cormacburke.me.ke - English, Marriage - Canonical

Progressive jurisprudential thinking (The Jurist 58 (1998:2), pp. 437-478)

webmaster — Wed, 29 Sep 2010 14:36:37 +0000

Progress in juridic science

Juridic science must progress, just as any other science. Otherwise it stagnates and loses vitality. By means of continuous reflection it needs to seek deeper insights on major questions that have always been at its very basis, such as the relation of truth and justice; or on the juridic treatment to be given to what may be considered new but are certainly not secondary themes, such as the definition and legal protection of human rights; or again on lesser but still important topics, such as the way of accelerating legal procedures without violation of due process or detriment to justice.

A note on the Burke-Torfs debate on Married Personalism

webmaster — Thu, 29 Jul 2010 14:41:25 +0000

"Married personalism" (the debate on this site between Professor Rik Torfs of Louvain and myself) has provoked quite a number of email comments from readers. While Prof Torfs and I are very good friends, our views on the topic of Married Personalism are quite different; which of course is why we could debate. It might be helpful if I here attempt a very brief summary of my views on two points in particular: married personalism and the good of the spouses.

The Sacramentality of Marriage: canonical reflections (Monitor Ecclesiasticus 119 (1994), pp. 545-565)

webmaster — Thu, 29 Jul 2010 14:40:56 +0000

"A matrimonial contract cannot validly exist between baptized persons unless it is also a sacrament by that fact". So runs canon 1055, § 2 of the 1983 Code reproducing literally canon 1012, § 2 of the pio-benedictine Code. This word-for-word reproduction is all the more striking in view of the many suggestions and efforts made over the twenty years of drafting of the new Code, to have this paragraph of the old canon 1012 changed. If the suggestions were not accepted in the end, this would seem to be because, while the pastoral concerns behind them were understandable enough, they were not held to correspond to sound theological (and therefore to sound juridic) thinking.

The essential obligations of matrimony (Studia canonica 26 (1992), 379-399)

webmaster — Thu, 29 Jul 2010 14:40:28 +0000

Rules of interpretation

The effect of fraud, condition and error in marital consent; some personalist considerations (Monitor Ecclesiasticus 122 (1997),

webmaster — Thu, 29 Jul 2010 14:39:58 +0000

I. Lack of authenticity: deceit or fraud in consent

In the case of simulation, the lack of authenticity in marital self-giving is evident. The person going through the ceremony does not give himself conjugally. There is a constitutional lack of integrity in the marital donation made to the other.

The Distinction between no. 2 and no. 3 of Canon 1095 (The Jurist 54 (1994):1, 228-233)

webmaster — Thu, 29 Jul 2010 14:39:20 +0000

Incapacity for giving valid matrimonial consent, deriving from some notable defect of the person's psychic faculties, is dealt with in c. 1095 of the 1983 Code: "They are incapable of contracting marriage: 1º who lack sufficient use of reason; 2º who suffer from a grave lack of discretion of judgment concerning the essential matrimonial rights and duties which are to be mutually given and accepted; 3º who are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature".

Simulation of consent (Forum: 9 (1998) 2: pp. 65-82)

webmaster — Thu, 29 Jul 2010 14:38:47 +0000

(Opening address to the Canadian Canon Law Society Convention, St. John's, Newfoundland, October, 1997)

If I am glad to have been invited to speak on a topic other than canon 1095, the reason is certainly not any feeling that the last word has been said on consensual incapacity. It is simply because of a personal conviction that there are more null marriages today through simulation of consent, than through incapacity for it.

Matrimonial consent and the "bonum prolis" (Monitor Ecclesiasticus 114 (1989-III), 397-404)

webmaster — Thu, 29 Jul 2010 14:38:18 +0000

The 1917 Code of Canon Law described matrimonial consent as that "act of the will by which each party gives and accepts a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children" (1917 Code: canon 1081, # 2.). The 1983 Code describes this consent in apparently very different terms: it is that "act of the will by which a man and a woman, through an irrevocable covenant, mutually give and accept each other in order to establish a marriage" (1983 Code: canon 1057, # 2. ).

Definitive sentence July 9 1998 coram Cormac Burke (Rotae Romanae Decisiones, vol. 90 (1998), pp. 512-562)

webmaster — Thu, 29 Jul 2010 14:37:11 +0000

Nullity of Marriage (L. -D.) on the grounds of incapacity to accept the essential obligations of marriage due to homosexuality in the Defendant.

THE FACTS

Personalism and the Essential Obligations of Marriage - Angelicum 74 (1997), 81-94

webmaster — Thu, 29 Jul 2010 14:36:07 +0000

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