cormacburke.me.ke

            During the Second Vatican Council, one of the fine debates which took place on marriage, dealt with the traditional hierarchy between the ends of marriage. It is generally admitted that as an outcome of this discussion, two ends of marriage were to be situated at the same level of importance, namely on the one hand the good of the spouses, and on the other hand the procreation and education of children. In any case, this debate illustrates that a discussion about a certain hierarchy among values is of course theologically possible but also quite valuable. It also helps to understand better the fil rouge, the guiding principles of any doctrine, in this case, of the theological significance of marriage.

            Therefore, an important question in order to situate the canons on marriage law in the church in the legal semantic river, is the question whether any or an even more or less comparable hierarchy among the canons on marriage law, as they are formulated in the current Code, can. 1055-1165, can be discovered.

            This search for a possible hierarchy can be undertaken in two different ways. One can look at it from the perspective of the legislator. And one can look at a possible hierarchy from the perspective of the inner structure of the existing legislation. Or, to put it in another way, there can be room for both an external and an internal hierarchy.

            The external hierarchy is the hierarchy which is deliberately aimed at by the legislator. It is clear that such a hierarchy among legal norms, as well as their development around a few key notions, clearly exists in the 1983 Code. Pope John Paul II, the legislator, expressed them clearly in his allocution to the Roman Rota of 28 January 1991: "In continuity with tradition and openness to the new needs, there is the new marriage legislation which is based on the three principles: marriage consent, the capacity of the persons, and the canonical form".

            The internal hierarchy, however, only partly depends on the will of the legislator. It also depends partly on the proper structure, mechanism, and dynamics of law. Precisely this internal hierarchy will be extremely important, for measuring the concrete meaning and value of personalist thinking within the legal structures of marriage law.

            Let me immediately come to the central issues which, in my opinion, dominate the internal hierarchy of norms concerning marriage law in the church. Two points emerge: (a) the old distinction between matrimonium in fieri and matrimonium in facto esse still tacitly governs the structure of the system; (b) norms concerning the matrimonium in fieri are the lever of the system and as such, they are more important than the norms concerning the matrimonium in facto esse.

            These two statements may sound a little surprising or could give the impression of remaining too theoretical. Therefore, I shall try to explain their significance.

(a)        The old distinction between matrimonium in fieri and matrimonium in facto esse remains the cornerstone of the system.

            One would have expected that the emergence of personalist thinking, including the covenant as a key notion, could have made marriage less contractual, or at least would render the distinction between consent and lived marriage less Cartesian. From a theoretical viewpoint, one could ask whether the covenant as a living notion really is reconcilable, with one unique static consent, occurring at one single moment of marriage life, namely at its very entrance. Would a permanent consent (one cannot help thinking here of Trotsky and his permanent revolution) not be a better way to cope with such new theological insights? A theologian or a naÇ ve canon lawyer, might ask such a question... Furthermore, would it not be possible to argue that a real distinction, a true line of fracture between consent (matrimonium in fieri) and the lived marriage (matrimonium in facto esse) tends to become more and more questionable in modern society?

            And indeed, modern society confirms these ideas, whether one likes it or not. It confirms these ideas in various ways. For instance, a man and a woman tend to cohabitate before entering into marriage: the living together is confirmed by consent, consent is not establishing it. Moreover, divorce procedures become more and more flexible. The most flexible form of divorce is of course immediate divorce on the unilateral demand of one partner. Although this extreme technique remains exceptional, one cannot but acknowledge an ongoing tendency of facilitating divorce. To be perfectly clear: I do not approve these trends. But they already are very successful in secular society. Consent and married life are seen as two parallel entities, sometimes merging into one another, in any case hardly separated, and certainly to a lesser degree than in the past.

            In canon law however, such an evolution of creeping merger is impossible. Permanent consent is not a workable idea, nor is parallelism between consent and married life. The reason for this, of course, is not a juridical one. As the "secular" example clearly shows, no unsurmountable legal barriers exist, which might prohibit a merger or at least a parallelism between matrimonium in fieri and matrimonium in facto esse. It is quite the reverse: theological requirements make a notion such as permanent consent completely impossible. Believing in the idea of a permanent consent, implies the possibility that at one moment or another this consent can come to an end, entailing by the fact itself or as a direct consequence linked up with it, the dissolution of the marriage. This is impossible, because the church considers indissolubility of marriage to be a principle of divine law and for instance not merely a moral commandment.

            In other words, in case one wants (a) to maintain marriage law in the church and (b) to maintain indissolubility as a legal norm, one unique consent remains unavoidable. The "static" consent is the necessary foundation, on which possibly a more "dynamic" lived marriage is built. A persisting separation between marriage in fieri and marriage in facto esse is a necessary starting point for any attempt to valorize personalist thinking. The matrimonium in fieri remains indispensable as a lever of the system as long as indissolubility remains a legal principle which should be protected as such. This leads us to the second principle.

(b)        Hierarchy in law: matrimonium in fieri as a lever for the legal system.

            There is not just a juxtaposition between marriage in fieri and marriage in facto esse. On the contrary, the marriage in fieri comes first and is a conditio sine qua non in order to arrive at the matrimonium in facto esse. Consent is the foundation and content is the superstructure. More than that: consent is not merely a foundation, but also a lever through which all possible deficiencies related to marriage as it has been concluded, possibly could obtain legal relevance. Because of the indissolubility of marriage as a legal principle, the lever-function of consent becomes extraordinarily important: indeed, if one wants to leave a marriage which has formally been concluded in a correct way, there is only one logical way out: vitiated consent. Every possible shortcoming has to be brought back to the moment of the conclusion of marriage and should be identified as being present at that very moment, in one way or another.

            Here again, we see a clear difference with the way marriage breaks down and comes to an end in modern western secular society. The reasons for this breakdown usually come to the fore after, or long after, the moment consent was given. Vitiated consent and nullity are quite unusual, although not unexisting. In quite a few western countries however, their number tends to increase slightly, particularly due to simulated marriages often concluded in order to obtain citizenship entailing a valid residence permit.

            In conclusion, one could say that the canon law structure of marriage today is still characterised by (a) a Cartesian separation between marriage in fieri and marriage in facto esse; (b) the dominance of the marriage in fieri which is the lever of the system, as all nullity grounds, has to be reflected in that indivisible moment. Both characteristics are quite different from contemporary trends in secular western marriage. This idea could be best illustrated by making use of the following diagrams.

 

matrimonium

in facto

esse

matrimonium

in fieri

 

matrimonium in facto esse        

matrimonium in fieri      

 

            Modern Secular Marriage                                  Canon Law Marriage

Characteristics

-           juxtaposition of the two aspects, parallelism       hierarchy between the two aspects

-           two aspects flowing into each other       -           strong separation between the two aspects                               

-           matrimonium in fieri tends to become     -           matrimonium in fieri remains the absolute lever

            less important                                                   of the system

            But why such a diagram? Is a thorough reflection on how canon law marriage legally functions today, really important in order to situate personalism in the existing system? As a matter of fact, I think it is. Without an analysis of the legal semantic river, it is quite impossible to measure what the results of an interaction of the existing legal system and the newly introduced personalist covenant will be.

            When, in the past, I have been thinking about the legal relevance of personalism in the church, it was precisely the construction I described above which functioned as the starting point of my reflections. The construction I just developed, which in my eyes can hardly be challenged and which finds itself in full harmony with theological teaching as well as with canon law, was the beginning of a syllogistic argument which can be presented in its traditional form with a maior, a minor and a conclusio. The argument, roughly summarized, goes as follows.

MAIOR.

Although the CIC 1983 introduces personalism and

the notion covenant in marriage law, the latter remains

characterized by its old contractual semantic river

based upon the distinction between marriage in fieri

and marriage in facto esse. The first remains the

absolute lever of the system and is based on a

juridically valid consent in an indivisible moment.

This is necessary for theological reasons, namely for

safeguarding the principle of indissolubility.

MINOR.

Personalism does not emerge in the technique of the

marriage in fieri as it remains organized and as it

functioned already in the Code of 1917. This means

that personalism, as it is present in the definition of

marriage in canon 1055, should find its expression not

at the foundation, but in the superstructure of the

system. Personalism is not in consent, but in content.

As a result of personalism, the content of marriage

becomes richer, and requires a higher degree of

commitment.

CONCLUSIO.

Consent remains the same and content becomes more

demanding; content has to be brought back to the level

of vitiated consent in order to become juridically

relevant. Thus: increasing standards concerning

content, quality, commitment, necessarily lead to

higher requirements in order to conclude a valid

marriage as the church sees it. Raising requirements to

achieve a valid consent naturally also lead to more

possibilities concerning the nullity grounds. For

instance: simulation occurs more often because there

is more to simulate. And incapacity tends to become

more common as reaching a certain degree of

personalist commitment, means more than just being

able to cope with St. Augustine's rather formal tria

bona (bonum fidei; bonum prolis; bonum sacramenti).

            The position I held in my book published in 1990, and also in previous writings, could be seen in that line of thinking. It started from the unchanged semantic river of marriage law which in my opinion was still based (as it was in the CIC 1917) on a juridically valid consent in an indivisible moment. It measured the influence of the higher standards concerning the content of marriage once they were "thrown" in the existing semantic river. Consequently, the result could not be anything else than more demanding requirements in order to conclude a valid marriage, and therefore also more marriages which could be annulled.

            However, since 1990, this position has become somewhat problematic, although not in my eyes, at a theoretical level. The syllogistic argument still stands. Of course, it is always possible to challenge its premises, to identify them perhaps as lacking some nuance... But then again, as far as I can see, the problem does not lie there. The real problem is elsewhere, it should be seen in the reaction against the forthcoming possibility of a massive number of annulments. This reaction has existed ever since the legal translation of Gaudium et spes was at stake but became increasingly important. Especially the Papal allocutions to the Roman Rota of 1987 and 1988 and the weight they received in jurisprudence, make for the fact that a canon lawyer, functioning in the church the way it is structured, and working in a context de lege lata, not de lege ferenda, needs to make some adjustments. This may be not in order to be a sound thinker, but just in order to be a sound lawyer.

            Already before certain decisions of the Roman Rota tried to take into consideration the implications Gaudium et spes entailed for marriage law, some eminent canon lawyers warned against the possible significance of too 'personalist' an approach. In 1967 and 1968, in four different issues of Periodica, Urbano Navarrete warned clearly against the juridical valorization of the community of life.

            Yet, a considerable part of jurisprudence of the Roman Rota seemed to opt for the other approach. Of particular importance were some decisions coram AnnΘ. This auditor at least implicitly included elements necessary to establish a consortium in his notion of consent. For AnnΘ, the traditional ius in corpus is definitely not enough as an object of marriage. He gradually develops his ideas concerning the consortium vitae. A minimal affective orientation toward the partner is necessary. Elsewhere, AnnΘ considers the right to a community of life as an essential right of marriage, distinct from all the others and not merely their sum. Even then, AnnΘ does not precisely define the content or limits of the consortium. The via negativa seems to him the most adequate method to come close to the crux of the notion.

     Although AnnΘ was followed by many, among them the young J.M. Serrano Ruiz, other Rotal auditors and canon lawyers remained sceptical. Here again, various reasons could sustain this approach. For some canon lawyers, Gaudium et spes had a pastoral nature, which entailed no consequences in the legal field. Others however were clearly aware of what the consequences of a legal acceptance of the notion 'community of life' would have within the system, within the existing semantic river which, of course, was not called by that name. An excellent example is offered by a decision of the Apostolic Signatura coram Staffa of 29 November 1975: the legal valorisation of totius vitae consortium could lead to an approach declaring null any marriage of unhappily married people asking for it.

            However, one could have presumed that the juridical relevance of the community of life could no longer be challenged in a credible manner, now that it has received its place in the CIC 1983. Or to put it in another way, after Vatican II but without the CIC 1983 having been promulgated, one could at least still argue that Gaudium et spes juridically did not bring in anything new, and had no real consequences. However, this should be an untenable position after the promulgation of the new Code. For certain, some options have not been taken. Personalism did not lead to abandoning marriage law, it did not bring about a change in the contractual nature of marriage. And at the other kind of the spectrum, it did not reject the legal relevance of the covenant. A diagram can illustrate the more or less middle position that the legislator took by issuing the CIC 1983.

zone 4 (Staffa)

ZONE3(CIC 1983)

ZONE 2 (Huizing)

ZONE 1 (Hoffmann)

marriage

as contract

marriage

contract & covenant

                                                         marriage as covenant

de-legalisation

            Zone 1 is the most 'progressive', zone 4 could be called the most 'conservative' position, entailing a status quo to the 1917 situation. The authors and texts between brackets link the diagram to the description, I gave in this and in the previous chapter.

            An erroneous evaluation, made by myself and probably also by many other canon lawyers working both in the field and at universities, consisted in admitting that an option in favour of zone 3, accepting the legal relevance of the covenant, would automatically lead to the mechanism as described above in the syllogistic argument: (a) consent remains the basis of the system as it was before; (b) the requirements in order to come to a valid consent increase as a consequence of the entrance of personalism into law; (c) ergo: more marriages can and shall be declared null.

            It is clear that, in practice, this reasoning was followed quite often. But this trend was seriously questioned after two famous Papal allocutions to the Roman Rota, pronounced in 1987 and 1988. In his allocution of 5 February 1987, Pope John Paul II drew attention to the high number of marriage nullity decrees in some countries based on grounds of psychic incapacity. In this allocution, and in the one he proposed in the following year, Pope John Paul II stressed the need for caution in marriage nullity cases, and that they should be substantially based on a vision of authentic Christian anthropology.

            In number 7 of the allocution of 5 February 1987, the current Pope very clearly explains the central question: "For the canonist the principle must remain clear that only incapacity and not difficulty in giving consent and in realizing a true community of life and love, invalidates a marriage. Moreover, the breakdown of a marriage union is never in itself proof of such incapacity on the part of the contracting parties. They may have neglected or used badly the means, both natural and supernatural, at their disposal; or they may have failed to accept the inevitable limitations and burdens of married life, either because of blocks of an unconscious nature or because of slight pathological disturbances which leave substantially intact human freedom, or finally because of failures of a moral order. The hypothesis of real incapacity is to be considered only when an anomaly of a serious nature is present, which, however it may be defined, must substantially vitiate the capacity of the individual to understand and/or to will".

            Without any doubt, these Papal allocutions should be taken very seriously, first of all given the position a Pope has in the church. Another point is, whether in these Papal allocutions the Holy Father intended to give an authentic interpretation of the law.

            Some prominent canon lawyers answer this question in a positive way. Cormac Burke is among them, in two decisions in which he was ponens. The decision of 18 July 1991 is very clear in that regard: "The Pope's words leave no doubt that, prescinding from technical or medical classifications only a serious disorder or pathology of the human 'psyche' can invalidate consent... Here we clearly have an authentic interpretation that gives needed and mandatory guidance to all tribunals on a matter of the greatest importance..." Some support for the view, that statements in the 1987 allocution amount to authentic interpretations, is in an older article article by W.H. Woestman, who refers to "what could be considered an authentic interpretation of the law by the supreme authority".

            However, most authors disagree with this viewpoint. Even Woestman seems to have altered his earlier position in 1994, while writing that it is evident that the Papal allocutions to the Roman Rota are neither jurisprudence nor legislation. According to Woestman's more recent position, they just form a part of the church's ordinary magisterium.

            It seems clear that the content of Papal allocutions cannot be seen as 'authentic interpretation' in the technical sense of canon 16, that is an authentic response of the legislator to a doubtful or unclear law. Of course, the Holy Father can use an allocution as a vehicle for conveying an authentic interpretation, but in that case he has to clearly indicate the fact that he is doing so. If he does not explicitly state his intention of promulgating an authentic interpretation through an allocution, the content of the act should be interpreted in the light of the nature and the purpose of the act. In this case, the Pope offers important guidelines subject to further study for a clearer understanding. Rotal auditors stated that Papal statements of this kind must be followed religiously by the judges as clear teaching of the Supreme Legislator and Teacher.

            In my eyes, as we leave the field of authentic interpretation and end up in the more general area of ordinary magisterium, the interpretation given by the Pope should also be followed concerning other canons than those strictly aimed at in the allocution. In any case, the anthropological considerations trying to limit an overwhelming number of annulments, give as such already enough clear guidelines to justify a switch in Rotal practice, a switch preserving the community from an exaggerated and almost automatic multiplication of declarations of nullity.

            Or, to put it in another way:

            The way back has been taken. This thesis could, for instance, be nicely illustrated by a decision coram Stankiewicz of 22 July 1993. The ground here is error concerning the person. Stankiewicz argues that person in the canon just means physical person. He notes that in earlier Rotal decisions the notion person has been seen in a more complete and integral manner than only the physical person. But he dismisses these decisions. The strange thing is however that one of the decisions Stankiewicz is disagreeing with, is a sentence written by himself in 1991. Of course, Stankiewicz could have been in a minority position in his turnus. But meanwhile it is clear that annulments are becoming less and less obvious. Indeed: some years after the 1987 and 1988 allocutions. This could probably mean that, although the allocutions caused some immediate consequences, their influence (strengthened by later allocutions and evolutions) became even more important in the long run.

            In summary, one can conclude that the syllogistic argument as described earlier in this chapter, and entailing that, through the legal semantic river, personalism leads to a multiplication of declarations of nullity of marriage, has been stopped as a result of Papal allocutions in 1987 and 1988, as well as as a result of new developments in Rotal jurisprudence. To put it somewhat more simply: AnnΘ and Serrano Ruiz are out. More rigor is in again.

            But then again, how do we have to deal with this evolution? Even if a multiplication of nullity cases is rejected, based upon the argument that they are inspired by a defective anthropology, there still should at least be some legal relevance of personalism, including the notion covenant, which remains proudly present in the definition of canon 1055.

            Clearly, Pope John Paul II does not accept the consequences of the syllogistic argument as described above. Therefore, other solutions, techniques and ways of reasoning should be found in order to find a solution for the newly born dilemma. How can one legally valorize personalism and covenant, without first having to accept a strongly increasing number of annulments? One could even say that asking how it can be done is already much too optimistic. Could one not argue that the dilemma just cannot be solved and that both logically and inevitably, this leads to more annulments? In that way of reasoning, one could argue that the Pope and others could to a certain extent slow down the increasing number of declarations of nullity, but that they are unable to tackle the problem in a frontal way, as they might be prevented from doing so by the imperatives of formal logic.

            However, very intelligent and skillful canon lawyers are able to locate the impossible combination. Monsignor Cormac Burke offers a beautiful example of this capacity. I shall try to explain what I see as his solution (always a dangerous undertaking...) in the next chapter.

            Before starting that analysis, I would like to summarize the outcome of this second chapter and to situate clearly where we are in our reasoning.

            Chapter one, shows that the legislator in the CIC 1983, made a choice in favour of a system of marriage law in which both contract and covenant have a place. Yet just expressing such a general principle in a law is not enough. Another question has to be asked: how do both notions evolve in the semantic river of law? That is the question which was at stake in the second chapter.

            The chapter opened with an analysis of the underlying mechanism of marriage law today. There still is, as there was in the past, a clear separation between marriage in fieri and marriage in facto esse. And consent continuously remains the lever of the system. Legal relevance of deficiencies of any kind is, in case of a formal valid marriage, only possible through vitiated consent.

            After having reached this conclusion, the mechanism, through a syllogistic argument, has been applied on current marriage law. Consent is the lever of the system. Consent remains as it was: indivisible, concrete, and present at one single moment. But the content of marriage is richer than before, as a covenant is required. Combining a stable consent with a more demanding content, inevitably leads to more cases in which consent could not be given or has not really been given by one or both partners. Conclusion: an increasing number of null marriages can hardly be avoided.

            Yet, the results of this syllogistic argument (more than the argument itself, it seems) are not easily accepted. They were already feared in the period between the end of the Council in 1965 and the promulgation of the new Code in 1983. Keen minds such as Monsignor Staffa argued that new trends in Rotal jurisprudence launched by auditors such as L. AnnΘ and J.M. Serrano Ruiz, eventually could lead to the annulment of every unhappy marriage. In spite of this, the 1983 Code gave a legal status to personalist marriage. But then again, the idea that this legal status could or would entail almost automatically a generous practice of declarations of nullity, was not accepted. Pope John Paul II clearly warned against such a practice. Especially his 1987 and 1988 allocutions to the Roman Rota turned out to be extremely influential. In any case, Rotal jurisprudence today tends to be more restrictive than a few years ago.

            The next question is: how can such an approach be legally explained? How can one be a true personalist also in the legal field, and yet plead in favour of a restrictive policy concerning the declaration of nullity of marriages? It is entirely possible. It has been brilliantly done by Monsignor Cormac Burke.