cormacburke.me.ke

            I start this chapter with the dilemma that concluded the previous one: How can juridic personalism go together with a restrictive practice concerning the declaration of nullity of marriages? Can the acceptance of the covenant into marriage law of the church go together with a very moderate practice in this field?

Cormac Burke manages to combine these two objectives. How does he do this? I shall try to explain how I think he finally manages to discover a workable combination of personalism and a moderate annulment practice. Therefore, I outline here my interpretation of what Monsignor Burke writes on the preceding pages of this book. I immediately admit that the summary I provide is not only a very personal analysis, but remains a little caricatural. The ideas of Msgr. Burke are rich and nuanced. My summary probably is not, or not enough. But I have to put things a little more sharply in order to clearly explain what I intend to demonstrate.

            In his essay, Burke does not deny the basic structure of marriage as I described it in the previous chapter, composed of, as in the past, marriage in fieri and marriage in facto esse. Up to this point, I cannot see a contradiction between my (former) position and his. But then an initial difference emerges. In the contribution I presented above, the notion consent is not redefined. It remains very contractual after all. I did not distinguish it from consent as conceived, for instance, by the CIC 1917. Moreover, in my construction, consent remains very contractual and juridical. It largely constitutes the legal semantic river in which the content of marriage, which includes personalism and the covenant idea, flows and has to be situated. In other words: in my construction, personalism finds itself a place in the system, but without influencing the meaning of consent as a contract. The content of this contract is influenced by personalism, but the structure in itself is not.

            In this regard, Msgr. Burke holds another position. He admits marriage being a contract, but a contract sui generis, as the following quotation shows: "I have never seen much point to the 'covenant-versus-contract' debate about the nature of marriage, concretely in the canonical field, for I consider marriage to be both. Insofar as it is a contract, it must certainly be treated as one which is truly 'sui generis'. But, in my opinion, to abandon any type of contractual analysis of marriage would obscure the whole canonical treatment of the subject, ending in a 'covenantism' just as abusive as any 'contractualism'".

            Clearly, Cormac Burke is in favour of an equilibrium between contract and covenant, but seemingly without making a difference between the matrimonium in fieri and the matrimonium in facto esse. This presumption finds itself confirmed throughout Msgr. Burke's most interesting and well-argued essay. At any level of marriage law, personalism in the way Burke understands it, finds its way into the system.

            First of all, consent, the lever of the system, has in Msgr. Burke's opinion a less contractual significance than it has in civil law. I agree that making reference to civil law is not easy here: in Roman law, marriage was never seen as a contract although contractual thinking of Roman law, later served as the basis for the notion of contract in the marriage law of the church. And today, consent and its ultimate significance are seldom at stake in civil law discussion, as an analysis of consent is not needed for most current legal problems, which are not connected with consent, but with divorce. In order to arrive at divorce, an analysis of consent, in today's civil law, is most of the time completely irrelevant.

            Anyway, Burke gives his own proper analysis of consent and how it should be perceived in marriage law. Two important elements characterize his theory. One element concerns the quality of consent, another element focuses on its quantity.

A)        QUALITY OF CONSENT

            Concerning the quality of consent, Msgr. Burke insists on not exaggerating requirements in order to achieve a valid marriage. He recalls the teaching of Pope John Paul II. And he clearly distinguishes Christian anthropology from western anthropology as it often is presented today. Modern non-Christian anthropology and psychology tend to work on the basis of a norm in conjugal life and relations, whereas Christian anthropology would rather consider an ideal: something to be worked for, but seldom if ever fully achieved in practice. Logically, Msgr. Burke concludes: "Whatever the value of such an 'ideal norm' in other fields, it is not of evident relevance to jurisprudence in the task of determining the minimum capacity necessary for valid matrimonial consent".

            In other words: Christian anthropology demands that requirements for marriage should not be too high. Consent can easily be given.

B)        QUANTITY OF CONSENT

            Yet, what is the content of consent? What is the object of agreement of both partners when they give their consent for a marriage? Msgr. Burke refers to canon 1057. The donatio or traditio of one's self must be accompanied by an acceptatio of the other. And Msgr. Burke comments: "In other words, the mutuality of acceptance, in consent, is of no less importance than that of giving. The effect is to underline the perfection and totality of the conjugal commitment".What precedes sounds very juridical and contractual... Yet, Burke also has to admit that the notions of 'gift of self' or of the mutual 'donation of persons' do not lend themselves to any simple juridic analysis. Concepts such as 'mutual self-giving' cannot be understood in a wholly literal sense. And Msgr. Burke continues: "Personalism itself tells us that one cannot talk in terms of an absolute donation of self, or of an absolute acquisition of another, for it is contrary to the essential autonomy and dignity of the human person to be made the object of a simple transference of gift". So, there should also be an element of metaphor in the traditio suiipsius. In conclusion, one could say that for Cormac Burke the notion of giving oneself is juridically meaningful, and not meaningless as stated in a sentence coram Egan of 29 March 1984. But even then: the juridically meaningful notion cannot be made positive without any limitation, it also contains an element of a metaphor.

            In spite of the vulnerable legal status of the traditio suiipsius, Cormac Burke goes extremely far in making it functional. A key passage in his essay, goes as follows: "The test of a true personalist approach to marriage is well expressed in the 'for better or for worse' formula. In the absence of deceit, personalism demands an acceptance which is open to all the variations of the future. If two people sincerely give and accept each other as they are, then personalism demands a disposition of loyal mutual response, which includes reciprocal and maintained understanding and patience".

            Obviously, the debatable legal status of the notion sese tradere et accipere does not hinder Msgr. Burke from giving it an extremely demanding content: open to all the variations of the future. In my opinion, this is more than just for better and or for worse, as it refers to the vulnerability of the condition humaine. Variations of the future could include elements of human wickedness and lack of elementary fair play, which go far beyond that point.

            Anyway, whatever the exact significance of the sentence "open to all the variations of the future" might be, it remains quite a burdensome notion. A question then could be how a simple human being can cope with those standards which are quite high. Monsignor Burke has an answer to this question: vigorous effort. He repeats and repeats the importance of hard struggle, dedication and sacrifice. It also seems to be the cornerstone of his own personal philosophy, as the following quotation might lead us to discover: "The real problem of life - facing each age and each person - is finding happiness, as far as it can be found. Happiness is one 'good' that can seldom be found quickly (or if it is, will almost certainly not be lasting), and never without an effort. The truly 'good' things in life are always 'bona ardua', arduous goods, with their necessary aspect of difficulty".

            Meditating over the two components of consent, over its quality and its quantity, one can already draw some conclusion concerning Cormac Burke's vision on personalism and consent. Consent can be achieved rather easily, but paradoxically its content is tremendously difficult. People who happen to give their marriage consent, a little immature but not enough not to be able to marry, agree by the very fact itself on accepting all the variations of the future. All this can be concretized through the very voluntaristic personalism as Msgr. Burke describes it. In other words: personalism, instead of leading to more annulments as a result of higher quality requirements concerning marriage, leads to more valid marriages, as it "automatically" includes higher standards in the consent and gives impetus to overcome difficulties through vigorous effort. The higher requirements are not found in the object of the consent and leading thus, through the lever function of the latter, to more nullities. On the contrary, higher requirements are found in the consent itself. By giving consent, one agrees on more than in the past, in those days before personalist thinking made its entrance in the system. As (a) you agree on more (quantity) and (b) you rather easily can give your consent (quality), annulments should become more difficult than in the past.

            In my opinion, the "new consent" as influenced by personalism in the way Msgr. Burke sees it, should indeed lead to less nullity cases. Quite surprisingly, the famous Rotal auditor seems to admit that, on the contrary, more marriages than before are null: "Are there more failed marriages today? It certainly seems that there are. Are there more marriages which are null? I think that there are. Are there as many null marriages as there are declarations of nullity, and above all, as many null marriages on the grounds of nullity which are usually invoked? I think that there are not".

            Given Msgr. Burke's theory, the increasing number of null marriages can only be due to changing circumstances in life or society. Just by reasoning rebus sic stantibus, his view on personalist consent should lead to fewer, instead of to more null marriages.

            But personalist consent is not the only technique Msgr. Burke develops in order to reconcile legal personalism on the one hand, and a highly restrictive number of annulments on the other hand.

            His analysis of various aspects of marriage and of various nullity grounds confirms his voluntarist personalism. One could say that, instead of welcoming a nullity ground - which he nonetheless occasionally does as for dolus - he tries to reduce its significance, in case it seems too selfish and egoÇ stic in its possible application. All other nullity grounds or questions concerning marriage are connected with personalism as he sees it, including his call for vigorous effort. What precedes, leads altogether to a restricted possibility to achieve an annulment: old nullity grounds absorb personalism. Personalism does not see itself translated into the possibility of new or renewed possibilities for annulments.

            I shall try to illustrate my thesis in two ways. First, I shall demonstrate how personalism as Msgr. Burke sees it, is absorbed by traditional nullity grounds. Secondly, I shall argue that Msgr. Burke strongly dislikes those nullity grounds which are not focusing enough on the total giving of oneself and which are therefore, in the line of Cormac Burke's idea of personalism, no longer theologically well founded.

(a)        Old Grounds and Notions Absorb Personalism

            Msgr. Burke does not like a juridical functionalisation of the bonum coniugum. His approach is that it should not be at the basis of possible nullity grounds. The analysis should be made at a deeper level, in harmony with the logic of the new personalism. Bonum coniugum should be brought in connection with the notion of matrimonial consent, the sese tradere et accipere of canon 1057.

            Yet, in case the bonum coniugum, a notion mentioned in the definition of marriage does not receive any concrete legal significance as a gateway to possible annulments, then what about personalism? For Burke, there is no problem. True personalism can be realized by 'redeeming' the tria 'bona' (bonum prolis; bonum fidei; bonum sacramenti) from the rather narrow canonical understanding which has virtually appropriated them for so long, thereby conditioning our understanding of them in a way that deeply obscures their actual goodness, as values or benefits of the married state. The conjugal covenanted bond is the aspiration of true human love. For Msgr. Burke, the persistent negative view of the bona has fostered certain unnecessary juridic formulations in relation to the communio vitae, to the essential obligations and to the bonum coniugum. They are vague in meaning and uncertain in substance. And they are unnecessary: a positive view of the tria bona is truly personalistic in Msgr. Burke's opinion. No "new" and hazardous notions have to be developed to give room to personalism in marriage canon law.

(b)        Some Grounds Do Not Meet With Msgr. Burke's Personalist Standards

            As Monsignor Burke makes a close connection between personalism and a fairly voluntaristic sese tradere et accipere, he feels himself confronted with nullity grounds, or evolutions within nullity grounds, which do not fit with his standards of personalism. This is particularly true for condicio and error. And even in the field of incapacity he has some doubts.

            Concerning condition for instance, Msgr. Burke is, in all clarity, aware of the problem he is confronted with: "Such a conditioned approach would seem to contradict the very essence of the marital commitment expressed in c. 1057: the giving of self and accepting the other, as each one is now, and as he or she may turn out to be in the future. The traditional words in which consent was and is couched, express that unconditional openness to the other, that readiness to share together what the 'con-sortium' (the common fate or lot) of life may bring".

            The same problem emerges when Burke sees himself confronted with the error in qualitate personae. According to the Rotal auditor, gradual expansion of invalidating error is a noteworthy example of abusive contractualism. Error in qualitate personae leads to difficulties when one subjects the matter to a personalist analysis.

            And also canon 1095, when going beyond the traditional amentia, this is not fully adequate from the viewpoint of Msgr. Burke's personalism, as he clearly affirms. The new canon 1095 is to him an advance. However, Msgr. Burke adds, "only in a very limited way would I regard it as an advance in terms of personalist values".

            In summary, it is clear that Msgr. Burke has problems with nullity grounds where the notion of effort or sacrifice cannot be that easily applied. Perhaps the acceptance of condicio, error in qualitate personae or incapacitas could recompense people without much sense of sacrifice, and with some rather selfish ambitions. In that regard, those nullity grounds hardly fit in with Msgr. Burke's system.

            My summary so far of  Cormac Burke's ideas is of course quite personally coloured. Starting from this summary, it is now possible to answer the question asked at the beginning of this chapter: How can juridic personalism go together with a restrictive practice of the declaration of nullity of marriages? What to me seemed to be tremendously difficult, almost impossible to achieve, has been brilliantly done by Monsignor Burke. I briefly recall how he did proceed.

            The cornerstone of his approach can be found in not limiting personalism to the content of marriage, as I did in the previous chapter, but in expanding it also to the consent, to the causa efficiens of marriage. Consent, as Msgr. Burke sees it, is characterized by two elements, one focusing on quality, another on quantity. Concerning quality, Msgr. Burke concludes that marriage should be open to most people and that therefore requirements for entering it, should be moderately low. Concerning quantity however, he considers the object of marriage, the sese tradere et accipere as being both quite broad and demanding. It includes an acceptance open to all the variations of the future. Hence, Burke's voluntaristic personalism makes it possible to give consent rather easily on an enormous number of things. This 'personalist' paradox guarantees both the acceptance of (a kind of) personalism in marriage canon law and a limited number of possible annulments.

            The highlights of his system find themselves confirmed at the more simple level of legal notions and nullity grounds in marriage law. Personalism finds itself absorbed by traditional nullity grounds which do not alter much as a result of the introduction of personalism. Most new grounds or possibly new grounds, are rejected. And new or old grounds not coping, in Msgr. Burke's opinion, with personalism the way he sees it, would be better in the future, not to have a place in the system for any length of time. In fact, to put it in another way, a more detailed analysis confirms the basic analysis on consent: More voluntaristic personalism implies more valid marriages and fewer legitimate nullity grounds.

            Could one say that, as a result of Msgr. Burke's construction, the right answer has been found concerning the central question of this chapter? Is the way that Burke combines personalism with a restrictive nullity practice satisfactory?

            Let me start by saying that I very much admire the performance Monsignor Burke delivers in his leading essay. He finds a combination between personalism and a reduced number of annulments, and he does not find it by accident: he develops a complete and harmonious system. The system is solid. It testifies of  Cormac Burke's love for both law and the church. Moreover, his text is also characterized by a total clarity of style and arguments. Of course, the clarity of ideas makes also that they can be criticized more easily. Monsignor Burke does not express himself in an ambiguous style in order to hide the real content of his ideas.

            In the following pages, I would like to raise three points, on which I cannot fully share Cormac Burke's opinion. The disagreement might be on a few rather important points, but not on others, as the above mentioned love for law and for the church. My three points deal with the following three topics:

(1) Msgr. Burke's use of the notion consent;

(2) the role of vigorous effort in his personalism;

(3) the vision of man in Msgr. Burke's thinking.

1)         The Notion Consent

            In a daring way, Monsignor Burke extends personalism to the canonical marriage as a whole. Consent should not be affected by abusive contractualism. In the canonical field, marriage should be both a contract and a covenant: in that way, I think one could summarize Msgr. Burke's position.

            My problem is that, although I share Msgr. Burke's idea that marriage should juridically also be a covenant, the idea of covenant can hardly be realized at the level of the consent itself! What do I mean by this? That consent should be: a mutual agreement on the same object, in the line of Ulpianus' definition of a contract: duorum vel plurium in idem placitum consensus. Is this too contractual an approach? I think not.

            Although I agree with Msgr. Burke that requirements for entering a valid marriage should not be too high, the capacity to give consent not too hard to achieve, I also think that there should be at least consent. Some people might be able to give consent - despite being immature - but nevertheless they might not be inclined to give it. This is also why I do not feel completely comfortable with the two points which Msgr. Burke makes on marriage: a rather easily obtainable capacity, together with a very demanding object of consent.

            Are people prepared to promise to be true to the partner in good times and in bad, in sickness and in health? I think they are. Are they accepting that they will be open to all the variations of the future? I think they are not. Unpredictable horrible behaviour of the partner, for instance, which is not part of a normal or even rather demanding condition humaine, is probably not the object of consent. For instance a marriage with a husband who is heroically trying to uphold the tria bona, but who is a total workaholic who needs to be married for career purposes, because only married men virtually are accepted at a certain position, is, in my eyes, not a valid one.

            In other words, the object of consent, the juridically vulnerable sese tradere et accipere is too broad to be realistic, at least in the way Msgr. Burke defines it. Few people agree, when they conclude marriage, on being a hero. At least such a requirement should not be the object of a legal consent.

            By making the object of every marriage consent so tremendously broad and so demanding, by being an extreme personalist in the voluntaristic way he perceives personalism, Msgr. Burke loses touch with healthy legal thinking. The balance between his interpretation of covenant and contract is too much in favour of the covenant. Indeed, the object of the consent is not really agreed upon by the persons, at least not in all the consequences which Msgr. Burke connects with it. Man and woman only "agree" on it because, according to Msgr. Burke's theology of marriage, they should agree on it. In other words, not the fact of the consent, but the object of the consent becomes a legal fiction, a situation which is not fitting with reality but is presumed to be true (iuris tantum or iuris et de iure), because it is indispensable for the functioning of the system as a whole. In my opinion it is clear that, once the object of the consent is not fitting with the will of the people contracting marriage, it also vitiates the consent itself. It was given freely, but together with a misconception of its object.

            One could ask whether the fact that consent, due to its extremely demanding object, is a legal fiction which should be evaluated in an exclusively negative way. Sometimes, a legal fiction is necessary, as I already said, to keep a system operational. For instance, in Belgium the presumption and at the same time the legal fiction is upheld, which says that all Belgians are presumed to know the law. Of course, not one single citizen knows the complete legislation of Belgium. But without this legal fiction, everybody could invoke his ignorance on a certain law or try to prove it, etcetera. Definitely, the legal system as a whole would be entirely unable to function in an efficient way. A legal fiction, together with an irreversible presumption supporting it, is fully acceptable in the case of this particular example.

            Yet, is it also acceptable for consent in canon law concerning marriage? As far as I am concerned, it is not. For centuries, the church has rightly and courageously upheld the idea that marriage without free consent is impossible. Such a freedom of consent should not only include the fact of the consent, but also its content. People should know, at least to a minimal degree, what they agree upon. Msgr. Burke might argue that conjugal love wants a commitment of the kind he describes. I think that this is only partially true. Yes, people do want commitment, but within reasonable limits. The entrance of Msgr. Burke's voluntaristic personalism into the object of the consent, raises the requirements, not of the contractant's personality but of what he agrees upon, so much so that consent can only be upheld by a legal fiction. Voluntarism makes the object of consent too unbalanced.

            Therefore, as a result of his 'extreme' personalism, Msgr. Burke tends to become - against his will - a bit of a positivist in the legal field. In that regard, the semantic river of law flows its own way, it has its own susurrous. One can, indeed, balance contract and covenant in the overall picture of marriage law in the church. But from a legal standpoint, consent is a delicate notion. Colouring it in too personalistic a way leaves only two solutions. Just discarding it, which lies absolutely not in Msgr. Burke's intention, or keeping it alive in the most technical, legalistic way that a lawyer can think of: by the way of a legal fiction. A compulsory agreement based on too high a standard, has the effect that the notion compulsorily absorbs the notion agreement... I certainly know that this is not Msgr. Burke's intention. Yet I fear it might be the consequence of his excessively demanding legal translation of the notion mutuum sese tradere et accipere.

2)         Vigorous effort

            The second element I feel obliged to discuss is the importance of vigorous effort and all its connected notions, in Monsignor Burke's thinking. I formulate my remarks with a lot of ambivalent feelings. I share with Monsignor Burke the idea that effort is extremely important and that it can be one of the keys to happiness.

            I remember from my youth a picture of the famous Belgian cycling champion Eddy Merckx who, although he was already by far the overall leader of the Tour de France, nevertheless attacked in the Alps. Under a picture of a lonely cyclist in a desert landscape a short text was printed: le goÖ t de l'effort. So, there is nothing wrong with effort, neither is there with vigorous effort. Yet, in my opinion the problem with Msgr. Burke's thinking is that effort becomes too overwhelmingly important. This unbalanced importance led already to a legal fiction concerning consent, as I described above. In my opinion, there are some more problems thinkable which, this time, are linked up with vigorous effort. I see them in three different, though quite related fields.

            The first problem is that vigorous effort, as meant by Msgr. Burke to be a crucial element of true personalism, could also be a cheap excuse for avoiding any real personalist effort, for rejecting any attempt to have some real interest for the well being of the partner. In that regard, I remember a case I dealt with as an ecclesiastical advocate in Belgium. A male defendant in a case, telephoned me. His wife had started a procedure in order to obtain an annulment of the marriage. He first thought that just by remaining absent he would make sure that a declaration of nullity, eagerly wanted by his wife, would become impossible. As the officialis told him that this was not necessarily the case, he contacted me, saying that he was absolutely opposed to any possible annulment. His motive: what God has put together, should not be separated by man. Later, during the subsequent conversation, it became clear that his divorce had been pronounced seven years before, that shortly afterwards he remarried civilly, and that at the moment of our meeting he was the proud father of two healthy children of his second marriage, a mere civil union. Asking him how all this tied up with the motive he previously mentioned against nullity, he answered that that was none of my business.

            Of course, I do not want to judge people, but seemingly, a 'vigorous effort' to maintain the bond, sometimes, is more vigorous than it is a real effort. A real effort requires presence, responsibility and commitment. Here, effort could be a last possiblility for revenge, as it were a last chance to express one's hatred.

            But then again, this possibility of abuse is not my most important argument. Of more weight seems to me the idea that, apart from any possible abuse, a vigorous effort to maintain the bond can be just as harmful.

            Although effort as such is a very positive notion, there can be a moment when it becomes more courageous to leave than to stay. Staying, continuing the vigorous effort can in some cases be counter-productive, without being a sign of selfishness or egoism. Real commitment can, in extreme cases mean the courage to quit, especially when the effort becomes an effort for effort's sake, without any other real content. Balanced personalism includes an equilibrium between the effort and its object. Blind effort is not always positive. In this regard, I remember a quotation by Gustave Thibon, in a book he wrote in the fifties about the crisis in love, already very much a reality in those days. In this book Gustave Thibon formulates this intriguing point: "Real fidelity towards a flower is not cutting it of and keeping it in a herbarium, but pouring it and helping it to develop into a fruit". I know that the comparison is not completely suitable, unless one sees fidelity here not as fidelity to a concrete person, but as fidelity to the idea of unselfish commitment. Real commitment can be endangered by a vigorous effort to stay just for the sake of effort.

            I think that part of Rotal jurisprudence implicitly colludes with this idea. According to this jurisprudence, parties must be able to establish a 'tolerable' relationship and, conversely, if the relationship were intolerable that they were incapable of the essential obligations of matrimony. In this regard, E.G. Pfnausch sees a recent trend in Rotal jurisprudence. Among other decisions, a decision coram Stankiewicz of 20 June 1990 is quoted. Marriage life (vitae consortium coniugale), in this case, was intolerable, because a hysterical personality disorder of the wife which was characterized by rude, insulting and dramatic behaviour.

            Of course, what is intolerable? But then again, a better balance between vigorous effort and what really is intolerable should be found. In any case, I can imagine marriage in which the three bona, in their legal significance, can be maintained, even out of true love, but that the bonum coniugum cannot be realized. In that case married life together becomes completely intolerable. By using lower standards ( no bonum coniugum should be included in marriage consent), Msgr. Burke makes the case that the relationship remains formally feasable, but maybe, perhaps ultimately, it is not a marriage any longer.

            What precedes brings me automatically to my third point. Voluntaristic personalism as Msgr. Burke sees it, eventually could lead to 'personalism' which no longer can be situated within the framework of marriage as it is described in the CIC 1983. By this I mean that Msgr. Burke, in some cases, could be arguing in favour of an ongoing vigorous effort in order to uphold a marriage which canonically is obviously null or sometimes a little less obviously so.

            Let me first illustrate this idea by beginning with a very clear case, which I afterwards will attempt to refine.

            Imagine two people who married, perhaps influenced by the pervasive mood of the sixties, with an idea of mutual commitment but also of unselfish commitment for third world countries. Even before their marriage, their intention is to leave for South America, to a country with a lot of poverty, civil war, revolution. In their eyes, their lives should be devoted to mutual commitment, certainly, but also to commitment for society. This project, still in their opinion, is not compatible with an openness for children. Their own dangerous lives would be too risky for children, who would be orphaned and left alone if something would happen to their parents. Later, their marriage comes into trouble. However, with the voluntarism also characterizing their professional lives, they decide to undertake a vigorous effort to keep their marriage together, without any selfishness and a great of sense of sacrifice. For the sake of clarity, let us take a hypothetical example where the presence of the exclusio boni prolis by a positive act of the will cannot be challenged and that proofs can be delivered, although I agree with Msgr. Burke that the latter is not always an easy thing to arrive at.

            Yet, what is the meaning of a vigorous effort is this specific case? Certainly, the behaviour of both partners could be heroic and from a moral viewpoint, of a very high value. But in the meantime, and this is my problem, the marriage is clearly null.

            One could argue that the case as described above is an exceptional one. I agree, yet it remains a possible one, just as, again in the sixties, some people were not open to offspring because they refused to take the responsibility to oblige children in having to live in a wicked world threatened by war and bombs. An erroneous conception, for sure, but not a fully unrealistic one. Yet, the first purpose of the example lies elsewhere. It should illustrate how voluntaristic personalism could become overwhelmingly present, and could make us blind for the contractual elements of marriage and for the very basic questions linked up with its validity. This is especially true for borderline cases, where the appreciation of the effort could overshadow a detailed analysis of consent, its context and its circumstances.

            For instance, one could go back to the decision coram Stankiewicz of 20 June 1990. Quid iuris if, in case of rude, insulting or dramatic behavior on the part of person suffering from a hysterical personality disorder? Should we insist on a vigorous effort to continue this 'intolerable' relationship? Or would this imply a lot of heroÇ sm, disconnected however from the marriage as such, as the marriage seems to be null? Should the moral quality of the vigorous effort prevail, even if the marriage is null? This is, in my eyes, an intriguing question.

            To solve this question, at least partly, I would like to refer to the often quoted description Ladislas â•“rsy gave of the use of the words 'covenant' and 'contract' in canon 1055 of the 1983 Code: "This new relationship between contract and covenant is best understood if the move from contract to covenant is best understood as a move to a higher viewpoint. Nothing is lost, everything is enriched; contract is contained in the covenant but does not exhaust it".

            There are two reasons why I like this definition so much, although it could sound a little bit emotional in the ears of a poor lawyer.

            The first reason is that â•“rsy's definition gives a place to the covenant, but in the meantime leaves the contract intact. The introduction of the covenant does not mean that contractual aspects of marriage become suspect or should be modified or pushed by the higher intrinsic quality of the covenant-idea. No: the contract remains intact. Yet, for Msgr. Burke it does not completely. Certainly, a contractual mechanism remains and this is also in his construction. But two 'contractual' nullity grounds such as error in qualitate personae and condicio become suspect. Moreover, in the concrete analysis of cases, voluntaristic personalism could eclipse clarity about the contract, including the deep significance of real consent. For â•“rsy, the covenant leaves the contract fully intact and enriches it. For Msgr. Burke, the covenant also enriches the contract, but does not fully or always leave it intact.

            There is a second reason why I like â•“rsy's definition. He writes: nothing is lost. For me, this is one of the cornerstones of Christianity, and also one of the cornerstones of my personal faith. Nothing is lost. Also nothing of the idea of marriage as a contract, in which even a not fully sympathetic condicio, for instance, or a debatable incapacitas assumendi, describing facts on the borderline of what is possible, could lead to an annulment. Msgr. Burke rightly says that the entrance of marriage should remain very accessible: the basic ius connubii should not be undermined. But then again, this should also be true for the object of consent. What is required here, should remain more or less tolerable. Ultimately, juridic mercy might even be morally better than vigorous effort in its most extreme consequences. The fact that nothing is lost of the contract, means that a contract should be given by human beings with their weaknesses, but that those weaknesses could also be juridically relevant in case of vitiated consent. Msgr. Burke argues that concluding a contract should be accessible for most people. Yet, for â•“rsy, the fact that nothing is lost also means that the true working of the contract remains possible. A true contract includes some contractualism, which through its sense of reality, including a sound balance between the idea pacta sunt servanda and an open eye for the impossible, might in all its simplicity be helpful for realizing more personalism in marriage, without of course being able to offer that personalism itself.

3)         Vision of Man

            In his essay, Monsignor Burke quite often criticizes modern pessimism about marriage. Christian anthropology is proposed as a remedy to go against this trend. I joyfully share Msgr. Burke's opinion in this regard. Marriage is a beautiful institution which deserves to be promoted and protected.

            Yet, I have the impression that Msgr. Burke's optimism about marriage, which I do not cast into doubt, goes together with a rather deep pessimism about man. I am not going to fall into the other extreme, by singing a hymn to human goodness. In my opinion, human condition shows that man can be great and that he can be weak, not only man as an abstract notion, but also every single person. As far as I can see, however, Msgr. Burke remains too pessimistic, which of course partly does explain his focusing upon effort and sacrifice.

            Although I repeat once again that I highly appreciate values such as sacrifice and effort and that they are absolutely indispensable for true Christian life, I also think that there should be more. The semantic river of condition humaine should not flow in a bed which eventually turns out to be a boulevard of broken dreams. In other words: love for sacrifice and effort should not go together with the giving up of illusions. The fact that illusions do not offer the stable security of reality, does not prohibit them from being worthwhile striving for. By illusions, I understand the perhaps Utopian idea of something really beautiful, which is quite different from egoÇ stic fulfilment.

            In that regard, I have some problems with Msgr. Burke saying: "Perhaps a marriage can only fully become a marriage after illusions are lost, the possibility of separation is faced, and one chooses to stay". I can concur with the idea that marriage perhaps only fully becomes a marriage after the possibility of separation is faced and one chooses to stay. But I do not see why this mature yet dramatic question should be the consequence or the cause of illusions. Maybe true personalism means an effort, a vigorous effort, not just to maintain the bond, but also to maintain illusions. To maintain youth, hope and dreams. Perhaps mature youth, mature hope and mature dreams. But youth, hope and dreams or in any event.

            Again, Msgr. Burke's thinking in this regard is in my opinion too pessimistic, too wise, too disenchanted. Certainly, he is consistent with himself and continuously warns against illusions. In his book Covenanted happiness he writes: "If one expects too much from love and marriage, one is bound to be disappointed. If one puts too much pressure on a boiler, it explodes". In my opinion, this rather unbalanced perception of love is often present in canon law thinking. The distinction between affective and effective love, in that regard, tends to polarize. Can one uphold any right to affective love in the sentimental way that it is usually defined and as Msgr. Burke describes it, which could mean the right to feel the love which one gives oneself, or the right to feel the love given by the other partner? Certainly not! Here I agree with Msgr. Burke.

            Yet, one has the right to live up to the commitment of love as Msgr. Burke describes it. Effective love? Of course!

            What I miss in this contruction is that no legal relevance is given to the broad field in the middle between affective love, which is indeed very sentimental in the way it is described, and effective love in its somewhat harsh centering on the tria bona and marital consent.

     I believe in that middle field, where what the French call, somewhat a little sentimentally, une tendre complicitΘ might be at stake. It is a form of love which is not naÇ ve anymore, but which through effort, pain or sacrifice did not lose all of its illusions. A love without naÇ ve illusions, or without too many too naÇ ve illusions, but with illusions anyway. In this ambivalent area of gloomy hope and sudden darkness, man is at his best. In this very field, he often tries to do his best and tries to be better than what the modern world says he is.

            In other words: if one accepts an anthropological vision on man which is not pessimistic but balanced between hope and fear, then personalism will be a less voluntaristic and defensive notion than it is in the thinking of Msgr. Burke. This personalism, I perceive, should have a place in the marriage law of the church. This law should highly esteem the vigorous effort. But it should not leave man alone in his deepest dreams, which are not dreams anymore if they do not include mature illusions. To me, this is not only a task for canon law, but for good law as a whole. Law cannot be fully absent when it comes to, what to men is really a matter of life and death, to that which touches them deeply.

            Therefore, I think a more balanced, less pessimistic idea of man, leads to another conception of personalism including mature and unselfish illusions. All this cannot but influence law, in this case marriage law in the church.

            At this point I want to conclude my reflections on Cormac Burke's brilliant essay in order to explain, from the next chapter onwards, a little bit more of my own dreams and mature (?) illusions concerning marriage law in the church. I reiterate the brilliance of Msgr. Burke's essay, while it brings into harmony both central ideas which, in chapter two, seemed to be almost impossible to reconcile, namely a true translation of personalism into the canon law system and without this introduction leading to the number of annulments drastically increasing.

            I first tried to summarize his approach. His central point is that he does not limit personalism to the content of marriage. Personalism also enters into the consent which in the past was fully coloured by the notion of contract. Consent has, for Msgr. Burke, two aspects. In the field of quality, he strongly defends the ius connubii in such a way that many, most, and indeed almost all people are just capable of marrying. In the field of quantity, of the object of consent, he offers a very broad and demanding legal content of the notion mutuum sese tradere et accipere. It includes an acceptance of all the variations of the future. A demanding idea of content goes together with an easily accessible consent.

            This central principle is confirmed at the level of the nullity grounds. They should remain limited, and should be replaced by vigorous effort in order to keep marriage alive. Burke is sceptical towards nullity grounds which might not fully meet with his standards of voluntaristic personalism and which do not drastically exclude a more 'egoistic' significance of personalism. Thus, more voluntaristic personalism leads, at the level of consent, to more valid marriages.

            While I admire this construction, which is inspired by true faith and love for the church and for marriage, nonetheless I have formulated three main points of criticism which I briefly recall here.

a)         The notion of consent Msgr. Burke uses, goes too far beyond the contractual notion of consent, which implies mutual agreement on the same object. The gap between the simple contracting and the difficult object of the contract, can only be filled by presuming the mutual agreement. So, consent, in its extreme voluntaristic version, becomes a legal fiction. In that regard, Msgr. Burke is, in my opinion, legally speaking a positivist, at the same time he is all personalist when it comes to his underlying ideas.

b)         Vigorous effort is a key notion in Msgr. Burke's thinking. As such, it is an extremely valuable and indispensible notion. Yet, the dark sides of this unbalanced approach should not be overlooked:

-           vigorous effort concerning the maintainance of the bond could be a cheap excuse in a policy of obstruction;

-           vigorous effort should be balanced with the tolerable or intolerable character of vitae consortium conjugale.

-           vigorous effort should not be seen, at least not here, as a moral good as such but should be looked at in the context of validity or invalidity of marriage; in the combination of contract and covenant in marriage's definition, nothing is lost, even not the full and complete contract.

c)         Msgr. Burke's vision of man is pessimistic. As a result of this, his personalism is voluntaristic. I would be in favour of a more balanced vision, recognizing both man's strengths and his weaknesses. This would lead to a true marriage in which illusions are not lost, but rather became mature. And mature illusions should also have a place in legal personalism. It is obvious that a less pessimistic vision of man leads to another personalism and thus to another translation of personalism in the legal field.

            Bearing all this in mind, I would like to develop my own thoughts in the next chapter. I am not proposing them as the alternative to Msgr. Burke's reflections. In fact, his system is entirely consistent and is built up in a beautiful way. I am in no way saying that his approach is juridically or theologically not good or not valuable. I think he gave one possible approach of married personalism as it is juridically present in the 1983 Code of Canon Law. Yet, I also think that his interpretation is neither the only one, nor the only possible one. In my opinion, the juridic significance of the canons 1055-1165 can never be discovered in an exhaustive way. It is not a matter of discovering the one and only model, but of offering a nice, plausible and truly Christian model. Any proposed model has its price. In my opinion Msgr. Burke's also has, and I have tried to explain why this is so. But then again, the model I shall present, is far from being beyond any possible criticism.