cormacburke.me.ke

May I offer a few comments on Fr. Patrick Connolly's interesting paper "Reflections on the Good of the Spouses", given at the 1996 Canon Law Conference in Glasgow. In his opening paragraphs he makes very important points: a) that the "bonum coniugum" is an objective (institutional) end of marriage rather than any subjective end of the parties [1]; b) "post-conciliar documents give great attention to the good of the spouses, [but] do not identify its specific elements" (pp. 27-28). In these latter words he pinpoints the main problem, and suggests the dangers of over-invoking a totally new term without having identified not just its elements but its very nature. It seems unwise to make any broad use of a new term without having a fairly precise notion of what it means; and particularly, in the case of canonists, of its juridic scope and effect. This is the way in which we are likely to arrive at a solid analysis of what is probably the main practical question: whether the "bonum coniugum" is a source of new rights and obligations not hitherto properly specified or protected in canon law; and if so, which are these rights and obligations, and which of them, if any, can be considered essential within the terms of c. 1095.

A fourth "good" of marriage?

            It helps to clear the ground for deeper consideration if one can establish what the "bonum coniugum" certainly is not. It is not a property of marriage, rather than an end. I am not sure if Fr. Connolly is expressing surprise when, referring to my ideas, he remarks that "for him (Burke), the "bonum coniugum" does not constitute a fourth good" in the augustinian sense (p. 30). This is not just an idea of mine. More than ten years ago, the well-known Italian canonist, F. Bersini, wrote in one of the first commentaries to the new Code: "The 'bonum coniugum' has nothing to do with the augustinian 'bona'..." (Il Nuovo Diritto Canonico Matrimoniale, Turin, 1985, p. 10). The point is elementary but, if it is not clearly grasped, one lets mere terminological similarity create confusion in juridical analyses (much as would happen if one took the "bonum sacramenti" to refer to sacramentality and not to indissolubility).

            I doubt that clear thinking can be achieved here unless one is prepared to make an analysis based on the classical (and, for clarity in analysis, very useful) distinction between essence, properties and ends of marriage. To range the "bonum coniugum" as a fourth "bonum matrimoniale" along with the traditional three "bona" that were first formulated by St. Augustine, would in fact place it in the line of a property of marriage. This simply does not stand up to analysis. In the augustinian view, the three "bona" - "fides", "proles", "sacramentum" - refer to "goods" of the married state: in other words, they are positive features of matrimony that give it dignity. Marriage is good because it is characterized by faithfulness, permanence and fruitfulness. Each "bonum" is predicated of or attributed to marriage. An intention or disposition to have a child by one's spouse is a "bonum matrimonii"; and so is the exclusiveness or the permanence uniting the two. It is evident then that St. Augustine is speaking of the values or essential properties of marriage, not therefore of its ends or finalities.

            Perhaps this becomes more evident when presented schematically:

            - bonum fidei: "faithfulness" or "exclusiveness" is a "bonum" or attribute of matrimony;

            - bonum prolis: "openness to having children" or procreativity (which St, Thomas callls "proles in suis principiis": Suppl. q. 49, art. 3 ad 3) is a "bonum" or attribute of matrimony;

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

            Here surely it becomes obvious that one cannot proceed to add the "bonum coniugum" to this list. It would make no sense to say that the "coniuges" - the spouses - are a "bonum" or an attribute of matrimony. The fact is that the term "bonum coniugum" does not express a value or 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 marriage should cause or lead to.

            The "bonum coniugum" therefore is in the line not of property but of finality. Matrimony, which is an institution characterized by exclusivity, permanence and procreativity, tends to the good of the spouses, just as it tends to the actual procreation of offspring. In fact it is striking that doubt should remain about this after the promulgation of the new Code, since c. 1055 quite clearly expresses the matter: "the matrimonial covenant ... is by its nature ordered toward the good of the spouses and toward the procreation and education of offspring". The ordination spoken of here is to the natural and inherents ends of matrimony.

"Adding" to the essence of marriage?

            I am am not sure of the overall implications of what Fr. Connolly writes on p. 29: "[Burke] has certainly challenged any unquestioning assumption that the term bonum coniugum has added something new to the juridical delineation of marriage's essence" (p. 29). Has anyone actually suggested that the new Code wished to add "something new" to the essence of marriage? I doubt that the Council or the Code wished to (or could) add to or change anything in the essence of marriage. What the Code does - like the Catechism of the Catholic Church after it (no. 2363: "... the twofold end of marriage: the good of the spouses themselves, and the transmission of life"; cf. nos. 2249 and 1660) - is to change our understanding of the nature of marriage, precisely in relation to its ends, giving a new description of one of these ends, a description of great human richness and appeal, which theology and spirituality and canon law will all want to analyse, each from a different angle according to its specific area of concern. The concern in canon law is the juridic import of the "bonum coniugum", used now for the first time to describe the personalist-institutional end of marriage.

            So when Fr. Connolly repeats, "Burke has provided a challenge to the notion that the term "bonum coniugum" has added something important to the canonical delineation of marriage's essence" (p. 30), my feeling is that it is the term "bonum coniugum" itself which provides a challenge to analysis. If one holds that the term has in fact added to the essence of marriage, the "something important" added needs specification.

            While the link between ends and essence is very intimate, a proper analysis still calls for their distinction. So I would have no difficulty with Fr. Connolly's statement that "Burke holds that the bonum coniugum... is only an end of marriage, and not part of its essence" (p. 29), if it were not for the possible implications of the "only" he uses here. This seems to imply that in stating it is an end, one somehow "reduces" its importance. I don't think so; I feel one simply facilitates its analysis.

            A major point to ponder is whether one can have a valid marriage even if the "bonum coniugum" is not achieved. My present view is that the answer should logically follow the reasoning that is clear in relation to the other institutional end of marriage: procreation. You can have a valid marriage without actual procreation (end), but not without an openness to procreation (property). This may seem abstruse; yet I think the framework for a proper analysis was put by Fr. Connolly himself when he writes on p. 28 "the ends as such do not pertain to the essence of the society in the way properties do".

            When Fr. Connolly writes on p. 30 that according to my Armagh sentence of Nov. 26, 1992 exclusion of the "bonum coniugum", "does not comprise anything more substantial than that contained already in the Augustinian bona", he attributes to me a degree of certainty I have not reached. What I wrote in that sentence is: "while it is clear that the exclusion of the "bonum coniugum" invalidates (as does the exclusion of offspring), it is not clear that such exclusion comprises anything substantial not already contained in the three bona" (R.R.Dec., vol. 84, p. 584; cf. Studia canonica 27 (1993), pp. 501-502). My point is that the term "bonum coniugum" is new, rich and suggestive, but also as yet very vague, and that our tentative analyses of its scope and content should be as concrete and precise as possible.

Juridical positivism?

            Fr. Connolly asks: "In his [Burke's] reliance on the text of the canons allied with his contention about essence and ends, is there a hint of juridical positivism?" (30). I doubt it. As I have recalled elsewhere ("Personnalisme et jurisprudence matrimoniale" Revue de Droit Canonique, vol. 45 (1995) pp. 340-343), we are no longer back in the 1970s, engaged in lively debate in doctrine and jurisprudence about certain broad and attractive phrases invoked by the Council, such as the "communion of life and love". We have a new Code, and it is important to get to grips with the concrete personalist options it has made; in other words, to focus attention on the actual phrases incorporated into the new Code, and so given juridic status. The "communio vitae et amoris" did not make it; the "sese mutue tradunt et accipiunt", did. Therefore it is the latter highly personalist concept (along with the "bonum coniugum") which calls for attention and analysis, so as to discover its underlying content. It is for these reasons that I certainly "rely on the texts of the canons" (especially cc. 1055 and 1057, § 2). Is this positivism? It could be, if one simply stopped there and refused help from others disciplines in the effort to push the investigation deeper. In fact, the very tentative analyses of the "bonum coniugum" which I have gradually put forward try to search out the biblical, theological and magisterial sources which can help clarify the overall analysis called for [2]. Such an approach may be right or wrong; it may be done effectively or ineptly; however it is anything but the approach of a juridical positivist.

            Fr. Connolly draws the conclusion: "we can safely hold now that the "good of the spouses" is indeed of the essence of marriage" (31). But is that conclusion all that "safe"? In other words, is it really substantiated if, as he writes a few lines further down, "Although the overall juridical significance of the "bonum coniugum" is quite clear, its precise content remains undefined"? This latter point is quite true of course, which makes one wonder if it is not premature to suggest that clear and practical answers have been found to the various juridic questions raised by the term. For instance I and others would have no difficulty in going along with Fr. Connolly's statement on p. 32: "if a person is able but unwilling to foster the essential good of the other spouse, and excludes it from his/her consent, then the marriage would be invalid". But how useful is such a statement if Fr. Connolly himself, having put the question a little farther down, "What aspect of the "bonum coniugum" are essential and what are the corresponding rights and duties that must be exchanged?", replies: "To this question there is as yet no clear answer". That remains our problem.

            I would repeat the point made at the start. Important - but unclear - terms need to be handled with the greatest care. With its incorporation into the Catechism of the Catholic Church, the "bonum coniugum" is now a fully established ecclesial and magisterial terms. To my mind its nature is much more likely to be established by theological than by canonical reflection. Canon law - or the drafters of the new Code - can take credit for its introduction into ecclesial usage. But it is no longer just canonical patrimony; and for the determination of its exact meaning and content, canonists need to rely heavily on theological reflection.

            In short, in the "bonum coniugum", I think we have been offered a most rich term which covers the personalist end of marriage. But as regards its exact nature and content, and even more as regards the issue of whether it is an autonomous source of juridic rights, and if so, which of these are to be considered essential under the terms of c. 1095...: regarding such fundamental questions, I think we are at the beginning of a very interesting road, with as yet very little clear perspective on the conclusions it may finally lead to.

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            Might I add a comment on a somewhat separate point. With reference to my sentence of Apr. 11, 1988, Fr. Connolly observes: "Burke maintains that the generation and education of children could be considered primary in a "specifying sense" for marriage". I certainly maintain that "procreativity" specifies the marital relationship, distinguishing it from other relationships of love or affection (and I hold this for deeper and more positive reasons than the - not insignificant - fact that otherwise one loses solid ground for contesting the legitimacy of "homosexual marriages"). But I do not anywhere in that Sentence (or elsewhere) apply the term "primary", to procreation as an end of marriage. I fully share the opinion that we have passed from the older pre-conciliar idea of a hierarchy of ends to a new one of two principal interdependent ends [3].

NOTES

[1] That this is so was specifically stated by the Code Commission (Communicationes, 1983, 221), as well as being obvious from the wording of c. 1055 itself: "The matrimonial covenant... is by its nature ordered to the good of the spouses".

[2] cf. "The Bonum Coniugum and the Bonum Prolis; Ends or Properties of Marriage?": The Jurist 49 (1989), 704-713; "Marriage: a personalist or an institutional understanding?": Communio 19 (1992), 278-304; "I Fini del Matrimonio: visione istituzionale o personalistica?": Annales Theologici 6 (1992), 227-254.

[3] cf. my Communio article of 1992, pp. 287-288; 301-303.