Part Two. c. Cormac Burke: Concluding words.

            In his final response, Rik Torfs notes that our approaches to married personalism are quite different. This is certainly so. I wanted to debate married personalism. He wanted to debate married nullities, and our discussion has largely gone in that direction. While this was not my original intention, I realize it may have made the debate more interesting to many readers.

            The concerns underlying my principal exposition were two. First the need to understand "married personalism" in its true nature - the call to give oneself and accept another unconditionally; and to understand that this corresponds to the aspirations of true conjugal love. Second, to show how the essential elements of married consent, as expressed fundamentally in the acceptance of the triple "bona" of St. Augustine, are deeply personalistic, for the same reason, i.e. as being the logical expression of the commitment that true conjugal love seeks. All of this seemed and seems to me vitally important, in the renewal of married life that the Church is seeking and the world so badly needs.

            Prof. Torfs contends that this is of no interest to canon lawyers. In his last reply he invokes Klaus Lüdicke to propose an even more trenchant criticism of the canonical approach to marriage, even under the new Code. He quotes Lüdicke to the effect that "marriage procedures in the church have [had] one main purpose, namely the protection of marriage", even when it has irremediably broken down. "Once marriage has been constituted validly, it deserves such a protection. So far this has been the underlying idea of the current system". Along with Lüdicke, Torfs feels that "this approach is not realistic any longer" - mainly, if I follow the argument, because civil law everywhere now allows divorce and remarriage; hence, the only "realistic" approach for the Church is to evolve more flexible procedures that will facilitate remarriage for Catholics whose first marriage has broken down. Remarking, "it is in this regard that married personalism becomes legally relevant", Prof. Torfs goes on to give a clear statement both a) of his own position within this perspective, and b) of what he considers (but I do not) to be my position. His position is that "ideas concerning married personalism offer a way out for concrete marriage[s] which failed", while my position - as he sees it - is that "an annulment is a defeat" for personalism, since it means letting "letting people off" the generous and total commitment that a personalistic approach to marriage demands of them.

            Along with referring the reader back to the more substantial criticisms of Prof. Torfs position which I have already offered, I think that these remarks highlight the particular danger underlying the Torfs approach, the danger of invoking personalism - of instrumentalizing and impoverishing it - so that a failed marriage does not stand in the way of a couple's desire - or the desire of just one of them - to embark on a second marriage.

            My original purpose was not to make a mere "analysis of the intrinsic beauty of marriage in abstracto"; it was to probe into the deeper nature of married personalism, which is so often invoked very superficially, at times to justify pro-nullity positions which do not correspond to truth and justice, and can therefore seldom answer the interior voice of conscience. My feeling is that if married persons, and also pastors and counselors in general, had a better understanding of the practical beauty (which is in no way "abstract") of committed married love, as expressed in c. 1057, there would be many more happy unions and less failed ones - which fail, not because of any inherent defect or incapacity in consent, but simply due to a lack of response both to the challenge to love that nature proposes, as well as to the grace that we all need so as to learn to love.

            Marriage is normally preceded by a "falling in love" process. "Love at first sight" is not the usual rule, and less still if thought of as a mutual experience. The process normally takes time, and it is seldom that two people fall in love with each other at exactly the same pace or within the same time frames. One takes an initiative, maybe to be disappointed if the other does not seem to respond. Then perhaps the other does respond, and so, if their wills and tendencies continue to converge, they can gradually progress towards marriage. One in the end proposes; and the other hesitates, or refuses, or eventually accepts. Marriage itself cannot come about unless the two wills do coincide in exactly the same time frame. Two "I do's" have to be simultaneously uttered.

            But what if there is a subsequent "falling out of love"? It does not have to happen, although most people at one moment or another feel tempted to give way to the beginning of such a process. For falling out of love with one's spouse is also a process; it also takes time; and again, as between the spouses, it seldom - practically never - occurs at the same pace. On the contrary, it is usually one of the two who first weakens in tact or patience, in readiness not to insist on having one's own way, in preparedness to forgive or ask for forgiveness, in the battle against personal selfishness - in other words, in the daily struggle in those little things upon which the survival of married love depends...; while the other is still striving to keep love alive. Certainly the neglect of love on one spouse's part, if prolonged (which can more easily happen if there is no good friend, neighbor, pastor or counselor to give a word of warning), can provoke the other to love less. But there is always a time lag; which should be (but is not always) used for rebuilding a love-giving situation again. More important still, the decision to break and put an end to married live is almost always the determination of one party - against the desire of the other to keep trying to make the marriage work. "Making a true marriage work" is also the concern of the canon lawyer.

            I confess to not being altogether happy with my friend's remark that "for a canon lawyer, the question of nullity is the question which matters". Perhaps a comparison between the canon lawyer and the medical doctor can make the reason for my unease clearer. A physician is concerned about the health of his patients. One might indeed say that "for a physician, the question of death is the question which matters"; but the physician himself might respond, "I would prefer to say that what matters for me is the life of my patients. I know that death is bound to overtake them in the end, but meanwhile I want to keep them alive and healthy".

            Canon law seeks to give directives for the health of married life. Canons 1063-1065 lay down norms for proper preparation for marriage, so that it leads to the perfection and holiness of the spouses (c. 1063). When we come to the matter of marriages in difficulties or actually broken down, other canons regulate the possibility of separation as a means hopefully to the eventual reconciliation of the spouses (cc. 1151-1155). Most of the work of canonists and tribunal judges today is certainly spent on the question of nullities. Yet judges and canonists cannot lose sight of the special significance of canon 1676 whose terms are mandatory before any petition for an annulment is accepted (although again at the Rota one is not infrequently left wondering if it was initially observed). It is clearly intended to alert the judge against any assumption that a marital breakdown is a pointer to null consent; and calls on him to meet the pastoral situation, whenever possible, by endeavoring to restore conjugal life. Married life goes throough its ups and downs; but not all its "pathologies" are necessarily "terminal"; much less are they proof that there never was a real marriage at all.

            "It is nicer", writes Prof. Torfs, "when one can develop ideas on personalism without being limited by the unpleasant phenomenon that concrete marriages fail and that concrete people are in search of a workable solution". He feels that my personalism blinks at the unpleasant phenomenon of failed marriages. I cannot agree. We are both very much in touch with failed marriages; he as a lawyer and I as a judge. He seems to assume that most of these are null marriages, and would facilitate the declaration of nullity. At the Rota the conclusion we frequently come to is that a considerable number show no evidence of nullity but simply represent the failure of a valid marriage, that could and should have worked. I consider that personalism, properly understood, offers powerful support to keep marriages going; wrongly understood or applied, it often underpins a declaration of nullity that is going to be overturned at the rotal level. Unfortunately too, one comes across cases where wrongly understood personalism, at a moment of counselling, was a major contributing cause to the initial breakdown.

            Yes; christian personalism, properly understood, does protect marriage. Or better (lest this be interpreted in a "institution-versus-person" way), christian personalism protects human love from its own most intimate enemy which is that of individualistic self-centeredness. People can easily understand the practical implications of the main personalist concepts in the new Code; the "good of the spouses", as an end of marriage (c. 1055), and unconditional self-giving / other-acceptance, as the heart of marital consent (c. 1057, §2) and therefore of true married love. The Church, in all its educational, catechetical and pastoral work, needs to present marriage so. Pre-marital counselling in particular needs to help couples realize the challenge and the beauty of the marital commitment so understood; and, in the subsequent and inevitable moments of marital difficulties, advice and counselling need to stress that love and personal fulfillment mean self-giving. This is the heart of the Vatican II message on fulfillment and on love.

            A massive effort along these lines could produce the renewal of married life that the Council envisaged; at the same time it could enormously reduce, if not completely eliminate, the number of broken down marriages.

            Would renewal of married life, so inspired in christian personalism properly understood and not in an individualism disguised under the name of personalism, result in fewer null marriages? I am very inclined to think so; but would not venture to predict to what extent this might be. Both Prof. Torfs and myself are keenly aware that the contemporary mentality regards a permanent commitment with great diffidence. Good personalist formation can, I repeat, overcome that mentality in so many cases. Nevertheless, there will always be (as in the past there has always been) a number of persons in whom selfishness and calculation predominate over genuine love = to the extent that they do not actually consent to a real married commitment at all. They "simulate" consent, accepting a "marriage" from which some essential element has been excluded (usually the unbreakable nature of the married commitment, or its openness to children, the natural fruit of married love). If such simulation occurs, then of course the consent given is null.

            Prof. Torfs suggests that, for me, "an annulment is a defeat". That is certainly not my mind. If the declaration of nullity is justified, it is an achievement, for it restores truth to a false situation. If "people failed to constitute a marriage", it was there that the defeat occurred: in their lack of commitment or lack of capacity for commitment. I regard a declaration of nullity as an achievement of justice in such a case; but nevertheless as an achievement whose causes are to be regretted.

            In his final remarks, Prof. Torfs once again ascribes to me (as well as to himself) a "hidden agenda". I repeat that I was not aware of having had one. But since my good friend has steered our debate towards the area of nullities, I very openly profess that there I try to follow the agenda of defending the granting of nullities when this does seem to correspond to justice; and resisting a nullity praxis - or any philosophy surrounding it - which seems not to be grounded in justice or in the main principles of christian personalism and anthropology that safeguard the canonical application of justice in the service of God's People.

            At present, to my mind, there are far more marriages null by reason of simulation than are actually declared on these grounds; while marriages null because of consensual incapacity are far fewer than the totally disproportionate number of nullities declared under c. 1095. There are welcome signs that canonists, without necessarily holding that c. 1095 has been abused, are becoming conscious that its constant use has created a situation where many Catholics wonder (or perhaps are afraid to wonder) if there is in fact any difference between Catholic nullities and non-Catholic divorce. Such a situation derives from, or leads to, a lack of faith in indissolubility. A person who no longer sees indissolubility as a value, as "good news" that Christians should rejoice in and spread (cf. Familiaris Consortio, no. 20), has lost or has never grasped the personalistic understanding of marriage which is proposed by the Code and Council and is so deeply rooted in the Scriptures.

            "Generosity following consent could be seen as a kind of conditioned generosity. Real generosity has to be given when things or people just cross your way". The lines of contrast here seem to me rather superficially drawn. Certainly a person does freely "condition" himself or herself in consenting to marriage. Generosity in maintaining that freely accepted - covenanted - commitment to a spouse (marriage after all is something more than the "just crossing of ways" of two persons), seems to me a very real form of generosity indeed.

            Prof. Torfs considers that we hold different positions regarding "the degree of generosity which is legally relevant in marriage". For my part, I do not think the law is competent to judge degrees of generosity at all. What it can and must judge is the sincerity and genuineness of the fundamental marital commitment.

            Along the same lines, my friend pleads for "personalistic canonical criteria for annulment which accept certain limits in the capacity of being generous that people have". If personalism means "fulfilling self by giving self", I doubt it can be invoked to underwrite limits in generosity. The martyrs were truly fulfilled persons; precisely because they put no limit to their self-gift. Difficult times, such as we are undoubtedly living, are not the best times for easy solutions. Many married people, in a valid but broken union, are called to fulfillment through fidelity to the freely accepted bond - despite the infidelity of the other spouse, and despite the many calls to be unfaithful that they will undoubtedly meet. In insisting on this, the Church is showing more faith in people than those who advance a "personalism" of not being too hard on oneself.

            In ending, I must thank Prof. Torfs for his unfailing courtesy, for his generous hospitality at Louvain, and especially for the experience of a uniquely enriching friendship. It is not always that one finds someone so intelligent and so warm-hearted with whom one can readily share so many human and ecclesial concerns at the same time as one disagrees on certain of the remedies they call for.