuisse claram notionem eiusmodi vitae communionis in sua substantia": April 11, 1988: R.R.Dec., vol. 80, 200). Ten years further on the same seems to hold good. The "communio vitae" signifies the "communion of conjugal life" which in turn is identified with marriage. In other words, "ius ad communionem vitae" simply means "ius ad matrimonium"; and "ea quae vitae communionem essentialiter constituunt" means the "the essentials of marriage". To use interchangeable terms - "communio vitae" or "marriage" - may facilitate literary expressiveness, but not juridic analysis.

            So, in the process of drafting the new Code, the "communio vitae" (or the right to it) was not considered to have any acceptable or definable juridic status, while the "bonum coniugum" was found acceptable and eventually canonized. Even more significant than the different fortunes the two terms underwent, is the fact that they refer to different juridic categories. The "communio vitae", or the right to it, was proposed and eventually excluded as an essential element of marriage (under c. 1101), the "bonum coniugum" was proposed and finally accepted as an institutional-personalist end of marriage (c. 1055). The sources therefore reveal that the 1970 searching for the definition of new personalist marital rights - in terms of the "communio vitae" - led not to any definition of such a right, but to a new formulation of an end. The "communio vitae" has acquired no juridic status or substance; it remains a non- or semi-canonical expression, whereas the "bonum coniugum" is a fully canonical term.

            These appear as major points to bear in mind, if research is to achieve an in-depth analysis of the "good of the spouses". To continue to treat the "bonum coniugum" as if it were synonymous with the "communio vitae", is really to leave unanswered the fundamental question of its specific nature or essence. I see here another reason to suggest that the juridic analysis of the "bonum coniugum" has no more than begun. Only when its nature is established can one reasonably pass on to a serious examination of the substantial obligations which may flow from it.

            In the 1970s, when a major canonical debate centered on whether a "right to the communion of life", or a "right to those elements which are essential to the communion of life", could or should be given juridic status in the revised canons on marriage, it was natural to find writers engaged in thoughtful attempts to list those qualities or elements which might be considered essential to such a communion. A 1972 essay of Germain Lesage is one of the best-known efforts in this sense. Lesage listed "concrete elements which are essential to a consortium vitae coniugalis", among them, "respective responsibility of both husband and wife in establishing conjugal friendship", "maturity of personal 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", "objectivity and realism in evaluating the events and happenings that are part of conjugal or family life", "lucidity in the choice or determination of goals or means to be sought for jointly" ("The consortium vitae coniugalis", Studia canonica vol. 6 (1972), 103-104).

            The list is admirable in putting together many dispositions and details of behavior between husband and wife that give practical body to the ideal of marriage expressed in Gaudium et spes; nor would anyone question its value for moral or pastoral guidance. It is different however to suggest (as Lesage does: p. 104) that a person marrying has a constitutional juridic right (and not just a moral expectation) to find these qualities in his or her partner, and that whoever lacks the aptitude to live any of them is constitutionally incapable of giving valid consent. In the well-known rotal case coram Raad of April 14, 1975 (one of the official "Fontes" for c. 1095, 3° ), Lesage's list was submitted to a lengthy judicial appraisal, and the conclusion reached that it was juridically untenable to hold these (or other such) qualities to be essential for valid matrimonial consent (R.R.Dec., vol. 67, 244-245).

            Lawrence Wrenn applied a good measure of Lesage's approach in his 1986 essay "Refining the Essence of Marriage" (The Jurist, 46 (1986):2, 532-551; the same essay is included in the more recent editions of Wrenn's Annulments: 145-161). Examining "six of the more obvious qualities that might constitute the essence of the bonum coniugum... partnership, benevolence, companionship, friendship, caring, and finally love", he reaches the conclusion that "the essence of the bonum coniugum consists in the ius ad amorem" (The Jurist, 537-545; Annulments, 149-156). He seems to qualify this further in his final summary: "Our position does not claim that love is essential to marriage. Rather it claims first that the right to the bonum coniugum is part of the essential object of marital consent, and second that the bonum coniugum consists not in partnership, companionship, caring, etc., but rather in the love of the parties for each other. Once, however, the parties consent to marry and pledge to love each other, the marriage is then valid; it remains valid, of course, even if their commitment to love later disappears" (547).

            Mendonça seems rather close to this view although, holding that the "bonum coniugum" contains "elements which are essential and others which are non-essential", he adds: "As understood in our context, the non-essential elements or qualities are of no juridic consequence. Our focus for the purpose of determining the essence of bonum coniugum is on those elements which are considered essential". He then quotes Wrenn's list - partnership, benevolence, companionship, friendship, caring, and love - with the comment: "According to Wrenn's proposal, the right to the good of the spouses, which consists of the qualities he has described, is an essential element of marriage". Mendonça does not in fact altogether agree with Wrenn; for him, the six qualities listed by Wrenn, "cannot constitute the essence of the "bonum coniugum""; rather, they could be regarded as elements which are essential to attain the "bonum coniugum"" (ib., 520-521).

            From the juridic standpoint, several possible weaknesses in these approaches could be noted. First, they assume that post-conciliar reflections on qualities which might reasonably be said to integrate the "communio vitae" [15] or indeed the "partnership of life and love" of Gaudium et spes, can be validly carried over to an analysis of the "bonum coniugum". Second, they take it as axiomatic that the "bonum coniugum" is identifiable with a highly integrated and happy marriage and depends fundamentally on a series of qualities that make for this married integration and happiness. Third, they suggest that a juridic right exists to find such qualities in one's spouse. A fourth point - implicit perhaps, but of such importance as to call for explicit discussion - is the question whether these qualities can be considered essential rights/obligations for the purposes of c. 1095, 2° and 3° .

            If there is something defective in these approaches, it comes, I feel, from taking parameters used (validly or not) to analyze an aspect or element of marriage - the "communio vitae" - and applying them to the juridic analysis of an end: the "bonum coniugum". Therefore I wonder whether one is on progressive lines in seeing the "communio vitae" as a key to the nature of the "bonum coniugum". No doubt there is a certain historical connection between the two terms, inasmuch as the debate about one issued in the definition of the other. They can thus be related - in the sense that the failure of the "communio vitae" undoubtedly helped in the triumph of the "bonum coniugum". However, it may be an obstacle rather than a help to understanding the nature of the "bonum coniugum" if one pushes the connection beyond that, and even more so if one tends to see the two terms as interchangeable in meaning.

            "The good of the spouses is that uniquely marital way of thinking and acting that distinguishes matrimony from every other kind of human relationship" (Pfnausch, op. cit. 553). This is somewhat perplexing statement. Can a certain way of thinking and acting be an end of matrimony (as the "bonum coniugum" is), or is it not rather a characterization of what is normally found in married life? If Lesage's proposed list of desirable qualities of conjugal life has not been granted juridic relevance for the purposes of consensual capacity, it does not seem likely that this much vaguer proposal regarding the content of the "bonum coniugum" will have greater success.

Towards a fuller analysis of the "bonum coniugum"

            I have outlined elsewhere (Studia canonica 27 (1993), 499-503.) some of the broader areas of reference which could underlie an adequate analysis of the "bonum coniugum". First, the obvious scriptural key offered by the opening chapters of Genesis. Then the growing insistence in church magisterium that the perfectioning of the spouses is a main aim of marriage. Third (to which I return below) the logical tie-in with what an analysis of the "sese mutuo tradunt et accipiunt" of c. 1057 § 2 offers. Finally, the simple pastoral experience 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.

            The scriptural key is fundamental. In narrating the institution of the sexes, Genesis offers us two accounts (which are obviously meant to be complementary, not in opposition), one clearly procreational ("God created man in his own image, in the image of God he created him; male and female he created them. And God blessed them, and God said to them, 'Be fruitful and multiply, and fill the earth'" Gen 1:27-28), the other no less clearly personalist ("the Lord God said, 'It is not good [non est bonum] that man should be alone: I will make him a helper fit for him'... [and God made woman] Then the man said, 'This at last is bone of my bones and flesh of my flesh'... Therefore a man leaves his father and his mother and cleaves to his wife, and they become one flesh" Gen 2:18-24). From this it is clear that both the procreational and the personalist narrations are institutional. The second account underlines that God was seeking a "good", a "bonum", for man and for woman as a result of the institution of marriage. It is God's purpose which discloses the essential nature of this "bonum". As in all of God's doings, his purpose is to prepare - 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; very often, it is the "bad" or harder times (serious illness, financial hardship, the drawn-out experience of mutual defects, etc.) which most mature. The traditional "mutuum adiutorium" (also with its biblical base) certainly enters here; but modern magisterium tends to see it no longer just in terms of support in the cares, etc., of temporal life, but particularly in the sense of "mutual perfectioning".

            Among the official "sources" of canon 1055 we find Casti connubii which mentions as the "primary purpose" of married love: "that man and wife help each other day by day in forming and perfecting themselves in the interior life, so that through their partnership in life they may advance ever more and more in virtue, and above all that they may grow in true love towards God and their neighbor" (AAS 22 (1930) 548). Other sources include the Address of Pius XII of 1951 which speaks of the "personal perfecting of the spouses" as a secondary end of marriage (AAS 1951 848-849), Gaudium et spes which insists on how husband and wife "increasingly further their own perfection and their mutual sanctification" (no. 48), Lumen Gentium: "Christian spouses help one another to attain holiness in their married life and in the accepting and rearing of their children" (no. 11), and Apostolicam Actuositatem: "Christian spouses are, for each other... cooperators of grace and witnesses of the faith" (no. 11).

            Wrenn too underlines this idea of growth as a person, as constitutive of the "bonum coniugum": "In order to bring about the bonum coniugum it is essential that the spouses... help each other grow" (op. cit. 542). In other words, the "bonum coniugum" is something to be brought about. It is the final term of a continuous process, as in fact one would expect an end of marriage to be; it is an object to be achieved by personal growing. In this sense, that it proposes a goal and an ideal to married people, it certainly cannot be achieved without effort. Yet, effort and all, it presents itself as a practical ideal - which, I feel, is closer to the real possibilities of married couples than is the smooth, effortless harmony that Lesage's list seems to presuppose.

Exclusion of the "bonum coniugum"

            The positive exclusion of procreation as an end of marriage has always been held to invalidate marital consent. We note that such cases have been regularly handled in jurisprudence as exclusion of the "bonum prolis" (falling without question under the "essentiale elementum" of c. 1101 § 2). There can be no doubt that the exclusion of the "bonum coniugum" - the other end of marriage - similarly invalidates. However the analysis of what exactly is involved in practice in this latter exclusion, as well as the question of how such cases are best handled in tribunal work, bring us again into an area of considerable opinion and debate.

            In a 1989 article I wrote: "The question of the exclusion of the "bonum coniugum" is obviously of the greatest importance... 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" - being 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). Here I did not say (as some suggest) that the "bonum coniugum" has no entity beyond the three augustinian "bona". I said that while an exclusion of one of these "bona" evidently implies the negation of the "bonum coniugum", principles of good procedural economy suggest that such cases be handled as cases of partial simulation in traditional terms; this is the practice followed by rotal jurisprudence (As far as my research has ascertained, not a single rotal case since the 1983 Code has been judged on the grounds of the exclusion of the "bonum coniugum").

            The same article continued: "it seems evident that the "bonum coniugum" would be excluded by the person who marries with the intention of perverting his or her partner: getting him or her to apostatize from the faith, to take up an immoral life, etc. It would no doubt also be held excluded if a person intended to deprive the other party of other aspects of fundamental human dignity, such as his or her physical or moral freedom. And further instances can probably be adduced..." (708-709). So, while I naturally hold that exclusion of the "bonum coniugum" invalidates matrimonial consent, I am not in favor of forcing it forward as grounds in a case which is almost certainly going to be better handled under dolus, or under partial or total simulation in their traditional connotation. There is a lot of common sense in what Paolo Bianchi writes: "The hypothesis of a positive exclusion of the "bonum coniugum" would appear as a rare likelihood to be considered almost on the limit of the absurd (at least from the psychological viewpoint), unless it is configured as the exclusion of marriage itself or of its essence" (Incapacitas Assumendi Obligationes Essentiales Matrimonii: analisi della giurisprudenza rotale, Glossa, 1992, 84).

            The framework which the Code offers for judging cases of possible invalid consent due to simulation or exclusion, is that of essential properties and essential elements, whereas jurisprudence has always considered such cases in terms of the exclusion or not of one of the augustinian "bona". Once again, in order to avoid the possible confusion that this might provoke, it is necessary to be very exact in the use of terms. So, for instance, it is correct to speak of a right to the "bonum prolis" as essential to consent; i.e. a right to that ordination to procreation which is expressed in openness to sharing procreativity or having children. But it is quite incorrect to speak of a "ius ad procreationem" or "ius ad prolem" - a "right to a child" [16]. Similarly, while it is correct to insist that valid marital consent must include an "ordination to the good of the spouses", it does not seem that one can postulate any actual ius ad bonum coniugum.

            Throughout all of these considerations it needs to be borne in mind that we know quite precisely what is meant by the exclusion of procreation, or by its actual achievement or non-achievement (including the incapacity to do so; i.e. sterility). Things are very different in relation to the other end, expressed as the "bonum coniugum".

            When is "the good of the spouses" excluded from consent? When is it actually or definitively not achieved in a particular marriage? What constitutes an incapacity (and not just a difficulty) to realize the "bonum coniugum"? Answers to these questions are difficult (immeasurably more so than in the matter of procreation); and it would be unrealistic to expect unanimity in solutions offered. Any debate about such questions (the practical questions for tribunal work) will be fruitless until theological and canonical analyses reach a depth where there is some measure of consensus about the fundamental nature of the "bonum coniugum". We do not yet seem close to this.

Capacity for the "bonum coniugum"

            Discussion of capacity or incapacity for the "bonum coniugum" can make little progress until canonical reflection has arrived at a fairly concrete formulation of the essential juridic nature and content of the "good of the spouses" itself; for only then can one go on to determine the question - no less important for cases under c. 1095 - of which are the essential rights or obligations proper to the "bonum coniugum" (for, as the canon states, it is only in relation to such essential rights/obligations that consensual incapacity can arise). Here however there is a prior difficulty that serious canonical debate can scarcely avoid considering.

            While church law hitherto has been clear that the validity of conjugal consent is vitiated if a person does not accept marriage in its essential elements or properties (including "ordination to" its ends), it has been equally clear that consent is not invalidated by a simple incapacity to achieve the end of marriage. Marriage in other words can exist without its end(s) being achieved - or even being possible to achieve.

            Valid consent requires the capacity to share sexual intimacy through normal intercourse (the "bonum prolis", an essential element or property of marriage); but not the capacity of achieving actual procreation (an end of marriage). This was so under the old Code, and still holds good under the new. A person is capable of valid consent and a valid marriage even if he or she lacks the capacity to achieve actual procreation. So canon 1084 § 3 explicitly states that "sterility neither prohibits nor invalidates marriage". The actual non-achievement of the end to which the "bonum prolis" is ordered (that is, effective procreation) makes marriage harder for the normal couple, but does not affect validity: a sterile marriage is valid.

            The logic of the relation between essence and ends suggests an initial presumption - not easily to be passed over - that this same principle holds good for the other institutional end of marriage, the "bonum coniugum": that its non-achievement (or an alleged non-capacity to achieve it) gives no grounds, per se, to argue to the invalidity of the marriage in question. Some consider this conclusion obvious: "To speak of the "bonum coniugum" is to express one of the institutional ends of marriage. Given this, one has to admit that its actual fulfillment is not necessary for the purpose of the valid existence of the marital bond itself, just as in a like way the birth of offspring is not necessary" (Bianchi, op. cit. 69). Whatever the ultimate solution to this, statements to the effect that the "bonum coniugum" "is of the essence of marriage" (Mendonça, op. cit., 523.) lack precision and can easily mislead.

            Is this an "unprogressive" suggestion? The reader must judge. My personal view is that we cannot make good progress in the dark or in very dim light. And, regarding the most fundamental question about the "bonum coniugum" - what is its nature? what does it consist in? - we are certainly walking in too dim a light to be able to speak with any assurance about what a capacity or an incapacity for the "good of the spouses" actually involves.

            In any case, if grounds of consensual incapacity regarding the "bonum coniugum" are advanced, the further point must still be dealt with: consent is invalid under c. 1095 when the object of the incapacity are the essential obligations of marriage. Fidelity is certainly an essential marital obligation, and an incapacity at consent to be faithful certainly invalidates. But who would hold that an incapacity to be considerate, or patient, has the same juridic effect - in other words, that all constitutionally impatient or nervous persons are incapable of a valid marriage? We return to the same observation: far more precise study of the nature of the "bonum coniugum" is needed before we can speak, with juridic precision, about the essential obligations that it gives rise to.

            My present feeling is that: a) not having yet attained a precise notion of the juridic content of the "bonum coniugum", we are not in a position to determine what an incapacity for it involves; b) since the effect of c. 1095 is limited to essential rights/obligations, if the canon has application to the "bonum coniugum", this is in regard to essential rights or duties, not to those that are accidental (the principal rights derived from the augustinian "bona" are certainly essential; clear demonstration of the essentiality of some other - autonomous - right has yet to be offered); c) in the end we are possibly going to conclude that an "incapacity for the "bonum coniugum"" is not juridically definable in any way which adds light to what we already know about consensual incapacity. This too could be to make progress - moving out of the haze of a perhaps unnecessary debate. In any event, and whichever way we move, there seems to be quite a distance to go before one can speak of substantial progress.

            II. The phrase "sese mutuo tradunt et accipiunt"

            So far we have seen that the "bonum coniugum" was a major result of the juridic decanting by the 1983 Code of the marital personalism of Vatican II and subsequent magisterium. We have also recalled the proper sense and implications of certain terms (essence, property, element, end) that mark necessary references for an adequate juridic analysis of this new term.

            Now we could look at another notable appearance of personalism in the 1983 Code: the notion of marital consent itself. To my mind, in fact, the "sese tradere/accipere" of c. 1057, where the object of consent is formulated in strikingly innovative and personalistic terms, goes side by side with the "bonum coniugum" as one of the most revolutionary and challenging expressions introduced into the 1983 law.

            That the change here is no less radical than that regarding the ends of marriage, appears from a comparison between the corresponding canons of the 1917 and the 1983 Codes. Canon 1081 § 2 of the pio-benedictine Code described marital 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". Canon 1057 § 2 of the present Code describes it as "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 a marriage". The change could hardly be greater. If we further bear in mind that the older notion had been worked and reworked in jurisprudence and doctrine, and also that there is very little if any evident point of connection between the two formulae, then the challenge to an adequate juridic analysis which does justice to the new formula is no less great.

            It is remarkable, as noted earlier, that many commentators, writing from the viewpoint of canonical personalism, center practically all their attention on the "bonum coniugum", with little if any reference to the "giving/accepting each other" of c. 1057, and no attempt to tackle its juridical analysis. Certainly the analysis is not easy; yet it must be attempted. In what follows I will sketch out one possible approach, working from personalist and anthropological parameters, and so seeking to arrive at a more strictly juridic conclusion.

The conjugal commitment

            Marriage is a form of sexual commitment [17] to which a man and a woman deeply in love are normally drawn, as a means of fulfilling their desire for union and life-communion. Lovers - who love with a conjugal love - would like to give themselves totally to each other, to be fused into one. Neither desire can be actually achieved, for neither party is owner of himself or herself to the extent of being able to give all of that self to the other. Parts of one's self are inalienable: responsibility for one's own salvation, for instance. Other aspects of self do not necessarily have to enter into married unity (it may be ideal that the spouses are at one in political opinions, recreational interests, etc.; but few would suggest this as requisite for a valid or for a happy marriage).

            All that lovers can do - and it is very much - is to establish between themselves a relationship so close and so unique that it places each in the privileged position of spouse, and so singles him or her out from all others. Marriage is a covenant whereby a man and a woman have consented to make each other object of a personalized relationship (than which none can be more unique), exclusive of all others (in respect of its distinctive mutual rights/obligations), for life, and open to sexual union and to the most personalized fruit (the child) of sexual intercourse, which itself is the most distinctive bodily expression of the conjugal love union between the spouses.

            Here we have the major personalist connotations of the conjugal self-gift of c. 1057 § 2. Any analysis of this marital self-gift naturally centers in the first place on these three unique expressions of a committed conjugal love-choice between a man and a woman: that the choice be exclusive of others, at least in a similar relationship; that it be permanent (a gift for a time is a loan, not a gift), that it be open to the life-giving power of sexuality (a couple can express the uniqueness of their relationship in no more striking a way than by having a child together).

            Lesage's 'gentleness and kindness in mutual relationships', 'mutual consultation on important aspects', 'lucidity in the determination of goals to be sought for jointly', or Wrenn's 'partnership, companionship and caring', can and should enter into any relation of genuine friendship, and will no doubt be particularly present in courtship and in the even more special relationship between engaged couples. Certainly these qualities should be more present still in marriage. Nevertheless they do not personalize the marital relationship - showing how each spouse has chosen to regard the other as an absolutely singular person in his or her life - in any way as totally unique as the marital giving-of-self and accepting-of-the-other which c. 1057 expresses. It is arguable in fact that this canon introduces married personalism into our contemporary law in an even more striking manner than c. 1055.

The essentially personalist meaning of the augustinian "bona"

            This juridic analysis of c. 1057 calls for a fresh consideration of the augustinian "bona", thus developing the progressive line which finds old roots in new expressions - "the new" rehabilitating (doing justice to) "the old".

            Canonists may well have to make a particular effort to integrate the augustinian "bona" into their married personalism, precisely because their natural concern with the invalidating effect of the exclusion of these "bona" (or one of them) has made them focus on the obligations involved in each, and so see them in a negative perspective. The unfortunate result has often been to obscure the natural attractiveness of these marital values, and to create a mindset sceptical about the fittedness of man for marriage or of marriage for man. That was not the mind of St. Augustine as he developed the doctrine of the "bona", in his defense of marriage against the pessimism of the Manicheans (cf. C. Burke: "St. Augustine and Conjugal Sexuality": Communio 1990-IV, 545-565).

            Augustine insists that marriage is good because of three fundamental "goods" or values. "Let these nuptial goods be the objects of our love: offspring, fidelity, the unbreakable bond... Let these nuptial goods be praised in marriage by him who wishes to extol the nuptial institution" (De nupt. et conc. I, c. 17, n. 19). For him, each of the essential properties of the conjugal society - its exclusiveness, its permanence, its procreativity - is a good thing, that gives dignity to matrimony and shows its deep correspondence to the innate aspirations of human nature, which can therefore take glory in this goodness: "This is the goodness [bonum] of marriage, from which it takes its glory: offspring, chaste fidelity, unbreakable bond" (De pecc. orig., c. 37, n. 42). So he presents these values as main features of a true marital bond which underline the natural goodness of marriage and show it as something admirable and attractive to human consideration.

            Is St. Augustine's notion of the basic goodness of the exclusive, unbreakable, fruitful nature of the married relationship valid today? His view certainly needs to be reechoed in teaching and preaching, precisely because our modern world appears to see so little in marriage - to put little into it, and to get little out - , and is not likely to recover its appreciation until it comes to reevaluate the worth of each of the augustinian values and the way in which each corresponds to the deeper aspirations of genuine human love between man and woman.

            Yes; many people today are suspicious of an exclusive relationship. And yet everyone wants to be "someone very special" in some other person's eyes. Hence arises the good or value of the commitment to a faithful and exclusive love in marriage. "You are unique to me" is the first truly personalised affirmation of conjugal love; and echoes the words God addresses to each one of us in the book of Isaiah: "You are mine" (Is 43:1). The person who does not wish to "belong" to someone else (in a mutual "belonging") risks consigning himself or herself to growing isolation and loneliness.

            Yes; many people today are suspicious of binding themselves for ever. And nevertheless, "I'll love you for always" is what love aspires after. "Love seeks to be definitive; it cannot be an arrangement 'until further notice'..." (Catechism of the Catholic Church, no. 1646). With the acceptance of a permanent bond of love comes the goodness of knowing that one's "belonging" to another, and that other's belonging to one, is for keeps. People want this, and while they know that it will require sacrifices, there is a natural sense that the sacrifices are worth it. "It is natural for the human heart to accept demands, even difficult ones, in the name of love for an ideal, and above all in the name of love for a person" (John Paul II, General Audience, April 21, 1982: Insegnamenti di Giovanni Paolo II, V, 1 (1982), 1344).

            Yes again; many people today are suspicious of the burdens of having children. And yet the fruitfulness of the conjugal union fulfils man's and woman's normal longing for self-perpetuation and for the perpetuation in offspring of the conjugal love between them.

            Christians may need to recover their understanding of and enthusiasm for marriage so conceived, before being in a position to help their contemporaries do the same. If, as I think happens, many Christians themselves are taken aback by John Paul II's way of speaking of indissolubility in Familiaris Consortio (no. 20), when he says that "it is necessary to reconfirm the good news of the definitive nature of conjugal love", then it is urgent for them to regain a healthy anthropological perspective. In this sense, there is a clear pastoral work of formation to be undertaken.

            So, a revival in understanding of marriage as a normal commitment and as a way of fulfillment calls for a renewed understanding of the positive nature of these "bona", of how they correspond to the innate aspirations of conjugal love between man and woman. To my mind, true married personalism neither rejects the augustinian "bona", nor wants to progress away from them, but rather to integrate them into its own vision.

            Since I am writing for canonists, may I emphasize that this suggestion is not intended to encourage any naïve optimism. No; given that so many of our contemporaries are suspicious of commitment, a proper perspective on the augustinian "bona" should lead to a reconsideration of how simulation of consent is a likely grounds of nullity today - in many cases more appropriate and more likely to succeed than that of consensual incapacity. It would be significant progress if the almost automatic current invocation and handling of nullity cases under c. 1095 were substituted in large measure by serious treatment under c. 1101. There are encouraging signs of a turning in that direction (Cf. for instancce, the series of articles published in The Jurist 55 (1995) 698-793: James H. Provost and Edward G. Pfnausch: "Simulated Consent: a new way of looking at an old way of thinking"; John B. Beal: "Proving simulation of matrimonial consent").

            To my mind, no small obstacle to progress in juridic thinking is the difficulty some writers experience in overcoming the categorization of the augustinian "bona" as "institutional", and therefore as "non-personalist", aspects of marriage. In other words, they see an obligatory contrast and even opposition between "personalist" and "institutional". To me this contrast and categorization are dated, showing a notable lack of integrated analysis - a failure to understand that the constitutional or institutional aspects of marriage (those deriving from its very institution) can be both institutional and personalist at one and the same time. "Institutional" in its most proper sense refers to what marriage is - what properties and finalities, etc. it possesses - in virtue of its institution. It is in this sense that I use the term. I would refer again to the dual Genesis account of the institution of marriage as showing that its institutional purposes are both procreative and personalist. The "bonum coniugum" is a personalist end of marriage but, for all that, no less an institutional end (cf. Gen 2: 18). In a similar fashion, the augustinian "bona" are institutional properties of marriage (cf. Gen 1: 1: 27-28; 2: 18-24; Mt 19:8); and, as the most characteristic qualities of the interpersonal covenant between the spouses, are at the same time fundamentally personalist. If one does not see this, it becomes hard to grasp that current church thinking on marriage is running along lines of synthesis, and not of opposition, between institutional and personalist, as is already made clear in c. 1055.

            Dewhirst, for instance (and he is commenting precisely on my view that the augustinian "bona" represent the main defining parameters of marriage), warns that "we must beware simply of clothing traditional concepts in a personalist garb, but rather must examine the importance given to the interpersonal relationship of the spouses" (op. cit. 805). But surely the opposition apparently implied here is not justified. Can anything qualify the interpersonal relationship of the spouses more uniquely than their mutually pledging themselves in that exclusive, permanent and life-oriented union?

            Mendonça too seems to regard any understanding of the essence of marriage centered mainly on the augustinian "bona" as over-narrow. He says, "the approach adopted by the Second Vatican Council, by the Pontifical Commission for the Revision of the Code, and ultimately by the legislator himself, is not the one circumscribed by the augustinian schema. The council described marriage as a human reality, an exclusive and permanent union or communion of a man and a woman ordered toward the good of the spouses and the generation and upbringing of children" (op. cit. 522-523). This argument is unusual: having implied that Vatican II turned away from St. Augustine, Mendonça uses what in effect are augustinian parameters (exclusive, permanent, ordered to generation), to describe the Council's view of the essence of marriage. His own summary of the Council's presentation of marriage seems to bring out the underlying continuity of ecclesial thought.

            Mendonça here echoes a common error in affirming that Vatican II describes marriage as "ordered toward the good of the spouses". Gaudium et spes speaks twice of marriage and married love being of their nature ordered to offspring (nos. 48; 50), suggests that the end of procreation is not the only end ("non posthabitis ceteris matrimonii finibus": 50), but nowhere says what the other ends may be. The "bonum coniugum" is mentioned once (and very much in passing), simply as a good consequence of indissolubility (no. 48; Casti connubii contains a similar reference: AAS 22 (1930) 553.); but nowhere in the Council documents is it presented as an end of marriage.

            In the 1989 article already referred to, I drew attention to this point (which seems to escape not a few commentators), stating that Gaudium et spes "nowhere says that marriage is ordered to the good of the spouses" ("The Bonum Coniugum...": The Jurist 49 (1989), 704). Pfnausch quotes my statement as an illustration of how I do not follow "the common opinion" (op. cit. 546). But I hold by the assertion: the Council nowhere states that the good of the spouses is an end of marriage (which makes me all the more grateful to the Code for doing so). Common opinion, if in doubt about the matter, can check for itself. The point already made surfaces again: if the real newness of the term "bonum coniugum" is not kept in mind, progress in the analysis of its content is made unnecessarily difficult.

            Neither Mendonça nor Dewhirst are happy with the proposition (which they attribute to me) that the essence of marriage is to be understood according to the augustinian "bona" only (Mendonça, op. cit. 522; and also "Recent Trends in Rotal Jurisprudence": Studia canonica 28 (1994) 198; Dewhirst, op. cit. 805). While my reflections make me think that the juridic essence of marriage (our discussion is centered on what is juridic) is primarily and most clearly defined by the augustinian "bona", I do not say that it is limited to them. It seems to me important to keep an open mind to any argument that shows how some other well-defined element is in fact juridically essential. But so far, I must confess, I have seen no convincing presentation of any such element. Dewhirst (805) remarks that "the interpersonal relationship of the spouses surely embraces more than the traditional bona". I too am sure that it does; it embraces many practices of loving care and many moral duties of kindness, help, understanding... But the question for canonists remains whether these other elements are essential in a constitutional-juridic sense or not.

            Mendonça's expression quoted above to the effect that the contemporary understanding of marriage "is not the one circumscribed by the augustinian schema", seems once more to reflect a negative concept of the "bona", considered as restrictive or impoverishing, rather than as enriching, realities. From when I first began to write in the canonical field, I have defended the positive character of the augustinian "bona", and the need to return to an understanding of their human and enriching character. I have also defended the personalistic character of these "bona". Since I am aware that many canonists find it difficult to harmonize with this view, I should not be surprised - but do remain perplexed - to find it regarded as "regressive" (as Mendonça holds: op. cit., 519). If one loses something valuable in the course of a journey, the only way to continue to make worthwhile progress may be to take as many steps back (to "regress") as necessary to find it. To my mind, one of the greatest losses suffered by ecclesial thinking in the field of marriage (a loss plausibly to be attributed to canonical praxis more than to any other factor) is its diminished appreciation of the positive and personalist nature of the augustinian "bona".

Essential rights/obligations

            It should be noted that what are the essential properties or element(s) of marriage as referred to in c. 1101, and what are the essential obligations of marriage under c. 1095, 2 and 3, are distinct questions. Essential obligations may or may not arise from an essential element or an essential property (it is disputed whether the essential property of indissolubility does actually give rise to an obligation).

            Essential rights/obligations, to be juridically cognizable, must be constitutional, in the sense that their positive exclusion, or a grave lack of discernment regarding their nature, or an incapacity to undertake them, means that marriage cannot be constituted.

            From the outset, rotal jurisprudence has taken a firm stance that accidental qualities, or those that simply make for a more desirable or "ideal" married life, cannot be raised to the level of constitutional-essential obligations or rights (cf. c. Di Felice, Dec. 12, 1970: R.R.Dec., vol. 62, p. 1152; c. Pompedda, Jan. 15, 1987: vol. 79, p. 12; c. Colagiovanni, July 18, 1989: vol. 81, p. 527; March 20, 1991: vol. 83, p. 175; c. Palestro, June 5, 1990: vol. 82, p. 479, etc). It is for this reason that general lists of desirable moral qualities which foster a smooth and close communion of life (such as those proposed by Germain Lesage) have never found any juridic acceptance at the Rota.

            No real argument has been advanced to demonstrate why such moral obligations must enter the juridic essence of a validly constituted marriage, nor has any practical indication been given as to how a tribunal could judge that the failure of a marriage resulted from a radical incapacity, at the moment of consent, to live such moral obligations, and not from a simple unwillingness, from a certain moment, to do so.

            According to Pfnausch, among elements (proposed by rotal jurisprudence) as essential to the good of the spouses, is the ability of the parties "to establish a satisfactory sexual relationship". He adds that they "must be able to establish a "tolerable" relationship and, conversely, if the relationship were "intolerable", they were incapable of the essential obligations of matrimony" (op. cit. 551-552). Probably the second part of this statement (following "conversely") marks a slip of a pen writing quickly; certainly jurisprudence has never allowed such "a posteriori" proof. Re the first part - that the parties must be able to establish a "tolerable" relationship - Pfnausch later on (554-555) rightly refers to the great practical difficulty besetting the use of such a criterion. In fact, while some rotal decisions have spoken of "tolerable" or "intolerable" relationships, "intolerability" has never acquired the status of a valid juridic parameter to determine incapacity. The parameters constantly used in the Rota are essentially two: a) the gravity of the psychic anomaly proved from the acts; b) the incapacitating effect, for some essential marital obligation, of such anomaly.

            Progressive reflection on this topic must be sure of its point of departure (otherwise one may be "progressing" backwards). So, "in the first place, the essential obligations are those connected with and deriving from and therefore corresponding to the actuation of those which, in the long-standing theological-juridic tradition of the Church, are called the three "goods" of marriage: offspring, fidelity and the perpetuity of the bond" (M.F. Pompedda: Matrimonio Canonico fra Tradizione e Rinnovamento, op. cit. 146). This is the position adopted in rotal jurisprudence: the essential obligations of marriage begin with those involved in the three augustinian "bona": c. Pompedda, July 3, 1979, R.R.Dec., vol. 71, 388; c. Parisella, Dec. 18, 1980 (not published in Decisiones; see 1996 ed. of Iurispr rotalis CD); c. Palestro, Nov. 26, 1986, vol. 78, 667; c. Lanversin, March 31, 1987: vol. 79, 198; c. Pinto, May 30, 1986 (...CD); c. Jarawan, March 10, 1989: vol. 81, 194; c. Stankiewicz, May 28, 1991: vol. 83, 347; c. Ragni, Feb. 6, 1996: vol. 88, p. 95, etc.

            There remains the unresolved issue of whether any essential-constitutional marital rights or obligations, not already present in the augustinian "bona", derive from the "bonum coniugum". I gave an opinion on the matter in a sentence of Nov. 26, 1992, and concluded: "it would seem that the only legal measure of what is essentially involved in such rights/obligations [deriving from the "bonum coniugum"] is provided by the three augustinian "bona". From a juridic standpoint, the "bonum coniugum" gives rise to no other essential rights/obligations" (Studia canonica 27 (1993) 501). While my position there was tentative, I am still inclined to maintain it. It has been criticized; though I am not convinced that the criticisms have been accompanied by truly reasoned arguments showing how other specific rights enter into this category of juridically essential. If any debate is to progress, one has to exchange argument for argument.

            "Essential" (constitutional) and "juridic" are qualifications with very precise connotations; and in serious academic discussion solid reasons should be offered to justify the thesis that these qualifications apply to other rights/obligations besides those inherent in the three "bona". If one considers some of the rights invoked in this sense, they are either tautological in meaning ("right to a consortium vitae", is equivalent to a right to marriage; cf. c. 1055), or totally imprecise in connotation ("right to an interpersonal relationship", to a "high degree of personal integration"), or of an essentially moral nature (right to sympathy, to patience, to care...) which is of undoubted importance for the happy development of married life, but is not subject to juridic measurement and (excepting the possibility of dolus: c. 1098) cannot condition the validity of marital consent.

            I agree with Wrenn's animadversion: "legal positivism... implies that the written law is all important, certainly more important than justice or what is right and suitable for the community" (op. cit. 549). Yet it seems premature to talk of a positivistic approach to the 1983 Code - which, as "the last document of Vatican II", represents the latest attempt of the Church to lay out what is just and right for the ecclesial community - until we have in fact analyzed the particular written law it gives us, and clarified in what sense it translates the thought of the Council into valid working juridic terms. The Council, as well as other previous and subsequent magisterium, along with theology and christian anthropology, constitute solid reference points to avoid the dangers of inadequate interpretations, whether of a positivistic or other nature.

Is the law concerned with the "ideal" or with the reality of marriage?

            When Gaudium et spes speaks of marriage as a "community or partnership of life and love", it is conveying a pastoral message, offering a concept of marriage that the modern world urgently needs to see incarnated in christian couples. As a legal description of marriage, c. 1055 did not accept the conciliar expression - "communitas vitae et amoris" - , but rather the traditional roman law formula of "consortium totius vitae". This latter description does not of course exclude the Gaudium et spes ideal, but simply states the essence of what must be accepted between a man and a woman so that they can set out together on an enterprise in which the ideal also will hopefully be realized. The essence must be there, the ideal has to be striven for.

            Canon law obviously cannot take its juridic parameters from the ideal of married life and love which the Council presents. As José María Serrano writes: "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": Sentence of 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 humam rights (cf. c. 1058). Canon law therefore must be concerned with the essentials and with the ends of marriage.

            Few marriages achieve "The End" of so many romantic novels and Hollywood films of other days, that "ideal" of 'living happily ever after' which (also today, human nature being what it is) still probably marks the hopes of the great majority of people marrying. One would expect a true "communion or partnership of life" to show tenderness, consideration, tact, mutual understanding, integration of characters, etc. Most people marrying probably expect and certainly hope to have a married life so characterized. Such hopes make up part of their motivation in marrying, for no one would be likely to marry if he or she expected to meet the opposite. They set themselves an ideal to be achieved. Its actual achievement will depend on them, helped by grace. The Church too must help; but it does not seem to be the role of law but rather of more immediate pastoral work, to facilitate that ideal.

            If we interpret the "bonum coniugum" to mean something along the line of a life together in which each spouse feels himself or herself "realized" or "fulfilled", we will often enough be presented with claims that this purpose was not achieved, and we can then choose, if we wish, to debate whether this gives ground for an annulment (through exclusion, incapacity or whatever). Such an interpretation of the "good of the spouses" does not seem to me to be personalistic (but rather individualistic) (cf. Pope John Paul II's Address to the Rota of Jan. 27, 1997.); besides I doubt one can make any truly juridic progress with it.

            If one takes the "bonum coniugum" as consisting - according to God's plan in instituting marriage - in the maturing of the spouses as persons through the generous dedication that married love calls for, the connection with the other notable personalistic phrase introduced by the Code in c. 1057 § 2 then becomes more evident. True conjugal love places a personalist accent not only on the sincere "giving of oneself", but on the no less sincere "accepting of the other": accepting him or her as he or she really is, i.e. with defects. True married commitment - "for better or for worse"; "till death do us part" - is always the pledge of two defective people trying to love each other as they are, defects and all, and to stick to the task. Defects give little grounds to suppose incapacity, though their growth may indeed imply poor effort or even bad will. One's response to the defects of one's partner may also be defective - defect for defect - or it can be generous, helped by the experience of how hard it is to battle against one's own defects.

            Is the "bonum coniugum", so understood, an "ideal" (cf. Dewhirst, op. cit. 804-805.) rather than an end of marriage? I think it is both. The Code, as is proper to a legal document, speaks of it simply as an end; and as such it should be treated in canonical analysis. Whereas, when the Cathechism of the Catholic Church speaks of it as an end, I think it is also proposing it as an ideal - for ideals need to be presented to Christians.

            I would not like to see canonists work with an over-idealised view of human nature, or of marriage. But I do consider that their work may suffer if it is 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, by 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. Similarly, if a person does not choose to see an aspect of "ideal" in the ends of marriage, they may still administer good canonical justice. Yet I do feel that their approach to the ends may lack depth. As we know, the subjective ends of the persons marrying may not coincide with the objective institutional ends with which marriage has been endowed by God. Yet, Original Sin notwithstanding, one often finds a real (though perhaps imperfect) coincidence or relation between them. For most people marrying, to have children is indeed an ideal; they are aware that children may take sacrifice, but their human love naturally aspires to that particular end of marriage, which will come as a fruit of their married love and union. There are exceptions, which are more numerous today. But they still remain exceptions.

            Something similar can be said in relation to the "bonum coniugum", the other end of marriage. Here however one has to distinguish. Concern just to be happy oneself in marriage is a natural aspiration. In itself however it denotes a self-centered interest that scarcely merits being called an ideal. Idealism enters the heart of those marrying (and it is generally there), when the concern is to make one's partner happy. Here I am not lapsing into the identification of the "bonum coniugum" with "shared happiness". The achievement of the "bonum coniugum", if one is to make any sense of what seems in practice to be the working of God's providence, also involves many things that, to human eyes at least, cannot be termed "happy"; ill-health, loss of job, financial hardships, etc. "Shared hardships" can contribute enormously to the "good", the growth as a person, of each of the spouses. Even what might be considered unilateral hardships (such as the burden of a disabled husband falling totally on the wife; or the more extreme case of infidelity of one partner, where the other remains faithful to the bond) can serve the deeper good of at least one of the parties, in a way that perhaps would not have been brought about by some easier lot.

            "There is a specific and unique way of acting and reacting to one another which constitutes the good of the spouses" (Pfnausch, op. cit. 548). I agree with this, as far as it goes (it omits God's action), simply suggesting that among the many ways of acting towards one another, none can be more specific or unique to spouses than mutual perseverance in fidelity, until death, in a union open to the natural and unique fruit of conjugal love. In this sense jurisprudence links the augustinian "bona" to the "bonum coniugum" in saying that the former mark the framework or the conditions in which the latter can grow and be achieved ("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": c. Defilippi, Dec. 1, 1995: RRD, vol. 87, p. 647).

            In the end, the "bonum coniugum" results not only from the way spouses react to each other, but even more from the way they react to the commitment freely and mutually made in consent; and particularly from the way each (ideally, both together) reacts to what life sends, or God permits, in the course of their marriage.

            Mendonça suggests that my writings offer "an example of regressive or 'reductionist' thinking that, contrary to the mind of the council, attempts to return to the narrow juridical view of marriage embodied in the 1917 code" (op. cit. 510; Pfnausch (op. cit. 546) seems to hold the same). Is it regressive to defend the personalist meaning of the "good of the spouses" of c. 1055, or of the "mutually giving and accepting of each other" of c. 1057 § 2, as well as the plausible link between these two new fundamental concepts introduced by the 1983 Code into the presentation of marriage? I too find many concepts embodied in the older Code very narrow, and have no wish to return to them (although it is both useful and interesting to indicate points of continuity - as well as clear contrasts - between the two Codes). My purpose is to suggest that if we wish to progress, we need to concentrate on an adequate juridic interpretation of the options actually made in the 1983 Code; studying their genesis - which also means studying why certain formulations proposed in the 1970s, especially the "ius ad communionem vitae", were rejected as lacking in any analysable juridic content. What seems regressive to me is to continue to invoke such formulae, in the precise terms in which they were posed twenty five years ago.

            To interpret the unique institutional nature and the profound content of the "bonum coniugum" in terms of lightweight concepts of the 1970s, is not to follow a progressive line, but rather appears as a turning back to pre-1983 times. The result could be superficial analyses of one of the richest terms to enter the theological as well as the canonical understanding of marriage. Nor is it progressive to ignore the difficult analysis of the equally rich and singularly personalistic description of the object of matrimonial consent - the "sese mutuo tradunt et accipiunt" - offered in c. 1057 § 2, including consideration of how (in a progressive line of continuity with tradition) it offers an important key to the analysis of the "bonum coniugum" itself.

NOTES

[1] Cf. the Apostolic Constitution, Sacrae Disciplinae Leges, promulgating the Code, where the Pope says: "the new Code can be considered as a great effort to translate this same doctrine, that is, conciliar ecclesiology, into canonical language".

[2] Cf. for instance, in relation to the munus regendi, cc. 208-209, 212, 221, 228; in relation to the munus docendi, cc. 213, 217-218, 229, 762ss; in relation to the munus sanctificandi, cc. 210, 213ss, 225-226, etc.

[3] The Code is meant to be a "an effective instrument which can help the renewal of the Church according to the spirit of the Second Vatican Council, and make it more and more fitted to carry out its salvific mission in this world": Sacrae Disciplinae Leges.

[4] which, as has been rightly observed, is "filled with meaning and is certainly not as simple as some seem to consider it to be": Mendonça: op. cit. 520.

[5] It is evident that that the "bonum coniugum" is an end of marriage. Should it be classified as a personalist end, or as an institutional end? To my mind it is both; nor should there be anything surprising about this conclusion: cf. Communio, loc. cit., 287.

[6] "Bonum prolis" means ordination to procreation; so one sees how the property ("bonum prolis") relates to the end (procreation), at the same time being in a quite distinct category. If both the relationship and the distinction are not clearly grasped, analysis can become confused. Hence for instance the questionable suggestion that the "bonum coniugum" can be considered "in se", as an end of marriage, and "in suo principio", as an essential element: cf. A. Dewhirst: "Consortium Vitae, Bonum Coniugum and their relation to simulation" The Jurist 55 (1995), 804; P. Pellegrino: "Il bonum coniugum: essenza e fine del matrimonio canonico": Il Diritto Ecclesiastico, 1996, 829.

[7] Mendonça, perhaps because of a not altogether accurate rendering of these words by Pinto, seems not to weigh the force of the "ordinatio ad..." op. cit. 511.

[8] "Ita auferuntur difficultates circa clausulum «aut ius ad ea quae vitae communionem essentialiter constituunt» et, etsi generico modo, relatio exprimitur necessaria ad ea quae essentialia matrimonio sunt, quae quidem a doctrina et iurisprudentia determinanda sunt, habita ratione definitionis can. 1008 § 1 [= c. 1055 § 1] necnon totius legislationis et doctrinae, sive iuridicae sive theologicae": Communicationes, 1983, 233-234.

[9] cfr. c. Pompedda, June 8, 1987: RRD, vol. 79, 368; c. Huber, Oct. 27, 1994: vol. 86, 535; c. Civili, Dec. 18, 1995: RRD, vol. 87, p. 696; P.A. Bonnet: "L'"ordinatio ad bonum prolis" quale causa di nullità matrimoniale": Il Diritto Ecclesiastico, vol. 95, 1984, 330. Rotal decisions regularly deal with exclusion of the augustinian "bonum prolis" under the "essentiale aliquod elementum" of c. 1101 § 2.

[10] It is true that in a few rotal sentences (mainly coram Bruno; see Mendonça, op. cit. 519) the phrase "element or end" is used in reference to the "bonum coniugum"; but this is never done in the context of an analysis of the term. It would seem to be no more than an expression let drop loosely and in passing.

[11] "The first area of agreement, clear from the process of revision, is that the good of the spouses is an essential element of marriage": Edward G. Pfnausch: "The good of the spouses in rotal jurisprudence: new horizons": The Jurist 56 (1996) 546.

[12] "I beni del matrimonio: elementi e proprietà essenziale", in La nuova legislazione matrimoniale canonica, 1986, p. 97. Mendonça (op. cit. 512) does not seem to interpret Navarrette correctly on this.

[13] cf. AA.VV.: Il «bonum coniugum» nel matrimonio canonico, Lib. Ed. Vat. 1996; R. Bertolino: Matrimonio Canonico e 'Bonum Coniugum': Torino, 1995; E. Montagna: "Bonum Coniugum: Profili storici": Monitor Ecclesiasticus, vol. 120 (1995-III), 399-431; S. Villeggiante: "Il «bonum coniugum»" e l'oggetto del consenso matrimoniale": Monitor Ecclesiasticus, vol. 120 (1995), 289-323, etc.

[14] It seemed from Paul VI's 1976 address to the Rota that "love" could not be considered an essential element of marriage. See however: C. Burke: "El amor conyugal: ¿nuevas perspectivas jurídicas?": Revista Española de Derecho Canónico, 53 (1996) 695-704.

[15] In any juridical analysis of marriage, the "communio vitae" is practically synonymous with the "consortium totius vitae" or "partnership of the whole of life" (c. 1055). Applied to marriage both expressions are obviously to be qualified by the adjective "conjugal": "conjugal partnership", "conjugal communion" (for there are many partnerships or communions which are not conjugal). In such an objective acceptance, either expression becomes synonymous with marriage itself.

[16] Even rotal jurisprudence still occasionally lapses into a careless use of "ius ad prolem", when what is meant is a right to the "bonum prolis". In the past this was perhaps just an unimportant imprecision; nowadays however the distinction involved has ceased to be immaterial. The whole issue of a "right to a child" is at the heart of in vitro fertilization questions, etc. See Donum Vitae, 1987 Instruction of the Congregation for the Doctrine of the Faith, II, 8; Catechism of the Catholic Church, no. 2378.

[17] True human sexuality is of the whole person, and therefore is spiritual as well as physical. Hence, here and elsewhere, I use "sexual" not in a mere corporal sense, but as denoting all the complementary aspects of the mutual attraction - spiritual and characterial, even more than physical - that man and woman reciprocally experience.