The Object of Matrimonial Consent: A Personalist Analysis

The Object of Matrimonial Consent: A Personalist Analysis
[original Italian: L'Oggetto del Consenso Matrimoniale: un'analisi personalistica, Giappichelli, Torino, 1997. This version published in Forum 9 (1998)1: pp. 39-117]

I. Matrimonial Consent and Christian Personalism
The Second Vatican Council is the great council of ecclesial "communio"; and from many viewpoints is also marked by a strong personalist inspiration. Between "communio" and christian personalism, there is no opposition but rather complementariety: a point to which we have given some consideration elsewhere ("Personalism, Individualism, and the "Communio" of Vatican II" Osservatore Romano (English Ed.), April 28, 1993). For our present purpose, it is important to recall that there is a true and a false personalism; or, to be more exact, there is christian personalism - which characterizes both the Second Vatican Council and the writings on marriage of Pope John Paul II - and secular atheistic individualism. It is important to bear this in mind because some of the currents that have influenced church thought and practice since Vatican II (also within the canonical field) have, perhaps unconsciously, taken their inspiration more from individualistic principles than from those that are truly personalistic.
True christian personalism exalts the dignity of each person, made in the image of God. It therefore stresses his rights but also his duties, his freedom but also his responsibility. The personalistic philosophy, seeing the same dignity and rights in others, tends to self-giving (cfr. GS 24), and is therefore open to the creation of "communio" or community, which is the natural application and extension of personalism on the social scale. Individualism, on the contrary, is essentially self-centered (it is particularly expressed today in the psychological cult of "self"); tends to self-sufficiency and self-protection; is quick to claim rights and slow to recognize duties; and is constitutionally hostile to any idea of commitment or permanent bond, as well as to any community which is not seen and experienced as serving self-interest. Christian personalism can renew the conjugal community, as well as the broader ecclesial community; secular individualism tends to destroy both.
The personalist end of marriage is at times understood not only in exclusively earth-bound terms, but also often judged mainly from the viewpoint of the personal satisfaction of each spouse considered separately, rather than from that of their common maturing as persons, and their openness to the community, according to God's design for married couples.
When such a view (lacking in true christian personalism) is present, there is no doubt but that it can influence people who marry, and possibly change in a radical way not only their idea of marriage, but the very matrimonial consent they give or ought to give - with far-reaching anthropological and juridic repercussions. It is also of course true that such a view (more marked by individualism than by personalism) can influence canonists themselves, and lead them to interpret matrimony, and particularly the consent necessary for the setting up of the "consortium coniugale", in an inadequate way. Then one could begin to see pathologies in a consent that is basically healthy and valid, or to postulate requisites for valid consent that are not in fact necessary from a truly human and christian viewpoint.
Gaudium et Spes offered a strongly personalist presentation of marriage, It was both inevitable and right that this married personalism should have had a deep influence on the canons related to marriage in the revised Code of 1983 - the "last document of the Second Vatican Council" as Pope John Paul II has described it (AAS 76 (1984), 644.). This personalism is particularly reflected in the approach of the Code to the act of consent which is vital to the constitution of marriage. Canons which cover defects of consent (cc. 1095ss) have been qualified in a more personalist line, particularly by the introduction of c. 1098 which declares invalid consent obtained by fraud.
It is in c. 1057 however, where married personalism enters codified church law with particular force and impact. This canon, which provides powerful inspiration for those considering marriage from the pastoral and theological angles, offers the canonist with no small challenge in striving to determine its juridic scope and application. A long period of analysis in this sense undoubtedly lies before us. Our present study wishes simply to offer one line of investigation which may warrant further pursuit.

II. The "gift of self" as object of matrimonial consent?
Marriage can evidently be explained only in function of sexual attraction between man and woman. It is equally evident however that this attraction works at a higher level than a merely animal sexual urge (cfr. Insegnamenti di Giovanni Paolo II, II, 2 (1979), p. 1214.). Animals do not marry; only humans do so. Animals mate, usually in a casual and temporal way, simply to satisfy a sexual instinct. The norm for human mating, on the contrary, is permanent and exclusive, with the idea of establishing a family and a home. Behind this one has to see not a mere sexual, but a conjugal, instinct which is the peculiarly human force that spurs men and women to marry. "One should recall the opinion of St. Thomas that man is inclined to marriage by his nature. This is to be understood not only as to the carrying out of the carnal copula, but also to the leading of that common life instituted by divine ordination when God made man male and female. For man is not endowed just with a sexual instinct, but also with those other virtues by which he can perfect conjugal life" (c. Agustoni, May 27, 1980: R.R.Dec., vol. 72, p. 404; cfr. c. Burke, April 19, 1988: vol. 80, p. 251, n. 2; Dec. 6 1989: vol. 81, p. 744, n. 3). Today, more than ever, in studying marriage, it is important not to overlook the presence and peculiarity of this conjugal instinct. If one ignores it, it is easy to conclude that that marriage does not correspond to any requirement or tendency of human nature, but is basically something artificial, a mere conventional way of formalizing sexual companionship - that may appeal to some, but others may just as logically omit or reject.
Man and woman can be drawn together by a merely physical attraction. If however the attraction between them is of the type that activates the conjugal instinct - which tends towards marriage - it does not logically remain simply on the merely physical level. A relationship normally arises between them that is also and especially affective. Step by step it tends to increase in intensity; the two people concerned feel that they are in love, that they are made for one another; and at some stage they probably get engaged. But, up unto a decisive moment, they can break off the relationship between them. That decisive moment is the exchange of matrimonial consent. Once they consent to marry one another, they introduce a new element into their relationship: that of justice. The former elements drawing them together - attraction, affection, love (or perhaps mere interest) - now coalesce into a juridical commitment and bond. By consenting to be husband and wife, they mutually confer rights and acquire obligations, both due in justice and both of a permanent nature. Canon law pays special attention to these rights and obligations, and to the act of consent from which they derive.
"Matrimonium facit partium consensus" ("Marriage is brought about through the consent of the parties"): so says canon 1057 § 1, echoing c. 1081 of the 1017 Code. This age-old principle (Petrus Lombardus: Sententiarum lib. IV, dist. 27, n. 3; S. Thomas: Sent. IV, dist. 27, q. 1, art. 2; dist. 28, a. 4, sol. 1; Suppl., q. 45, art. 1; q. 48, art. 1; S. Bonaventura: In IV, d. 28, a. unicus, q. 6.; etc.) was subjected to some temporary, though scarcely deep questioning, in the immediate post-Vatican II period. The Apostolic Signatura noted the questioning in a Sentence of Nov. 29, 1975, and in rejecting it insisted that the principle remains a "fundamental principle of natural law" ("principium fundamentale iuris naturale": Periodica, 66 (1977), 301.). The new Code seemed to close what remained of the brief debate with its simple restatement of the principle.
Since marriage constitutes a man and a woman in a permanent and totally unique interpersonal relationship, it is clear that nothing but the free consent of each one suffices to establish it. And so canon 1057 goes on to say that no human power can take the place of personal consent. Consent, therefore, in which is to be found the causal efficacy of the conjugal alliance, is central to any juridical consideration of matrimony. We can examine it from one of two angles:
- the person who consents (the subject), looking specially to his or her capacity, knowledge, freedom, etc. The person must freely want to consent, and must be capable of doing so.
- what he or she consents to (the object). What the person consents to must truly be marriage.
It is the latter - the object of matrimonial consent - that concerns us here. If marriage is a free agreement between a man and a womna, what is it that they agree to?
What do the spouses consent to? Obviously they consent to marry, and to marry a particular person. In this sense, the object of matrimonial consent is marriage itself: "I consent to marriage with this particular person".
St Thomas in fact begins his analysis of consent affirming that "the consent which makes marriage, is consent to marriage" ("consensus qui matrimonium facit, est consensus in matrimonium": Suppl., q. 48, art. 1.). But after this affirmation of what is obvious, he goes on in his habitual fashion to deepen his analysis. We also feel the need to go deeper. For, after all, to say that the object of matrimonial consent is marriage itself is not very enlightening from a juridic viewpoint which is mainly concerned to analyse the conjugal commitment so as to see what it essentially involves, and in particular to see what specific, and above all essential, rights and obligations consent gives rise to.
This is not a question of merely speculative interest. It is of the utmost ecclesial and pastoral concern. Marriage after all is a matter of vital importance for the good of individuals and of society. People thinking of marriage need to know and weigh the rights and obligations it involves, so that they either accept them as part of marriage, or else do not marry because they are not prepared to accept them. After all, if they do go through a form of marriage without accepting them, then of course we have a case of nullity on our hands.
Our task, then, is to determine: when a person marries, what does he or she bind himself or herself to do? What is the object of his or her consent, regarded above all from the angle of the essential rights and obligations (i.e. those that can be the object of legal claims) which derive from it?
The 1917 and the 1983 Codes
The differences between the pio-benedictine Code of Canon Law and the 1983 Code are especially striking in the area of our study. Canon 1057 of the new Code corresponds to can. 1081 of the old. Completing the first paragraphs, we read: "Marriage is brought about through the consent of the parties, legitimately manifested between persons who are capable according to law of giving consent; no human power can replace this consent" ("Matrimonium facit partium consensus inter personas iure habiles legitime manifestatus, qui nulla humana potestate suppleri valet").
While this paragraph is identical in each case, paragraph two in its 1983 version would seem to mark one of the most important changes in the whole of matrimonial law.
The old Code was cut and dried on our topic: matrimonial consent involves, above all, the exchange of one concrete right: "Matrimonial consent is the act of the will by which each party gives and accepts a perpetual and a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children" ("Consensus matrimonialis est actus voluntatis quo utraque pars tradit et acceptat ius in corpus, perpetuum et exclusivum, in ordine ad actos per se aptos ad prolis generationem": c. 1081, § 2).
Canon 1057, § 2 of the present Code specifies the object of marriage consent in different terms: "Matrimonial consent is an 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 marriage" ("Consensus matrimonialis est actus voluntatis, quo vir et mulier foedere irrevocabili sese mutuo tradunt et accipiunt ad constituendum matrimonium"). Thus marriage appears as the consequence of the reciprocal gift of self, which would be the object of consent.
Therefore in the 1917 Code, consent involved a "traditio iuris": the granting of an essential right - the "ius in corpus"... In the 1983 Code, consent involves rather a "traditio suiipsius". Now the object is the gift of one's self. We are thus faced with two formulations of the object of matrimonial consent that seem strikingly different - so much so that it is hard to discover any relationship, any logical connection, or any evident point of development between the two. And yet, as we know, science seldom proceeds by total ruptures with the past. True progress - in canonical science no less than in other fields - usually shows many points of continuity with what has gone before. It is something we would do well to remember in pursuing our present subject.
Let us make some preliminary comments on these two different formulations. As object of matrimonial consent, the "ius in corpus" possessed a very well defined juridic content, and the rights and duties it led to were quite clear. This of course was the natural result of decades of attentive consideration in jurisprudence and doctrine.
The juridic concept of the "ius in corpus" was therefore precise. To many persons it also appeared as very poor, suggesting an exclusively corporal and biological view of conjugal sexuality. The object of consent seems to be reduced to the right to the physical act of intercourse.
The concept of self-giving ("traditio suiipsius") is much richer and, in the line of the personalism of Vatican II, seems to suggest an understanding of marriage closer to its human reality, concretely to the desire for self-donation characteristic of the conjugal instinct. The older formula objectivised the other spouse: it seemed to be his or her body alone that was the object of consent. The new formula brings out that it is in their own very persons that the spouses pledge themselves to one another. In line with the personalism of Vatican II, it seems to offer a view of marriage that is closer to its human reality, and concretely to the desire for self-gift that is characteristic of the conjugal instinct.
However, the precise juridical significance and content of this formulation are by no means immediately clear - which is logical enough since we are still in the initial stages of its analysis.
It can come as no surprise therefore to find that the new formula has provoked diverse reactions and criticisms. On the rotal level, some judges at times give the impression that they see no substantial difference in the new formula, and continue to define the object of consent in terms of c. 1081, § 2 of the 1917 Code. We read for instance, "Matrimonial consent is the act of the will whereby the parties mutually give and accept a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children" (c. Fiore, Dec. 4, 1984, R.R.Dec., p. 593; cfr. c. Huot, June 26, 1984, ib. vol. 76, p. 433; July 26, 1984, ibid. p. 500; Decree c. Masala, March 5, 1985, n. 5; c. Funghini, April 17, 1991, vol. 83, p. 249). A Sentence coram Huot of May 2, 1985 insists that the formula of c. 1081, § 2 of the old Code "is substantially renewed in the new" (vol. 77, p. 225). Another decision, coram Agustoni, of Oct. 15, 1985, citing the old formula, comments: "The new Code contracted the way of expressing things, but did not change the object of consent, nor could it change since it is a question of a covenant based on natural law" (vol. 77, p. 437; cfr. c. Di Felice, Nov. 8, 1986, vol. 78, p. 599.). The same basic line, although with some enrichment, seems to be followed by the principle offered by a more recent sentence: "The formal and substantial object of matrimonial consent is above all and necessarily the perpetual and exclusive right over the body with regard to acts apt in themselves for the generation of offspring, the right to the consortium and communion of the whole of life, by which the conjugal state is created and the good of the spouses obtained, with due observance of fidelity and the perpetuity of the bond" (c. Funghini, Nov. 8, 1989: vol. 81, p. 659).
Others go to different extremes. One Sentence seems to reject totally the concept of "giving oneself" as being juridically meaningless: "In fact, as is evident to all, no one disposes of himself to the extent that he can juridically give himself to another, and much less can someone juridically accept another as his own" (c. Egan, March 29, 1984, vol. 76, p. 205). Another appears to assign no apparent limit to the extent of the matrimonial self-gift: "Matrimony is indeed the mutual, full and perfect [self-]donation of the contracting parties" (c. Bruno, Dec. 17, 1982, vol. 74, p. 648). Again we are told that consent requires "the donation of persons in their intimate structure and interior truth... [Whoever consents to marriage] must give himself or herself fully and completely to the other spouse" (c. Di Felice, Jan. 14, 1978: vol. 70, p. 17).
Still others, preferring to depart from any parallel analysis between the 1917 and the 1983 formulations, seem to ignore the phrase "mutually give and accept each other" and see the object of matrimonial consent in the finality of this "self-giving": the "establishment of matrimony" (cfr. c. De Lanversin, Feb. 28, 1984, vol. 76, p. 146, n. 6; cfr. c. Pompedda, Dec. 4, 1984, ibid. p. 573: "consensus obiectum, quod est constituendum matrimonium (cfr. can. 1057, § 2)").. So we read: "The material object [of consent]... is no longer the ius in corpus but it is the establishment of matrimony" (M.F. Pompedda: "Incapacity to assume the essential obligations of marriage", in AA.VV. Incapacity for Marriage, P.U.G., Rome 1987, p. 183.). This makes the object of consent not what the spouses exchange, but the finality of this exchange: the "consortium totius vitae" of c. 1055, § 1. It seems to bypass the analysis of the "se tradere".
It is hard not find something of a tautology in such approaches ("the object of matrimonial consent is the establishment of matrimony"), which doubtfully offers a real analysis of the question. The recourse of drawing the object of consent ultimately from c. 1055, § 1, rather than from a deeper examination of c. 1057, § 2, suggests a reluctance to embark on the personalist-juridic analysis that the deliberate formulation of c. 1057, § 2 logically calls for. But such an analysis must surely be attempted. Just as St. Thomas first says that 'matrimonial consent means consent to matrimony', and then goes on to a more precise analysis, we too must seek to progress from the general and obvious, to the more subtle but essential content that lies beneath.
If we wish to determine the content of the expression - "sese mutuo tradunt et accipiunt" - , it would be helpful to turn to Gaudium et Spes, 48, whence it has been taken. We are there told that it is "from the human act by which the partners mutually give and accept one another" that the institution of marriage receives its stability, confirmed by divine law ("...actu humano, quo coniuges sese mutuo tradunt atque accipiunt, institutum ordinatione divina firmum oritur".). Gaudium et Spes, it must be remembered, is a pastoral constitution and not a juridical document (cfr. Sentence of the Signatura Apostolica of Nov. 29, 1975, coram Staffa: Periodica, 66 (1977) 305.); and no doubt the conciliar fathers (at least the canonists among them) were aware that time would be necessary to establish the juridical value to be attributed to the phrase, "sese tradunt", so filled with personalist overtones. However, taking the conciliar text as it is, the simple answer to the question what is the object of matrimonial consent understood in this formula, seems to be that it is the spouses themselves (In the Sentence just mentioned, the Signatura, commenting Gaudium et Spes 48, says "obiectum consensus declaratur esse coniuges ipsos": ibid. 306); and that, with regards to the rights/duties deriving from consent so understood, each spouse has the right to receive the gift of the other's self, and the duty to give his or her own self in return.
However it may be rightly objected that this simple reply is also to say what is obvious, and marks no real advance in our study. One can certainly wonder whether the concept of the "donum suiipsius" is susceptible of an adequate analysis for canonical praxis. Does such a concept permit us to specify, in juridical terms, the content of marital rights and duties? Therein lies the whole of the problem.
The fact is that the notion of a "gift of oneself" or of the "mutual donation of persons", is not really as simple as it seems. "Traditio suiipsius" or "donatio personarum" (cfr. c. Pompedda, July 3, 1979, vol. 71, 388, n. 17; c. Raad, April 14, 1975, vol. 67, p. 240, n. 7.), are clearly concepts not to be understood in a wholly literal sense (cfr. c. Pinto, May 31, 1985, vol. 77, p. 281.). A Sentence coram Pinto, of May 31, 1985, insists on this point. Referring to the formula of Gaudium et Spes - "sese mutuo tradunt at accipiunt" - now incorporated into can. 1057, § 2, he observes: "this formula in no way implies that the formal and essential object of consent is no longer the essential matrimonial rights and duties given and accepted, but rather the persons themselves... From what we have said it is clear that we cannot agree with the sentence under appeal when it states that the object of consent has been changed inasmuch as it would no longer be rights and duties, but the very persons of the spouses" [1].
The reason is clear. A true gift implies the transfer, from the giver to the receiver, of ownership of what is given. But it is obvious that each spouse does not transfer ownership of his or her person to the other (John Paul II insists on the impossibility "of one person's appropriating and taking possession of another" Insegnamenti di Giovanni Paolo II, VII,1 (1984), 1617.). Such a transfer would in fact be impossible because no one is absolute "owner" of his or her person or "self". Similarly, the spouse receiving the conjugal gift does not become owner of the "self" of the other, entitled to dispose of it as he or she wishes. No spouse owns the other: not the "self" of the other, not even the body of the other.
Working within the terms of the law in force up to 1983, jurisprudence was careful not to speak of a "traditio corporis" - a handing over of the body - , but of a "traditio iuris" - a handing over of a right, specifically of a "ius in corpus", a right over the body. The moralist, D'Annibale, expressed the reason clearly: "through marriage one does not come to possess the body of one's spouse, in the sense of owning it; one acquires a right of use in its regard" ("per matrimonium, non corpus alterius acquiritur, quod esset dominium acquirere, sed ius eius utendi" Summ. Theol. Mor., Roma, 1908, vol. III, p. 368): cfr. St. Thomas: "vir per matrimonium non dat sui corporis potestatem uxori quantum ad omnia, sed solum quantum ad illa quae matrimonium requirit" (Suppl., q. 65, art. 2 ad 6).
For these reasons there seems to be a lack of juridic precision in affirmations such as: "conjugal love is true when it is total, with the perpetual donation of soul and body" ("Adest verus amor coniugalis... [cum sit] totalis cum perpetua donatione animae et corporis...": c. Bruno, July 19, 1991: R.R.Dec., vol. 83, p. 466...). If by marriage one spouse does not become owner of the body of the other, less still does he or she acquire ownership of the other's person (cfr. St. Thomas: "one spouse is not obliged to the other as his or her possession, but in virtue of a definite partnership" ("unus coniugum non obligatur alteri quasi possessio eius... sed per modum societatis cuiusdam"): Suppl., q. 59, art. 4 ad 1)). It would seem therefore that the notion of the "traditio personarum" needs to be juridically refined into that of the handing over of a "ius in personam": a right over some personal element so proper to the individual, so "representative" of him or her, that its "traditio/acceptatio" constitutes the conjugal gift of self measurable in juridical terms.
Urbano Navarrette affirms that "the proposition 'coniuges sese mutuo tradunt atque accipiunt', can be accepted only if it is referred to a specified gift and acceptance, since it is repugnant to the autonomy and dignity of the human person to be the object of a simple donation. The donation of one's person necessarily affects only the person's activity but not the person himself. And not even all of a person's activity can be the object of a gift, since there are areas of one's own activity that are absolutely untransferable, for instance, activity concerning one's religious duties. The object of mutual donation is necessarily limited to certain actions and undertakings of the person, even if, in the case of the donation proper to the conjugal pact, these touch the most intimate and vital areas of the person and in a certain way pledge the whole life of the spouses" ("Consenso Matrimoniale e Amore Coniugale", in AA.VV. L'Amore Coniugale, Lib. Ed. Vaticana, 1971, p. 211). In this line we cannot consider acceptable the formula proposed by S. Lener in the same work - "ius ad personam coniugis" ("L'Oggetto del Consenso e l'Amore nel Matrimonio"; in op. cit. L'Amore Coniugale, p. 257) - but a "ius in personam" (cfr. Rinaldo Bertolino: Matrimonio Canonico e 'Bonum Coniugum' (Giappichelli, Torino, 1995), pp. 103ss).
What would such a "right over the person" involve? This is the analysis to which we are called. I feel that by pursuit of this line of investigation, we can achieve an understanding and expression of the object of marital consent, firmly rooted in the married personalism of Vatican II and marked at the same time by strong links of continuity with the salient features of traditional thinking on this matter.
In trying to determine what this right includes, one must be clear both about what a "gift" is and about what "conjugality" means. "Gift" implies a definitive and permanent donation of something, with a concession of proprietary rights. If no proprietary right is transferred, one is dealing with a simple loan, rather than a gift.
"Conjugality" implies a relationship between a man and a woman that, along with being permanent, is exclusive: on a "one-to-one" basis (the same gift cannot be made to several persons at the same time). It is clear however that two persons could enter on an exclusive and permanent relationship (e.g. of friendship), without this being conjugal. Conjugality calls for another specific element, which is that of sexuality. The conjugal gift of self must have the effect of establishing an exclusive, permanent and sexual relationship. And yet our list is not yet exhausted; two further elements must be added. The conjugal relationship must be open to the procreative possibilities of sexuality; and (also precisely as consequence of this) it must be heterosexual, that is between man and woman.
These last two points have become particularly important today, because of claims to the legitimacy both of non-procreative conjugality and (more recently) of homosexual "marriages". Both claims, it should be noted, are made in the name of a new and more personalist understanding of sexuality; and they are not unrelated. If the argument is legitimate that there can be a true marital relationship between a man and a woman, without any necessary reference to the procreative aspect of their sexual complementarity, it is hard to see what cogent objections can be offered to the argument that an active homosexual relationship can be established on a valid "marital" basis of similar self-giving.
It would then seem that the first step we must take in analyzing the conjugal self-gift - so as more precisely to determine its object and the rights/duties deriving from it - is to examine the relation between conjugality and procreativity: between the conjugal self-gift and open-to-life sexuality.

III. Married personalism and procreativity
This century has been marked by a widespread tendency to oppose the procreative and the personalist aspects of marriage. Many people in fact have come to think in terms of two quite distinct views of marriage, with little or nothing in common: an older procreative understanding, which would be considered outdated; and a new or renewed personalist understanding. There has been an intense debate about this going on for the past sixty years or more, and it is important to have a clear idea of what is involved.
On the one hand, marriage is regarded as an institution primarily and essentially directed to procreation. This is commonly termed the "traditional" (or also "institutional") view. On the other hand, it is contemplated as the covenant of love between man and woman, at least equally directed towards love or to the personal "fulfillment" of the spouses.
It is easy (although it is not very correct) to present the debate - the parties and issues - more or less as follows:
- procreative or institutional concept of marriage; procreation as the primary end;
- personalist concept of marriage; spousal self-fulfilment as an equally important, or even more important end
Let us study these two apparently opposed ways of understanding marriage, not so much to see which is more correct as to see whether we can harmonize them and achieve a synthesis between them.
The question of the hierarchy of ends
It is undoubtedly true that, before the Council, it was accepted church teaching that marriage has a primary end, which is the procreation and education of children, and that its other ends are essentially subordinated to this primary end. This teaching was reflected in church law, in the disposition of canon 1013, § 1 of the 1917 Code: "The primary end of matrimony is the procreation and education of offspring; the secondary end is mutual aid and the remedy of concupiscence" ("Matrimonii finis primarius est procreatio atque educatio prolis; secundarius mutuum adiutorium et remedium concupiscentiae".). It should be noted that the pio-benedictine Code is the first official document of the Church in which, through the use of the terms "primary" and "secondary", a hierarchy between the ends is established (cfr. U. Navarrete, Periodica 56 (1967) 368). It was precisely this doctrine about the hierarchy of the ends that was sharply criticized in the 1920s and 1930s by the proponents of the new personalism, who wished to place conjugal love on an equal footing with procreation, or to give it priority.
In Pius XI's Encyclical Casti connubii of 1931, the idea of primary-secondary ends is set forth, although with a definite enrichment that we will note later on. The pontificate of Pius XII was marked by a strong defence of this position. In a 1941 Address to the Rota, the Pope spoke of the subordination of the secondary to the principal end (AAS 33 (1941), 423). And there was a noteworthy 1951 Address to the Italian Obstetrical Association where Pius analyzed and criticized certain aspects of some emerging personalist theses:
"'Personal values' and the need to respect them is a subject that for the past twenty years has kept writers busily employed... [According to some] The peculiar and deeper meaning of the exercise of the marital right should consist in this: that the bodily union is the expression and actuation of the personal and affective union". [Also according to these theories] "If a new life results from this complete reciprocal gift of the husband and wife, it is a consequence that remains outside or, at the most, at the circumference, so to say, of the 'personal values'; a consequence that is not excluded, but is not to be considered as a focal point of marital relations"... "If this relative appreciation merely emphasized the value of the persons of the married couple rather than that of the offspring, such a problem could, strictly speaking, be disregarded. But here there is a question of a serious inversion of the order of values and of purposes which the Creator himself has established... The truth is that marriage, as a natural institution, is not ordered by the will of the Creator towards the personal perfection of the husband and wife as its primary end, but to the procreation and education of a new life. The other ends of marriage, although part of nature's plan, are not of the same importance as the first. Still less are they superior. On the contrary, they are esentially subordinate to it" (AAS 43 (1951) 848-849).
One could also recall a 1944 Decree of the Holy Office which rejected the opinions of certain authors who denied that the primary end of matrimony is the procreation/education of children, or who taught that the secondary ends are not essentially subordinate to the primary end, but rather of equal rank with and independent from it (AAS 36 (1944) 103).
The hierarchy of ends, nevertheless, is nowhere set forth in the documents of the Second Vatican Council. The Council on the one hand chose to emphasize the personalist aspect of marriage, describing marriage as an "intima communitas vitae et amoris coniugalis". On the other hand, while stating that marriage is endowed with "various ends" (no. 48), it chose (and the choice was evidently deliberate) not to distinguish between primary and secondary ends, limiting itself simply to saying: "By its very nature the institution of marriage and married love is ordered to the procreation and education of children" (no. 48); an idea that it repeats later: "Marriage and married love are by nature ordered to the procreation and education of children" (no. 50).
It seems unquestonable therefore that Vatican II and subsequent magisterium have avoided emphasizing the hierarchy between the ends (No hierarchy appears in the new Code, nor in the Catechism of the Catholic Church. Nor is there any mention in Familiaris Consortio. The only exception is a passing reference in one of the weekly papal allocutions of Oct. 10, 1984). However, rather than suggesting that this doctrine is outdated and to be abandoned, I would prefer to see a development: in the sense that the Church now wishes its teaching on the ends of marriage to be integrated into a new synthesis. More than a hierarchy or subordination between the ends, the insistence is now on their essential interconnection and inseparability. In other words, the two aspects of marriage - personalist and procreational - are not in opposition, are not independent and therefore not separable; are in fact intimately and essentially interlinked and interdependent. This is a topic that I have sought to consider elsewhere at greater length (cfr. C. Burke: "Marriage: a personalist or an institutional understanding?" in Communio, 19 (1992), pp. 278-304).
Let us take a step back and recall the magisterial statements during the pontificate of Pius XII, criticising aspects of married personalism. Taken in isolation, these declarations might well seem to confirm the widespread impression that the personalist understanding of marriage met with nothing but opposition from the Magisterium until, after much pressure, it finally came to be accepted in Vatican II.
This however would not be an accurate picture. On the contrary, it was papal magisterium itself in Pius XI's great Encyclical "Casti connubii" of 1930, which granted a charter for the development of this personalist understanding. The description of the conjugal union as involving the "generous surrender of one's own person" is first to be found in Casti Connubii, and antedates Vatican II by more than 30 years (AAS 22 (1930), 553). In fact, in stressing that matrimonial consent denotes a self-gift, Pius XI and Vatican II after him are expressing an idea that is deep-rooted not only in the popular consciousness, but also in ecclesial thought. One could recall Hugo of St. Victor's classical definition of marriage as the "legitimate society between a man and a woman in which by equal consent each gives himself or herself to the other"("legitima societas inter virum et feminam, in qua videlict societate ex pari consensu uterque seipsum debet alteri") De B. Mariae Virginitate, cap. I (PL 176, 859); and Thomas Aquinas' comment on this: "As Hugo of St. Victor says, those who are joined should so consent that they reciprocally receive one another"("sicut dicit Hugo de Sancto Victore, eos qui coniunguntur sic oportet consentire ut invicem se spontanee recipiant"): Suppl., q. 45, art. 2 ad 3). In a momentous passage in the Encyclical (ib. 548), Pius XI rejects any minimal or merely human understanding of the "mutuum adiutorium" (the "mutual help" between the spouses which catholic doctrine has traditionally regarded as one of the ends of marriage), insisting that married love must go further and aim at the personal and christian perfectioning of the spouses: "[conjugal love] demands not only mutual help but must go further; [it] must have as its primary purpose that man and wife help each other day by day in forming and perfecting themselves in the interior life, so that through their partnership in life they may advance ever more and more in virtue, and above all that they may grow in true love towards God and their neighbor... This mutual interior formation of husband and wife, this persevering endeavor to bring each other to the state of perfection, may in a true sense be called... the primary cause and reason of matrimony, so long as marriage is considered not in its stricter sense as the institution destined for the procreation and education of children, but in the wider sense as a complete and intimate life-partnership and association".
The Encyclical gave new encouragement to personalist theories, but had no intention of lending support to such of these theories which suggested opposition between personalism and procreation. Theories suggesting precisely this continued however to develop, giving in effect the impression of undercutting the procreative finality of marriage (Official church statements of the time of Pius XII might well seem to confirm the widespread impression that the personalist understanding of marriage met with nothing but opposition from the Magisterium until, after much pressure, it finally came to be accepted in Vatican II), and they did meet with strong opposition, as we have seen, in the pontificate of Pius XII, especially in his 1951 discourse to the Italian Obstetricians.
Now, to my mind, the importance of what Pius XII taught in that discourse was the insistence not so much on the subordination of one end of marriage to another, as on the essential and unbreakable interconnection between the ends. What the magisterial teaching of this pontificate fundamentally rejected - the theories that proposed the independence, that is, the non-connection, or the non-ordination, between the ends - is expressed in a positive way by the Council when it affirms the essential ordination of procreation to love and marriage. Therefore it can be said that the Council marks a clear development with regard to the former teaching, but not a break with it.
Personalist understanding of procreativity
Here we could recall a point made earlier, that it is not correct to oppose a personalist view of marriage, on the one hand, and a procreative-institutional view, on the other. There are two reasons: a) matrimony, institutionally considered, is directed to personalist as well as to procreative ends; b) procreativity, properly understood, corresponds to highly personalist values.
The first point is of great interest in itself, as I have sought to illustrate elsewhere (Communio, 19 (1992), pp. 287ss). It is of particular importance for something which we will consider later: the proper understanding of the obviously personalist concept which we find introduced into canon 1055 of the 1983 Code: the "bonum coniugum" or good of the spouses. It is the second point however that should occupy us for the moment; i.e. the relationship between procreativity and personalist values.
The "ius in corpus" formula no doubt lent itself to personalist criticism; and its omission from the new Code was widely taken as a confirmation that the Church (also in its law) wished more attention to be drawn to the personal side of marriage. In any case, the hostility provoked by the "ius in corpus" could be put down as a reaction against a technical and relatively modern formula, understandable enough in itself and of little further significance. The matter takes on a different dimension however when one sees that the "bonum prolis" - one of the conjugal values which the Church has taught and defended for 1500 years - has also run into criticism and hostility in the name of a certain type of married personalism.
I say a "certain" type of personalism because I think that what is operative here is not true xtn married personalism at all, but rather that pseudo-personalism which is more properly a form of individualism, of which we have already spoken. It follows the line that Pius XII was seeking to foreclose, and claims that marriage can be fully human and personalist even if procreation is excluded from it.
The past decades have in fact seen the emergence of a whole "contraceptive philosophy" of marriage. We need to pause here so as to make a thorough examination of this philosophy, a task that calls basically for a personalist analysis of the meaning and value of the "bonum prolis" and particularly of the conjugal act itself
[Despite some inaccurate suggestions, the personal value of the conjugal act has never been ignored by the magisterium of the Church. It is interesting to recall these words from the already quoted allocution of Pius XII to the Italian obstetricians: "The conjugal act, in its natural structure, is a personal action, a simultaneous and immediate cooperation of husband and wife, which by the very nature of the agents and the property of the act, is the expression of the reciprocal gift which, according to Scripture, effects the union 'in one flesh'": AAS 43 (1951) 850].
Our conclusion will be that, without a procreative orientation, i.e. without "openness-to-life: a) there is no conjugal act or true conjugal intercourse capable of signifying and expressing the self-giving - the "se tradere" - of marriage; and b) marriage itself is deprived of the "goodness" of the "bonum prolis" (and, as doctrine and jurisprudence have constantly taught, if this closedness-to-life is consequence of a positive act of the will, matrimonial consent is null).
The conjugal act
Let us consider the apparently personalist basis from which the contraceptive philosophy seeks to work. Taking the conjugal act as a unique expression of married union, it holds that marital intercourse has in itself a fully personalist and unitive significance and value even if it is contraceptive. It says in effect: marriage is primarily about love, and the most unique expression of marital union is the conjugal act itself. It expresses love; it unites. In this lies its personalist function. It has indeed a possible procreational "side-effect" which can result in children. But since this side-effect depends on biological factors - which science today permits us to control - the procreative function of marital intercourse can be nullified, while leaving its unitive or personalist function intact. While contraception frustrates the biological or procreative aspect of the act, it fully respects the spiritual and unitive aspect.
Now, this contraceptive argument is evidently built on an essential thesis: that the procreative and the unitive aspects of the marital act are separable, i.e. that the procreative aspect can be nullified without this in any way vitiating the conjugal act or making it less a unique expression of true marital love and union. This thesis is of course explicitly rejected by the Church. The main reason why contraception is unacceptable to a christian conscience is, as Paul VI puts it in Humanae Vitae, the "inseparable connection, established by God... between the unitive significance and the procreative significance which are both inherent to the marriage act" (HV 12).
Paul VI affirmed this inseparable connection. He did not however go on to explain why these two aspects of the marital act are in fact so inseparably connected, or why this connection is such that it is the very ground of the moral evaluation of the act. Yet, I think that serene reflection easily enough discovers the reasons why this is so: why the connection between the two aspects of the conjugal act is in fact such that the destruction of its procreative reference necessarily destroys its unitive and personalist significance.
Gaudium et Spes, saying that "the acts in marriage by which the intimate and chaste union of the spouses takes place are noble and honorable", adds that "the truly human performance of these acts fosters the self-giving they signify" (no. 49) [2]. Why is the act of intercourse regarded as the act of self-giving, the most distinctive expression of marital love? Why is this act - which is but a passing and fleeting thing - particularly regarded as an act of union (cfr. c. Burke, March 1, 1990: R.R.Dec., vol. 82, pp. 177ss.)? After all, people in love express their love and desire to be united in many ways: sending letters, exchanging looks or presents, holding hands... What makes the sexual act unique? Why does this act unite the spouses in a way that no other act does? What is it that makes it not just a physical experience but a love experience?
The special pleasure attaching to it? Is the unitive meaning of the conjugal act contained just in the sensation, however intense, that it can produce? If intercourse unites two people simply because it gives special pleasure, then it would seem that one or other of the spouses could on occasions find a more meaningful union outside marriage than within it. It would follow too that sex without pleasure becomes meaningless, and that sex with pleasure, even homosexual sex, becomes meaningful.
No. The conjugal act may or may not be accompanied by pleasure; but the meaning of the act does not consist in its pleasure. The pleasure provided by marital intercourse may be intense, but it is transient. The significance of marital intercourse is also intense, and it is not transient; it lasts.
Why should the marital act be more significant than any other expression of affection between the spouses? Why should it be a more intense expression of love and union? Surely because of what happens in that marital encounter, which is not just a touch, not a mere sensation, however intense, but a communication, an offer and acceptance, an exchange of something that uniquely represents the gift of oneself and the union of two selves.
It cannot be forgotten that while two persons in love want to give themselves to one another, to be united to one another, this desire of theirs remains on a purely volitional level. They can bind themselves to one another, but they cannot actually give themselves. This is why one must always see an element of metaphor in the "traditio suiipsius". The most concrete expression of a person's desire to give himself is to give the seed of himself...
It is important to note here (and it will hopefully clarify our discourse for the reader who may think that with these anthropological considerations we are straying too far from our main topic) that by "seed" we intend to refer equally to the male or to the female generative element: i.e. to the "elementum procreativum" of either spouse (cfr. c. Stankiewicz, Oct. 29, 1987, R.R.Dec., vol. 79, p. 598). We are therefore using the term not only in a broadened biological sense, but particularly with a juridic connotation (cfr. c. Burke, April 11, 1988, n. 2ss: Monitor Ecclesiasticus CXIV (1989) IV, pp. 468-477); and also: "Procreativity and the Conjugal Self-Gift": Studia Canonica 24 (1990), pp. 43-49.).
Giving and accepting human seed is an unparallelled manifestation of personal communion and human love, of love embodied in a unique and privileged physical action whereby intimacy is expressed - "I give you what I give no one" - and union is achieved: "Take what I have to give. This will be a new me. United to you, to what you have to give - to your seed - this will be a new "you-and-me", fruit of our mutual knowledge and love". In human terms, this is the closest one can get to giving one's self and to accepting the self-gift of another, and so being united.
There is not a mere exchange of gifts between husband and wife, as for instance in an exchange of rings. What one gives to the other is not simply received by the other to become the other's possession. It is a unique exchange where the gifts meet and unite; and where the categories of mine and yours are lost, or are rather overcome and transformed. My gift does not simply become yours, nor yours mine. They unite to become a new being that is not just yours or mine, but ours: our child.
What therefore makes marital intercourse express a unique relationship and union is not the sharing of a sensation but the sharing of a power: of an extraordinary life-related, creative physical sexual power. In a true conjugal relationship, each spouse says to the other: "I accept you as somebody like no one else in my life. You will be unique to me and I to you. You and you alone will be my husband; you alone will be my wife. And the proof of your uniqueness to me is the fact that with you - and with you alone - am I prepared to share this God-given life-oriented power" [3]. In other words, the gift of self is represented and so to speak materialized, in a singularly expressive way, in the gift of complementary participation in one's personal procreativity.
These considerations surely lead us to an evident conclusion. If one deliberately nullifies the life-orientation of the conjugal act, one destroys its essential power to signify union. Contraception in fact turns the marital act into self-deception or into a lie: "I love you so much that with you, and with you alone, I am ready to share this most unique power..." But - what unique power? In contraceptive sex, no unique power is being shared, except a power to produce pleasure. But then the uniqueness of the marital act is reduced to pleasure. Its significance is gone.
Contraception is in fact not just an action that lacks meaning; it contradicts the essential meaning which true conjugal intercourse should have as signifying total and unconditional self-donation ("Contraception contradicts the truth of conjugal love", Pope John Paul II: Insegnamenti di Giovanni Paolo II, VI, 2 (1983), p. 563). Instead of accepting each other totally, contraceptive spouses reject part of each other, because fertility is part of each one of them. They reject part of their mutual love: its power to be fruitful. The love each professes for the other is an incomplete love (cfr. Janet E. Smith: Humanae Vitae: a Generation Later, Catholic University of America Press, 1991, pp. 250-256).
In seeking to analyze the concept of marital self-gift, neither anthropology nor legal science can forget that masculinity and femininity include potential fatherhood and motherhood, as a constitutive element of the sexual person. Love between the sexes which excludes that element may be true love, but it is not conjugal love; for in excluding that particular aspect of the other's or one's own identity, it neither accepts him or her totally, nor gives self totally. No "traditio suiipsius" is realized; the other is loved only in part. Conjugality truly understood harmonizes marital love and procreation ("Procreation signifies the complete acceptance of the other": Evangelium Vitae, no. 23); separation between the two, or worse still opposition, derives from or leads to a false understanding of the whole conjugal relation.
Marital consent is directed to the other person, in his or her conjugal attributes of masculinity and femininity. Consent to the marital covenant turns the natural attraction of sex into a debt of justice, with reference to the ends of marriage (from which potential paternity or maternity cannot be excluded).
Later on we will turn our attention to the subject of the juridic relevance of conjugal love. We can already remark here that the mutual donation of the "procreative element" proper to husband and wife confers absolute uniqueness on conjugal love, and distinguishes it from all other types of love: friendship, platonic love, merely sentimental love...
In true marital intercourse each spouse renounces protective self-possession, so as to fully possess and be fully possessed by the other. This fullness of true sexual gift and possession is only achieved in marital intercourse open to life. Only in procreative intercourse do the spouses exchange true "knowledge" of one another, do they truly speak humanly and intelligibly to one another; do they truly reveal themselves to one another in their full human actuality and potential. Each offers, and each accepts, full spousal knowledge of the other.
Normal conjugal intercourse fully asserts masculinity and femininity. The man asserts himself as man and husband, and the woman equally asserts herself as woman and wife. In contraceptive intercourse, only a maimed sexuality is asserted. In the truest sense sexuality is not asserted at all. Contraception represents such a refusal to let oneself be known that it simply is not real carnal knowledge (There is a failure to "accept" the full gift - the full self' - of the other: the fullness of his or her conjugal self).
Contraceptive intercourse, then, is not real sexual intercourse at all. In contraception there is an "intercourse" of sensation, but no real sexual knowledge or sexual love, no true sexual revelation of self or sexual communication of self or sexual gift of self. The choice of contraception is in fact the rejection of sexuality (for a fuller expression of these ideas, see C. Burke: "Marriage and Contraception", in L'Osservatore Romano (English Edition), October 10, 1988, p. 7ff). Therefore in contraceptive intercourse, the conjugal "traditio suiipsius" is simply not realized, since one or both spouses in fact refuses the effective granting of conjugal sexuality. This is why a contraceptive copula, not being a conjugal act, is not capable of consummating matrimony.
This anthropological analysis justifies a first conclusion regarding the juridic content of the conjugal self-donation which constitutes the object of matrimonial consent. One of the essential expressions of this gift consists in the handing over to one's spouse a right to share in one's procreativity. In more traditional terms conjugal self-donation is essentially characterized by the property of the "bonum prolis".
It is urgent to recover a sense of the personalist value of the "bonum prolis": not to see it only or mainly in terms of the obligations it imposes (marital consent being invalid if the obligation is excluded with a positive act of the will), but to understand that since it is a value - a good thing - it is something desirable, and it is natural to want it, and unnatural to exclude it.
Moreover, conjugal love normally needs the support represented by children. Children strengthen the goodness of the bond of marriage, so that it does not give way under the strains that follow on the inevitable wane or disappearance of effortless romantic love. The bond of marriage - which God wants no man to break - is then constituted not just by the variables of personal love and sentiment between husband and wife, but more and more by their children, each child being one further strand giving strength to that bond.
Married couples who overponder the burdens involved in offspring and are too easily tempted to limit the size of their families, should recall the Vatican II teaching that "children are the supreme gift of marriage and contribute to the greatest extent to the good of the parents themselves" (Gaudium et Spes, no. 50.). They may be justified in depriving themselves of further children; but even so, they should not lose awareness that this is exactly what is happening: they themselves, as well perhaps as their present children, are being deprived of a singular "good", an enriching gift, a unique experience of human life - the natural fruit of married love.

IV. "Totality" in the Conjugal Self-gift
We have taken a first major step in specifying the nature and content of the conjugal gift of self which c. 1057, 2 presents as the object of matrimonial consent. In donating - in a mutual participatory way - one's procreativity, one shares with another a relationship already distinguished by a most singular intimacy. Nothing, as we have seen, can so signify the desire for union as that "sharing" of the character and potential of sexuality which is expressed in the conjugal act. As we read in Familiaris Consortio, "Sexuality, by means of which man and woman give themselves to one another... is by no means something purely biological, but concerns the innermost being of the human person as such" (FC, no. 11)
In examining in the first place the donative sense of the conjugal act, what we have done in effect is to reinterpret the "bonum prolis" (understood as "openness to life" - a characteristic or property of marriage - and not necessarily as actual procreation.) in a personalist key. Doing so has shown us how modern insights, properly analyzed, do not break with tradition but rather link into it and enrich it. We could now reflect briefly on the "bonum fidei" and the "bonum sacramenti", so as to underline how these other traditional "bona" are also essentially constitutive elements of the conjugal gift of self.
For all time; with one person
Sexual intercourse loses its distinctive nature as a unifying love-act, when it is deprived of its orientation to life. Then the sexual relationship between two persons becomes a trivial though perhaps exciting thing. Such a relationship is not marriage. Nevertheless, it is as frequent as it is unfulfilling in today's society, where the prevailing view of sexuality is of a casual activity in which people can engage without affecting their persons - and their interpersonal relationship - in more than a surface and inconsequential way. Many people today choose a sexual partner as they might choose a friend: with no special obligations that would exclude a third party from a contemporary relationship of the same kind, or would necessarily bind the two persons together over any unlimited period of time. Such informal - temporary or trial - relationships impede personal fulfilment and tend to leave individuals isolated in self-centred insecurity [4].
The sexual self-gift that the spouses make to one another cannot be reduced to mere procreativity. If the gift of sexuality is to be truly human and conjugal, it must be characterized by two further elements or properties: indissolubility and uniqueness.
What is implied in the matrimonial "sese tradere" is the gift of the fullness of spousal sexuality. Now this gift cannot be full unless, besides being open to life, it is exclusive and permanent. It is in the light of the nature of sexuality, as it was created by God, that we can better grasp this truth.
God created man in a duality: male and female. The differences between the sexes speak of a divine plan: a complementarity between man and woman that prompts them to a reciprocal self-gift, with a mutual self-gift that is expressed in a totally specific and unique way in the generative act. Precisely because of its orientation to the union of the "procreative elements" - the masculine and the feminine - it is capable of expressing the uniqueness of the conjugal relationship; thus meriting to be termed "the conjugal act".
However, there is no real donation of self unless the gift is permanent. As Pope John Paul II said to the Roman Rota in 1982: "If a gift is to be total, it must be made without any reservation or way out" (AAS 74 (1982), 451). A gift of self for a time - for a day or for five years - is not a real gift of self; it is at most in the nature of a loan. In a loan, one holds on to one's right to something; one wants to be able to claim it back. One does not really give it. One can only speak of a true gift when this is irretrievable; in other words, when there is a donation that cannot, with any legal basis, be reclaimed. The person who gives loses all right of ownership. While the person who reserves some right over a thing, with the intention of being able to claim back the object of his consent, does not in fact consent to a true gift.
In the conjugal donation, one either gives oneself permanently, or one does not give one's self at all. Therefore whoever consents to marriage necessarily gives irrevocable consent. "The intimate partnership of life and love which constitutes the married state. . . is rooted in the contract of its partners, that is, in their irrevocable personal consent" (GS 48). To offer consent that can be revoked or retracted is not to consent to marriage. As St. Thomas says, "non enim consensus ad tempus matrimonium facit" (Suppl., q. 49, art. 3, ad 4).
This anthropological analysis which we are making - with juridic intent - suggests that the sexual-conjugal instinct urges man and woman to a total self-commitment and donation, which responds precisely to the intimate aspirations of human nature. So we can understand the logic of the permanence or indissolubility of marriage, which corresponds to the aspirations of human love itself: "I love you for ever; I'll love you always". To want a lasting conjugal union is a profoundly natural thing. Indissolubility therefore does not constitute just an obligation; it attracts, because it represents a value, a good, for those who have retained a normal sense of life (cfr. decis. coram Burke of April 19, 1988: R.R.Dec., vol. 80, pp. 251-256).
"Only from such a viewpoint can one find intrinsic justification - in keeping with personal dignity - for the perpetuity of the bond (and on the positive juridic level for the indissolubility deriving from it); otherwise, the perpetual bond would appear as an imposition of an extrinsic law, justifiable for as long as the law is in force, or (if it is a question of a divine law) for as long as one believes in it" (Lo Castro, Gaetano: Tre Studi sul matrimonio, Giuffrè, Milano, 1992, p. 34).
Familiaris Consortio also says that sexuality "is realized in a truly human way only if it is an integral part of the love by which a man and a woman commit themselves totally to one another until death. The total physical self-giving would be a lie if it were not the sign and fruit of a total personal self-giving, in which the whole person, including the temporal dimension, is present: if the person were to withhold something or reserve the possibility of deciding otherwise in the future, by this very fact he or she would not be giving totally"; and later it describes indissolubility as "being rooted in the personal and total self-giving of the couple" (no. 20).
There is in fact no middle term between permanent and transient. There is no middle choice between the lasting and unbreakable relationship of marriage, and what is no more than a temporary sexual liaison: between a spouse, to whom one gives oneself for life, and a sexual partner, changeable at will. If the norm for the human sexual partnership is that it can be not only entered upon but also broken as one or other partner wishes, then "marriage" has no particular meaning; or, rather, means nothing of any importance. It gives a legal form to transient alliances, but there is no reason - beyond social convention - why people should respect it, or why they should not prefer to remain in a non-formalised relationship.
Man has always been spurred toward the conjugal commitment, at the same time as, in his fallen and diffident nature, he fears it; perhaps seldom more so than today. In the anguish of this existential situation - fear of commitment, on the one hand; fear of remaining alone, on the other - there is no way of predicting how each person will choose. Nevertheless the desire for a conjugal commitment corresponds to a deeper level of human need.
Undivided conjugality
Conjugal fidelity or exclusiveness derives from the same logic, and corresponds equally to the nature of human love. One's "self" is indivisible and unrepeatable; one therefore cannot give it to several persons at the same time; one can only give it to one. "I give you my self" is the affirmation that characterizes conjugality. But if one spouse intends to give the same gift of his conjugal self also to other persons - if he proposes to divide his conjugality (to divide the "undivisable"...) - , then it is at the most a part of his conjugal self that he gives to each one. In other words, whoever gives his sexuality to different persons contemporaneously, gives it dividedly to each one, and does not give it wholly to any.
D. von Hildebrand notes: "Conjugal love itself, and not just true matrimony, excludes every type of polygamy. It is of the essence of conjugal love to be directed to one object alone" (Il Matrimonio, Brescia 1931, p. 41). As the same author remarks, while there is nothing wrong with loving several friends with the love of friendship, it would be repugnant to wish to love several women with conjugal love.
The value - that is, the specific goodness - of the "bonum fidei" consists in the fact that each of the parties to marriage is the only spouse of the other. As we know, valid matrimonial consent requires the intention of binding oneself precisely in such an exclusive relationship. If that intention is excluded, the consent in invalid: a principle that no one doubts. More difficult and controverted is the question whether consent is valid when one party has the positive intention of violating faithfulness, at least in certain situations. To my mind, the "bonum fidei" is excluded only if the intention of the person in such a case is to reserve the right to have a conjugal relationship with a third person; that is, if he or she has the intention of conferring conjugal rights on another. The simple intention of having or maintaining a sexual relation with another, despite its evident immorality, does not necessarily prove the exclusion, in law, of the one-spouse-only aspect that constitutes the essence of the "bonum fidei" (cfr. Sentence, Feb. 8, 1990, coram Burke, in Monitor Ecclesiasticus, vol. CXV (1990-IV), pp. 502-520; cfr. The Jurist 51 (1991), 138-154).
Therefore, if one excludes unity or indissolubility, one does not effect the spousal gift of self. My conjugal "self" does not become yours: at the most it becomes partially or temporally yours. The conjugal "traditio suiipsius", bono fidei vel bono sacramenti excluso, is not possible.
It is worth emphasizing once again that, in speaking of the properties of procreativity, exclusiveness, or perpetuity, we are speaking of values of marriage, of elements that make it attractive to human nature and understanding. It will be remembered that St. Augustine, in his defence of marriage against the pessimist views of the Manicheans, described its essential properties as "bona": as "values", as good things. Since these "bona" are good things, they are desirable; and it is natural to want them. It is natural, because it corresponds to the nature of human love. The exclusion of one of these matrimonial values shows an unnatural, even a pathological approach to marriage, in deep and striking contrast with the native understanding man has of the conjugal union. Exclusion is surprising, precisely because it is not natural. That is why the Church, while accepting the possibility that exclusion can indeed occur, always requires that it be adequately proved, before marriage can be declared invalid on grounds of simulation.
The donation of sexuality
Our analysis of what is involved in the "sese tradere/acceptare" - hallowed by the Council - leads to the conclusion that what the parties consent to is the (permanent and exclusive) exchange not of self but of personal and conjugal complementary sexuality ("in the teachings of the Council, the personal totality of what is reciprocally given cannot be understood except as referring to sexuality": P.A. Bonnet: L'Essenza del Matrimonio Canonico, Cedam, 1976, p. 157): i.e. of sexuality in that respect in which it is most personal to each one, and in which it conjugally complements the sexuality of the other.
"What matrimonial consent essentially involves is the human nature of a man and a woman taken not absolutely but in the relativeness of their sexuality" (Bonnet: op. cit., p. 180). In the words of another writer: "A man and a woman become husband and wife when, by means of a particular type of covenant-commitment, they really donate to one another all of their masculinity and all of their femininity, in such a way that they come to form a unity - becoming one thing - in the conjugable aspects of their persons" (Viladrich, P. J.: "L'Habitat Primario della Persona in una Società Umanizzata", Anthropotes, 1988, IV, n. 1, p. 178).
The right that each spouse acquires is not, and cannot be, a right over every aspect of the other's person or life. Some of these are in fact absolutely inalienable, such as personal dignity, freedom, responsibility, etc. (cfr. U. Navarrete: "Structura iuridica matrimonii secundum Concilium Vaticanum II", Periodica 57 (1968), pp. 135-137). Independently of the degree of mutual understanding, compenetration and moral unity which the spouses may achieve, consent clearly does not confer any juridic right over these personal aspects. Each spouse, along with the obligations inherent in the conjugal commitment, retains the inalienable duty to work out his or her own salvation. The fulfilment of this duty can and ought to be powerfully helped by marriage, but cannot be relinquished within it.
Consent involves the conjugable dimensions of a person; through it, what is a matter of natural inclination is converted into something due. The rights deriving from the marriage covenant, are rights over the conjugal aspects or attributes of the person; i.e. over his or her conjugal and complementary sexuality. Thus St. Thomas teaches that the object of the wife's matrimonial consent is not so much her husband, as conjugal union with her husband; and similarly the husband's consent is to conjugal union with his wife ("non est directe consensus in virum, sed in coniunctionem ad virum, ex parte uxoris: et similiter, ex parte viri, consensus in coniunctionem ad uxorem": Suppl., q. 45, art. 1).
Consent, in other words, has as object the person, in his or her conjugable aspect: concretely in his or her sexuality, in that natural inclination which can be given the character of something owed in justice, through the marital covenant.
Marriage is necessarily characterized by a sexual commitment. The rights and duties created (accepted and conferred) by matrimonial consent must be exclusive and perpetual. But, we repeat, they must above all be sexual; that is, they must correspond to the procreative or co-creative character of sexual complementarity from which, as we have seen, derives the capacity of sexual intercourse to express the uniqueness of the conjugal relationship and donation. Conjugal sexuality, which is of course not limited to the physical copula (Many acts of course express the marital relationship. But, as we have seen, this relationship is so uniquely expressed by sexual intercourse between the spouses that the conjugal copula is properly called the marital act.), is so uniquely expressed by it that the violation of the procreative nature and orientation of the copula radically de-sexualizes, i.e. de-naturalizes, conjugality. That is why the first and most fundamental right given by marital consent is the right to true sexual intercourse, in the integrity of its nature, which includes its natural consequences.
Our analysis of the sexual commitment or donation which fundamentally characterizes the conjugal covenant, could be summed up in the following way:
a) A person may intend to share his sexuality with several persons and, in doing so, to enter into a permanent relationship with them characterised by sexual rights and obligations (as in polygamy). In such a case there is a sexual donation and union, though not in a way that amounts to Christian marriage. The sexual donation he makes is real but defective, i.e. he is not prepared to make and limit it to just one person. He rejects uniqueness or exclusivity (The rights exchanged might be termed "quasi-conjugal"; they are not conjugal).
b) He can also intend to grant true and exclusive sexual rights to another, but to do so only for a time or subject to voluntary dissolution. In this case too he in some way gives his sexuality (or rather, as we have said, he lends it) and exchanges sexual rights and obligations, though again he does not do so in a way that amounts to true marriage. Permanence is excluded.
c) But if what he rejects or excludes is precisely the sharing of procreativity, then he is not giving his sexuality at all, nor is he giving any right to sexuality. In the first two cases, there is a true - though limited - sexual union. In the third case, there is no true sexual union or sexual donation, and therefore there is not even any true human gift of one's own sexuality (One sees that contraception destroys conjugality in a much more radical way than the exclusion of unity or permanence. It is precisely in view of the importance of the "intentio prolis" that S. Thomas says the "good" of offspring is "essentialissimum" among the "bona" of marriage: Suppl. q. 49, art. 3).
The sexual complementarity between man and woman can characterize their relationships in differing ways. But there is only one such relationship in which sexual distinctiveness is absolutely necessary. It is not really essential for friendship or for love or for mutual help; all of these can also be provided by persons of the same sex. That is why in the last analysis it is procreativity which explains, specifies and gives such uniqueness to the sexual relationship, that it is revealed as a constitutive element of conjugality itself.
As we have shown earlier, an act of contraceptive intercourse is neither truly sexual nor distinctively conjugal; it is not and cannot be the conjugal act. By it the spouses do not "know" one another, and do not become "one" (This applies a fortiori to a relationship between homosexuals. The idea of a homosexual "marriage" makes no sense. Homosexual "intercourse" is even more of a denial of the meaning of sexuality than contraception. The physical act expresses and fulfills no conjugal urge or aspiration, and is marked in fact by a total incapacity to signify or achieve a self-gift which could be considered matrimonial. It involves a (mis-) use of the corporal faculties that contradicts the essential nuptial meaning of the body).
Only an act of true sexual intercourse - i.e. one which is not maimed in its nature - makes the spouses one flesh. It is this natural truth which underlies the juridical principle formulated in canon 1061 that only such an act of true intercourse - i.e. one that is "per se aptum ad prolis generationem" and performed "humano modo" - consummates marriage (Is marriage consummated by a natural act "per se aptus", but accompanied by a permanent intention of aborting, or of frustrating the effects of intercourse in some other way? Of course it is not. The question of consummation does not arise because the marriage would be invalid "ob exclusum bonum prolis". One cannot speak of consummating an invalid marriage). The jurisprudential insistence that marriage confers a "ius ad actos per se aptos ad prolis generationem" gives expression to no merely physical or biological claim but to a truly personalist right: i.e. the right to become "one". Canon 1081 of the 1917 Code therefore seems also to have expressed a personalist truth about marriage consent. It did not however express it very aptly. A right "in corpus" - over the partner's body - does sound "physicalist" and lacking in human quality; whereas a right over personal sexuality - also in its necessary procreative dimension - expresses a right over the specific means by which man and woman fulfil their conjugal desire to join themselves in a unique marital union of their persons.
The suggestion is at times made that the union between the spouses is one of spirit rather than of body. In fact both realities should be involved in the conjugal union. Above all, however, one should not exaggerate the contrast between the "una caro" and the "unus spiritus". Both expressions are metaphorical, since a real union - of bodies or of spirits - is not effected. A union of sexual complementarities, however, can be achieved (a union which is physically and really incarnated in the child.). It should also be obvious that while sexuality is a matter of the spirit no less than of the body, the gift and union of corporal sexuality involves a greater "commitment" than a desire for union that remains on a purely spiritual level, without "taking flesh".

V. The donation of conjugal sexuality
As we have several times pointed out, it is not possible to take literally the idea of a "sese tradere", or of a "traditio suiipsius", which canon 1057 presents as object of the act of consenting to marriage [5]. We have also considered that, just as under the old Code one did not speak of making a "traditio corporis" but of giving over of a "ius in corpus", so now it is not a question of donating one's own person - of making a "traditio personae" - but of handing over a "ius in personam"; a right, that is, over some aspect of one's person so proper and peculiar to oneself that its gift can well represent the "donum suiipsius".
Our conclusion has been that this distinctive self-gift, which is the object of matrimonial consent, consists in the mutual gift of conjugal sexuality ("the mutual donation and acceptance of one's sexuality, ordered to making one flesh and one generative principle, which is effected by matrimonial consent": c. Stankiewicz, Apr. 20, 1989: R.R.Dec., vol. 81, p. 286). We have further seen that this gift: a) in order to be sexual - i.e. in order to actualize shared and complementary sexuality - , must be open to life; and, b) in order to be conjugal, must be exclusive and permanent.
In a more concise formula, the "traditio coniugalis" is the donation of one's sexuality, in its concretely procreative aspect, made in a permanent and exclusive way. Our analysis therefore, applying the personalism of the Second Vatican Council and of Pope John Paul II, marks a line of continuity with tradition. The essence of conjugality is taken to be defined by the augustinian "bona"; and these three essential properties of marriage logically specify the object of consent ("Matrimonial consent, which must be directed to the triple good of fidelity, offspring and indissolubility": c. Quattrocolo, Jan. 17 1940: R.R.Dec., vol. 32, p. 71), and the essential rights/obligations to which it gives rise.
Having thus established the object of matrimonial consent, the right to which it gives rise could be defined as a "ius perpetuum et exclusivum in sexualitatem coniugalem procreativam". Regarding this admittedly tentative formula one can say that the adjectives "perpetual", "exclusive" and "procreative" are in a certain sense redundant, as being all necessarily implied in any true conjugal sexual relationship; for, according to our earlier analysis, they simply specify the essential elements of conjugality. But, given modern reductive understandings of the married relationship, it seems important to specify each elements. In particular the aspect of procreativity or openness-to-life (which must be accepted also by probably or certainly sterile couples) needs to be emphasized, given the tendency today to propose a type of "contraceptive conjugality".
In comparison to the "ius in corpus", it should be noted that this formula goes more directly to what is essential to conjugality. It relates the right exchanged to the complementary procreative power of the other party; and does not allow it to be limited to a mere corporal act which might be accompanied by a permanent contraceptive intention, a possibility that has always troubled the interpretation of the "ius in corpus" [6].
At this point it seems important to ask if conjugal sexuality is restricted to these three elements alone - procreativity, exclusivity, permanence - , or whether, as seems beyond question, it does not extend also to other aspects of complementary sexuality between the spouses, since the complementary nature of married sexuality obviously covers more than mere procreativity, even within a permanent and exclusive relationship.
There is in fact no difficulty in admitting that conjugal sexuality includes other elements besides these three. Great difficulty emerges, however, when one wishes to endow these further elements with the juridic qualification of being counted among the rights and obligations that are essential for the exchange of valid matrimonial consent.
P.A. Bonnet says that sexuality "fully involves only those elements which, inasmuch as they are capable of reciprocal completion, fit into that dimension of oneness in which man and woman participate, and for this very reason are the only ones that can constitute the object of a true and proper donation between the two" [7]. However, since there are many ways in which man and woman complement each other, one must pin down those aspects of the "reciprocal completion" to which there can be a juridic right. This is the problem: to determine which aspects of sexual complementariness enter necessarily and essentially - in a constitutional way - into the donation made in emitting matrimonial consent, in such a way that consent confers a strict right to receive those concrete aspects and that consent is null if the right to receive one or other of them is denied, or the capacity to donate them is not possessed.
Man and woman can be considered to complement each other in many ways. Typical masculine qualities include physical strength, courage and initiative; feminine qualities include affection, understanding, patience...
Has a wife a right - a strict marital right - to find strength and courage in her husband? If so, how much courage? If he is in fact a coward, or makes up his mind to be a weakling, must his consent be held invalid because he has not donated an essential part of his complementary sexuality? What degree of affection or intuition has a husband the right to find in his wife? If she qualifies her matrimonial consent with the reserve: "I mean to be as impatient or as bossy with him as I have been all my life with my brothers", does this invalidate?
Any serious juridical consideration of the matter must conclude that there is no way in which such qualities or values can be measured or quantified, for the purpose of determining the validity or otherwise of matrimonial consent. The ideal, no doubt, is that such qualities be present in every marriage; moreover if their absence proceeds from a deliberate choice of the will, this would certainly seem to show a defect of love (and might imply "dolus" under c. 1098). This surely provides us with the more precise context within which the matter should be examined. Suppositions (which people hesitate to make) of an essential marital "right to manly courage" or "right to tender patience", really correspond to the "right to love" which in fact some canonists do say is essentially involved in marital consent.
"Ius ad amorem"? - No
A considerable effort to give juridical relevance to love characterized the position of not a few writers of the immediate postconciliar years. The argument put forward was simple and not without apparent force: whoever does not give his love in marriage is not giving himself in an essential aspect of his person, and is therefore not effecting a true "traditio suiipsius coniugalis".
I have the impression that the ensuing debate was not always conducted according to proper debating rules, above all that of adequately defining the terms and the scope of the discussion. There was a constant appeal to the "intimate community of conjugal life and love" (GS 48), but without any serious effort to establish whether this expressive phrase can be applied without further qualification to the juridic sphere; and particularly without thoroughly examining the central question of what sort of love one wished to endow with juridic efect: love in its broadest sense, i.e. also in its affective-psychological dimension; or love restricted rather to the sphere of the will.
Some suggestions put forward during the 1970s seemed to reach the point of making the very validity of the marriage bond depend on love, even (and perhaps particularly) in its psychological-sentimental sense. It was maintained that if there was no love from the beginning, no marriage was constituted, because of the lack of an essential juridical element. Some went further and held that if love fails (even though it was present at the start), the marriage lapses with it, also in its juridical entity.
Nevertheless, despite the fact that they aroused a certain initial interest and even provoked some lively debates, these suggestions found no acceptance in the work of preparing the new Code. Even though love, understood as an affective feeling or impulse, normally accompanies the decision to marry (as its motive), it does not necessarily enter into marriage nor, above all, does it condition its validity. For a marriage to be valid, it is clearly necessary that each party accept the other truly as spouse [8]. While this is evident, it is not the same as saying that the motive of one or both parties must necessarily be sense love. A person can give valid consent to a marriage, even though he or she does not feel love towards the other. If this were not so, one would have to declare invalid all the arranged marriages of the past or present (of which not a few have worked quite well). And a woman who wishes to marry the father of the child she has conceived, in order to legitimize the child or to assure a home for him or her, could not make a valid matrimonial choice if she were not in love (or was no longer in love) with the man.
Most people certainly marry with the expectation of finding love (also in its affective aspect) or happiness or at least a personally improved standard or style of life, in marriage. But it is one thing to have a legitimate expectation of finding something, and another to have a strict right to find it.
In an Address to the Roman Rota, of Feb. 9, 1976, Paul VI dealt authoritatively with this subject. He reconfirmed the "very high and irreplaceable" importance of conjugal love in marriage. But he insisted that matrimony as a juridic reality created by personal consent, "exists independently of love, and remains even if love disappears. In effect, by giving their free consent, the spouses introduce themselves into an objective order, into an "institution" that reaches beyond them and does not depend on them, either in its essence or its laws. Matrimony is not created by the free will of men, but has been instituted by God, who has endowed it with its own laws, which spouses... ought to accept for their own good, and for the good of their children and of society. Having started as a spontaneous sentiment, love becomes a binding duty" (AAS 68 (1976), 207.).
Urbano Navarrete, in a 1968 article in Periodica, concluded that conjugal love, understood in its obvious affective sense, is not an essential element for the validity of matrimony. "Conjugal love does not have any juridic relevance regarding the valdity of matrimony" ("Structura iuridica matrimonii secundum Concilium Vaticanum II", Periodica 57 (1968) p. 215). In a 1976 article, in the same journal, he insisted on the principle laid down by Paul VI, that love cannot be brought into the juridical field, and concluded: love "remains a non-juridic or meta-juridic element" ("Amor coniugalis et consensus matrimonialis", Periodica 65 (1976) p. 632).
The fact is that a "ius ad amorem [sensibilem]" does not appear to be a working jurisprudential principle. "It does not seem that there is a 'right to love', but rather a right to certain actions that are generally fostered by love" ("non videtur dari posse "ius ad amorem", sed potius ius ad aliquas actiones quae generatim foventur ab amore" (Communicationes, 1977, p. 375). One can in fact question "the possibility of making a juridic requirement of courtesy, warm-heartedness, understanding, affection or love. What can be required and determined in juridic terms are external acts, but not feelings or intimate attitudes or dispositions": Jacinto Choza: Antropología de la Sexualidad, Madrid, 1991, p. 217). Affective or "romantic" love seems to defy juridical analysis or definition, precisely because of the difficulty already noted: the impossibility in practice of qualifying or quantifying it. How much love - or what quality (what authenticity) of love - would one have the right to receive in marriage? What does authentic conjugal love require for its constitution and existence? Is the conjugal pledge of love shown to have been unauthentic - to the point of being rendered juridically invalid - if one party does not grant the other a constitutional and inviolable right to patience, temperance, gentleness, tact, understanding, identity of viewpoints, similarity of character, etc. (cfr. Sentence coram Burke of July 22, 1993, nn. 15ss: Monitor Ecclesiasticus CXIX (1994-IV), pp. 515-517)?
The difficulty of giving juridic status to a "ius ad amorem" - a right to receive love - , becomes more obvious if we consider a parallel and necessarily connected question: how much love, and what quality of love, has one the obligation to give in marriage? Any "ius ad amorem" can only be evaluated in the light of a reciprocal "obligatio amandi". Some people would see love and duty as in opposition. But this is individualistic and false. There can be a duty to love, such precisely as is undertaken in marriage. Love owed is among the obligations of marriage [9]. But what is owed is effective, and not necessarily affective, conjugal love.
The conjugal obligation to love takes on special connotations of justice. It includes the duty also to accept the other person even when he or she seems no longer lovable, or no longer loves [At times the post-conciliar invocation of married personalism has seemed to coincide more with the individualism which tends to self-seeking than with the "se tradere" of true married personalism which remains in the line of St. Thomas' idea of love, as essentially involving the giving of self. It is not personalism to reduce the conjugal relationship to a right to self-satisfaction. Here we could see an application of points outlined in the Introduction to this work].
Marital consent does not create a right to felt or emotive love nor, for that matter, to other desirable spiritual qualities, more or less connected with love ("For the constant fulfilment of the duties of this christian calling, outstanding courage is required. Spouses, therefore, will need grace for leading a holy life: they will eagerly practice a love that is firm, generous, and prompt to sacrifice..." (GS 49). If one chooses to invoke Vatican II in support of the thesis that love is essential to the validity of marriage, one should logically proceed further and hold that courage, firmness, generosity and readiness for sacrifice - by which the Council characterizes conjugal love - are equally essential for validity. In order to avoid such exaggerations, it is wise to recall once again that Gaudium et Spes is a pastoral Constitution, aimed at offering pastoral and spiritual indications, not to explicitate or establish juridic principles.). No one in fact can grant a right to what does not fall under the dominion of his will ("No one can undertake a juridic obligation about something or give a right to something, that does not depend on his or her will - such as is love in its formal sense": U. Navarrete: "Amor coniugalis et consensus matrimonialis", Periodica 65 (1976) 632); and it does not necessarily fall under the will of each of the spouses to be able to make the other feel good or loved. However, while one cannot confer a right to emotive love, one can confer a right to conjugality, because conjugality does fall under the control of the will.
Ius ad amorem? - Yes
In a 1976 article Carlo Caffara considered the extent to which a lack of conjugal love, in the moment of giving matrimonial consent, can invalidate marriage. His conclusion was that invalidation occurs if the lack of love is such that the parties or one of them exclude the unity or the indissolubility of the bond or the "ius ad actus per se aptos ad prolis generationem" ("Charitas Coniugalis et Consensus Matrimonialis": Periodica 65 (1976), pp. 615-618). As can be seen, he identifies the juridic essentiality of love by what is involved in the acceptance of the three traditional "goods".
I agree with Caffarra and so think that one can in a certain sense speak of a "ius ad coniugalem amorem" (although, we repeat, not of a "ius ad amorem sensibilem vel affectivum"). The conferring of the right to conjugality - the right to be object of an exclusive and permanent sexual self-donation - does show a unique appreciation of each spouse by the other. It shows, independently of all feelings, a unique determination of the will of each in relation to the other; and in this sense is an act of love and, precisely in its voluntary character, it is an act of love that is more reflexive and more mature (Speaking of maturity in conjugal love, M.F. Pompedda rightly observes that "maturity consists in understanding and undertaking, in a sufficinelty responsible way, the depth and finality of love and of sexualtiy, in other words, of conjugality": "L'Amore Coniugale e il Consenso Matrimoniale" Quaderni Studio Rotale VII (1994) p. 51). As Gaudium et Spes states, "married love is an eminently human love because it is an affection between two persons rooted in the will" (no. 49).
Matrimonial consent is necessarily mutual; it is a "union of two wills in one" ("unio duarum voluntatum in unum"). By marrying therefore, spouses always show an accord and union of their spirits ("unio animorum") in an absolutely unique relationship. The essential features which make that conjugal acceptance of another unique are precisely its exclusiveness, its permanence and its procreative orientation. To choose to establish such a conjugal relationship with another person, accepting the essence of the obligations towards him or her which it implies, is to make that person the object of a privileged choice of predilection, in which one can find all the minimum (but, in themselves, very considerable) and essential elements of conjugal love (cfr. M.F. Pompedda: "L'Amore Coniugale...", pp. 62-63.). As we read in a sentence coram Fagiolo of Oct. 30, 1970: "the conjugal partnership implies the mutual donation of man and woman. This donation is brought about by means of a consent that is true, authentic and without fiction, and so effectively constitutes conjugal love" [10].
Besides, if to love, in the words of St. Thomas, is to wish good to someone ("amare est velle alicui bonum": I-II, q. 26, art. 2), then to wish the three extraordinary "goods" of marriage on someone is an expression of exceptional love towards that person. Therefore I am in full agreement with Caffarra when he points out that it is only if some of these essential elements is excluded, in the moment of consent, that one can speak of an invalidating lack of conjugal love. It is the choice (the "e-lectio") which proves the love ("the di-lectio").
In 1977, it will be remembered, a "ius ad vitae communionem" was temporarily inserted into the draft for what was to become can. 1101 of the new Code - with the intention of expressing or embracing "rights that pertain to the essential interpersonal relations of the spouses, and which in today's context are considered as a complex of rights different from other rights which are commonly enumerated in tradition" (Communicationes, 1977, 375; 1983, 233-234). But the proposed "ius" did not resist technical analysis for long. Its definitive elimination from the draft of the canon is one more argument against the thesis which would hold it to be an "elementum essentiale" of matrimony according to the norm of c. 1101, § 2.
In any case it seems pointless to me to invoke (or reinvoke) the "ius" unless one first manages to specify its content, and to do so in a way that is concrete and clear enough to establish whether it constitutes "a complex of rights" different from those traditionally enumerated; showing which are those rights and in what are they different from the traditional ones (cfr. Rinaldo Bertolino: Matrimonio Canonico e 'Bonum Coniugum', Giappichelli, Torino, 1995, pp. 43-48).
We could perhaps sum up the matter by distinguishing three positions regarding the juridic relevance of love to the establishment of marriage. The first, rejected by Paul VI, proposed a "ius ad amorem" (understanding love in an affective sense), as an essential juridic component of marital consent. The second maintains simply that love does not enter juridic field. It is possible to suggest a third, insofar precisely as the self-donation involved in matrimonial consent is considered to be an act of the will. Given this premiss, one can posit a right to those aspects of conjugal self-donation - conjugal love - essentially and necessarily contained in genuine consent.
As long as one speaks of love in this concrete sense - of a voluntary self-gift - I have no difficulty in proposing its juridic relevance; rather on the contrary. It is in fact fully coherent to maintain that effective (and not affective) love must necessarily enter and form part of the juridic constitution of matrimonial consent. As one of the most prominent of contemporary canonical authors writes: "Love in marriage can be said to be essential insofar as it is giving and accepting of two persons, and it should therefore be understood in an effective and not affective sense" (M.F. Pompedda: "Incapacitas Adsumendi Obligationes Matrimonii Essentiales": Periodica LXXV (1986), p. 144).
Such love should embrace two principal aspects:
a) a privileged choice of the other person by means of which he or she is constituted one's spouse. The essential content of this choice - that which makes it a properly matrimonial choice - is specified in the three "bona". In other words, by means of a reciprocal exchange with the other person, an interpersonal relationship is established which, inasmuch as it is permanent, exclusive and open-to-procreation. is totally singular;
b) a sincere intention (that at least accompanies even if it does not necessarily inspire) this choice, to seek the good of the other person (see St. Thomas above). To my mind, this intention can be sufficiently expressed in the donation of the rights derived from the three "bona". In any case, one needs to insist on its real presence as an integral element of the loving conjugal choice. In this way the dignity of the conjugal partnership is protected from the possibility also, among other considerations (and however unlikely this might indeed seem) of being instrumentalized as a means of venting one's hatred against the other party and his or her family: i.e. the famous "Jemolo case" not infrequently debated in pre-conciliar manuals (a man accept a woman as true spouse, but with the only purpose of revenging himself on her and her family: cfr. Arturo C. Jemolo: Il Matrimonio nel Diritto Canonico, Milan, 1941, p. 76). If such a case were in fact to occur, it is evident that it would today involve nullity of consent either because of the exclusion of an essential element or (and this seems to offer a sounder juridic basis) due to fraud.
The basic principle of christian personalism as enunciated by Vatican II - "man can fully discover his true self only in a sincere giving of himself" (GS 24) - clearly stresses that in any interpersonal relationship, and a fortiori in marriage, expectations of receiving or being loved have to be subordinated to the more truly christian norm of giving and loving. That brings us back to what we observed earlier: any possible "ius ad amorem" would have to be weighed against the accompanying "obligatio amandi". It does not seem acceptable to base marriage and the juridic relationship (with its rights and duties) it gives rise to on something so transient and changeable as a person's mood or feelings.
The debate about the "right to love" can be regarded as something pertaining to the 1970s. One effect of the new Code has been to redirect interest and effort to another and not altogether unrelated question, that of the essential rights/obligations to which consensual capacity under c. 1095 is necessarily related (and the essential elements of marriage which, under c. 1101, § 2, a person cannot exclude without invalidating consent.). Such essential rights or obligations are clearly only those whose appreciation and assumption is constitutionally required for the bringing into existence of a true bond. If the truth be said, we consider it evident that up to the present no one has managed to pin down in juridic terms other essential constitutive rights/obligations of marriage not already involved in the three "bona".
Little more needs to be said of the so-called "ius ad amorem". The debate this topic can now be regarded as something pertaining to the 1970s, having practically died with the end of that decade. One effect of the new Code has been to redirect efforts to another and not altogether unrelated question, that of the essential rights/obligations to which consensual capacity under c. 1095 is necessarily related (and the essential element of marriage which, under c. 1101, § 2, a person cannot exclude without invalidating consent). Such essential rights or obligations are clearly only those whose appreciation and/or assumption is constitutional for the coming into existence of a true bond.
What is essentially marital is what can and ought to be given to one's spouse, and cannot - or rather ought not - be given to anyone else. In "Casti connubii", Pius XI expressed the essence of the bonum fidei in these words: "what belongs to one of the parties by reason of the marriage contract... may not be denied to him or permitted to any third person" (AAS 22 (1930), 546). Mere kindness or patience or respect, therefore, are not essentialy conjugal, because they are modes of behavior that can be and should be observed towards everyone. In other words, only those elements that characterize conjugality, and not those that characterize mere friendship, enter into the essence of the matrimonial relationship.
There is not an essential or constitutive right/duty to love, except in the sense which we have just described. There is not an essential right/duty to the "communionem vitae", except when the "communio vitae" is taken as a synonym of matrimony itself. In fact, as must be obvious, there is no essential right to anything which does not enter the essence of marriage itself. Otherwise one ends up by positing an essential right/duty that the husband be an able and responsible bread-winner - and then a woman cannot validly marry a cripple; or an essential right/duty that the wife be a full-time housekeeper - and then the marriages of working wives become invalid!
The subject of the essential rights/obligations of matrimony has acquired extraordinary importance. However, if these rights and obligations are not specified in an adequate juridical way, the study and the very jurisprudential application of much-worked canon 1095 (to mention just one problem) becomes impractical. And it would seem obvious that it is only by identifying in a more precise way the object of consent as presented in c. 1057, § 2, that one can proceed to a logical analysis of the rights or obligations that derive from the matrimonial alliance. To my mind, no other rights or obligations - essential and constitutive to marriage - have so far been identified, beyond those already contained in the three agustinian "bona". But the topic is of sufficient importance to merit a chapter apart.

VI. The Essential Rights/Obligations exchanged in Consent
Let us sum up our position as developed so far. It is not enough to say that the object of matrimonial consent - what the man and woman consent to - is marriage; that is obvious. It is not enough to say that it is their mutual self-gift as spouses - the "se tradere/acceptare"; that is a rich anthropological and moral statement, full of truth but also full of metaphor. The metaphor has to be sifted out and adequatley interpreted before the "se tradere" can become a working term for jurisprudence. That is why we have been making this analysis in an attempt to pin down the specific juridic content of the conjugal self-gift.
We have seen that what the spouses give and accept - with juridic effect, productive of rights and duties which the law can take cognizance of - is their complementary sexuality in the three aspects of exclusiveness, procreativity and permanence.
Our analysis therefore, applying the personalism of the Second Vatican Council and of John Paul II, marks a line of continuity with tradition. Procreativity, exclusivity, permanence - the augustinian "bona" - define the essence of the conjugal commitment. And the object of marital consent - the self-gift of the spouses - is therefore specified by these three essential characteristics or properties of marriage.
Jurisprudence has always been concerned with the question of the fundamental rights and obligations which matrimonial consent gives rise to. This concern has become greatly intensified in recent decades, especially since the promulgation of the 1983 Code which makes valid matrimonial consent hinge on the capacity to understand minimally and to assume effectively those among such rights and duties which are essential (c. 1095, 2 & 3). Such essential rights/obligations must obviously derive from the juridic object of matrimonial consent - i.e. from what the spouses necessarily and constitutively consent to. In fact, to attain a clear notion of the object of consent appears to be a a pre-condition for any adequate investigation into the essential rights/obligations that derive from it. So, having advanced our opinion regarding this object, as it is presented by the 1983 Code, it may be of interest to briefly consider the essential rights/obligations that derive from the object so understood.
It is generally accepted that matrimony cannot come into existence without a basic understanding and a free acceptance of what is fundamentally implied in the three "bona", or without the ability to assume it. As we read in a Sentence coram Pinto, of July 8, 1974, "It must be borne in mind that not every defect is sufficient for a declaration of nullity, but it must be so great that it renders the contracting party incapable of making a free choice or of assuming the essential duties of the three "bona"..."(R.R.Dec., vol. 66, p. 501); and in another of July 3, 1979, coram Pompedda: "Not every defect of balance or maturity is enough to induce the nullity of matrimonial consent; this can only be brought about by a defect such that it makes the contracting party incapable of a free choice or of assuming the essential obligations and in particular the three "bona" of marriage" (vol. 71, p. 388). So, remembering that the augustinian bona are "inter essentialia matrimonii" (cfr. c. Felici, Jan. 18, 1955: vol. 47, p. 54), it follows that the essential rights/obligations are - at least and in the first place - those that necessarily derive from the "bona".
The personalistic value of the "bona" has unfortunately become obscured and almost forgotten in canonical usage over the centuries; which makes its rediscovery all the more urgent. In order to resee these "goods" in a personalist light, one must overcome the tendency to regard the "institutional" and the "personalist" aspects of matrimony as being necessarily in opposition (cfr. the author's study: "Marriage: a personalist or an institutional understanding?" in Communio 19 (1992), pp 287ss. "Procreativity and the Conjugal Self-Gift": Studia Canonica 24 (1990), pp. 43-49). The "bona", as we have sought to show earlier, relate to singular expressions of personal and mutual commitment. They are in fact the first elements that personalize the institution of marriage. Nothing, we insist, so underlines the uniqueness and extent of the conjugal self-donation as the fact that it is the gift of personal procreative power made to another in an exclusive and life-long union.
There can then be no question that the rights/obligations intrinsically related to exclusiveness, procreation and permanence are essential rights/duties of matrimony, for the purposes of c. 1095. If the intellective/critical faculty is gravely impaired in relation to these rights, or if the elective-executive power is non-existent (cfr. Sentence, Northantonien., coram Burke: July 22, 1993, n. 11), then a person's apparent consent is invalid.
But, we may still ask, surely the essential rights/obligations of matrimony are not exhausted in what is involved in the three augustinian "bona"? Does there not exist, as is often affirmed, a "ius ad consortium vitae" or "ad communionem vitae", which comprises essential rights or duties which go beyond those involved in the three "bona"?
Let me say here that I understand the view that would wish to find a broader derivation than merely the three "bona", for the essential rights/obligations of marriage, and sympathize too with the desire to find such a (new and autonomous) source in this sense, either in the "consortium totius vitae" mentioned in c. 1055 § 1, or in the "community of life and love" of Gaudium et Spes. But it seems to me that once one tries to investigate this line of thought and to establish the necessary juridic basis, one runs into serious difficulties.
The right to the "consortium" or "communitas" of life
In effect, the "consortium totius vitae", however traditional as a description of marriage, offers little by way of defining it, unless one qualifies the "consortium" or the "life" in question with the adjective "conjugal". A homosexual "consortium" for the whole of life could exist, and yet would not constitute marriage. What is essential in the "consortium" which c. 1055, § 1 speaks of, is conjugality; and what is essential in conjugality is covered by the "bona". It is, in other words, the "bona" that make the "consortium" conjugal.
So, if an incapacity for establishing the "consortium totius vitae [coniugalis]" undoubtedly vitiates the object of matrimonial consent, this, subjected to a juridic analysis, simply means that there must be a capacity for the acceptance of marriage (with which, we repeat, the "consortium totius vitae" is synonymous), in those features which characterize its essence, i.e. the three "bona", for in these are expressed the absolutely necessary characteristics of the "one lot" (the "con-sors") that the spouses share, and must be capable and ready to share.
The expression "ius ad communionem vitae" is still to be found in rotal Sentences, but less frequently than in the past decades. A consensus would seem to be emerging that it is not a new or autonomous right, with a distinctive content of its own that can be specified in positive terms. Among others, the following remarks seem very pertinent: "As regards [the right to] the communion of life, it is not easy to pinpoint the essential root of such a communion, distinguishing it from those elements which are simply accidental or integral to the consortium, in such a way that it can be considered it an autonomous and independent figure" (c. De Lanversin, July 18, 1985: R.R.Dec., vol. 77, p. 381). "When at times it has pondered the right to the communion of life, as the object of matrimonial consent, rotal jurisprudence has correctly noted that it is not possible to determine the sufficient and necessary elements of this right in a positive and theoretical way" (c. Pompedda, Jan. 30, 1989: vol. 81, p. 85; cfr. an observation of the same rotal Judge: "we readily acknowledge that a clear notion of the substance of this communion of life has not yet been provided": April 11, 1988: R.R.Dec., vol. 80, p. 200).
Little seems to vary in the critique if one suggests that the object of matrimonial consent, along with the essential obligations it gives rise to, should be derived from the concept of the "community of life [and love]" or from the "communion of persons" that Gaudium et Spes uses to describe marriage (nos. 48; 12).
The rotal decision coram Anné of February 25, 1969 suggested that the object of matrimonial consent should include not only the "ius in corpus" (he of course was writing under the old Code), but also a further essential right - the "ius ad intimam personarum atque operum coniunctionem" (R.R.Dec., vol. 61, p. 183). The proposal, subjected to proper analysis, appears to lack substance, for the very reason just given in speaking of the "consortium". A right to "communion of life", in our context, can only mean a right to the communion of conjugal life. Then however Anné's proposal simply signifies that consent to marriage originates a right to married life, which is obvious and adds nothing to our knowledge. It is hard to discover any autonomous entity to the proposed right, or to see how its recognition could mark any real advance in the juridic understanding of the object of marriage consent.
The subsequent history of the "right", as proposed by Anné, would seem to bear this out. Especially in the '70s and early '80s, certain jurisprudential and canonical trends strongly proposed the right to "communion of life" or to "the intimate communion of persons", as a new and essential right of matrimony, and pressed vigorously for its incorporation into the revised Code of Canon Law. The debate was marked by the notable Sentence of the Apostolic Signatura, of Nov. 29, 1975. The special Turnus of five Cardinals (with Cardinal Staffa as Ponens) went into a lengthy examination of the notion of the "ius ad communionem vitae", and concluded that it essentially signifies the "ius ad individuam unitatem vitae sexualis" (cfr. Periodica, 66 (1977), p. 310); i.e. the right to exclusiveness in the unitive aspect of sexual life. Thus it adds nothing to the rights involved in the "bona", particularly the "bonum fidei" and the "bonum prolis".
Despite the Signatura Sentence, the proposed "ius" was at one stage actually included in a draft canon for the revised Code. Nevertheless, it was finally dropped because, as appears from the minutes of the Pontifical Commission charged with the revision, it was considered to be equivalent to "matrimonium ipsum" and therefore redundant (cfr. Communicationes, 1977, p. 374; 1983, pp. 233-234). In other words, the "ius ad communionem vitae" simply means a "ius ad matrimonium" [11]. Jurists appear to be accepting the logic of this, for it is rarer nowadays to find the "ius" seriously put forward as having any independent entity.
Any possible "ius ad consortium vitae", "ius ad vitae communionem", "ius ad relationem interpersonalem", or "ius ad amorem", all suffer from the same lack of specification. In each case, it is to conjugal "consortium", to conjugal communion, to conjugal interpersonality, to conjugal love, that one has to refer. Only if we specify what is essential and constitutive to conjugality, can we begin an accurate and useful analysis of these possible rights.
The difficult task
A "right" to a "communion of life" is as appealing as it is broad and vague. For practical juridic purposes, it appears pointless to propose such a right as "essential" or "constitutive" to matrimony, unless one clearly specifies its content. This has always been the trouble. The undoubted attractiveness of the concept could never make up for its equally undoubted vagueness. In practice all attempts to give it solid juridic body seem to have ended in failure.
Msgr. Anné himself, in his 1969 Sentence, described as an "onus difficillimum" the task of defining precisely what is juridically necessary for this "communio vitae": "it is a most difficult task to accurately and exhaustively define and explain what - from the juridic point of view - is required for the substance of this 'relationship and communion of life'..." (loc. cit. p. 184). This point was later taken up in a Decision of the Apostolic Signatura of Oct. 17, 1972. Having expressed serious doubts whether the "ius ad communionem vitae" could be regarded as constitutive of marriage independently of the rights involved in the three "bona", the Decision went on: "But even if the right and duty regarding communion of life were proper to marriage - as a right/duty different to those represented by the three matrimonial goods - a very precise definition would be required of the elements that constitute this right/duty; and this is something that has not yet been achieved by doctrine or jurisprudence" (Periodica 62 (1973), p. 579).
It is true that some authors, undismayed by this "dificillimum" task, have not hesitated to make a list of the elements which they consider essential for the "communio vitae", suggesting that matrimonial consent gives a strict right to each of these in such a way that the person incapable of living or giving any of them is incapable of true and valid consent. Elements suggested include: "Oblatory love"; "Responsibility in establishing conjugal friendship"; "Maturity of personal conduct throughout the ordinary events of daily life"; "Stability of conduct and capability of adapting to circumstances"; "Gentleness and kindness of character and manners in mutual relationships", etc. (The Signatura Sentence of Nov. 29, 1975 criticised the inadequacy of these suggestions (cfr. Periodica, 66 (1977), pp. 312-313); as did the rotal Sentence coram Raad, quoted earlier: R.R.Dec., vol. 67 (1975), p. 244-245).
It is clear that elements such as these are highly desirable in married life, and their presence contributes greatly to its success and happiness, just as their absence can lead to married unhappiness and failure. It is also clear that the person who is in stable possession of these qualities has attained a high degree of psychological maturity. But the question is: are only those who have attained such a degree of psychological development capable of valid matrimonial consent? In other words, does consent confer a juridic and constitutive right to find such overall maturity in one's partner? If it did, very few marriages could be held valid. Here it is very easy to fall into the mistake which the Pope, in his 1988 Address to the Rota, warned against - of judging "in reference not to the minimum capacity which is sufficient for valid consent, but to the ideal of that full maturity which so influences the happiness of married life" (AAS 80 (1988), 1183).
Any true anthropological view of matrimony (and not just a christian view alone) surely sees marriage more as a point of departure than as a point of arrival. The maturity required for valid consent is properly that of those who are setting out on adult life, not of those who have already reached the ideal term of human growth. As we read in the Sentence coram Pompedda of July 3, 1979, quoted earlier: "Marriage cannot be considered as the crowning of maturity already acquired, but rather as a step in the process by which fuller maturity is to be attained" (loc. cit.). Canon 1095 speaks of (grave) lack of discretion, not of (simple) lack of maturity; and I feel we should carefully note the difference.
In any case, and to conclude with the "ius ad communionem vitae", it seems that more than twenty years after the Signatura Decision quoted above, neither doctrine nor jurisprudence have managed to give any acceptable explanation of how this right has an autonomous entity of its own, or to show how it includes some element essential to matrimony which is not already covered by the three "bona".
Grave lack of discretion and "incapacitas assumendi" are both referred by c. 1095 to the essential obligations of matrimony. They are to be measured, therefore, in relation to the institution of marriage, and not to the particular spouse whom a person chooses. Some acceptable juridic standards can be established for measuring capacity to appreciate or to assume the "per se" obligations of marriage. None can be established for measuring the capacity of one person to make a wise choice of a particular partner, or to be able to live married life successfully with him or her. Tribunals can reasonably be asked to judge person-to-institution capacity for, although the task is certainly delicate, the points which mainly guide their consideration are, on the one hand, the constants of human nature and, on the other, the essentials of the most natural of human institutions; in other words, objective elements provide the principal basis for their judgment (cfr. c. Pompedda, Feb. 19, 1982, R.R.Dec., vol. 74, p. 90, n. 9). They cannot be reasonably asked to judge person-to-person capacity, for then all the elements involved are subjective (cfr. C. Burke, "Some reflections on canon 1095": Monitor Ecclesiasticus 117 (1992-I), p. 142).
While I hold that the personalist understanding of marriage offered especially by Vatican II and the present Pope, is immensely enriching (also for the canonist), I am not so sure to what extent "interpersonal" theories enable us to make a deeper juridic analysis of the matrimonial institution. Interpersonal relations, after all, are constant and habitual in human society. When they are characterized by affection or love, as in the case of purely human friendship or also, on a more supernatural plane, of religious life, they allow for many degrees of "union" or "communion" of life. Marriage offers a unique form of such communion. However, it is evidently not interpersonality so much as conjugality which characterizes matrimony, and which must be taken as the criterion for the specification of essential matrimonial rights. Therefore when one states that marriage is by definition an interpersonal relationship, one is stating the obvious, but not the specific. Moreover, one may be in danger of subordinating conjugality to interpersonality, and of thus being led to adopt mistaken criteria for determining what a person who marries is essentially bound to.
The point is worth emphasizing. It is not so much the interpersonality but the conjugality of the relationship, that has to be subjected to juridic analysis. If this is not adequately done, a phrase such as "the right to an essential interpersonal relationship" remains so vague as to be virtually meaningless.
Relative incapacity
As applied to marriage, the "interpersonal" theories tend to place the accent on the reciprocal capacity of the spouses to adapt to each another. One easily goes on from this to develop the idea of "relative incapacity", and to postulate compatibility of temperament or character as a requisite for valid consent.
One has a right, when marrying, to find certain essential capacities in one's partner (capacity for a faithful one-spouse relationship, for instance); but one cannot posit a right to particular qualities of temperament or disposition. Otherwise one ends by making the validity of marriage depend on the capacity for an easy and harmonious relationship, And so one arrives at "relative incapacity", as did one Tribunal in judging that the Respondent "lacked the dynamics of that harmonious and viable interpersonal relationship which is an essential component of the "consortium omnis vitae"; or another, on the grounds that she did not possess "l'aptitude a écouter l'autre, à se dévouer a lui, à le respecter, à lui montrer un minimum d'"affectus maritalis", etc... et enfin à se conduire en adulte cohérent et responsable, en particulier devant les difficultés concrètes de la vie de couple et de parent".
To my mind the theory of relative incapacity should also be judged in the light of the common pastoral experience that many highly "integrated" marriages are between couples with extremely diverse and even apparently opposed characters, who could well have ended up "incompatible" unless they had resolved (in an evidently maturing effort) not to do so (which also underlines that one cannot resolve the "bonum coniugum" into a question of natural compatibility, nor can one hold that seeming "incompatibility" is necessarily an enemy of the good of the spouses).
Msgr. Serrano has been the main proponent of the theory of relative incapacity at the rotal level. In line with the thesis that marriage is essentially an interpersonal affair, he holds that in order to determine capacity, it is not enough to examine the personalities of the parties, each in isolation. One must primarily examine their personalities in mutual interaction; only such an analisis allows one to judge their capacity for establishing the interpersonal relationship essential to marriage.
I find no solid basis in law, or in christian theology or anthropology, to justify this theory. Msgr. Serrano himself, referring again to the theory in a Judgment of May 26 1988, cites only some opinions of Msgr. Pinto in support (R.R.Dec., vol. 80, p. 359). The view is not in fact accepted in the mainstream of rotal jurisprudence [Sentences which reject the concept include: c. Raad, Apr. 14, 1975 (vol. 69, p. 260); c. Di Felice, Nov. 12, 1977 (vol. 69, p. 453); c. Lefebvre, Feb. 4, 1978; c. Agustoni, Feb 20, 1979; c. Parisella, March 15, 1979; c. Bruno, Feb. 22, 1980 (vol. 72, p. 127); c. Fiore, May 27, 1981 (vol. 73, pp. 314-317); c. Pompedda, Feb. 19, 1982 (vol. 74, p. 90); c. Egan, July 19, 1984 (vol. 76, p. 471); c. Stankiewicz, Oct. 24, 1985, (vol. 77, pp. 448ss); c. Ragni, May 24, 1988, n. 5; c. Burke, July 22, 1991 (vol. 83, p. 503) and, in greater detail, Oct. 27, 1994; etc.]. Msgr. Mario F. Pompedda, after studying the matter, comes to a clear and judicious opinion: "I must conclude and hold that to this point in time, a juridic foundation for such a "relative" incapacity has not been proven" (Incapacity for Marriage: Jurisprudence and Interpretation, op. cit. p. 206).
As is clear from c. 1095, consensual incapacity is incapacity relative to the objective rights/obligations of marriage in their juridic essence. It is incapacity regarding marriage considered essentially, in itself; not existentially, insofar as concerns the concrete partner chosen [12]. The point must be insisted upon: consensual incapacity relates to marriage, not to spouse; it is person-to-institution incapacity, not person-to-person incapacity.
In a recent article, Msgr. Serrano maintains that the interpersonal conjugal relationship is ontologically prior to the qualities or properties - the "bona" - which qualify it; therefore, if interpersonality is lacking, it makes no sense to speak of the "bona", since one cannot predicate properties of a non-existing thing ("La consideración existencial del matrimonio en las causas canónicas de nulidad por incapacidad psíquica" Angelicum, vol. 48 (1991), p. 177). I would see the matter the other way round. The conjugal interpersonal relationship has no autonomous existence independently of the "bona"; nor can one properly speak of the relationship being prior to them or existing "first"; for it is the "bona" which define it and give it substance. So true is this, that the absence or exclusion of any one of the "bona" (e.g. in the case of simulation) makes the establishment of the conjugal relationship impossible. Without the "bona", in other words, it makes no sense to speak of the conjugal interpersonal relationship, for it cannot exist.

VII. The Object of Consent and the Ends of Marriage
Matrimonial consent indeed confers a fundamental and constitutional right to marriage with its essential properties. But it confers no such equivalent right to the achievement of the ends of marriage. Each spouse can claim as a right the acceptance of marriage, in its essential integrity, by the other. Neither can claim the end of marriage as a right.
Regarding the procreational end of matrimony, jurisprudence holds that marital consent involves the giving/accepting of the right to the "bonum prolis", a right, that is, to physical actions ordered to procreation, as well as to a positive mental disposition in its regard. In fact, it is generally accepted that conjugal consent involves the exchange of a right/obligation not only to conjugal acts open to life, but also to the acceptance of offspring that may in fact be conceived from these acts (cfr. c. Bejan, Nov. 9, 1961: vol. 53, p. 496; c. De Jorio, Dec. 18, 1963: vol. 55, p. 911; Feb. 19, 1966: vol. 58, p. 97; c. Pinto, Nov. 12, 1973, vol. 65, 726-727; c. Stankiewicz, July 29, 1980, vol. 72, p. 562, etc.).
Here there is need to maintain great precision in the ideas and terminology used. There is a "ius ad bonum prolis". There is no "ius ad prolem", although some careless jurisprudence has at times spoken of it. "The marriage contract does not confer this right [to have a child], because its object is not "the child", but those 'natural acts' which are apt to engender a new life and have that scope" (Pius XII, Address, May 19, 1956: AAS 48 (1956), 471). "The child is not something due, and cannot be regarded as an object of ownership. It is rather a gift, the "greatest" gift of marriage and the one that is most freely given" (Congregation for the Doctrine of the Faith: Instruction on Respect for Human Life, 1987, no. II, B. 8. cf. Catechism of the Catholic Church, no. 2378). It would seem in consequence that one cannot properly speak either of a right to the "good of the spouses", that other end to which, according to c. 1055, § 1, marriage is ordered. But this is a matter which merits deeper consideration.
As we read in a Sentence coram Raad of April 14, 1975: "one must point out that the ends of matrimony or of the contracting parties, do not constitute essential elements of the object of consent, as some authors and judges think. They argue that whoever is incapable of the end, is incapable of entering matrimony and eliciting valid consent. To refute this theory it is enough to recall can. 1068 § 2: "Sterility neither invalidates nor prohibits marriage". What is said of the principal end of matrimony, can be said a fortiori of the other ends" (R.R.Dec., vol. 67, p. 243). Similarly we read in a more recent Sentence coram Pompedda: "videtur matrimonii vel contrahentis fines non constituere elementa essentialia consensus" (Apr. 11, 1988: R.R.Dec., vol. 80, p. 200).
In effect, while marriage as an institution tends to definite ends, and the spouses must accept the constitutive elements which are directed to those ends, therre are no grounds for saying that they must have an effective capacity to achieve the ends. Regarding procreation, this is quite clear. There is no absolute or essential juridic obligation to procreate. A valid marriage can exist even though actual procreation is excluded. Pius XII taught that, given sufficient reason and as long as the "ius in corpus" is handed over, spouses could be justified in avoiding procreation even for the whole duration of marriage ("Serious motives can exempt from that obligatory and positive mission ["of providing for the conservation of mankind"] even for a long period, even indeed for the entire duration of the marriage...": AAS 43 (1951), 846).
Since the ends of marriage fall outside its essence, I do not think it is correct to wish to determine essential rights/obligations in function of those ends; they must be determined rather in function of the essence, and its essential properties (which do enter the essence, inasmuch as they describe aspects of the essence). No one can claim - as something due to him from another - what is not properly or fully within the power of that other to grant. We repeat, therefore: while each party has the right that the other accept marriage in its essential integrity (with its essential properties), neither can claim the end(s) of marriage as a right.
If actual procreation is not an essential obligation of matrimony, does the same not hold good, a fortiori, for the education of offspring? Personally I tend to agree with the view that regards education of children as an obligation rooted directly in paternity rather than in matrimony. It is certainly a common opinion that the education of children is an effect of marriage, rather than one of its essential obligations (cfr. G. Barberini: "Sull'applicabilità del can. 1095 al tossicodependente" Il Diritto Ecclesiastico 96 (1985), p. 164). However that may be, it is certainly difficult to give a juridic measure for the extent of this obligation. There are other difficulties: would one, for instance, hold that a man under sentence of death, or suffering from a terminal illness from which he will surely die within a few months, cannot give valid consent because he will be incapable of participating in the education of any child born of this brief conjugal union?
The "bonum coniugum" [2]
Now we can turn our attention to the "good of the spouses", which c. 1055 presents as the other end of matrimony, on an equal footing with the procreation/education of children. If we follow the logic indicated above, it seems that one ought not properly speak of a right to the "bonum coniugum" (Although Hervada maintains the contrary, he finds a certain difficulty in assigning a juridic category to the "bonum coniugum", in the sense in which he understands it: "Obligaciones esenciales..." loc. cit., pp. 31-39). But, before we examine this question - whether the "bonum coniugum" gives rise to any essential and constitutive right/obligation, deriving from matrimonial consent and distinct from those essential rights/obligation we have established - our first concern should be to establish the juridic content of the "bonum coniugum" itself. This is all the more necessary in that while we are obviously dealing with a term of the greatest practical importance (inasmuch as it is used in the 1983 Code to describe one of the ends of marriage), the term itself, as can be seen from its history, is quite new in juridical usage.
Until the preparatory work for the post-Vatican II Code began, the expression "bonum coniugum" is seldom to be found in canonical writing or in magisterial documents. In 1977 it was accepted by the Pontifical Commission for the new Code into the draft of what was to become canon 1055. The Consultors of the Commission, however, gave no indication of its exact meaning, beyond the fact that it was regarded as expressing the "personal end" of marriage (cfr. Communicationes, 1977, p. 123), to be taken (as was later clarified) in the objective sense of a "finis operis", and not in a subjective sense of a simple "finis operantis" (ib. 1983, 221). Its legal standing was in any case confirmed by its incorporation into the description of matrimony given by can. 1055. The term nevertheless is mentioned rather rarely in rotal jurisprudence of the following years (see, for instance, c. Pinto, December 18, 1979, Feb. 12, 1982, November 9, 1984; c. Giannecchini, June 22, 1984; c. Stankiewicz, Jan. 28, 1985; c. Pompedda, Jan. 29, 1985; c. Huot, Oct. 2, 1986; c. Bruno, Feb. 23, 1990; c. Colagiovanni, April 23, 1991), and very little attempt is made to analyze its juridical content (cfr. C. Burke: op. cit. The Jurist, vol. 49 (1989:2), pp. 704ss.).
It is important to establish how this term fits into the traditional scheme that distinguishes between essence, properties and ends of marriage. Some have suggested that the "bonum coniugum" is a fourth "bonum matrimoniale", to be ranged along with the traditional three "bona" that were first formulated by St. Augustine (See Sentence c. Pinto, of May 27, 1983, (Monitor Ecclesiasticus, 1985, pp. 329-330). See also Wrenn, Lawrence G.: "Refining the Essence of Marriage", The Jurist, 46 (1986) 2, p. 536). This would clearly place it in the line of a property of marriage.
This does not stand up to analysis. It is particularly important here not to let the similarity of terms confound our juridical perceptions. In the augustinian view, the three "bona" refer to "goods" of the married state: they are positive features of matrimony that give it dignity. Marriage is good because it is characterized by faithfulness, permanence and fruitfulness. Each "bonum" is predicated of or attributed to marriage. Offspring is a "bonum matrimonii" and so is exclusiveness or permanence. It is evident then that St. Augustine is speaking of the values or essential properties of marriage, not therefore of its ends or finalities.
It helps if we present this schematically:
- bonum fidei: "fides" is a "bonum" or attribute of matrimony;
- bonum prolis:"proles" ("in suis principiis"; i.e. procreativity.) is a "bonum" or attribute of matrimony;
- bonum sacramenti: indissolubility is similarly a "bonum" or attribute of matrimony.
Here we immediately see that we cannot proceed to add the "bonum coniugum" to this list; it would make no sense to say that "coniuges" - the spouses - are a "bonum" of matrimony. The fact is that the term "bonum coniugum" does not express a value or property or attribute of marriage, in any sense parallel to that of the augustinian "goods". The "bonum" of this new term is referred not to marriage (as if it were a value that makes marriage good), but to the spouses (as involving something that is good for them); it denotes not a property of marriage (a "bonum matrimonii"), but something - the "good" or welfare of the spouses - which marriage should cause or lead to. It seems obvious, then, that the "bonum coniugum" is in the line not of property ("The bonum coniugum", says F. Bersini, "has nothing to do with the augustinian bona": Il Nuovo Diritto Canonico Matrimoniale, Turin, 1985, p. 10.) but of finality. Matrimony, which is an institution characterized by exclusivity, permanence and procreativity, tends to the good of the spouses just as it tends to the actual procreation of offspring. It is striking in fact that doubt should arise about this, since it is quite clearly expressed by canon 1055: "the matrimonial covenant ... is by its nature ordered toward the good of the spouses and toward the procreation and education of offspring". And the ordination spoken of here is an ordination to the natural and inherents ends of matrimony.
It should be obvious also from what we said in the last chapter that to make the "bonum coniugum" coincide with marital love is untenable. Love is not so much a constitutive part of the "bonum coniugum" as a factor which, if properly lived, tends to the good of the spouses. Marriage, after all, is normally the consequence of love, hence it appears as a motive as much at least as an end of matrimony. Further, love and marriage are in the same operative order, as being directed to the same ends. Gaudium et Spes said so in relation to procreation: "By its very nature the institution of marriage and married love is ordered to the procreation and education of children..."; "Marriage and married love are by nature ordered to the procreation and education of children" (nos. 48; 50). Subsequent magisterium, particularly in the formulation of canon 1055, seems to give good grounds to amplify these affirmations of Gaudium et Spes, in the sense that marriage and married love are ordered to the "good of the spouses" - the other institutional end of matrimony - no less than to procreation.
The juridic content of the "bonum coniugum"
Regarding the juridic content of the "bonum coniugum", we could here suggest some partial and tentative ideas (cfr. sent. c. Burke of Nov. 26, 1992: Ephemerides Iuris Canonici, XLIX 1993 (1-3), pp. 303-312).
A Sentence coram Pinto, of Dec. 18, 1979, referring to the good of "the spouse" as the so-called personal secondary end of matrimony, suggested that the rights/obligations which make up this good "are referred to in the [1917] Code as the 'mutual aid and the remedy of concupiscence', and in the draft for the new Code of marriage law as the 'right to the communion of life' which comprises those rights that pertain to the essential interpersonal relations of the spouses" (R.R.Dec., vol. 71, p. 588). Along rather similar lines, a sentence c. Pompedda of April 11, 1988 holds it necessary that the "good of the spouses - of which alone the Code speaks, making no further reference to the right to communion of life - is to be understood and brought about through the right (and corresponding obligation) to the communion of life: the latter being understood in its broader meaning, ideally inspired by [? "ad"] that conjugal love on which the Second Vatican Counsil so insisted, and juridically expressed through the rights/obligations affecting that distinctive behavior which flows as requisite and sufficient from the very nature of marriage, in the interpersonal relations proper to the spouses and having juridic importance" (vol. 80, p. 202). Another sentence places the "bonum coniugum" in the constitution of "the community of life and love" (c. Colagiovanni, Apr. 23, 1991, Romana, n. 10).
We have already recalled that the proposal of a "ius ad vitae communionem" was not accepted into the new Code, being considered redundant, that is equivalent to a "ius ad matrimonium ipsum". It therefore does not seem that a juridic analysis of this "right" can yield new essential rights/ obligations that derive from consent. To simply state that this "right" embraces those which affect "essential interpersonal relations" does not provide any deeper jurisprudential insight - unless one specifies which interpersonal relations (beyond those included in the three "bona") are juridically essential to marriage: a specification which has not yet been achieved
Some sentences of Pinto offer another specification which seems lacking in depth. Once again using a peculiar singular ("bonum coniugis"), he makes it consist in a mutual psycho-sexual "integration" ("bonum coniugis, in mutua essentiali integratione psycho-sexuali consistens...": Feb. 12, 1982: R.R.Dec., vol. 74, p. 67). Elsewhere, placing the bonum coniugum among the essential obligations of marriage, he describes it as "intimate union of persons and deeds by which the spouses find that psycho-sexual complementarity without which the "consortium" of matrimonial life could not exist" (Feb. 20, 1987: Ius Ecclesiae, 1-2 (1989), p. 573); or, he says, it consists in the right of each spouse to find in the other "his or her specific psychological psycho-sexual complement of a true spouse" (May 27, 1983: Monitor Ecclesiasticus 110 (1985-III), p. 329). This is surely to assign a very circumscribed and passing scope - the attaining of a relative complementarity - to the good that marriage should originate for husband and wife.
Another opinion would relate the "bonum coniugum" to the achievement of at least a minimum degree of satisfactory personal relationship between the spouses: "the good of the spouses, which is an essential element of matrimony, implying the capacity of fashioning at least a tolerable interpersonal relationship with one's future spouse" (c. Bruno: Feb. 23, 1990, R.R.Dec. vol. 82, p. 140); this again does not seem to be a sufficient analysis.
Some maintain that the former secondary ends of matrimony, - "mutual aid" and "remedy of concupiscence" - which find no mention in the Code, are contained in the "bonum coniugum" ["The "remedium concupiscentiae" and the "mutuum adiutorium" are now included in the "bonum coniugum"...": F. Bersini, op. cit., p. 18; cfr. David E. Fellhauser: "The consortium omnis vitae as a Juridical Element of Marriage", Studia Canonica 13 (1979), pp. 50-54]. I prefer to think that we have abandoned the concept of the "remedium concupiscentiae"; and that the "bonum coniugum" is in fact much broader than the "mutuum adiutorium" (cfr. C. Burke: "Marriage: a personalist or an institutional understanding?" Communio, 1992-2, pp. 294-296).
Since, as we have already mentioned, we have to deal here with a new concept in canonical usage, the effort to establish its juridic meaning and content (a task of the greatest importance) needs in the first place to give due attention to the sources (or "Fontes") indicated in the 1989 annotated edition of the Code (Libreria Editrice Vaticana, 1989.). Among the sources Casti connubii is first noted; and also several magisterial documents of Pius XII among them the Address of October 29, 1951 where the Pope spoke of the "personal perfectioning of the spouses" as a [secondary] end of matrimony (AAS 43 (1951), 848-849). As is natural, Gaudium et Spes, no. 48 is cited as another soures, and also nos. 11 and 41 of Lumen Gentium as well as no. 11 of Apostolicam Actuositatem. Gaudium et Spes speaks in terms of the human and supernatural growth of the spouses: "Husband and wife ... help and serve each other by their married partnership; they become conscious of their unity and experience it more deeply from day to day ... Fulfilling their conjugal and family role... they increasingly further their own perfection and their mutual sanctification". Lumen Gentium, especially in no. 11, insists on the supernatural aspect of this reality: "Christian spouses help one another to attain holiness in their married life and in the accepting and rearing of their children"; and the Decree on the Apostolate of Lay People does the same: "Christian spouses are for each other... cooperators of grace and witnesses of the faith".
The essence of the "bonum coniugum"
As regards the essence of the "good of the spouses", my opinion therefore is that one must seem it in the line of the maturing of the spouses (cfr. Rinaldo Bertolino: op. cit., pp. 119ss), for this life and for the life that is to come; that is (to follow the words of Casti connubii, their "mutual interior formation", their "constant concern to help one another mutually towards perfection" (AAS 22 (1930), 548).
Therefore the idea of making the "good of the spouse" consist in a mere characterial "compatibility" between the spouses (The already mentioned sentence of Msgr. Pinto of Feb 20, 1987 seems to over-limit the scope of the "bonum coniugum" by defining it in terms of mutual complementarity, and not in function of the deeper and ultimate object of human existence.), or in the achievement of a comfortable conjugal life, untroubled by any tensions, scarcely seems to be in harmony with a christian understanding of the real good of the spouses. There is more to be said for a line of analysis that harmonizes the "bonum coniugum" with the demands of the reciprocal self-gift that is faithful, permanent and open-to-life. Such an approach also frees the "good of the spouses" from anthropologically narrow interpretations that tend to consider it from an over-subjective and individualist point of view.
The "bonum coniugum" in its most objective sense is in fact furthered by the efforts of the spouses to live their mutual matrimonial commitment in full conjugal fidelity, to love each other perseveringly all the days of their lives, with the demanding generosity involved in this dedication to one another and to the children that God has sent them.
As should be evident, the bonum coniugum "is achieved not only through the consolations of married life, but also and especially through its demands. In this way we see how the "bonum coniugum" (an end of marriage) connects naturally with the augustinian "bona" (properties of marriage). In fact it seems correct to say that, more than anything else in marriage, acceptance of those traditional "goods" and respect for the obligations they involve, creates the conditions that favor the good of the spouses. One can therefore conclude that the augustinian bona which fundamentally characterize marriage, also provide the basic structure on which the "bonum coniugum" can be built" (Sent. Nov. 26, 1992 coram Burke, in una Armachana, n. 13).
Gaudium et Spes, in keeping with Casti connubii, teaches that indissolubility favors the "bonum coniugum"[13]; the point of this surely being that all the effort and sacrifice involved in being faithful to the unbreakable character of the bond - in good times and in bad, etc. - serves to develop and perfect the personalities of the spouses. Mention has already been made of Paul VI's incisive teaching as to how God has endowed marriage with "its own laws, which spouses are normally very happy to acknowledge and value, but which in any case they should accept for their own good" (AAS 68 (1976), 207.). And John Paul II, also speaking to the Roman Rota, has made the point that in any christian understanding, "it is possible to fulfil the meaning of the conjugal union, expressed in the reciprocal donation of the spouses, only through a continuous effort that includes renunciation and sacrifice" (AAS 79 (1987), 1456).
In practice, the crises through which all marriages pass can be overcome only if the spouses attain a proper understanding of the true nature of their "good" - the "bonum coniugum" - and the latter's intimate dependence on the nature and demands of the three agustinina "bona".
The danger of applying reductive criteria to the "bonum coniugum" becomes more apparent if one considers the case where someone loves and chooses to marry a totally handicapped and disabled person, who is incapable of working and earning a living, or of even minimally taking care of himself or herself. No one would deny the right of a person to make such a marital choice. Yet it could be asked: what material contribution will the disabled individual be able to make to the "good of the spouses"? None, it might be answered for it is clear that, materially, he or she is going to be a burden to the other spouse. Yet again who would assert that he or she cannot contribute spiritually (with a contribution whose value escapes human or legal measurement) to that good? Equality of physical burdens or of material contributions within married life cannot in fact be made main parameters of the "bonum coniugum", since it is not adequately defined in material or economic terms, or capacity for work or for earning one's own living, etc.
The relationship between the good of the spouses and procreation
Gaudium et Spes itself establishes a direct connection between the "bonum prolis" and the "bonum coniugum" when it states that "children greatly contribute to the good of their parents" (no. 50). Children enrich their parents' lives in many ways, above all through the generous dedication they tend to evoke in them.
The personalism of open-to-life intercourse, as we saw in an earlier chapter, unites the spouses in a singular fashion. No obstacle being placed to the genuine union of their complementary sexuality, such personalism leads to a true deepening of community between husband and wife and furthers their "good". Contraceptive intercourse is fraught with an individualism that separates husband and wife and frustrates the authentic "bonum coniugum".
In considering the conjugal act through which the spouses become "one flesh", we sought to make a deeper analysis of that fundamental truth asserted by Paul VI in Humanae Vitae: that it is not licit to separate the unitive and the procreative aspects of the act. True christian personalism leads to a similar conclusion as regards the instituzional ends of matrimony: the "bonum coniugum" amd the procreation-education of children. There is a natural and intrinsic connection also between these two ends; they are intimately interconnected, and the pursuit of one should help the attainment of the other, by which it is at one and the same time conditioned and served (cfr. "Marriage: a personalist or an institutional understanding?": Communio 1992-III, pp. 301-303).
The desire for self-realization, just as that for self-perpetuation, are common to almost all persons. While these yearnings undoubtedly carry with them strong personalist overtones, it is also true that the personalism they involve is often threatened by simple self-centeredness. One notes the particularity in the conjugal act that, while it tends in a special way to self-affirmation and self-perpetuation, these tendencies are raised to a higher level by the generous and oblative nature of the act. The act does not tend to the affirmation or perpetuation of each of the spouses's "self" considered in isolation, but precisely to the perpetuation of something common to both together and absolutely intimate to them: the love which unites and binds them. The union of their two "I"s in "one flesh", by means of the conjugal act, tends to become incarnated in a new "I", reflection and expression of their marital love. What can be more unique, as a mode of self-realization, than the generation of their own child - another person, in all of its unrepeatability - fruit of the self-gift which each spouse makes to the other?
Awareness of the procreative character of the conjugal act and respect for its integral nature perfects its unique contribution to the "good" of each spouse, maturing and "realizing" each one of them and binding them together. Each child is then a visible incarnated link fortifying the conjugal bond whose strength is so essential for the fulfillment and genuine good of the spouses.
The conjugal act, when carried out "in a human way" (cfr. c. 1061, § 1; GS 49.), powerfully aids the "bonum coniugum". This "human" character of conjugal sexual intercourse calls first of all for a truly human understanding of the reasons why the act unites the spouses, and then respect for this intrinsic nature and function of the act. Contrariwise, the "bonum coniugum" is undermined by anti-natural sexual intercourse, which contradicts both the specific meaning and dignity of the conjugal relationship, as well as the distinctive spousal identity of husband and wife.
When one looks not only at procreation but also at the education of children, one can immediately see how their role as educators favors the good of the spouses of its very nature. Education of the children cannot be - ought not to be - an activity of just one of the parents. It should involve both, in constant and harmonious cooperation. Such cooperation is in fact an expression of the "consortium vitae", reflected in a joint family undertaking. It calls on the parents to achieve a community of action, of points of view, of criteria, of orientation in the ongoing process of educating each of their children in freedom and personal responsibility (always respecting the distinctive personality God has given each one), and to maintain a united home.
It is obvious that such a family community - such unity of ideas and of practice - cannot be achieved without the constant exercise of the will by each of the spouses, so as to subordinate strictly personal interests to the good of the family. So again we see the spouses involved in a constant process of personal maturing.
The same can be said for the efforts, which not infrequently demand heroic generosity, to meet the material or financial needs of the family.
Is there a right to the "bonum coniugum"?
Does there exists, as it is at times suggested (A.M. Abate: "Il Consenso Matrimoniale": Apollinaris, 59 (1986), pp. 475-476; Sent. c. Pompedda of April 11, 1988), a right to the good of the spouses, a "ius ad bonum coniugum"? It seems to me that, in virtue of the same critical reasons we have brought to bear on an alleged "ius ad prolem" or "ius ad procreationem", the answer must be negative.
There is no right to offspring - to actual procreation - although there is a right to the "bonum prolis": i.e. a right of access to one's spouse's procreative power by means of the conjugal act. As can be seen, there is a finely balanced connection between that constitutive attribute of consent - the gift of procreativity - from which essential rights/obligations arise, and the possible but non-essential consequence of that gift: actual procreation (One has to distinguish "inter consecutionem finis et ordinationem ad finem: consecutio finis est contractui extrinseca; ordinatio ad finem... est contractui intrinseca et essentialis" D. Staffa, De conditione contra matrimonii substantiam, ed. 2, n. 9, nota 37.). Therefore the actual achievement of that end of marriage which is the procreation of offspring, cannot be treated as if it were the object of an essential right/obligation; nor can the failure to achieve it be a cause of the nullity of marriage. Sterility - that is, the incapacity for procreating and so attaining one of the principal ends of the conjugal partnership - does not in fact invalidate marriage. It is for this reason that one cannot correctly speak of a "ius ad prolem", a right to children (There exists a "ius ad procreativitatem" - to what the other can give - , because the willingness to procreate lies within the other party's power; but there is no "ius ad prolem", because actual procreation does not lie fully within the power of the other party: it always remains a gift of God.).
For quite similar reasons it seems questionable to me that one can properly speak of a juridic right to the "bonum coniugum" (No doubt one can always speak of an "ordinatio ad procreationem" or of an "ordinatio ad bonum coniugum", as essential elements of matrimony; it is not however clear that these "orderings" give rise to any new and autonomous right - essential to the constitution of marriage - that would be independent from those deriving from the three traditional "bona".); nor do I see the way to a proper juridic determination of autonomous essential rights/obligations deriving from the "bonum coniugum" (cfr. Sent. Nov. 26, 1992 coram Burke, in una Armachana, nn. 14ss.).
Marriage is ordered in fact both to the "good of the spouses" and to the procreation/education of children (c. 1055, § 1). But if, as Raad points out in the sentence of April 14, 1975 already referred to, an incapacity to effectively generate does not invalidate marriage, neither, it would seem, does an incapacity to achieve the "bonum coniugum" (The "bonum coniugum", rather than as an essential obligation, would seem better classifed as an effect of marriage; as an effect, concretely, of the observance of the essential obligations involved in the three augustinian "bona".). One has the right to what must be given by the other; not to what marriage itself may or may not give, for this latter gift depends not just on the spouses but ultimately on God. Sometimes God's plan for the good of the spouses involves a childless marriage; and it not infrequently seems to involve a union where personality differences create tensions between the spouses that can pull the marriage apart - unless they have recourse to prayer and sacrifice so as to learn to get on together. The analysis of this point necessarily depends on how one understands the good for the spouses which by divine design should derive from marriage.
Husband and wife should mutually confer on each other essential rights that tend to their "good" as spouses: rights that derive in the last analysis from the three augustinian "bona". Each of them in fact has a moral obligation to strive for the achievement of the "bonum coniugum". Within the sphere of our present interest, however, it can be said that neither of them can claim that good as a juridic right, as something owed to him or her by the other; the reason being basically because the actual achievement of this "good" surpasses the will of the other person and depends above all on the will and design of God.
We have recalled the teaching of Pius XII that, despite the importance of the procreative end of marriage, actual procreation of children can be avoided, even for a life-time. From the moral point of view, there must be serious reasons to justify such a decision (cfr. Humanae Vitae, no. 16), while from the point of view of justice, it must be by mutual accord between the spouses. If the decision to totally avoid having offspring were unilateral (and pre-marital), the marriage would certainly be invalid, as involving simulated consent. As always in the case of unilateral simulation, not only is the consent juridically insufficient of itself to constitute matrimony, but the right of the other party has been gravely violated by deceit.
Positive unilateral exclusion of the "bonum coniugum" would certainly invalidate, but seems in practice to coincide with exclusion of one or all of the three "bona". "Rather than speak of a right to the "bonum coniugum", one may consider the good of the spouses (just as one may consider procreation) as a source of rights or obligations. However, it would seem that the only legal measure of what is essentially involved in such rights/obligations is provided by the three augustinian "bona". From a juridic standpoint, the "bonum coniugum" gives rise to no other essential rights/obligations. So, while it is clear that the exclusion of the "bonum coniugum" invalidates (as does the exclusion of offspring), it is not clear that such exclusion comprises anything substantial not already contained in the three "bona". Therefore possible claims of nullity due to "the exclusion of the good of the spouses" are more properly formulated in terms of typical grounds of total or partial simulation" (Sentence of Nov. 26, 1992, coram Burke, in una Armachana, n. 15). Other possible violations that might relate to the "bonum coniugum", would seem to be covered by c. 1098 on deceit.
The fundamental right which the spouses possess is the right to the "traditio coniugalis suiipsius", made without reserve inasmuch as concerns those three essential aspects: exclusiveness, permanence, and openness-to-life. It is precisely this conjugal donation - made and accepted in all it implies - which tends to the "good" of the spouse.
These reflections can help throw some light on the issue of the "bonum coniugum" in certain matrimonial situations that we will briefly mention here (even though, properly speaking, this leads us out of the strictly juridic field and into that which is moral or pastoral). Situations, for instance, where love is no longer easy - where on the contrary it seems to have ceased or to have "died" - and the spouses are tempted to abandon the effort to keep their conjugal life going. In such a situation, the "bonum coniugum" is truly promoted by the effort of each one to understand the other and to maintain their life together, rejecting the temptation to take "the easy way out". It is precisely that easy way out which can frustrate the good of the spouses, that is, their maturing as persons, while the harder choice is the one that matures them most. The words of Paul VI, "having started as a spontaneous sentiment, love becomes a binding duty", offer the key to understanding how the "bonum coniugum" is intensely realized if the spouses respond to the demands of such a situation. Each one of the two should graduate from the facility of a spontaneously felt love to the maturity of a fully willed dedication; if they are capable of progressing this sense, the "bonum coniugum" develops with great effect.
Marriage involves a choice and a commitment. The matrimonial choice should be generous not selfish. The Code edited by the Canon Law Society of America remarks that "the unselfish giving in the context of the marital community promotes the natural and spiritual good of the spouses" (The Code of Canon Law: A Text and Commentary, 1985, p. 740). As Pope John Paul II said to the Rota in 1987: "it is only possible to fulfil the meaning of the conjugal union, expressed in the reciprocal donation of the spouses, through a continuous effort that includes renunciation and sacrifice" (AAS vol. 79 (1987), 1456).
God has wished faithfulness and indissolubility to be essential properties of marriage. Sacrifice is needed in order to give oneself faithfully to one's spouse; and it is no less needed to give oneself throughout the whole of a lifetime, and equally so in order to have and educate children. So, these overall sacrifices make up an important part of God's plan for the "good of the spouses", for their perfectioning through marriage.
In short, then, the spouses who have attained conjugal maturity by passing through difficulties and obstacles and learning to live together, are faithful to their "good" as God has wished it.
What can one say of the really shipwrecked marriage where for instance one of the spouses reneges on his or her conjugal commitment and walks out on the other? Is it possible to continue to speak of the "good of the spouses" in such a context? Or must one conclude, as would appear, that it also has been totally wrecked?
As regards the reneging spouse, certainly the marriage would scarcely seem capable of working any longer toward his or her "good". Yet it can still work powerfully for the good of the other, if he or she remains true to the marriage bond. If that fidelity is maintained, moreover, it may in God's providence act as a call to repentance, as a force of salvation, for the unfaithful spouse, perhaps in his or her very last moment on earth - when one's definitive "bonum" is about to be decided.
That the positive potential of such situations can be grasped only in the light of the christian challenge of the Cross, does not in any way weaken the analysis. If it is true that the positive potential may never be actually realized, this simply reflects the risk and mystery of human freedom.
The "bonum coniugum" is simply the ultimate result to which marriage tends when it is lived according to the essential elements characterizing the bond through which the spouses freely consent to unite themselves to one another: permanence, uniqueness, procreativity (So, while there is no right to the "bonum coniugum", there is a right to those essential properties of marriage - the three augustinian "bona" - on which the realization of the "bonum coniugum" mainly depends.).
We could here add some brief ideas about the exclusion of the "bonum coniugum", a topic whose analysis offers no small difficulties. It is evident that the good of the spouses is frustrated by the person who excludes indissolubility or exclusiveness of offspring. However, in such cases, the marriage is null by reason of the exclusion of one of the traditional "bona" rather than by that of the "bonum coniugum": the exclusion of the end ("good of the spouses") is absorbed in the exclusion of the essential property.
It is arguable that the "bonum coniugum" is excluded by the person who conceals from the other party some personal circumstance (a serious illness, for example) that will necessarily undermine their conjugal relationship. But here again we are before a case which, if juridic rigor is observed, should be treated under another heading: that of fraud (c. 1098). Likewise, if we examine the incapacity for accepting the demands of the "bonum coniugum", this would seem to coincide with the incapacity to assume the essential rights/obligations of matrimony (c. 1095, 3̊).
It may well be due to the very nature of the phenomenon that few cases are met where matrimonial consent is invalid because of the exclusion of the "bonum coniugum", understood as an autonomous grounds of nullity. Nevertheless, it seems obvious that the good of the spouses is excluded by the person who marries with the intention of perverting his or her partner, of getting him or her to apostatize from the faith, to live an immoral life, etc. Exclusion would certainly also be involved if one party intended to deprive the other of some fundamental human dignity: his or her physical or moral freedom, etc. Without being pushed to such unlikely extremes as the famous "Jemolo case", one could no doubt come up with other possible cases [14].
As we end our study, we would suggest that the married personalism which conciliar thought has introduced into canon law has marked clear progress - but not a break - with respect to the past. If c. 1057, § 2 is undeniably different in form, to its counterpart in the 1917 Code, it is much less so in its substance. Our study in fact suggests that while the understanding of marriage as involving personal sexual self-donation is certainly facilitated by the new formula, the essence of what is involved in matrimonial consent (i.e. its object) remains, as one might expect, the same. In confirmation of this is the unresolved difficulty found in pinpointing essential rights, deriving from consent, different from those that emanate from the three augustinian "goods". The consideration of the new formula, however, has helped us attain a deeper understanding of the personalist aspects of these goods.

[1] "quae formula... minime implicat consensus obiectum formale et essentiale iam non esse iura et officia matrimonialia essentialia tradita et accepta, sed potius personas ipsas... Ex dictis apparet nos concordare non posse cum sententia appellata cum affirmat consensus obiectum mutatum fuisse quatenus iam non essent iura et oficia, sed coniugum personae ipsae": vol. 77, p. 281. Msgr. Anné seemed earlier to open up an interesting avenue when he wrote: "the 'mutual donation of persons' and other such phrases which occur either in Gaudium et Spes or in Humanae Vitae, are more correctly interpreted as the 'giving and accepting of the right to the partnership of life'..." ("'mutua personarum donatio' similesque locutiones, quae occurrunt sive in Const. Gaudium et spes, sive in Litt. Encycl. Humanae vitae, rectius interpretantur uti 'traditio et acceptatio iuris ad... vitae consortium'...": Apr. 26, 1977: R.R.Dec., vol. 69, p. 222). But he did not follow up with the essential analysis of this 'consortium vitae'.
[2] cfr. "the conjugal act open to the generation of offspring [is] an effective sign of the self-gift of each spouse" ("actus coniugalis ad prolis generationem pervius uti signum efficax donationis suipsius seu utriusque coniugis"): c. Colagiovanni, June 13, 1989: R.R.Dec., vol. 81, p. 415.
[3] The restriction of the idea of the essential conjugal right/obligation to a (perpetual and exclusive) "ius in corpus" can undoubtedly have made it more difficult for jurists also to grasp how a certain contraceptive intent (e.g. the determination to abort), even while leaving the physical copula intact, utterly vitiates its conjugal value and meaning.
[4] Psychiatric studies show that the choice to live together, instead of marrying, easily induces deep-rooted anxiety and insecurity: cfr. Nadelson-Notman: "To Marry or Not to Marry: a Choice": American Journal of Psychiatry, 138 (1981), p. 1354.
[5] We are therefore not in agreement with Carlo Caffarra, from a juridic point of view, when he affirms that while it is "true that every form of love involves a gift of self, the self-gift is litterally complete and definitive in the conjugal community. What is given is not just something belonging to self, but the person in his or her entire reality - to the extent that one person belongs totally to the other, and vice-versa" (C. Caffarra: "La teologia del matrimonio con riferimento al CJC", in AA.VV. Teologia e Diritto Canonico, Lib. Ed. Vaticana, 1987, p. 155). Caffarra does not seem to us here to be using strictly juridical language.
[6] In fact under the old Code some authors (De Smet, Vermeesch-Creusen, Giacchi, etc.) went as far as defending the thesis that so long as the right to the copula in its integrity was given, consent would not be vitiated even if accompanied by an intention permanently to frustrate the natural effects of the act, by e.g. "day-after pills", abortion, etc. Giacchi for example maintained: "It is frequently suggested that a plea of nullity on the grounds of the exclusion of offspring can be upheld when there is a firm and perpetual intention to use conctraceptive measures or other means to eliminate a pregnancy. And nevertheless, none of this has any relevance from the juridic point of view. The "positive act of the will" by which the "bonum prolis" is excluded should have the conjugal act as only object (Il Consenso nel Matrimonio Canonico, Milan, 1950, p. 78). As is evident, the "right over the body" is viewed here in a very narrow perspective, which does not take into consideration the real attitude of the person towards the procreative orientation of the act and of marriage itself (cfr. P. Huizing: "Bonum prolis ut elementum essentiale obiecti formalis consensus matrimonialis", Gregorianum, 43 (1962) 663-667).
[7] L'Essenza del Matrimonio Canonico, Cedam, 1976, p. 157. cfr. the same author: "In each human being there are totally intangible values that are intimately individual and absolute, also for the person who bears them. These values which transcend human sexuality, even in that richer and fuller sense in which we have sought to characterize it, do not enter into the matrimonial economy": "Comunione di vita ed «ordinatio ad bonum coniugum»", Il Diritto Ecclesiastico 1982, p. 526.
[8] and this voluntary acceptance is, in the truest sense, an act of love. "An essential element of conjugal love is the assumption by the will of the inclination toward the other spouse" (J. Hervada: Vetera et Nova, Pamplona, 1991, vol. I, p. 614).
[9] "One must stress the great exercise of freedom and depth of dedication of one to the other that exist in the marital covenant. To love one another to the extent of owing love, is the greatest expression of love possible between a human couple": P.J. Viladrich, "La familia de fundación matrimonial", in Cuestiones fundamentales sobre matrimonio y familia, Pamplona, 1980, p. 401.
[10] "consortium supponit mutuam donationem maris et feminae. Haec autem donatio fit per consensum qui sit verus, authenticus et absque fictione et in hoc est amor coniugalis": R.R.Dec., vol. 62, p. 984.
[11] A Sentence of Jan. 31, 1976 coram Lefebvre, maintains that the "ius ad vitae communionem" "is not in fact independent from the right to the conjugal act with its essential properties, but more properly signifies and indicates all of these in the context of what that right embraces, i.e. the ordination to offspring, perpetuity, and exclusiveness" ("non est quid independens a iure ad coniugalem actum cum eius essentialibus proprietatibus, sed rectius significat seu denotat ista omnia ratione habita eorum quae illud complectantur scilicet ordinationis ad prolem, perpetuitatis et exclusivitatis"): R.R.Dec., vol. 68, p. 39. According to Egan, it is juridically absured to hold that by matrimonial consent one confers a "ius ad matrimonium": cfr. Sent. July 19, 1984 (vol. 76, p. 471).
[12] Msgr. Pinto claims that the discretion necessary for validity means deliberation about the essential rights/obligations "non in abstracto sed in casu concreto considerata" (Nov. 22, 1985: vol. 77, p. 538). This does not seem logical to me. Imprudence or irresponsibility in marrying a particular person cannot be raised to the level of an invalidating lack of discretion about the essential obligations of marriage. cfr. c. Colagiovanni, Dec. 11, 1985 (vol. 77, p. 571).
[13] "for the good of the spouses, of the children, and of society this sacred bond no longer depends on human decision" (Gaudium et Spes, no. 48). "The number and importance of the benefits which flow from the indissolubility of matrimony cannot escape anyone who gives even a brief consideration either to the good of the spouses and the children or to the welfare of human society": Casti connubii (AAS 22 (1930), 553).
[14] (cf. the author's study, "The Bonum Coniugum and the Bonum Prolis; Ends or Properties of Marriage?": The Jurist 49 (1989):2, pp. 705-709.