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            As we saw at the beginning our our study, personalism is a philosophy of human development and personal growth through giving, concretely through coming out of oneself and relating to other persons in a movement of self-donation. Inter-relating to God - opening oneself out to him, giving self to him and receiving the gift of his life in return - is of the essence of Christianity, in both belief and practice.

            On the human level, marriage appears as the most intimate and natural form of interpersonal relationship, and the one that offers a special promise of that unique happiness which comes from loving and being loved. Not only personal fulfillment but also the vigor and health of society itself are intimately bound up with the presence and strength of family and married love. The importance of love in marriage therefore cannot be overstressed.

            Culturally and psychologically, at least in the Western world, we have come to regard love as the one solid reason for marrying, and as a necessary condition for a successful marriage. In the juridic domain, the relevance of married love is a theme that has occupied canonical doctrine for some decades. Now could be an appropriate moment to give some consideration to this matter.

            The words by which Vatican II describes marriage as "the intimate partnership of conjugal life and love" (Gaudium et Spes 48), have proved to be a rich source of pastoral and spiritual reflection over the past thirty years. Canonists too felt urged to investigate the juridic status of marital love in the light of conciliar teachings, all the more so in that earlier canonical theory and practice had largely seemed to disregard any analysis of marriage as a personal love-alliance, considering it in substance as little more than an institutional means for the perpetuation of the human race through rational procreation.

            The 1970s witnessed particularly intense debates on these points, which were certainly not rendered less keen by the fact that the work of revising the Code was in full swing. It was widely felt that the conciliar description and presentation of marriage should influence its juridic treatment. The consultors of the Pontifical Commission charged with revising the Code were certainly aware that the precise words of Gaudium et Spes - "intima communitas vitae et amoris coniugalis" - would have been welcomed by some as a juridic definition of marriage itself. In the very initial proposals, matrimony is described as "intima totius vitae coniunctio" (Communicationes, 1971, p. 70); but the exact conciliar phrase does not appear anywhere in the "schemata" considered. Over several years a lot of attention was centered on the personalist-based formula "ius ad communionem vitae" - "right to the communion of life" - which was proposed for inclusion among the essential elements and rights involved in the marital commitment. In all of those years there was a great flux of proposals calling for a thorough examination, so as to separate ideas open to a canonical formulation from those lacking in true juridic relevance.

.           Rotal jurisprudence in general avoided the question of the relevance of conjugal love, being content to hold that consent, given according to the norms of law, is all that is required to constitute a valid marriage. Few wished to modify the thesis enunciated in a older sentence that marriage contracted not for love, but for other reasons, "in suo robore permanet" (c. Quattrocolo: Feb. 4, 1942: R.R.Dec., vol. 34, p. 62). Even after the Council, the Rota tended to hold to the position that, however desirable love in marriage may be from the psychological or human viewpoint, it is not an essential juridic requisite for valid consent (Cf. c. Bonet, June 4, 1968, vol. 60, p. 408; c. Fagiolo, Oct. 18, 1968, ib., p. 693; c. Pinto, June 30, 1969, vol. 61, p. 902; c. Parisella, Nov. 13, 1969, ib., p. 987; c. Mercieca, Oct. 24, 1970, vol. 62, p. 933, etc).

            Post-conciliar attempts to have jurisprudence accept "the absence of conjugal love" as grounds for a declaration of nullity were not accompanied by success. In a 1975 rotal judgment reversing a lower court's affirmative decision given mainly for the reason that the parties had "never entered on a genuine community of love and of life", the distinguished Belgian Auditor, Lucien Anné, held that cases brought on grounds of a defect of true conjugal love ("ob defectum veri amoris coniugalis") should be judged in terms of a failure to give/accept the essential rights and obligations of marriage (decis. Dec. 4, 1975: R.R.Dec., vol. 67, p. 699). Among other cases rejecting the thesis that love - in its psychological or affective connotation - is an essential element, see c. Pinto, July 30, 1969: vol. 61, p. 902; July 15, 1977: vol. 69, p. 402; c. De Jorio, Jan. 10, 1973: vol. 65, p. 12-13 (where he criticises Msgr. Fagiolo as the only proponent of the thesis); Dec. 17, 1981: vol. 73, p. 633; c. Parisella Feb. 22, 1973: vol. 65, p. 138-139; c. Agustoni, June 5, 1974: vol. 66, p. 411; c. Fiore, July 16, 1974, vol. 66, p. 554-555; c. Egan, Apr. 22, 1982 vol. 74, p. 207; Dec. 9, 1982: ib. 616-618.

            One sentence that sought to attribute juridic force to love, qualifying it not just as the "efficient cause" but as belonging to the essence of marriage, was that coram Fagiolo of October 30, 1970 [1], and goes on to hand down an affirmative decision: that the marriage was null. On appeal, the next rotal "Turnus" confirmed the actual decision itself, but the Ponens, Msgr. Giuseppe Palazzini, subjected Fagiolo's juridic reasoning to severe criticism [2].

            What is the situation some thirty years later, above all after the promulgation of the new Code of Canon Law? Is it any longer tenable to hold that "love" has any juridic status? An examination of the debate of the 1970s and its outcome, and a consideration of the legislation of 1983, might appear to impose "No" as an answer (cf. G. Le Castro: Tre Studi sul matrimonio, Milan, 1992, pp. 24-28). As I see it, a deeper analysis may justify a genuine though qualified "Yes".

            Those who reply in the negative seem to be on strong ground. Looking back to the pre-Code debates, the views of authoritative scholars such as Navarrete, Fedele, Graziani, etc. (cf. L'Amore coniugale, Lib. Ed. Vaticana, 1971), seemed to be confirmed by Paul VI's address to the Roman Rota in 1976. Without giving an exact definition of "amor", he rejected "that notion of conjugal love which leads to the abandonment or weakening of the well-known principle that 'it is the consent of the parties that brings matrimony into being'". As a juridic reality created by personal consent, he went on, marriage "exists independently of love, and remains even if love disappears. In effect, by giving their free consent, the spouses introduce themselves into an objective order, into an "institution" which reaches beyond them and does not depend on them, either in its essence or its laws. Matrimony is not created by the free will of men, but has been instituted by God, who has endowed it with its own laws, which spouses... ought to accept for their own good, and for the good of their children and of society. Having started as a spontaneous sentiment, love becomes a binding duty" (AAS vol. 68 (1976) p. 207).

            This was certainly a clear and authoritative statement. Some would hold that any doubt which might possibly have remained on the matter was definitively removed with the 1983 Code. Not only was the conciliar expresssion "intima communitas vitae et amoris coniugalis" not accepted by the Code as a definition of marriage, but the phrase "amor coniugalis" or its equivalent does not once appear in the Code, which defines or describes marriage in the very traditional formula of "consortium totius vitae", or partnership of the whole of life (c. 1055).

            Nevertheless it seems to me that even after the Code we are at a stage where the question of the juridic relevance of conjugal love has not in fact been fully settled; in large part because the analysis or examination of the issue has moved on too narrow a ground. As so often happens in discussion, the terms of the debate were not adequately defined. For the most part, those canonists who insisted on the importance of conjugal love did not sufficiently specify the type of love they were speaking about; and so gave the impression of proposing the juridic relevance of love in the more romantic sense of felt emotion. And those who held the "love-is-irrelevant" position limited their negative response to love taken precisely in that sentimental sense, without considering whether in its radical and more comprehensive connotation love may not indeed have juridic relevance.

            I think therefore that we can continue with the debate, provided we keep our terms more carefully defined by constant reference to the Code. After all, we are no longer in the 1970s, the period of "ius condendum": of suggestions and tentative drafts and schemata. We are in a new situation of "ius conditum", of given laws which for the most part are clear and need to be applied [3]; and, where they may not be totally clear, call for interpretation along lines of homogeneity (cf. cc. 17ss). Any serious debate must take this into account.

            The spirit of "personalism-within-communio" is at the heart of the Council's program for renewal. Married life is a very major and unique expression of this "personalism-communio" spirit, as is particularly evident from Chapter I of the second part of Gaudium et Spes. It seems inconceivable that a Code designed to put the law of the Church at the service of the renewal envisaged by Vatican II, should ignore any major aspect of the Council's married personalism which is open to juridic interpretation or formulation. Given the insistence on married love in the conciliar Constitution (no. 49), it would be very surprising if the new matrimonial canons offered nothing that permitted a deeper analysis of the nature of this love from a canonical perspective. If, as is clear, the Gaudium et Spes phrase "intimate communion of life and love" did not qualify as a working term in jurisprudence and was not accepted into the Code (cf. C. Burke: "Personnalisme et jurisprudence matrimoniale" Revue de Droit Canonique, vol. 45 (1995), pp. 342-343), then surely there must be other conciliar-inspired terms, incorporated into the new law, which allow that deeper analysis. Can we find and identify such key expressions?

            Something of what we are looking for is certainly present in the notion of the "good of the spouses", which the Code introduces in the very first canon of the Title on Marriage. The strongly personalist overtones of the bonum coniugum are beyond question, as we have already seen in part and will try to illustrate further (cf. Ch. 11). Yet it should be obvious that the bonum coniugum and conjugal love are not synonymous. The bonum coniugum is an end of marriage; love is a motive rather than an end. Motive and end may condition one other, but are certainly not synonyms.

            Another possible basis from which to establish the juridic relevance of conjugal love might seem to be the phrase "totius vitae consortium" used in c. 1055 to describe marriage itself. Does it not have an important connection with the "ius ad communionem vitae" (itself but one step removed from a "ius ad amorem coniugalem"), frequently proposed in doctrine and in some jurisprudence in the 1970s? Such connection seems to me more verbal than real, and I would suggest that the full history of the proposed "ius" shows that no argument can be developed here. At one stage the "ius ad communionem vitae" was included in a draft canon for the revised Code (Communicationes, 1977, p. 374). Nevertheless, it was finally dropped because, as appears from the minutes of the Pontifical Commission, it was considered to be equivalent to «matrimonium ipsum» and therefore tautological or redundant (ib. 1983, pp. 233-234).

            Considered as formulae for describing marriage, the difference between the "intima communitas vitae et amoris coniugalis" (considered but rejected), and the "consortium omnis vitae" (proposed and accepted), is not one of simple nuance. If the Gaudium et Spes formula had actually been accepted as a juridic definition or description of marriage, this would have been a decidedly innovative choice. But the choice actually made - the "totius vitae consortium" - must be regarded as a conservative option since it is taken, as we have seen, from one of the classical roman legal descriptions of matrimony [4].

            No; as I see it, if we wish to pursue the analysis of conjugal love in search of its juridic relevance or content, we should not follow these paths. We have to look elsewhere: not to the staid and ancient "consortium omnis vitae", but to the new and dynamic idea of the "mutual giving and accepting of one another" ("sese mutuo tradunt et accipiunt"), by which c. 1057 describes the object of matrimonial consent. We must center our attention therefore on this canon rather than on c. 1055; and where c. 1055 is concerned, on the bonum coniugum more than on the "consortium totius vitae". In other words, it is the new personalist-juridic presentation of marital consent which can lead to a deeper understanding of the nature of conjugal love, making it clear - or at least permitting a cogent argument - that such love includes components which are in fact juridically essential to the constitution of marriage.

            The "mutual giving and accepting of one another" offers the key to the innermost nature of the bonded relationship - the "communio" or "consortium" - which the spouses create between themselves. To give oneself sincerely to another, in the sense and with the commitment involved in true marital consent [5], is to make him or her the object of a privileged choice. To genuinely accept the corresponding self-gift of the other, is likewise to express singular personal esteem and appreciation, conferring on him or her unique values or "goods". In this precise sense it can and should be characterized as an act of love (cf. C. Caffara: "Charitas Coniugalis et Consensus Matrimonialis" Periodica 65 (1976) 615-618): a truth which the Sentence of Fagiolo of October 30, 1970, despite other over-generalizations, expressed very concisely: "The [conjugal] consortium involves the mutual gift of man and woman, effected through consent that is true, authentic and unfeigned; and in this it is [an act of] conjugal love" ("consortium [coniugale] supponit mutuam donationem maris et feminae. Haec autem donatio fit per consensum qui sit verus, authenticus et absque fictione et in hoc est amor coniugalis" (R.R.Dec., vol. 62, p. 984). The Segnatura sentence coram Staffa of Nov. 29, 1975 stated: "actus amoris quo nupturientes sese mutuo donant, idem est ac matrimonialis consensus" (Periodica 66 (1977), 314). I would prefer to put it the other way round: marital consent represents a singular act of love). And this is true whether feelings of love are intensely present, as is normally the case in the process of "getting married" (falling in love, engagement, wedding, honeymoon, first years of married life...) or are largely or wholly absent, as so often occurs after the wear and tear of several years of conjugal life together. It is then that every couple has to face up to the challenge of "keeping married".

            Here one should not forget that love, in its essence, is a movement of the will rather than of feelings or "sensibility". Thomas Aquinas, considering the relation between "amor, "dilectio", "caritas" and "amicitia", writes: "All "dilectio" or charity is love, but the converse is not true. "Dilectio" adds a deliberate choice to love... Hence "dilectio" does not reside in the concupiscible appetite, but in the will alone, and is to be found only in rational nature" (Omnis enim dilectio vel caritas est amor, sed non e converso. Addit enim dilectio supra amorem, electionem praecedentem... Unde dilectio non est in concupiscibili, sed in voluntate tantum, et est in sola rationali natura" (I-II, q. 26, a. 3). Or as Hervada says, "Conjugal love can be love and dilectio, spontaneous love and reflexive love... But it is never just love. It is always dilectio" ("El amor conyugal puede ser amor y dilectio, amor espontáneo y amor reflexivo... Pero nunca es sólo amor. Siempre es dilectio": Diálogos sobre el amor y el matrimonio, Pamplona 1987, p. 50). Affective or felt love tends to be the beginning of love; in a certain sense it is almost its preface. But it has little claim to represent the fullness or even the genuine reality of what can legitimately be called conjugal love. The love that brings people to marriage may be mainly sentimental or "romantic"; the love that maintains them in marriage is voluntary [6]. This is the anthropological truth behind Paul VI's words to the Rota in 1976: "having started as a spontaneous sentiment, love must eventually become a binding duty" (AAS vol. 68 (1976) p. 207).

            The conjugal relationship therefore, which normally begins without much effort, can only be established in depth with effort. Hence if married love, as any true love, stems from the will and not from feelings, it can and should subsist despite the possible disappearance of feelings. Surely it is clear that if a person is prepared to persevere in a commitment of love only for as long as he or she "feels" love for the other - that is to say, only when gratifying feelings of love are present - he loves his good feelings more than the good of the other. This is to remain stuck within one's self; it is certainly not to give one's self. Much the same holds good if a person is prepared to persevere in a commitment of love only when he or she "feels" loved by the other. If a moment comes when a spouse no longer feels loved by his or her partner, it could indeed be that the other party has ceased to love; or it could simply be that the affective mood of the one who feels unloved is impervious to expressions of love which still remain.

            Marriage is the result of an election or choice, or more precisely of the meeting of two choices in one. In that sense the central element of conjugal love is constituted juridically by the binding assumption on the part of the will of an inclination towards the other, which becomes conjugal if and when it is taken up by the will of the other (Marriage adds a juridic bond to spousal love. Conjugal love is spousal love qualified by a freely accepted juridic bond). "Married love is an eminently human love because it is an affection between two persons rooted in the will... [it] leads the spouses to a free and mutual giving of self" (GS 49). In other words, the particular and privileged choice ("e-lectio") of another as spouse is a choice of conjugal love. "E-lection" becomes "di-lection".

            "Love of dilectio implies the will to love. That is why one cannot speak of its disappearance, unless one thereby means that the person does not want to perform the deeds by which love is expressed: which is a free and voluntary attitude on his or her part. And if we are speaking of a committed love or of a duty to love, that love disappears simply means that the person fails to fulfil his or her commitment and duty" (J. Hervada: "Obligaciones esenciales del matrimonio", in Incapacidad Consensual para las Obligaciones Matrimoniales, Pamplona 1991, p. 28).

            May it be said that with this analysis, centered on the marital bona and the marital bond, we are just returning to the past? I think not. We are rather being led forward to see that the act of marital consent is an act of love in fact [7], shown uniquely by the life-acceptance of the other as one's only spouse, and by the similar life-commitment to be his or her only spouse, in a relationship of shared and complementary sexuality [8]. The personalist meaning and value of the three bona, by the acceptance of which the bond is essentially instituted, show how the marital "electio" is necessarily an act of "dilectio" or love. This is not simply to return to the past; it is rather to link past and present insights. It is to say in effect that consent, when truly marital - when it constitutes a genuine mutual giving and accepting of one another - , is of such an interpersonal nature that it may legitimately be regarded as an act of love.

Is there a "ius ad amorem"?

            Does it follow that marital consent, juridically considered, confers a right to love - a "ius ad amorem"? Although this question was answered negatively by the Pontifical Commission for revising the old Code [9], I am inclined to answer with a qualified Yes - qualified in the sense just outlined, and also in the sense that, since rights and duties are correlative, any "ius ad amorem" can only be weighed and explicated in terms of the correlative and reciprocal "obligatio amandi" - which any true personalist understanding of the married commitment must include and emphasize.

            So one has the right that the other lives up to the commitment of love. Just as one has oneself the duty to observe this voluntary commitment. Moreover, in the case of the commitment of marriage, we are dealing with an obligation that binds both parties and which, after freely given consent, does not cease to bind one even if the other reneges on it.

            Can one then say that there is a "ius ad amorem affectivum" - a right to affective love? I think it is clear that one cannot. As the Spanish anthropologist, Jacinto Choza, writes, one can question "whether it is possible to uphold in law any right to good manners, understanding, affection or love. Legal claims can be made to external actions, but not to feelings, attitudes or intimate dispositions" (Antropología de la Sexualidad, Madrid, 1991, p. 217). What would a "right to affective love" mean? From what we have noted a moment ago, it seems of necessity reduceable to one of two things.

            Either it could mean the right always to feel love - one's own love - just as one has felt it in the past; i.e. the right to continue to have loving feelings. But it may be asked: while our feelings are our own, does one have the right to feel everything one would wish? Does one even have the power to do so? One is brought back to the fundamental questions. Does love consist just in feelings of love? Does the absence of feelings necessarily imply the absence or disappearance of love?

            Of course such a "right to affective love" could also mean a right always to feel the love given by one's partner; i.e. the right to continue to feel loved by him or her. But, again, does such a right exist? Can it be juridically evaluated or defined? My right certainly has the other party's obligation as its correlative. But is it not possible that, even though my partner fulfils his or her obligation and really does love me, I may not feel it? Have I a right that they not only fulfil their duty, but also make me feel it? This does not even depend on the other party. One's feelings are one's own; they are highly subjective, and at times there is no way in which the other can reach them or understand them or satisfy them. Very often one does not know oneself what one is really looking for, as the satisfaction of one's feelings. To receive love, just as much as to give it, demands a certain openness of heart. The self-centered person is often incapable not only of loving, but indeed of discerning the love of which he or she is the object.

            Love means deeds as much as feelings - even more than feelings. Affective and effective love should ideally go together. It is a pity if they are separated, but there are moments in every married life where the separation seems to occur; yet the absence or loss of one does not and should not necessarily mean the loss of the other. Superficial approaches or selfish attitudes are challenged here. The challenge is certainly hardest in the case of married couples. It is a challenge to their maturity - not to let thought, deliberation, choice, constancy and fidelity, be overwhelmed by emotion, mood or sentiment. Pastors and pastoral counselors should also feel the challenge: to understand and to try to help married people understand that true love - the only love that can be faithfully maintained - resides essentially in the will and not in the feelings.

            Jurisprudence too, in its consideration of the juridic relevance and effect of conjugal love, must live up to its responsibility of working from adequate psychological presuppositions. The delicate balance required in jurisprudential thought and practice will be achieved only by clearly drawing the distinction between marital love as a mood or emotion, on the one hand; and as a voluntary commitment, on the other - prepared for the generous gift of self and the equally generous acceptance of one's spouse.

            The matter has been well summed up by Mario Pompedda: "Love in marriage can be said to be essential insofar as it is the giving and accepting of two persons, and so is understood not as affective but as effective love" ("Eatenus amor in matrimonio essentialis dicitur, quatenus est traditio-acceptatio duarum personarum, atque ideo non affectivus sed effectivus intelligi debet": M.F. Pompedda: "Incapacitas Adsumendi Obligationes Matrimonii Essentiales": Periodica 75 (1986) 144). A large part of the time spent debating the juridic relevance of love, especially in the 1970s, would have been saved or been more productive, if both sides had kept before them this distinction between "affective" and "effective" love.

NOTES

[1] R.R.Dec., vol 62, pp. 978ss.; cf. G. Candelier: "L'importance juridique de l'amour dans le mariage" Revue de Droit Canonique 38 (1988), pp. 256ss; 268-273). In his "In iure" considerations, Msgr. Fagiolo concludes that "now after the Council, a defect of true conjugal love would seem to cause the contract to fail in its object" ("nunc post Concilium videtur quod ob defectum veri amoris coniugalis contractus obiectum abest": ib., p. 986.

[2] c. Palazzini, June 2, 1971: vol. 63, pp. 467ss. According to Palazzini's sentence, the defect of consent consisted in the exclusion not of love, but of indissolubility.

[3] "after the promulgation of the Code, 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 there calls for full acceptance. Now is the time, not any longer of discussion, but of application": John Paul II; 1984 Address to the Roman Rota (AAS 76 (1984) 646).

[4] Modestinus: Digest 23, 2, 1. In Communicationes 1983 (p. 222), we are told that "consortium" was preferred to "communio", because "maius suffragium invenit in traditione iuridica". Cf. Apostolic Segnatura decision coram Staffa of Nov. 29, 1975: Periodica 66 (1977), 306. This decision however reduces the "consortium totius vitae" to its procreative aspect alone (p. 310), which is clearly not the intent of c. 1055.

[5] Cf. our analysis in chapter three, showing that the conjugal gift of self (just as the desired fusion of the two lovers) cannot in fact be total; its maximum human expression lies in the establishment of an interpersonal relationship of unique characteristics whose uniqueness is particularly - essentially - specified by the three "bona".

[6] "Amor coniugalis" is not a sentiment. It is a commitment to another person. In this it is distinguished from any other form of love - which may imply a longing or desire, but involves no commitment ("amor amicitiae", "amor sensualis"). Once the commitment is made and accepted through consent, amor becomes conjugal, and never loses that character.

[7] "cet acte [de consentement] est lui-même un acte d'amour. Il consiste en effet dans la volonté que manifestent les époux de se donner l'un à l'autre d'une manière totale et irrévocable. Or cette volonté est un acte d'amour non pas nécessairement senti, affectif, passionnel, mais oblatif, acte par lequel on se livre soi-même tout entier à l'autre et accepte en retour de sa part le même don": Pierre Adnès: "Mariage: Amour et Sacrement", in Dictionnaire de Spiritualité, Beauchesne, Paris 1980, vol. X, p. 370.

[8] the act of the will in consent is an act of love because "essentialiter est traditivus sui ipsius, ac proinde actus amoris": Apostolic Segnatura Decis. of Nov. 29, 1975 (Per 66 (1977), p. 315).

[9] Communicationes 9 (1977), 375. It is of interest to read there the main reason given: "...amorem esse fundamentum relationum interpersonalium coniugum; iamvero non videtur dari posse "ius ad amorem", sed potius ius ad aliquas actiones quae generatim foventur ab amore. Etiamsi in Concilio plura de amore coniugali dicta sint, non videtur illa transferri posse ad categorias iuris ita ut habeatur ius ad amorem".