cormacburke.me.ke

            In his annual allocution to the Roman Rota, on 26 January 1997, Pope John Paul II formulated with much clarity the central question dominating marriage law in the church for more than thirty years: "Since the time of the Second Vatican Council, we have been asked what juridical consequences flow from the view of marriage found in the Pastoral Constitution Gaudium et spes (nrs. 47-52)".

            Exactly the same aim is brilliantly pursued by Monsignor Cormac Burke in the leading thesis of this joint work of ours. He correctly says that a genuine ecclesial renewal depends in a fundamental way on the renewal in the church of a proper juridic sense, something that is inseparable from a sense of love for the law. It entails a renewal of juridical science in accordance with the conciliar understanding of the person and of ecclesial society. Monsignor Burke continues that it also requires a renewal of juridical practice seen as a service not of abstract principles or merely truth, but especially of persons, with their inherent human dignity, who are further enhanced by the christian vocation which is theirs.

            However, this 'translation' of theology into canon law is not an aim that is easy to achieve. First of all, the notion personalism could entail some serious discussion and it may even complicate an adequate legal translation of its theological content.

            But even without focusing on this complicating factor, one should not underestimate the difficulty of turning theological ideas into an adequate legal format.

            Theology, law and canon law, function in different contexts. For instance, it is not a convincing approach to take key quotations from conciliar documents, to attribute them a number and to simply give them a place in the Code of Canon Law, in order to make sure that they indeed find themselves all of a sudden transformed into a legal text. As a matter of fact, law functions in a setting which is completely different from the theological one. It does not only depend on a theological input, which of course remains not only tremendously important but is just as indispensable. Law depends also on its own foundations, its technical aspects and its impulses. In this sense, law is influenced, for instance, by social data emerging in a certain community as well as by new insights in the field of legal theory or legal philosophy. In my eyes, this is an obvious point but then again, in the world of canon law, this opinion is not always widely shared. Quite influential canon lawyers, among them the famous Eugenio Corecco (1931-1995), who defined law as an ordinatio fidei, considered canon law to be a theological discipline with a theological method. By such a definition, he underestimated, at least in the theoretical field, the considerable difficulty to translate theological ideas into workable law. A word, expression or sentence used in a theological context does not necessarily correspond with exactly the same word, expression or sentence when it is part of a legal text. This is sometimes difficult to discover or even to admit for a considerable number of canon lawyers and theologians. Apparent similarities are often misleading, as not accepting them is, by those who believe in them, often felt as an attempt to deceive someone.

            The danger, as well as the possible negative consequences linked up with it, of seemingly identical notions and sentences, has been described in a subtle way by the Czech novelist Milan Kundera in The Unbearable Lightness of Being.

            In his book, the author describes the dialogue between two lovers who are both true intellectuals with a strong cultural background as most of Kundera's characters are. Franz is a Swiss citizen, a talented academic, who is raised in Western Europe during the sixties. Sabina passed her youth in communist Czechoslovakia. This completely different context makes it ultimately impossible for them to understand exactly the same words in the same way, in other words to associate them with the same feelings and with the same hope. An abyss separates Sabina and Franz: he listened eagerly to the story of her life and she was equally eager to hear his life story, but although they had a clear understanding of the logical meaning of the words they exchanged, they failed to hear the semantic susurrous of the river flowing through them.

            Milan Kundera then offers a Short Dictionary of Misunderstood Words: woman, fidelity and betrayal, music, light and darkness, parades, the beauty of New York, Sabina's country and a cemetery. Every motif, every object, every word means something different to Franz and Sabina. Another semantic river flows. Each time the same object would give rise to a new meaning, though all former meanings would resonate (like an echo, like a parade of echoes) together with the new one.

            For instance, the notion parade is quite different for each of them.

            Sabina, in Czechoslovakia, marched in the obligatory May Day parades, she could never keep in step, and the girl behind her would shout at her and purposely tread on her heals. From her youth on, she hated parades.

            Franz had studied in Paris, and because he was extraordinarily gifted, his scholarly career was assured from the time he was twenty. The idea of such a life made him feel suffocated. He yearned to step out of his life, the way one steps out of a house into the street. And so as long as he lived in Paris, he took the opportunity to take part in every possible demonstration.

            A parade is not a parade - the susurrous of the semantic river. This is the ultimate, and in my eyes the only real difficulty of contemporary marriage law in the church. How can theological notions, ideas and concepts be integrated into the discourse of canon law? What happens to theological notions once they flow into another semantic river, once they play a part in the legal system? How is the susurrous of this river in marriage law, bearing in mind the theological input of Vatican II?

            This question, in fact, has been asked at the moment of the promulgation of the CIC 1983 and it has been repeated many times ever since, more or less explicitly in papal allocutions to the Roman Rota. This question is also the first concern of Msgr. Burke's leading essay. It is, without the slightest doubt, a fascinating question, which I want to deal with here in my own part of this publication.

            I should first explain how I am going to proceed in dealing with this topic. Three preliminary remarks could clarify the approach which is my standpoint.

            First of all, I am concentrating my thoughts on the system as such of marriage law. This means that I am not offering a detailed analysis of the existing or even possibly emerging nullity grounds. Nor am I making a thorough analysis of the latest Rotal decisions in order to discover, for each ground, which evolutions can or could be foreseen. It is just the opposite aim I will endeavour to achieve: a synthetical view of how the system works and how it could work. Details on nullity grounds fulfil a role only inasmuch as they can illustrate the central ideas formulated in this essay.

            Secondly, I am not writing against Monsignor Burke. I appreciate him very much as a person and as a scholar. I admire the creative ideas he developed and the energy he shows to bring them into practice. It should be equally clear that I am not going to deal with any possible element of his contribution which I might or might not fully agree with. Here again, my approach is somewhat different. I shall try to develop and present my own theory on personalism and marriage law, on theological ideas seeking their way into the legal semantic river. In this context, and within these limits, I enter into discussion with Msgr. Burke's ideas, as he is obviously undertaking in his part of the book, a similar enterprise.

            Thirdly, and this is a point I should develop a little bit more, I am writing within the confines of the current 1983 Code of Canon Law, however, without considering this framework as the only possible one. This means that I fully share Monsignor Burke's idea that the lawyer of today, has to develop his legal reasoning within the limits and possibilities of the Code as it has been promulgated. This approach clearly will be mine in the pages that follow. Obviously, the loyal and even joyful acceptance of this slant, does not mean that I think the current "translation" of theology into canon law is the only possible one. It just is the only real one, and as a matter of fact, it happens to be quite a good one.

            What precedes implies, that I am not going to discuss at length possible ways of thought set forward and sometimes brilliantly argued, in the rather long period (at least long enough to develop creative thoughts) between the closure of the Second Vatican Council in 1965 and the promulgation of the new Code in 1983.

            However, just to illustrate the difficulties that the susurrous of the semantic river entails, I briefly recall two other possible approaches of translating theological thinking into a legal context, which ultimately failed to reach the CIC 1983.

1)         A first approach, in more general terms, discusses and relativises the legal relevance of Jesus' teaching on marriage. A good example of this approach is offered by an article of Paul Hoffmann published in Concilium in 1970, between the period 1965 and 1983. Hoffmann concludes that in his teaching on divorce, Jesus does not lay down a law, but rather reveals the reality of marriage, and does so precisely in opposition to any legal narrowing of the issues. The author illustrates his thesis by a quotation from the later Cardinal J. Ratzinger from 1969: Jesus reaches behind the plain words of the law to that of the law's origins, so his words must not in their turn be taken directly and simply as law. A question remains how Jesus' commandment can be brought into connection with the concrete situation. According to Hoffmann, we must not overlook the fact that man is called to peace and happiness. So in principle both of these factors must be given proper weight in any interpretation: the demand for irrevocable unity in marriage, and the situation in which man finds himself. His way of putting things succinctly shows that Hoffmann does not see the legal synthesis within the principle of unity, but in a combination of this principle with an external element, namely the practical situation.

            Theories such as the one - in tempore non suspecto - developed by Paul Hoffmann, are probably implicitly aimed at in the allocution of the Holy Father to the Roman Rota of 26 January 1997. In this allocution, the current Pope says that the new Code has made ample use of the Council's vision on marriage, while avoiding some extreme interpretations which, for example, have considered the intima communitas vitae et amoris coniugalis as a reality that does not involve a vinculum sacrum with a specific juridical dimension.

2)         A second approach, which also failed to be realized in the 1983 Code, is an approach clearly opting for a marriage governed by canon law, but characterized by shifting paradigms. To put it briefly, this trend says yes to canon law and marriage, but no to the traditional components of legal marriage as they emerge up until now. Advocates of this approach say no to the strict contractual basis of marriage, and similarly they reject a rigidly maintained principle of indissolubility.

            An excellent example of this second approach is offered by the famous canon lawyer Piet Huizing (1910-1995), who taught at the Gregoriana in Rome and at Nijmegen University. In an alternative draft for a new marriage law in the church, which, in the eyes of Huizing himself, had not the ambition to be a ready made proposal but just a starting point for further discussion, he looked for a new and refreshing legal translation of conciliar thinking. In canon 5 of his alternative project, Huizing defined marriage as a covenant based upon consent, but he left aside any reference to marriage as a contract. In canons 27 and following, he dealt with the irretrievable breakdown of the marriage. Certainly, in working out this breakdown, he made use of grounds that are well-known in canon law and come close to incapacity or simulation. However, he described what happened as the breakdown of the marriage, not as evidence in favour of a null marriage. Although he did not discuss this element explicitly in this publication, it seems that he saw an incompatibility between the personalist ideas on marriage and the attempt to re-define any failure as a null marriage, a marriage which did not exist ex tunc. In his interesting schema, Huizing gave room to old nullity grounds such as vis et metus or force, as well as to new ones, such as a lack of Christian motivation. However, the really striking point here, is that these more or less classical nullity grounds, function in a basic framework which is absolutely new. The paradigm is not the nullity of marriage, but its actual breakdown.

            Both approaches as described above, the doubt about the possibility to give a juridic dimension to personalistic marriage as well as the idea that personalism in marriage leads to a fundamentally new legal approach, have two things in common. Firstly, they are a sign of the awareness that theology and law are flowing in a different semantic river and that the translation process is not an easy one. Secondly, they both were implicitly rejected by the legislation. The CIC 1983 made another choice. As I have already said, this does not mean that both approaches as described above are without any intrinsic value or that they should be put aside based upon ontological arguments. Yet, they just did not survive juridically. Therefore, I will not discuss them in this essay, rather I begin with the CIC 1983 as the legal framework. Whether or not both approaches could possibly offer nice solutions could be an intriguing question, but then again, I will leave it open for debate.

            What really matters, as the true starting point of the ideas I shall try to develop here, is the ultimate choice the legislator made with regard to the juridic translation of the view of marriage found in the Pastoral Constitution Gaudium et spes. This translation took place in the canons 1055 to 1165 of the CIC 1983. Of course, not all canons are relevant for the basic framework of marriage law in the church, or for to act as basic mechanisms which are essential with regard to the survival and the functioning of the system.

            The central question remains the same: what will be the juridical consequences of Gaudium et spes and its view on marriage? Do we eventually have to prepare for the end of the contract as causa efficiens of marriage, or at least as a cornerstone of the system?

            As I already mentioned, there are many reasons to be reluctant concerning the survival of the contract. The first reason indeed is the emerging covenant as that central theological notion characterizing marriage. This led to lyrical articles both simplifying the notions of contract and covenant, and defining them as opposites. A good example is an article by P.F. Palmer published in 1972: "Contracts are best understood by lawyers, civil and ecclesiastical; covenants are appreciated better by poets and theologians". The opposition between both notions is obvious, as is also the underlying value judgment. Moreover Palmer continues his summa divisio: "Contracts deal with things, covenants with people. Contracts engage the services of people; covenants engage persons...". Is this an over-simplification? Most definitely! But in the meantime it seems to be hard to imagine how the contract could possibly remain the causa efficiens of marriage in personalist marriage law.

            And there is more. Those people enthusiastic about the new covenant-idea were not the only ones who seemed to endanger the notion of marriage as a contract. Something similar took place among eminent canon lawyers from the early sixties onwards. Authors involved in the debate were among the real stars of those days: Michiels, Lener, Robleda, Szentirmai. They asked themselves the question whether marriage was a contract or an institute.

            Traditional teaching is clear on this point. Marriage contains two essential aspects. On the one hand, there is the situation of being married, the matrimonium in facto esse, with the legal situation it entails. On the other hand, this situation can only be realized after an initial juridic act which is constitutive for marriage and which makes it that, for the two people who enter into it: the matrimonium in fieri. The married state is considered to be governed by natural law. God installed it, in order to maintain mankind by procreation. He also constituted its juridical framework and people cannot, not even by consent, change its content. This is obviously not true for the other aspect of marriage, the matrimonium in fieri. The latter is grounded by the mutual free consent of both spouses. One could summarise it as follows: by free consent, marriage is constituted and both parties enter the matrimonium in facto esse, which is governed by divine law.

            This paradox - freedom at the entrance, but no freedom concerning the object - led to the discussion concerning the question whether marriage should be qualified as a contract or as an institute. To put it simply: one could focus on the notion of a contract by paying attention to the necessity of free consent. But one could equally focus well on the notion of an institution by insisting on the fixed content of marriage.

            Anyway, marriage as a contract was clearly under fire before the promulgation of the CIC 1983. Marriage as a covenant, and marriage as an institution seemed, at least in the eyes of some theologians and canon lawyers, hard or even impossible to reconcile with the traditional thinking of marriage as a contract. What eventually happened in legal drafting, however, was less complex. False contradictions were exposed. The possible contradiction between marriage as a contract and marriage as an institute was already a non-issue at the time the CIC 1983 was prepared. After all, why could a marriage not be a contract with institutional characteristics? In case initial free consent is sufficient to define a legal relationship as a contract and there is no reason why it should not, marriage is a contract, of course without being just a contract.

            And also the more frontal and apparently more overwhelming contradiction between contract and covenant has been solved by the CIC 1983. This becomes immediately clear when looking at canon 1055 and the definition it provides for: "º1.    The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring: this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament.

º2.        For this reason a matrimonial contract cannot validly exist between baptized persons unless it is also a sacrament by that fact."

            It can be said that contract and covenant both play a part in the new legal approach. Certainly, the notion contract is not mentioned in the definition of º 1. But then again, it is far from being absent in marriage law as a whole. It already shows up in º 2, and it continues to be prominently present elsewhere in marriage law. A concise summary of what happened in the Code is given by L. â•“rsy: "The new Code of Canon Law was made in an effort to adjust the law to the mind of Vatican Council II. It defines marriage as covenant and then keeps talking about it as contract. however, it recognizes that the covenant is entered into 'for the good of the spouses and the procreation and education of offspring': they are joint ends which should exist in harmony; neither of them should override the other".

            Taking into consideration all what precedes, we should ask ourselves one elementary question. Is it right to conclude that theological thinking as expressed in Gaudium et spes found a stable place in the juridical semantic river which is given shape by the CIC 1983? I am afraid it is too early to answer positively this question. Obviously, the Code, by formulating the definition of marriage, and of marriage law as a whole, in the way it did, takes an option. It expresses the intention to bring new personalist ideas, including the conception of marriage as a covenant, together with the old legal elaboration of marriage in the church, which is closely connected with the idea of marriage as a contract. Within the rather flexible boundaries of the Code - flexible because of the many open notions canon law contains - jurisprudence and doctrine developed and will further develop the legal consequences of "marriage" as being a contract as well as a covenant.

            But just being satisfied with a formal place of personalism in current marriage law would be naÇ ve, and underestimate the susurrous of the different semantic river in which law is flowing. The next chapter should clarify the juridic consequences of the legal translation of personalism into the CIC 1983.

            In fact this approach is the only possible one, given the preliminary remarks I formulated in this first chapter. Once again, I summarize these ideas briefly.

            The central question of current marriage law in the church is clear: which juridical consequences flow from the view of marriage as found in the Pastoral Constitution Gaudium et spes?

            This central question is tremendously difficult to answer, as theology and canon law are flowing in a different semantic river, with a susurrous giving another significance to the same words.

            It is that difficulty which could partly explain the existence of various attempts at translation which finally have not been taken over by the legislator. The virtual impossibility to translate theological personalism into canon law, as formulated by Hoffmann, has not seriously been taken into consideration. And a translation characterized by shifting paradigms concerning the legal structure of marriage in the church, for instance by recognizing the irretrievable breakdown, as formulated among others by Huizing, did not emerge as the choice of the legislator.

            In spite of apparently serious problems (covenant versus contract; institute versus contract), the legislator opted for a legal approach of marriage in the church which combines contractual thinking with marriage as a covenant. Yet just because law flows in a semantic river different from the theological one, the question arises as to what the consequences are of the way the CIC 1983 formulates the canons. Taking the semantic river-theory seriously, inevitably leads to the following question: how do words, notions and canons of the Code concerning marriage rustle in canon law as a whole?