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            "Human rights" is a subject on almost everyone's lips today. Peculiarly enough, although rights inevitably imply duties (the two are correlative), "human duties" or obligations are talked about far less. Yet we all have our duties and obligations: towards God, towards his world, towards its environment, towards others, towards ourselves. In interpersonal relations rights and obligations have a very particular importance. Social life itself becomes impossible unless an elementary consensus about essential rights and obligations exists, and unless the majority of citizens have at least a basic disposition not only to exercise their rights but also to fulfil their obligations.

            Not everything concerned with personal rights and duties transfers automatically to legal categories, or can be reflected in civil or church legislation. Some rights/obligations are purely moral (they remain within the ambit of conscience), without there being external juridic norms governing them, or channels (at least before any human court of law) for regulating their exercise or fulfilment; or as the case may be, for determining the legal consequences of their non-exercise or non-fulfilment. So, while to violate a moral obligation is always wrong and involves moral responsibility, it does not necessarily provoke juridic consequences.

            These points or distinctions briefly alluded to are worth bearing in mind as one approaches the complex subject of matrimonial rights and obligations. The complexity is all the greater inasmuch as, while the pastoral and the canonical fields often overlap [1], not every pastoral factor can be given juridic formulation or force.

            From the pastoral point of view it is obviously important for the success of a marriage that each party tries to be more conscious of his (or her) obligations than of his rights; more conscious of what he owes - what he should give - than of what he is entitled to receive. Spouses with a calculating approach to marital rights and duties are wanting in a personalist spirit and are not likely to enjoy a happy marriage for long.

            While it is seldom healthy for spouses to be calculating about their rights and duties (and good pastoral advice will tell them so), canonical courts do often have to calculate such rights/obligations; although of course their mission is limited to pondering and judging those which have a juridic dimension. Rights or duties that are exclusively moral in nature - with no relevance defined or recognized by law - can be brought to the forum of prayer or conscience or personal counselling, but cannot be the object of judgments or decisions by legal tribunals.

Moral and juridic obligations

            The Code makes little mention of the rights and duties of married people, for the most part just touching on moral aspects (Cf. cc. 1063; 1125, 2; 1128; 1134-1136; 1151). The one major exception is c. 1095: an exception of extraordinary importance, since it provides norms for judging the validity of marital consent in function of a person's ability to critically appreciate, or to freely and effectively assume, the essential rights and obligations of matrimony. From what we have just said, it follows that the canon gives no warrant for judging the validity of consent on the basis of purely moral rights/obligations which do not enter the province of law. But even among rights or obligations which can be held to have a juridic dimension, the canon itself makes it clear that only those which it terms "essential" are relevant to the issue of consensual capacity: 2° ... "grave lack of discretion of judgment concerning the essential matrimonial rights and duties... 3° "not capable of assuming the essential obligations of matrimony..."

            So far the matter is clear. Declarations of nullity under c. 1095 are justified only if it is shown that the incapacity in question referred to an essential right or obligation of marriage. But then it becomes all important to know which among marital rights and duties (among those, I repeat, which do have juridic relevance) are legally considered essential - for others cannot sustain a plea of consensual incapacity. This is a task in which doctrine and above all rotal jurisprudence are still engaged, following the indication given by the Pope in his address to the Rota of 1984: "In the new Code... there are canons of special importance for matrimonial law which have of necessity been formulated in a generic way and await further determination, to which solid rotal jurisprudence above all can validly contribute. I am thinking, for example, of the determination of the "grave lack of discretion of judgment", of the "essential matrimonial duties [officia]", of the "essential obligations [obligationes]" to which can. 1095 refers..." (AAS 76, 648). A fair measure of consensus seems to be emerging on the matter; but it is by no means complete. What follows mainly reflects my own views, as well as my hesitations. My purpose is not to go into all the issues involved (For a more general consideration, see. C. Burke: "The Essential Obligations of Matrimony": Studia canonica 26 (1992), 379-399), but rather to consider some of the personalist implications.

The juridic connotation of "essential"

            I would suggest that, in the context of c. 1095, the term "essential" has an exclusively juridic connotation [2], and that it embraces those concrete juridic obligations which are to be considered "constitutional" [3] in the precise sense that marriage absolutely cannot come into being or be constituted unless a person is able to assess those obligations with a minimum critical discernment, to choose them freely and to effectively carry them out (again minimally).

            Essential-constitutional rights/obligations, without the (minimum) capacity for which matrimony absolutely cannot be constituted or brought into being, are certainly those that derive from the three augustinian "bona": exclusivity, procreativity, permanence. The reason is clear: without the minimum discernment of what is necessarily implied in these three "bona", or without the ability to live it, a person is not capable of embracing/accepting what indisputably enters the essence of marriage itself.

            Thus we read in a Sentence coram Pinto of July 8, 1974: "It must be borne in mind that not every defect is sufficient for a declaration of nullity. The defect must be such that it renders the contracting party incapable of making a free choice or of assuming the essential obligations of the three «bona»" ("Prae oculis habendum est non quemlibet defectum sufficere ad matrimonii nullitatem declarandam, sed tantum debere esse, qui contrahentem liberae electionis peragendae vel trium bonorum essentialia onera assumendi incapacem reddat": R.R.Dec., vol. 66, p. 501). And in another of Pompedda, of July 3, 1979: "Not every defect of stability or maturity is enough to bring about the nullity of matrimonial consent. This can be induced only by a defect such as to render the contracting party incapable of a free choice or of taking up the essential obligations, and in particular the three «bona» of marriage" ("Non quivis defectus aequilibrii vel maturitatis sufficit ad inducendam matrimonialis consensus nullitatem: istam inducere tantummodo valet defectus talis qui contrahentem efficiat incapacem liberae electionis vel adsumendi onera essentialia atque in specie tria connubii bona. Matrimonium scilicet haberi nequit culmen maturitatis acquisitae, sed potius gradus in processu ad pleniorem maturitatem acquirendam": vol. 71, p. 388). A more recent sentence, written after almost ten years of post-Code debate on the matter, has no hesitation in offering the "bona" as the reference point for the determination of the essential obligations: "In broad summary therefore, the following essential matrimonial obligations owed in justice can be enumerated: a) the obligation of accepting both the conception of offspring through natural acts performed with the other spouse, as well as the birth of the child, the conservation of its life and its education in the family community (bonum prolis); b) the obligation of not committing adultery or of preserving the exclusiveness or unity of the bond (bonum fidei); c) lastly the obligation of protecting the perpetuity of the consortium (bonum sacramenti), although some consider that this latter cannot be considered an obligation in the proper sense" ("Summatim igitur rem totam perstringendam, obligationes matrimonii essentiales ex iustitia debitae sequentes possunt recenseri: a) obligatio acceptandi tum prolis conceptionem per actus naturales ex altero coniuge, tum prolis nativitatem, in vita conservationem atque educationem in communitate familiae (bonum prolis); b) obligatio non adulterandi seu conservandi vinculi exclusivitatem seu unitatem (bonum fidei); c) demum obligatio tuendi consortii perpetuitatem (bonum sacramenti), quamvis sint qui putent hanc non posse sensu proprio percenseri obligationem": c. Stankiewicz, Oct. 24, 1991: vol. 83, p. 684).

Essential obligations and the "communio vitae"?

            But, even if one grants that the "bona" are the main source of the essential rights/obligations of marriage, are they the only source? Do distinctive obligations - also to be regarded as essential - not arise from the "communio [communitas] vitae"? Have a number rotal sentences not worked from the suggestion or thesis of a peculiar "ius ad communionem vitae", and therefore of a corresponding obligation? They have; but there are signs that this has become a thesis which has failed to establish any valid juridic credentials.

            As we have seen, the highly personalist description of marriage given by Gaudium et Spes, "the intimate partnership of married life and love" ("Intima communitas vitae et amoris coniugalis": no. 48), although frequently quoted in canonical doctrine and in some jurisprudence, was not accepted into the new Code as a definition of marriage (cf. Chapter 4; and, "Personnalisme et jurisprudence matrimoniale" Revue de Droit Canonique, vol. 45 (1995) pp. 340-342). Closely connected with this was the proposal running through the 1970s to have a "right to the communion of life" (considered precisely as distinct from the rights already traditionally associated with the three "bona") introduced among the essential elements whose exclusion would cause invalidity, under what is now c. 1101, § 2 (Communicationes 1977, 374-375). These proposals were not adopted, and the Acts of the Commission charged with drafting the new Code make it clear that the reason was not their personalism, but rather the problem of finding (and giving formulation to) their juridic content (ibid. 1983, 233-234).

            We have now been through more than twenty five years of reiteration of the phrase "ius ad communionem vitae" [4]; and yet no one, in doctrine or in jurisprudence, has managed to pin down the specific juridic content or to show the autonomous substance or identity of this right (Cf. Pavanello, P.: Il requisito della perpetuità nell'incapacità di assumere le obbligazioni essenziali del matrimonio, Rome 1994, p. 108). The fact is that the "ius" in question is more properly identified as a "ius ad communionem vitae coniugalis" or a "ius ad coniugale consortium vitae"; and as such it is simply synonymous with a "ius ad matrimonium" [5]. We are none the wiser for being told, without further analysis, that a right to the marital partnership must be exchanged in marital consent; for this is obvious. Reiteration of a phrase does not constitute juridic analyis, nor does it confer legal enfranchisement.

            The distinctive juridic content of this "communio vel consortium vitae" has to be made clear if it is to be legitimately posited as constituting an autonomous right (separate, that is, from those involved in the three augustinian "bona"). The fact is however that we still seem to be stuck in a position already noted more than ten years ago by an eminent authority: consideration of this right, in both doctrine and jurisprudence, "still seems very far from having attained any evident juridical formulation" (M.F. Pompedda: "Incapacità di natura psichica", in AA.VV. Matrimonio Canonico fra Tradizione e Rinnovamento, Bologna, 1985, p. 146). In a rotal sentence not long afterwards, the same author repeated: "we readily admit that up to now a clear notion of this communion of life in its substance has not been given" (Apr. 11, 1988: R.R.Dec., vol. 80, p. 200). The phrase will still no doubt be used; but jurisprudence is not being helped by its use. Msgr. Pompedda in his sentence just quoted adds a suggestion to the effect that whatever content authors have wished to assign to this "ius" should now perhaps be better considered under the heading of the bonum coniugum (loc. cit., p. 200). This could certainly simplify the debate and, as he indicates, keep it within the terms actually accepted and used by the new Code.

            Here an important point may be suggested. To turn concepts such as "intimate partnership of life and love" or "communion of life" into the object of a right, is a delicate and difficult task from the personalist point of view. True personalism, as noted in our opening chapter, tends to be at least as conscious of the rights of others as of one's own rights. It therefore fosters a disposition to face up fully to those obligations one is bound by. Individualism tends to have a more one-sided approach, seeking its own satisfaction: my rights, yes; but not my obligations... Many of the commentaries on the "ius ad communionem vitae" seems to have dwelt on the individual's right to get satisfaction or happiness - affective, psychic, sexual - from marriage, rather than on the obligation assumed by two persons to pursue a joint venture whose ground-rules are given by life itself. As we remarked earlier, any "ius ad amorem" would always have to be weighed and measured in the light of the concomitant "obligatio amandi".

            Is it truly spousal or personalist to interpret a "right to a communion of life" in such a way that in the end it means: "my partner is obliged - essentially - to satisfy my needs, to make me happy. And if he or she does not do that, I have the [legal] right to a declaration not just that the marriage failed, but that it never was a true marriage from the start, because my partner never could give me what I wanted"?

            In judging consensual capacity, the measure of the law (the point merits repetition) must be what is constitutionally required of a person so that his or her consent brings marriage into being; not what might be morally desirable in him or her as likely to bring subsequent conjugal life to human fullness or perfection. In a recent case, a rotal psychiatric expert was asked by the "Ponens" which he regarded as the essential obligations of marriage. He answered: "the obligations of a moral order: support, communication, mutual understanding" (PN 15680: decis. of July 22, 1993, n. 17). No one would disagree that these are indeed important obligations within the moral order, whose fulfilment is necessary for the realization of all that marriage offers to human hope. Within the legal order however, the question is whether such obligations can be considered juridically essential (as undoubtedly are the obligations contained in the three "bona"), in such a way that a person who does not sufficiently understand them or is not capable of assuming or living them, cannot validly consent to marriage.

            The fact is that the marital relationship involves many obligations which should characterize normal conjugal life and are indeed usually a condition of its happiness, but cannot be regarded as essential obligations within the terms of c. 1095. Great difficulty or even what seems to be radical inability to live up to an obligation, such as would be shown in an irascible person's constitutional incapacity to control his or her temper or nerves, does not render a marriage null. A Sentence of Di Felice of Dec. 12, 1970 affirms: "When the spouses express their matrimonial consent they must give and accept the essential rights, not the accidental determinations, of conjugal life... If therefore they are in some way prevented from properly understanding and freely choosing, not the rights and obligations of marriage, but simply an upright way of acting in the circumstances that accompany matrimony or that come to pass in conjugal life in the future, they are certainly able to give valid consent to marriage" [6].

            Jurisprudence needs clear, concrete and workable notions of the essential rights/obligations that the conjugal covenant involves; and must develop these in harmony with a sound human and christian anthropological understanding of marriage. A person may expect the highest degree of self-donation in every respect from his or her spouse, or may demand it of self: that is to move on the ascetical-ideal level. But he or she does not have the right in law to demand such a degree of the other. The service which law must try to render to people consists in clarifying or vindicating what can be demanded in justice, not what may be expected on an ideal plane. The hopes or disappointments connected with the latter are a matter for personal prayer, generosity and sacrifice; in the external forum, they fall within the fields of pastoral practice and counsel.

Exaggerated interpretations

            In the early post-conciliar years, as doctrine became more engrossed in the question of consensual incapacity, some attempts were made to make an exhaustive enumeration of the essential obligations of marriage, within the context of the "communio vitae". An essay of 1972 which became popular for a time, listed elements or qualities that the author considered essential for the constitution of a valid marriage. They included "stability in work", "maturity of conduct throughout the ordinary events of daily life", "self-control or temperance necessary for any reasonable and 'human' form of conduct", "stability of conduct and capability of adapting to circumstances", "gentleness and kindness of character and manners in mutual relationships", "mutual communication or consultation on important aspects of conjugal or family life" (Germain Lesage: "The consortium vitae coniugalis", Studia canonica, vol. 6 (1972) pp. 103-104).

            A rotal sentence coram Raad of Apr. 14, 1975 (R.R.Dec., vol. 67, p. 245), with particular reference to this proposal, rejected the idea that qualities as those listed can be regarded as essential obligations in any juridic sense (The Segnatura sentence coram Staffa, of Nov. 29, 1975, also considered the list proposed by Lesage, and found it juridically unacceptable: Periodica 66 (1977), 313). While such elements or characteristics are indeed desirable for the perfection of marital living, Raad held that there is no basis in law for turning the capacity for living them into a requirement for valid matrimonial consent. No rotal sentence has in fact ever supported such a thesis.

            That there is a constitutive and essential obligation to be faithful, or to share one's procreative power with one's partner, is evident; and an ecclesiastical tribunal can be reasonably asked to judge from the evidence if a party, at the time of consent, had sufficient critical perception of such an obligation, or if he or she possessed the capacity to assume it. However, with regard to the duty to be stable, patient, communicative, good-natured, kind, prudent, adaptable, etc., it is difficult to see how these can be properly regarded as constitutive to valid marital consent, and no less difficult to establish (or even to suggest) any objective jurisprudential criteria by which a Court could judge whether a person's possession of such qualities was sufficient or insufficient for the validity of his or her consent.

            The arguments for the juridic "essentiality" of such qualities usually claim to be based on the personalist understanding of married life offered in Vatican II. I would again question the legitimacy of such a claim. It seems to me (and here I echo part of my earlier criticism of "error in qualitate personae") that to allow one party make the possibility of a valid marriage depend on his or her finding all the qualities of the "ideal" spouse in the other, smacks of individualism, subjectivism, "money-back-if-not-satisfied-ism"...: of anything but the unselfish and unconditional giving-accepting that characterizes the true marital personalism presented by the Council and canonized in the formula of c. 1057, § 2. Genuine marital personalism, as expressed in this canon, calls not only for a sincere giving of one's self, but for an equally sincere acceptance of the other as he or she is, also with his or her inevitable defects.

            I have taken the position earlier that the law should not countenance a person's claim to have been "victimized" by his or her own (uninduced) error. Here I argue against interpretations of the law which tend to victimize or penalize persons for qualities (or the non-possesion of qualities) that ought not to be the object of juridic measurement or judicial decision. For instance, a psychologist or an anthropologist, or perhaps even a moral counsellor, can no doubt properly maintain that a measure of "sexual integration" between the spouses is desirable. Should jurists carry on from there and, over and above requiring the capacity for sexual intercourse, begin to posit - as an essential conjugal obligation - a "higher" sexual capacity, e.g. that of being able to provide one's partner with a certain (to him or her) acceptable level of sexual satisfaction in the act of intercourse?

            We are not in the area of pure theory. Ecclesiastical tribunals have given more than one sentence of nullity based on the frigidity of the woman in the act of intercourse, or on the strong inhibitions about sexual activity that she showed (inhibitions which in some cases would seem to have been clearly the consequence of the man's inconsiderate or over-demanding approach to sexual relations). I do not consider such a way of interpreting or applying c. 1095 as personalist. It rather appears as an imprudent excursion into non-juridic territory; whose consequence is that the law is placed at the service of simple discrimination, as well as (in the words of Dicken's Mr. Bumble) "making an ass of itself" (Oliver Twist, Ch. 51).

            To hold that a marriage "failed" because it did not result in the satisfaction of one's own needs, is scarcely christian. From the viewpoint of christian personalism, a spouse or a "con-sort" is not a person who is there to satisfy "my" needs, but someone, with his or her individual and distinct character and personality, to whom I make the gift of my self, in the joint give-and-take venture known as matrimony.

            The successful development of the married community depends on the harmony achieved between two persons who stand in the relation not of friends or associates, but of spouses: of two persons therefore of different sex. It must not be forgotten that while husband and wife are equal in rights and dignity, their specific roles are not the same. When the man affirms his role as husband and father, and the woman affirms hers as wife and mother, then married and family life can show that dynamic and healthy complementarity which contributes to the growth and maturing of spouses and children. Marriage is a heterosexual combination; and the most successful marriages tend to be those where the husband is most masculine and the wife most feminine. Then you have the unique marital combination of equal dignity as persons, and fundamental complementarity as spouses.

            It is not always true that like attracts like. Not a few marriages bring two extremely different personalities together. If so, it does not seem acceptable to argue that the failure of one or both parties to foresee conflicts likely to arise from their contrasting characters, is proof of a lack of due discretion. People are often attracted to one another precisely because of differences of personality; and many successful marriages are in fact based on the vigorous effort of the parties to harmonise their divergent characters - a process usually marked by confrontations and reconciliations ("Amantium irae amoris integratio est": "Lovers' quarrels are the renewal of love" Terentius, Andria, 555). Such marriages could easily have failed had the parties made less energetic efforts at achieving understanding; after all their freewill was constantly in play.

Pathology of personalism

            The advances in jurisprudence which were eventually codified in c. 1095, took stock of the fact that the human act of consent can be rendered radically defective not only in cases of "amentia", but also where other grave psychic defects undermine the personality structure of the individual to the extent that, without having to judge him insane, one can and should hold him incapable of valid marital consent (Cf. c. Felici, Dec. 3, 1957, vol. 49, pp. 787ss; c. Sabattani, Feb. 24, 1961, vol. 53, pp. 116ss; c. Pinna, Apr. 4, 1963, vol. 55, pp. 256ss, etc).

            This, to me, is an undoubted advance. However, only in a very limited way would I regard it as an advance in terms of personalist values. In clear cases of a unilateral psychic defect, then the rights of the "normal" party are certainly better vindicated through the declaration of nullity. However, the sentence still declares that the other party was suffering from a grave personality defect. While this (if so) should be declared, it is the pathology of personalism, not its power or attractiveness, that is being vindicated.

            In the practice of many modern tribunals more and more petitions are being accepted where both parties are claimed to have been psychically defective; or in the formulation of the doubt, the terms of the original petition are broadened so that the capacity of both becomes the object of judgment. When we combine this with the fact that over 90% of nullities in the English-speaking world are currently being declared on the sole grounds of consensual incapacity, then there is reason to suggest that the years since Vatican II have led many tribunals to propose not the new dignity of the individual, but the extraordinary frequency - so they hold - with which the psychic make-up of the human person turns out to be gravely defective.

            Is human and personal dignity being revindicated by the policy of "easy" annulments which seems to prevail in some parts? It may be doubted. The basic capacity of the person to enter the natural commitment of marriage is being called into question; and is being so done by attributing to one or both of the parties some serious psychic deficit. Are there really that number of people today choosing to marry, and sincerely going through a wedding ceremony, but doing so ineffectively - because they labor under a personality handicap so serious as to render them unconsciously incapable of adequately making such a normal human choice?

            The grounds of consensual incapacity considered in c. 1095 necessarily respond to exceptional circumstances (certainly more exceptional than those contemplated in the case of simulation). It follows that when it is over-invoked, weak jurisprudence is being developed, which will scarcely resist the passage of time. One wonders whether canonical scholars of later ages will be impressed by the anthropological or legal perceptions underlying certain present-day jurisprudential trends.

NOTES

[1] Pope John Paul II seldom fails to underline "the intrinsic pastoral character of canon law"; insisting that "not only the munera docendi or sanctificandi - the missions of teaching and sanctifying - are pastoral but so too, along with them and in no lesser measure, is the munus regendi - the mission of governance - which the Council prefers to call the munus pascendi: mission of caring or pasturing": Address to the International Symposium for the Tenth Anniversary of the Code: AAS 86 (1994, 247).

[2] It is not evident on what basis one could establish a distinction between "essential" and "non-essential" obligations, in the purely moral sphere.

[3] Not all the juridic rights or obligations which can arise in married life, even if important, are necessarily essential in the sense envisaged by the canon. Property rights and obligations are certainly both juridic and important, and could be the object of a legal agreement or disagreement between the spouses; but they are not among the essential rights/obligations that canon 1095 refers to: cf. "The Essential Obligations...": loc. cit., 381.

[4] At least ever since the famous sentence of Anné of Feb. 25, 1969, where it first made its way into serious canonical parlance.

[5] This fundamental difficulty was already brought up by one of the Consultors at the very start of the discussion on the subject: "«matrimonium ipsum» et «ius ad vitae communionem» idem dicunt": Communicationes 1977, 375.

[6] "Iura essentialia enim non vero determinationes accidentales vitae coniugali tradere et accipere debent coniuges, dum consensum matrimonialem manifestant... Si ipsi igitur quodammodo impediantur, ut recte intelligant et libere eligant non iura et onera matrimonii, sed tantum honestum modum agendi in adiunctis, ex matrimonio consequentibus vel in futura vitae coniugalis consuetudine adventiciis, validum consensum ad matrimonium ineundum certo praestare valent" (R.R.Dec., vol. 62, p. 1152).