cormacburke.me.ke

            We have seen that the terms in which c. 1055 is formulated reflect a great personalist richness in the design of marriage, present from its very institution. This point, which has been of particular interest, is obviously open to much further investigation, especially in view of the biblical roots clearly to be traced in the canon.

            Now let us turn to another canon strongly marked by conciliar personalism, whose formulation seems to offer one of the most striking changes in the whole field of matrimonial law introduced by the new Code. This is canon 1057, § 2 which expresses the object of marital consent and which therefore - among other important considerations - is the main reference point for the juridic analysis of what is essentially or constitutionally involved in the marital commitment.

            The old Code treated the topic of the object of consent briefly and technically, without a whiff of metaphor. Matrimonial consent, from the canonical point of view, centered on the exchange of one physical right, being defined 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" ("actus voluntatis quo utraque pars tradit et acceptat ius in corpus, perpetuum et exclusivum, in ordine ad actos per se aptos ad prolis generationem": CIC 1917, c. 1081, § 2). Canon 1057, § 2 of the present Code specifies the object of marriage consent in totally different terms: "Matrimonial consent is an act of the will by which a man and a woman, through an irrevocable covenant, mutually give and accept each other in order to establish marriage" ("actus voluntatis, quo vir et mulier foedere irrevocabili sese mutuo tradunt et accipiunt ad constituendum matrimonium").

            The object of consent is no longer presented as a mere "right over the body", but as a mutual "self-donation". The old formulation, unappealingly "physicalist" (inasmuch as it seemed to reduce marriage to a mere bodily relationship), has given way to a new formula drafted in highly personalist terms of gift-of-self and acceptance-of-the-other. The "traditio iuris", the granting of a right "over the body" (the "ius in corpus") of the 1917 Code has given way, so it seems, to a "traditio suiipsius": the mutual "gift of self".

            The idea thus presented is new to juridic thought; so new that it should be no cause for surprise if jurisprudence and doctrine take some time before satisfactorily establishing the exact content and consequences - in canonical terms - of this personalist formula. Let us approach the matter step by step, and see where and how far our reflections can lead us.

            So strikingly different are the 1917 and the 1983 formulations that it seems hard to discover any relationship, any logical connection, or any evident point of development between the two. Science however seldom proceeds by total ruptures with the past. True progress - in canonical science no less than in other fields - usually shows many points of continuity with what has gone before; a point that could helpfully be borne in mind, also later on, as we pursue the scope of our study.

First jurisprudential reactions to marital "self-giving"

            Our first comment does not go beyond what is obvious. As object of matrimonial consent, the "ius in corpus" possessed a very well defined juridic content, and the rights and duties it led to were quite clear. This of course was the natural result of decades of attentive consideration in jurisprudence and doctrine. The "ius in corpus" was therefore a precise juridic concept. To many it was also a very poor one, suggesting an exclusively corporal and biological view of conjugal sexuality, with the object of consent apparently reduced to the right/duty relating to the physical act of intercourse.

            The concept of self-giving ("traditio suiipsius") seems to convey a much richer understanding of what is involved in the marital covenant. The older formula objectivised the other spouse: conveying the impression that it was his or her body alone which constituted the object of consent. The new formula shows how it is in their own persons that the spouses pledge themselves to one another. In line with the personalism of Vatican II, it appears to offer a view of marriage closer to its human reality, and in particular to the desire for self-gift so characteristic of the conjugal instinct.

            However, the precise juridical significance and content of this formulation are by no means immediately clear. In fact we are still in the initial stage of the analysis which it evidently calls for.

            The new formula has provoked diverse reactions and criticisms. On the rotal level, some judges have tended to ignore it, continuing to define the object of consent in terms of c. 1081, § 2 of the 1917 Code. For example, in a Sentence coram Fiore of Dec. 4, 1984, we read: "Matrimonial consent is an act of the will by which the contracting parties mutually give and accept a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children" (R.R.Dec., vol. 76, p. 593; cf. c. Huot, June 26, 1984, ib., p. 433; July 26, 1984, ib. p. 500; Decree c. Masala, March 5, 1985, n. 5; c. Huot, May 2, 1985, vol. 77, p. 225; c. Agustoni, Oct. 15, 1985, ib. p. 437; c. Di Felice, Nov. 8, 1986, vol. 78, p. 599).

            A Sentence coram Huot of May 2, 1985 insists that the formula of c. 1081, § 2 in the old Code "is substantially incorporated into the new Code in c. 1057, § 2" ("quod novus Codex substantialiter reassumit in can. 1057, § 2": vol. 77, p. 225). Another decision, coram Agustoni of Oct. 15 1985, quoting the old formula, comments: "The new Code contracted the way of expressing things, but did not change the object of consent, nor could it change since it is a question of a covenant based on natural law" ("Novus Codex modum dicendi contraxit, sed obiectum consensus non mutavit, nec mutare potuisset cum agatur de foedere in iure naturali fundato": vol. 77, p. 437; cfr. c. Di Felice, Nov. 8, 1986, vol. 78, p. 599). The principle offered in a slightly more recent sentence coram Funghini seems to remain within the same fundamental approach, even allowing for a certain enrichment: "The formal and substantial object of matrimonial consent is above all and necessarily the perpetual and exclusive right over the body with regard to acts apt in themselves for the generation of offspring, the right to the "consortium" and communion of the whole of life, by which the conjugal state is created and the good of the spouses obtained, with due observance of fidelity and the perpetuity of the bond" ("Obiectum formale et substantiale matrimonialis consensus est potissimum et necessario ius in corpus perpetuum et exclusivum in ordine ad actus per se aptos ad prolis generationem, ius ad totius vitae consortium et communionem, quibus efficitur coniugalis status et bonum coniugum consequitur, fide et vinculi perpetuitate servatis" (Nov. 8, 1989: vol. 81, p. 659)).

            Others go to different extremes. Some seem to reject out of hand the whole notion of "giving oneself", as being juridically meaningless. A sentence coram Egan of March 29, 1984 states quite flatly: "In fact, as is evident to all, no one disposes of himself to the extent that he can juridically give himself to another, and much less can someone juridically accept another as his own" ("Enimvero, prout omnibus sane liquet, iuridice nemo eatenus de se disponit ut possit iuridice se tradere alteri tantoque minus potest quis alterum sibi iuridice acceptare": vol. 76, p. 205). Another sentence assigns no evident limit to the extent of the matrimonial self-gift: "Matrimony is indeed the mutual, full and perfect [self-]donation of the contracting parties" ("Matrimonium est profecto mutua, plena ac perfecta contrahentium donatio": c. Bruno, Dec. 17, 1982, vol. 74, p. 648).

            Still another approach appears as a middle position, avoiding the extremes just mentioned. It takes canon 1057, § 2 as indeed proposing a new object of consent, but places this simply in the "establishment of matrimony". "Matrimonial consent is a specific positive act of the will which is directed to a concrete object... that is, to matrimony" ("consensus matrimonialis est specificus actus positivus voluntatis, qui fertur in obiectum concretum..., hoc est matrimonium": c. de Lanversin, Feb. 28, 1984, R.R.Dec., vol. 76, p. 146); "the object of consent, which is the constitution of matrimony" ("consensus obiectum, quod est constituendum matrimonium (cfr. can. 1057, § 2)": c. Pompedda, Dec. 4, 1984, ibid. p. 573). "The material object [of consent] is no longer the ius in corpus but it is the establishment of matrimony" (M. F. Pompedda, in AA. VV. Incapacity for Marriage: Jurisprudence and Interpretation, Rome 1987, p. 183; cfr. AA.VV.: Incapacidad Consensual para las Obligaciones Matrimoniales, Pamplona 1991, p. 75).

            Despite the authority for this approach, it seems less than satisfactory to pass over what is so particularly new in the canon - the phrase "mutually give and accept each other" - and to situate the object of matrimonial consent in the finality of this self-giving. Ultimately, this tends to deduce the object of consent from c. 1055, § 1 (as de Lanversin clearly does in the case just cited), and not from a more thorough examination of c. 1057. § 2 [1]. There is no objection to be made to the affirmation that the object of matrimonial consent is "the establishment of marriage", except the fact that it does little to advance the juridic analysis we are seeking. St. Thomas too first says that 'matrimonial consent means consent to matrimony', but then goes on to a more precise analysis ("consensus qui matrimonium facit, est consensus in matrimonium": Suppl. q. 48. art. 1). In examining the question posed by c. 1057, §2, it seems proper that we too should progress from the general and obvious to the more subtle but essential content that lies beneath. The "sese tradere/accipere" is the core-phrase of the new canon: a deliberate formulation which appears to impose a personalist-juridic analysis. Canonists are not likely to come to easy agreement in making such an analysis, but surely it must be attempted.

Pointers to a further juridic analysis

            First, we could re-examine key phrases from earlier magisterium that stress the personalist aspect of the matrimonial commitment, and see whether the canon chooses among them and, if so, whether the choice suggests a particular juridic intent. The Casti connubii encyclical of 1930 speaks of how people enter marriage "through the generous gift of one's own person made to the other for the whole of one's lifetime" ("per generosam quidem propriae personae pro toto vitae tempore factam alteri traditionem"AAS 22 (1930) 543). This concept of self-giving is repeatedly invoked in sections 48-49 of Gaudium et Spes, the Pastoral Constitution of Vatican II, but in somewhat varying ways. Marital union is referred to as "a mutual giving of two persons ["mutua duarum personarum donatio"]; the document speaks again of how married love leads the spouses to a "to a free and mutual giving of self" ["liberum et mutuum sui ipsius donum"]. To all intents and purposes, these two phrases are practically identical. There is however a phrase earlier in the text which should draw our attention even more, for it expresses something which is absent from the other two. It says that marriage "receives its stability from the human act by which the partners mutually give and accept one another" ("actu humano, quo coniuges sese mutuo tradunt atque accipiunt, institutum... firmum oritur"). Several considerations suggest that particular significance is to be attached to this phrase. First, one can note a somewhat more direct connection (than in the case of the other two) with the wording of Casti connubii ("propriae personae traditio..." / "sese tradunt..."). Secondly (a point of much greater interest), it enriches the Casti connubii expression by adding the idea of accepting the other, to that of giving oneself ("sese mutuo tradunt atque accipiunt"). Now, it is precisely this enriched idea that c. 1057 has taken word for word from Gaudium et Spes 48, to express what is involved in marital consent. Later on we will consider some of the further implications of this particular formulation; but it should already be clear that in marital consent, as juridically conceptualized by c. 1057, the "donatio" or "traditio" of one's self must be accompanied by an "acceptatio" of the other. In other words, the mutuality of acceptance, in consent, is of no less importance than that of giving [2]. The effect is to underline the perfection and totality of the conjugal commitment.

            This should be clear, but it still leaves us with our question. How is the phrase of c. 1057 to be juridically interpreted? What in juridic terms is the actual object of consent, according to the formulation of the canon. Surely the answer is that it is the spouses themselves? And if we go on to ask the question (essentially connected from the juridic point of view) what are the rights/duties deriving from consent so understood, once again the simple and obvious answer would seem to be that each spouse has the right to receive the gift of the self (or the person) of the other, and the duty to give his or her own self or person in return (with the corresponding mutual acceptance).

            Before the 1983 Code this seemed to be in fact the conclusion of a noted 1975 sentence of the Apostolic Signatura (coram Staffa, Nov. 29, 1975; cf. Periodica, 1977, 1-2, 297-325). While emphasizing that Gaudium et Spes is a pastoral and not a juridical document, the sentence did nevertheless endeavor to draw juridic conclusions from it. In particular, commenting no. 48 of the Constitution, it said that "the object of consent is stated to be the spouses themselves" ("obiectum consensus declaratur esse coniuges ipsos" (ibid. 306).

            This may seem obvious. Yet, we must ask, can it in fact be literally so? Is the object of matrimonial consent the actual gift of one's own person, "simpliciter", i.e. in all its aspects? Or is this notion - sese tradere/accipere - to be understood in a nuanced sense; one that does not reduce the reality of the conjugal self-donation, but does clarify and offer a more precise idea of it? This is the substantial question, and here lies the real problem of analysis.

Is a total gift of self a workable legal notion?

            The fact is that the notions of "gift of self" or of the mutual "donation of persons" [3] do not lend themselves to any simple juridic analysis. As must be obvious, a "mutual self-giving" or a "handing over of persons", are concepts that cannot be understood in a wholly literal sense. Personalism itself tells us that one cannot talk in terms of an absolute donation of self, or of an absolute acquisition of another, for it is contrary to the essential autonomy and dignity of the human person to be made the object of a simple transference or gift (Cf. "La donazione della propria persona riguarda necessariamente soltanto l'attività della persona, non però la persona stessa": U. Navarrette: "Consenso Matrimoniale e Amore Coniugale", in AA.VV. L'Amore Coniugale, Lib. Ed. Vaticana, 1971, p. 211).

            This is why one must always see an element of metaphor in the "traditio suiipsius". The right that each spouse acquires is not and cannot be a right over every aspect of the person or life of the other. Some of these aspects are in fact absolutely inalienable, such as personal dignity, freedom, responsibility, etc. (Cf. U. Navarrete: "Structura iuridica matrimonii secundum Concilium Vaticanum II", Periodica 57 (1968), pp. 135-137). Without questioning that the spouses should seek a high degree of mutual compenetration and moral unity, it is evident that marital consent does not confer any juridic right over those aspects of the person which can be considered supra- or meta-conjugal. Each spouse, along with the obligations proper to the married state, retains for instance the inalienable duty to work out his or her own salvation; a duty that can and ought to be powerfully helped by the married commitment, but which cannot be absorbed or transferred into it.

            A Sentence coram Pinto, of May 31, 1985 (speaking therefore of the Gaudium et Spes formula, "sese mutuo tradunt at accipiunt", after it had been incorporated into can. 1057) observes: "this formula in no way implies that the formal and essential object of consent is no longer the essential matrimonial rights and duties given and accepted, but rather the persons themselves... From what we have said it is clear that we cannot agree with the sentence under appeal when it states that the object of consent has been changed inasmuch as it would no longer be rights and duties, but the very persons of the spouses" ("quae formula... minime implicat consensus obiectum formale et essentiale iam non esse iura et officia matrimonialia essentialia tradita et accepta, sed potius personas ipsas... Ex dictis apparet nos concordare non posse cum sententia appellata cum affirmat consensus obiectum mutatum fuisse quatenus iam non essent iura et officia, sed coniugum personae ipsae" (R.R.Dec., vol. 77, p. 281).

            A true gift, after all, implies the transfer from the giver to the receiver of ownership - the "dominium" - of what is given. But it is obvious that each spouse does not transfer ownership of his or her person to the other [4]. Such a transfer would actually be impossible because no one is absolute "owner" of his or her person or "self". Similarly, the spouse receiving the conjugal gift does not become owner of the "self" of the other, entitled to dispose of it as he or she wishes. No spouse owns the other: not the "self" of the other, not even the body of the other.

A conjugal gift of self

            This could suggest an approach which may perhaps help the pursuit of our investigation. Former jurisprudence, in accordance with the law in force up to 1983, was careful not to speak of a "traditio corporis" - a "giving of the body" - , but of a "traditio iuris" - a giving of a right: concretely of a right over the body, a "ius in corpus". The moral theologian, D'Annibale, expressed the reason very clearly: "what one acquires through marriage is not the body of the other spouse, in the sense of acquiring rights of ownership over it, but only a right to use it" [5]. If by marriage one spouse does not become proprietor of the body of the other, less still does he or she acquire property rights over the other's person. So it would seem that, in juridic terms, the notion of the "traditio personarum" ought to be refined into that of the transference of a "ius in personam": of a right, that is, over something so proper to the person, so "representative" of him or her, that its "traditio/acceptatio" constitutes the conjugal gift of self, measurable in juridic parameters.

            In trying to determine what this right includes, one must be clear both about what a gift is and about what conjugality means. Gift implies a definitive and permanent donation of something, with a concession of proprietary rights. If no proprietary right is transferred, one is dealing with a simple loan, rather than a gift. In the case of matrimonial consent, the gift which confers proprietary rights is a conjugal gift: the gift of conjugality. What is understood by conjugality [6]? What are the constitutive elements of the conjugal relationship?

            Conjugality implies an interpersonal relationship which, along with being permanent, is exclusive, on a "one-to-one" basis (the same gift cannot be made to several persons at the same time). Conjugality implies more however, for it is clear that two persons could enter on an exclusive and permanent relationship, without this being conjugal, as for instance in commercial contracts, or even in particular cases of simple friendship. Conjugality therefore calls for another specific element, which is that of sexuality: the conjugal gift of self must have the effect of establishing an exclusive, permanent and sexual relationship with another person. The analysis is not yet complete, because this last element needs further qualification. Conjugal sexuality must be open to its procreative orientation (which also means that it must be heterosexual).

            These last two points have become particularly important today, because of claims to legitimacy both of contraceptive conjugality and (more recently) of homosexual "marriages". Both claims, it should be noted, are made in the name of a new and more personalist understanding of sexuality; and they are not unrelated. If the argument is legitimate that there can be a true marital relationship between a man and a woman without any necessary reference to the procreative aspect of their sexual complementarity, it is hard to see what cogent objections can be offered to the argument that an active relationship between two persons of the same sex can be established on a valid "marital" basis of similar self-giving.

Conjugality and procreativity

            It would seem then that the first step we must take in analyzing the conjugal self-gift - so as to determine more precisely its object and the rights/duties deriving from it - is to examine the relation between conjugality and procreativity: between the conjugal self-gift and open-to-life sexuality. Here an adequate canonical-juridic analysis cannot prescind from an anthropological analysis of the physical act of marital sexual intercourse, seeking to understand why the genital act between the spouses is called the conjugal act. Why should this be so? Why is intercourse between the spouses a unique expression of the donation and union proper to marriage?

            Our consideration must center on the desire of a man and woman in love for conjugal union. Can they actually achieve this desire? Can they actually take it beyond the purely volitional level?

            They can bind themselves to one another, but they cannot actually give themselves. Husband and wife can look for actions which express the desire for self-giving and which, if responded to, express mutuality in self-donation and in other-acceptance. Of all the acts that make up married life, there is one - the act of sexual intercourse - which expresses mutual marital donation in a totally unique way; so much so that the essence of the very constitution of matrimony involves entering into a relationship where a temporally permanent and personally exclusive right to that act is exchanged with another.

            But why is this act - which when all is said and done is but a passing and fleeting thing - particularly regarded as an act of union, as the distinctive expression of marital love and selfgiving? After all, people in love express their love and desire to be united in many ways: sending letters, exchanging looks or presents, holding hands, kissing... What makes the sexual act unique?

            Is the unitive meaning of the conjugal act contained just in the the special pleasure attaching to it? If intercourse unites two people simply because it gives particular pleasure, then it would seem to follow that sex without pleasure becomes meaningless [7], and that sex with pleasure, even homosexual sex, becomes meaningful.

            Mere sensation, however intense, does not sufficiently explain the uniqueness of the conjugal act. It may or may not be accompanied by pleasure, but its meaning does not consist in the pleasurable sensations it can produce. The pleasure provided by marital intercourse may be intense, but it is transient. The significance of marital intercourse is also intense, and it is not transient; it lasts. Where then, if not in the pleasure, is that significance to be found? Why should the marital act be more significant than any other demonstration of affection between the spouses, a more intense expression of love and union? Surely because of what happens in that marital encounter, which is not just a touch, not a mere sensation, however intense, but a communication, an offer and acceptance, an exchange of something that uniquely represents the gift of oneself and the union, by mutual gift and acceptance, of two selves.

            What makes marital intercourse express a unique relationship and union is not the sharing of a sensation but the sharing of a power: of a physical sexual power that is itself unique in its life-relatedness, in its creative potential. 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 - I am prepared to share my sexuality in its natural openness-to-life".

            In this consists the singular nature of conjugal intercourse. Other physical expressions of affection do not reach beyond the level of a symbol of the union desired. But the conjugal act is not a mere symbol. In true marital intercourse, something real has been exchanged, with a full gift and acceptance of conjugal masculinity and femininity. And - an anthropological truth to be pondered - there remains, as witness to the conjugal relationship of the spouses and the intimacy of their conjugal union, the husband's seed in the wife's body.

            In anthropological terms therefore we can say that most significant physical expression of a person's desire to give "himself", is to give the seed of himself. For the juridical application of these ideas, it is important to add that by "seed" we intend to refer here equally to the male or to the female generative element: i.e. to what Stankiewicz has aptly called the "elementum procreativum" of either spouse [8]. We are therefore using the term not only in a broadened biological sense, but particularly with a juridic connotation [9], and would ask the reader to bear this in mind as we proceed.

            True union between free persons always involves mutual donation: giving and accepting. The ultimate and essential reason why the marital act is unitive is the absolutely unique nature of the donation involved: the gift of reciprocal-complementary procreativity (From this builds up a major argument for the intrinsic inseparability of the unitive and procreative aspects of the marital act (cf. Humanae Vitae, n. 12)).

Three further considerations

            Three further brief considerations could be added here. The first is that in seeking to analyze the concept of marital self-gift, neither anthropology nor legal science can forget that masculinity and femininity include potential fatherhood and motherhood, as a constitutive element of the sexual person. Love between the sexes which excludes that element may be true love, but it is not conjugal love; for in excluding that particular aspect of the other's or one's own identity, it neither accepts him or her totally, nor gives self totally. No "traditio suiipsius" is realized; the other is loved only in part. Not to give one's sexual power is to refuse to give one's potential paternity or maternity, which is what makes one conjugally complementary to the other. True conjugal love is essentially complementary.

            A true understanding of marriage harmonizes marital love and procreation; separation between the two, or worse still opposition, derives from or leads to a false understanding of conjugality (I realize it takes the average Western man or woman a special effort to understand the deep personalism of conjugal procreativity. But if the effort is not made, the result is the de-sexualizing of sexuality, and the privation of the marital relation of that aspect by which it most uniquely personalised).

            Secondly, marital consent - by which a lifelong partnership is established between a man and a woman (cf. c. 1055) - is directed by each one to the other, in his or her conjugal attributes of masculinity and femininity. Since consent to the marital covenant has the effect also of turning the natural attraction of sex into a debt of justice, the juridic rights/obligations thus originated have a necessary reference to the ends of marriage, from which potential paternity or maternity cannot be excluded.

            A third point relates to contraceptive intercourse. If the anthropological analysis of the conjugal act offered above is accurate, it follows that contraceptive intercourse is not real sexual intercourse at all. In contraception there is an "intercourse" of sensation, but no real sexual knowledge or sexual love, no true sexual revelation of self, or sexual communication of self, or sexual gift of self. The choice of contraception is in fact the rejection of sexuality. Inasmuch as it deliberately destroys that unique aspect of the conjugal act which alone renders it truly unitive, it rejects the other precisely in his or her personal and conjugal sexuality (Cf. C. Burke: Covenanted Happiness, Ignatius Press, 1990, pp. 37-38; 41; 51-52).

            In contraceptive intercourse, the conjugal "traditio suiipsius" is simply not realized, since one or both spouses in fact rejects any true sharing of conjugal sexuality. "The innate language that expresses the total reciprocal self-giving of husband and wife is overlaid, through contraception, by an objectively contradictory language, namely, that of not giving oneself totally to the other. This leads not only to a positive refusal to be open to life but also to a falsification of the inner truth of conjugal love, which is called upon to give itself in personal totality" (Familiaris Consortio, no. 32). By a contraceptive copula the spouses do not become "one flesh". Contraceptive intercourse, preventing the true and full sexual union of the spouses, actually keeps them apart; and so is fundamentally anti-personalist. It is precisely because it is not a conjugal act, that a contraceptive copula is not capable of consummating matrimony.

            To speak disparagingly about "biologism", whenever the procreative nature of marital intercourse is stressed, betrays a deficient grasp of married personalism, and an even more fundamental lack of understanding of married sexuality. The married union, the "two in one flesh", depends on a necessary connection between the spiritual, physical and biological aspects of sexual intercourse. There is a natural awareness of this in married couples, even if they cannot always articulate the anthropological truths behind their awareness. A husband and wife never so fully become "one flesh" as in the child born of their union; and if they are truly in love, they realize this. Moroever, their mutual love naturally looks for its perpetuation and incarnation as represented in their child.

            This anthropological analysis justifies a first conclusion regarding the juridic content of the conjugal self-donation which constitutes the object of matrimonial consent. One of the essential expressions of this gift consists in the handing over to one's spouse a right to share in one's procreativity. In more traditional terms, conjugal self-donation is essentially characterized by the property of the "bonum prolis".

            Conjugality and procreativity are thus seen to have an inherent complementarity. Conjugality means that one is naturally ordained to become a spouse: to unite oneself to another, in an act that is unitive precisely because it is oriented to procreativity. And procreativity means that one is naturally ordained to become a parent: the union of the spouses tends of it nature to fruitfulness. Conjugality and procreativity taken together draw man or woman out of solitude - which can so limit them as persons and be an enemy of their "self-realization", of their bonum (John Paul II reflects on how sexuality holds out the promise of overcoming original loneliness. Cf. Uomo e Donna lo creò: catechesi sull'amore umano, Libr. Ed. Vaticana, 1987, pp. 44ss).

            This brief examination of the donative sense of the conjugal act offers in effect a reinterpretation of the "bonum prolis" [10], in a personalist key. It shows how many modern insights, when adequately analyzed, do not break with tradition but rather link into it and enrich it.

            Along with the "bonum prolis", the "bonum fidei" (the unique exclusiveness of the conjugal relationship) and the "bonum sacramenti" (the life-long nature of the marital bond) make up the three traditional features that must be accepted by whoever wishes to marry, if his or her consent is to be adequate to constitute a true and valid matrimonial relationship. Following on our personalist analysis of the "bonum prolis", we could now make a brief parallel reflection on the "bonum fidei" and the "bonum sacramenti", so as to consider how these other traditional "bona" are also constitutive elements of the conjugal gift of self, entering necessarily into any proper personalist understanding of marriage.

For all time; with one person

            It is obvious that the sexual self-gift which the spouses make to one another cannot be reduced merely to shared procreativity. What is implied in the matrimonial "sese tradere" is the gift of the fullness of spousal sexuality. This gift cannot be full unless, besides being open to life, it is permanent and exclusive. Along with procreativity, then, the reciprocal conjugal self-donation must be characterized by two further elements or properties: indissolubility and faithful uniqueness (cf. Catechism of the Catholic Church, nos. 1644-1645).

            It is clear that no real donation of self exists unless the gift is permanent. As Pope John Paul II said to the Roman Rota in 1982: "If a gift is to be total, it must be made without any reservation or way out" (AAS 74 (1982) 451). He enlarges on this personalist analysis of permanence in Familiaris Consortio: "Sexuality, by means of which man and woman give themselves to one another ... is by no means something purely biological, but concerns the innermost being of the human person as such. It is realized in a truly human way only if it is an integral part of the love by which a man and a woman commit themselves totally to one another until death. The total physical self-giving would be a lie if it were not the sign and fruit of a total personal self-giving, in which the whole person, including the temporal dimension, is present: if the person were to withhold something or reserve the possibility of deciding otherwise in the future, by this very fact he or she would not be giving totally" (FC, no. 11).

            A gift of self for a time - for a few days or for a few years - is not a real gift of self; at most it constitutes a simple loan. In a loan, one holds on to one's right to something; one wants to be able to claim it back. One does not really give it. One can only speak of a true gift when this is irretrievable; in other words, when there is a donation that cannot, with any rightful basis, be reclaimed.

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

            Those who see conjugal love as naturally implying a total gift, have no difficulty in understanding the intrinsic personalist logic of indissolubility, which is simply the consequence, in time, of totality in the gift. "It is only from this perspective that one can intrinsically justify both the perpetuity of the bond as a juridic requirement proper to the relationship established and in keeping with personal dignity, and indissolubility which derives from it on the positive juridic level. Otherwise the perpetual bond would appear as an imposition of an extrinsic law, justifiable for as long as this law stands; and, if considered as divine law, for as long as one believes in it" (Gaetano Lo Castro: Tre Studi sul matrimonio, Giuffrè, Milan, 1992, p. 34).

            Deep in their heart man and woman sense that they will be unfulfilled if they remain uncommitted to something worthwhile. This applies particularly to the marital commitment, and explains why the attraction towards marriage cannot be explained in terms of mere physical sexuality alone. It is not reduceable to an animal dimension, but remains something deeply human and natural. At the same time, the fallen part of our nature fears permanent bonds, with a diffidence towards commitment that seems specially strong today. Whether attraction or diffidence prevails, depends in each particular case on factors that resist general analysis. It must therefore be said that in the anguish of this existential situation - fear of commitment, on the one hand; fear of remaining alone and uncommitted in love, on the other - there is no way of predicting how each individual person will choose. Nevertheless the desire for a true conjugal commitment corresponds to a deeper level of human need.

Undivided conjugality

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

            Therefore, if one excludes unity or indissolubility, one does not effect the spousal gift of self. My conjugal "self" does not become yours: at the most it becomes partially or temporally yours. The conjugal "traditio suiipsius", bono fidei vel bono sacramenti excluso, is not possible.

            It seems to me that the question of establishing the essential aspects of the conjugal self-gift - what is constitutionally involved in the "se tradere" of c. 1057, § 2 - must first be approached along these lines. Sound anthropological presuppositions and sound christian personalism center on the three augustinina "bona", as the focus and first source of these essential rights and obligations. Other rights/obligations certainly enter into the married relationship, above all when it is considered in a moral or spiritual context. But whether these can be termed essential or constitutional - in the sense, for instance, that an incapacity to understand or undertake them generates consensual incapacity under c. 1095 - is a matter which is not clear. Later on, some tentative considerations in that respect will be offered. Here I simply wish to stress how urgently married personalism, also when canonically applied, needs to reincorporate the "bona" into its perspectives, showing how they are bona - good things, values - not mala, mere juridic obligations with a mainly negative content. This is an important point to which we will return before ending.

            This brief exposition, in laying stress on the great natural beauty of marriage, helps to understand how matrimony is a way of personal self-fulfilment through self-donation; and moreover that its essential properties, if adequately analysed, correspond to aspirations deeply rooted in human nature. It is therefore natural for the person in love who wants to marry, to desire marriage as God has instituted it: an exclusive one-with-one permanent union, which is open to children, the most distinctive fruit of conjugal love.

NOTES

[1] Besides by-passing the analysis of the "se tradere", this approach leaves unexamined the question of whether the 1917 and the 1983 formulations are in total contrast, or if some point of continuity between them can be discovered.

[2] The Flannery translation, which has been in such widespread use, rendered the Latin "sese mutuo tradunt atque accipiunt" as "mutually surrender themselves", thereby undoubtedly reducing the force of the conciliar expression.

[3] "mutua donatio suiipsius" or "traditio personarum" are phrases that appear at times in rotal sentences. But this is rather by way of obiter quotes from Gaudium et Spes, without any analysis of their juridic content: "Ut hic consensus suum enim habeat obiectum, intelligat velitque oporteat consortium vitae... inter marem et feminam... Quod consortium supponit mutuam donationem maris et feminae. Haec autem donatio fit per consensum" (c. Fagiolo, Oct. 30, 1970: R.R.Dec., vol. 62, p. 984). "In Gaudium et spes matrimonium est traditio personarum plus quam deditio iurium": c. Raad, April 14, 1975: vol. 67, p. 240. "Traditio et acceptatio, quam coniuges de seipsis faciunt «utpote mutua duarum personarum donatio» ad consensum coniugalem perficiendum" (c. Di Felice, Jan. 14, 1978: vol. 70, p. 17). "Neque obliviscendum est iuxta Concilii Vaticani II Const. Gaudium et spes matrimonium, potius quam donationem et acceptationem iurium, constituere donationem mutuam personarum contrahentium" (c. Pompedda, July 3, 1979: vol. 71, p. 388). Consensus matrimonialis "qui est actus voluntatis mutuae donationis personarum (can. 1057, § 2)" (c. Stankiewicz, May 19, 1988: vol. 80, p. 328).

[4] In his Catechesis on Human Love, Pope John Paul II stresses the impossibility "of one person's appropriating and taking possession of another": Insegnamenti di Giovanni Paolo II, VII,1 (1984), 1617.

[5] "per matrimonium, non corpus alterius acquiritur, quod esset dominium acquirere, sed ius eius utendi" (Summ. Theol. Mor., Roma, 1908, vol. III, p. 368). cf. St. Thomas: "vir per matrimonium non dat sui corporis potestatem uxori quantum ad omnia, sed solum quantum ad illa quae matrimonium requirit" (Suppl., q. 65, art. 2 ad 6).

[6] this word has been criticised as a neologism. Of course it is; just as so many other words used in currrent theological parlance (proportionalism, inseparability, etc.) which are justified by their particular expressiveness. "Conjugality" is by now a fairly well established term in juridic doctrine: cf. M.F. Pompedda, "L'Amore Coniugale e il Consenso Matrimoniale": Quaderni Studio Rotale VII (1994), p. 51.

[7] and if one of the partners experiences less physical pleasure in marital intercouse, then he or she would be participating less in its human and unitive meaning.

[8] "Cum igitur elementum procreativum, in ordinatione ad bonum prolis consistens, essentiam matrimonii ingreditur atque obiecti formalis consensus matrimonialis elementum essentiale constituat, nemini ex contrahentibus proprio arbitrio illud fas est excludere, quin ipsum coniugium irritum reddat": c. Stankiewicz, Oct. 29, 1987: R.R.Dec., vol. 79, pp. 598-599.

[9] cf. coram Burke, sentence of April 11, 1988: R.R.Dec., vol. 81, pp. 212ss; and also "Procreativity and the Conjugal Self-Gift": Studia Canonica 24 (1990), pp. 43-49.

[10] understood as "openness to life" - a characteristic or property of marriage - and not necessarily as actual procreation; cf. C. Burke: "The «Bonum coniugum» and the «Bonum Prolis»; Ends or Properties of Marriage?" The Jurist 49 (1989), 709-713.