cormacburke.me.ke

The jurisprudence of church tribunals has constantly held that the marriage consent from which offspring is intentionally excluded ("bono prolis excluso") is null. A recent rotal Sentence coram Stankiewicz, in expressing this principle, says that it is the exclusion of the procreative element which vitiates the very object of matrimonial consent: "Since the procreative element enters the essence of matrimony and represents an essential component of the formal object of matrimonial consent, no one of the contracting parties can deliberately exclude it without thereby invalidating the marriage itself" (coram Stankiewicz, 29 October, 1987, n. 3).

            I propose to consider this principle in the light especially of matrimonial consent understood as consent to the conjugal gift of self (cf. can. 1057, & 2): to consider, in other words, why it is that the procreative element enters so essentially into the object of matrimonial consent that, if it is excluded by one or both parties, then there is in effect no marital self-gift and therefore no marriage.

Man-woman relationships

            A brief consideration of the many forms of possible man-woman relationships can throw useful light on what it is that makes the married relationship unique. We omit from our consideration those relationships of a purely commercial, professional, scientific, social or political nature, which may be termed "impersonal". And we also omit, therefore, the exclusively physical-commercial relationship involved in prostitution. It is the more strictly personal relationships between a man and a woman that interest us. But even when we turn our attention to these, we see that they present many modalities.

            Besides prostitution, there are of course other immoral forms of such relationships, where some affective element may accompany the physical sexual relation: fornication, for instance, within the context of "free love", or adultery or concubinage...

            Leaving these aside, we contemplate the various moral forms of relationship between man and woman (cf. coram Wynen, S.R.R. Dec., vol. 36, p. 65-66, nos. 21 et 23). Between two persons of opposite sex, there can be "platonic" friendships, with the interaction no doubt of the spiritual aspects of masculinity or femininity, but with no tendency to corporal union. "A close bond of friendship can exist between two persons of opposite sex, even without carnal intercourse" (St. Augustine, De bono coniug., cap. 1).

            On a more normal level, the male-female relationship can take the form of the incipient physico-sentimental attraction between an adolescent boy and girl; it can be the relationship between two engaged persons, characterized by a strong bodily and spiritual sexual attraction that longs for the union of marriage; and, finally, it can be the conjugal relationship of two persons united by an exclusive and life-long bond.

Conjugality: the sexual element as an object of rights

            What distinguishes conjugality? Evidently not just permanence and exclusiveness alone. While these are essential properties of marriage (cf. can. 1056), they are not, of themselves, sufficient to individuate the conjugal relationship. Nor is this relationship sufficiently individuated by simply introducing the element of "sexuality", without further qualification: e.g. by describing marriage as "a permanent and exclusive sexual society between persons who enjoy juridic capacity". A platonic relationship, such as we have mentioned, could after all be established on a permanent and exclusive basis, and it does contain a certain (though merely spiritual) sexual element. Nevertheless if such an association is not conjugal, this is because conjugality implies a relationship not of mere convenience, friendship or love, but one especially of justice, in which the sexual element has, by mutual consent, become an object of rights and obligations between the spouses. So, in the conjugal relationship each spouse acquires a right with respect to the sexuality of the other, also in its physical aspect and concretely in its aspect of procreativity.

            This becomes clearer if we take into consideration both the finality of marriage, and especially the formal object of matrimonial consent, as presented to us in the Code of Canon Law.

            It is true that the Code of Canon Law promulgated in 1983 does not indicate any hierarchy in the ends of marriage, as did the previous Code (can. 1013, & 1). But the new Code is substantially in the same line as the old in affirming that marriage is "of its very nature ordered to procreation" (can. 1055). Turning to the notion of matrimonial consent, however, we find that this is described in the 1983 Code in terms that are very different to those used in the older Code. The 1917 Code says that consent is "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" (can. 1081, # 2), whereas the new Code says it is "an act of the will by which a man and a woman, through an irrevocable covenant, mutually give and accept each other in order to establish a marriage" (can. 1057, # 2).

            A first collating of these two definitions might seem to lend support to the thesis that the new Code emphasizes the personalist aspects of marriage to the detriment of the more clearly procreative emphasis present in the formula of the 1917 Code. However, if the new description of matrimonial consent is properly analysed, it too will be seen to integrate the procreative element into the essence of consent.

The "traditio personarum"

            Jurisprudence has still to arrive at a satisfactory assessment of the juridic content of the conjugal self-gift - the "sese mutuo tradunt et accipiunt" of can. 1057: "mutually give and accept each other". Nevertheless it should be clear that the concepts of "traditio suiipsius" ("gift of self") or of "donatio personarum" (mutual donation of persons), are not to be understood in a wholly literal sense. A true gift implies the transfer, from the giver to the receiver, of ownership of what is given. But it is evident that each spouse does not transfer ownership of his or her person to the other. Such a transfer would in fact be impossible because no one is in fact absolute "owner" of his or her person or "self". Similarly, the spouse receiving the conjugal gift does not become owner of the "self" of the other, being entitled to dispose of it as he or she wishes. No spouse owns the other: not the "self" of the other, not even the body of the other.

            Working within the terms of the law in force up to 1983, jurisprudence was careful not to speak of a "traditio corporis" but of a "traditio iuris", specifically of a "ius in corpus". D'Annibale expressed the reason clearly: "through marriage one does not come to possess the body of one's spouse, in the sense of owning it; one acquires a right of use in its regard" (Summ. Theol. Mor., vol. III, p. 368). If by marriage one spouse does not become owner of the body of the other, less still does he or she acquire ownership of the other's person. It would therefore seem that the notion of the "traditio personarum" needs to be juridically refined into that of the handing over of a "ius in personam". More specifically, a right is given over some personal element so proper to the individual that it can in some way be considered "representative" of him or her.

            A more proper analysis of matrimonial consent suggests that what the parties consent to is the exchange not of self but of personal sexuality: i.e. of sexuality in that respect in which it is most personal to each one, and in which it most properly complements the sexuality of the other.

            "A man and a woman become husband and wife when, by means of a particular type of covenant-commitment, they really donate to one another all of their masculinity and all of their femininity, in such a way that they come to form a unity - becoming one thing - in the conjugable aspects of their persons" (Viladrich, P. J.: "L'Habitat Primario della Persona in una Società Umanizzata", Anthropotes, 1988, IV, n. 1, p. 178). In the words of another writer: "What matrimonial consent essentially involves is the human nature of a man and a woman taken not absolutely but in the relativeness of their sexuality" (Bonnet, P.A.: L'Essenza del Matrimonio Canonico, Cedam, 1976, p. 180).

            The right that each spouse acquires is not (and cannot be) a right over every aspect of the other's person or life. It is a right over the conjugal aspects or attributes of the person; i.e. over his or her conjugal and complementary sexuality. Thus St. Thomas teaches that the object of the wife's matrimonial consent is not so much her husband, as conjugal union with her husband; and similarly the husband consents to conjugal union with his wife [1].

The gift of conjugal procreativity

            It is of the greatest importance to establish what is really specific to the gift of conjugal sexuality, and identifies it as such. To say, "I give you my masculinity: my masculine values... I give you my femininity: my feminine values..." is not yet to express adequately what is peculiar to this gift of conjugal sexuality. Such sentiments could be uttered within a purely platonic relationship, and are not too far removed from the metaphor-filled affirmation, "I give you my heart, I give you my soul", by which lovers like to express their desire for self-donation. Statements like these are not concrete enough for juridic analysis. There is nothing platonic or merely metaphorical, however, about the statement "I give you my procreative power". To give to another a right over one's procreativity has a totally concrete character to it: one that is indeed subject to juridic appraisal or measurement. The gift of procreativity has, in particular, a unique capacity to express the gift of self and the desire for union with one's spouse.

            Here we can see how a personalist and a procreative view of marriage are not in opposition, but are rather inseparably linked within a truly human understanding of conjugality. Procreativity, far from being a matter of mere "biology", as some would maintain, pertains to the most intimate aspirations of human love and the desire for spousal union, and is therefore eminently personalist. The readiness to share one's procreative power personalizes the marital relationship in a way that no other act can. This shows that each spouse is truly unique in the other's eyes, for each is prepared to share with the other, and with no one else, the unique power which is actualized in the union of procreative complementarities.

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

            St. Thomas, in a well-known passage (Suppl., q. 49, art. 3), distinguishes between procreativity ("proles in suis principiis") and procreation ("proles in seipsa"). If procreativity or openness to life is excluded from matrimonial consent, the marriage is invalid. Actual procreation, however, is not essential to marriage, and at times of course does not occur, as in the case of the marriage of sterile persons. But even in these latter cases, marital intercourse still signifies the mutual self-giving of the spouses, for it ratifies their intention to bestow on each other the gift of conjugal procreativity (and the same holds good, in normal marriages, for intercourse during pregnancy or in the sterile periods).

Marital union and the conjugal act

            A consideration of the expression, "the conjugal act", can deepen our understanding here. After all, the "totius vitae consortium" - the partnership of the whole of life - (can. 1055; cf. Gaudium et Spes, 48) involved in marriage should be characterized by many acts through which the spouses show the union of their lives and wills and express their mutual love: the unique appreciation that each has of the other. If one act, among the many that make up marriage, so distinctively expresses the conjugal relationship that it is in fact called "the marriage act", this is because, in it, the spouses are united in a totally singular way, each giving to the other his or her procreativity and accepting the procreativity of the other, as well as the possibility that the union of their two procreative elements may lead to a new life that will be fruit of their conjugal love and an image of their united selves.

            This would seem to find its confirmation in the fact that, as can. 1061 states, marriage is consummated only if the spouses have performed between themselves "a conjugal act which is per se suitable for the generation of children". If, as we are reminded in the same canon, it is by such an act that the spouses "become one flesh", this is because only those who mutually exchange the gift of reciprocal procreativity actually "give and accept each other" conjugally.

            ------------

            We are thus brought to a more personalist re-reading of the principle that the intentional exclusion of the "bonum prolis" invalidates matrimonial consent. The person who thus excludes the "bonum prolis" enters an invalid marriage, not only because he or she refuses to grant a true "ius in corpus" or a "ius ad actus vere coniugales" (accepting the natural consequences of these acts), but more fundamentally and profoundly because he or she, in excluding procreation from consent, makes a necessarily incomplete donation of self: one that is incapable of constituting that total self-gift necessary for a true marriage.

NOTES

[1] "non est directe consensus in virum, sed in coniunctionem ad virum, ex parte uxoris: et similiter, ex parte viri, consensus in coniunctionem ad uxorem": Suppl., q. 45, art. 1.