05.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 [1]. 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" [2].

            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" [3]. 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 [4]. 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 [5]. 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" [6].

            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.


[1] 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.

[2] 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).

[3] 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.

[4] 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).

[5] "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.

[6] "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.