Matrimony, 13th c. MS ilum, Bodleian
THE NEW TESTAMENT
SINCE marriage has always been the state of life, indeed the vocation, of the vast majority of the Christian faithful, it has been a central theme of the Church’s teaching and the canonical discipline rooted in that teaching in every era. From the beginning the Church’s approach to marriage has been anchored in a few New Testament texts: Jesus’ own stinging condemnation of divorce as a distortion of the Creator’s original intention for marriage and a concession to human hardness of heart (Mt 19:3–12; Mk 10:2–12; Mt 5:31–32; Lk 16:18); Paul’s response to questions from feuding members of the church in Corinth about marriage, divorce, and virginity (1 Cor 7); and the reflection by the author of the epistle to the Ephesians on the analogy between the relationship of husband and wife and that between Christ and the Church (Eph 5:22–33).
Theological reflection on these key texts fostered - and continues to foster - the gradual development of a distinctively Christian understanding of marriage. An appreciation of the evolution of this theology of marriage and the canonical discipline based on it is essential for understanding the treatment of marriage in the revised Code of Canon Law. This historical introduction will sketch the beginnings of a Christian theology of marriage, the consolidation of this reflection in the medieval synthesis, the response of the Church to challenges to its doctrine on marriage from the sixteenth century reformers and secular authorities, and the renewal of Catholic thinking about marriage at Vatican II whose teaching has left its unmistakable imprint on the revised code of canon law.
[For more complete accounts of the development of the Christian understanding of marriage, see E. Schillebeeckx, Marriage: Secular Reality and Saving Mystery, 2 vols. (London: Sheed and Ward, 1965); G. LeBras, “Le Mariage,” Dictionnaire de Théologie Catholique (DTC) 9-2: col. 2123-2317; C. Brooke, The Medieval Idea of Marriage (Oxford: Clarendon, 1989); J. Brundage, Law, Sex and Christian Society in Medieval Europe (Chicago: University of Chicago, 1987); T. Mackin, What Is Marriage? (New York: Paulist, 1982).]
THE EARLY CHURCH
THE early Christians did not radically alter the customs according to which marriage was constituted and lived out. Instead, they entered and lived out their marriages according to the traditional practices of their culture, first Jewish and later Greco-Roman, but they did so “in the Lord” (1 Cor 7:39).
However, from an early date, perhaps as early as New Testament times, traditional understandings of marriage were challenged by a somewhat amorphous movement now known as Gnosticism, which attacked the body ecclesiastic like a virus. Its struggle with Gnosticism enabled the Church to begin to articulate its own vision of marriage.
In its manifold, syncretistic forms, Gnosticism espoused an ethical, metaphysical, and theological dualism according to which the material world, including the human body, was seen as the creation of an evil demiurge who had imprisoned fallen, spiritual souls in physical bodies. Salvation came through special, esoteric knowledge (gnosis) that enabled these fallen souls to escape their material imprisonment and rise to spiritual contemplation of the true God. [P. Brown, The Body and Society (New York: Columbia University, 1988) 103-121; and J. Noonan, Contraception (New York: Mentor-Omega, 1967) 78-97]
Gnosticism rejected procreation as evil, since it resulted in the imprisonment of still more souls in corporeality. Gnostics of a rigorist bent urged their adherents to avoid both procreation and marriage and to practice perfect continence; those of a more antinomian bent adopted a radically realized eschatology according to which sharers in the special revelation al-ready enjoyed the resurrected life and were immune from all moral laws. For the latter groups, sexual experience of all kinds was permissible (and, at times, obligatory), as long as procreation was avoided. [Noonan, 80-81.]
Orthodox Christian teachers like Clement of Alexandria responded to the Gnostic challenge by marshaling resources from the New Testament, the Old Testament, Philo’s Platonic reading of the Old Testament, and Stoic philosophy. (Brown, 122-139, and Noonan, 97-107). In response to Gnostic rigorists, they affirmed that marriage and procreation were good because they were created and enjoined by God (Gen 1:28), but not as good as virginity for the sake of the coming kingdom of God. In response to Gnostic antinomians, they insisted with the Stoics that sexuality, though fraught with moral dangers, was good as long as it was confined to marriage and exercised only for the procreation of offspring. These responses to Gnosticism soon became the orthodox Christian position on the nature and ends of marriage. (Noonan, 107-111, and Brown, 133)
In both Jewish and Greco-Roman cultures, the law recognized marriage as a “social fact” with certain juridic consequences, but marrying was almost exclusively a family matter, which took place without the necessary involvement of either religious or civil authority. Although liturgical rites for the celebration of marriage gradually emerged, their observance was not necessary for the ecclesial recognition of the validity of marriage until after the Council of Trent in the sixteenth century. (K. Stevenson, To Join Together: The Rite of Marriage (New York: Pueblo, 1987) 16-55.)
The cultures in which Christianity was born and raised did, however, challenge its understanding of marriage. Jesus had pointedly rejected divorce, but both Judaic and Greco-Roman laws made provision for relatively easy divorce, at least by the husband. Throughout the patristic era, every major Christian teacher excoriated divorce as a grave violation of divine law and contrasted the permanence of marriages among Christians with the instability of the unions of their non-Christian neighbors. [(H. Crouzel, L’Église primitive face au divorce du premier au cinquième siècle (Paris: Beauchesne, 1970)] Nevertheless, there is little evidence that, even after Christianity became the established religion of the Roman Empire, church leaders sought to bring relatively liberal Roman divorce law into conformity with the gospel (or that they could have done so had they been so inclined). P. Reynolds, Marriage in the Western Church (Leiden: E. J. Brill, 1994) 151-153)
AUGUSTINE provided the most coherent and influential synthesis of the emerging Christian understanding of marriage. He defended the essential goodness of marriage against the attacks of the Manicheans, a syncretistic sect which espoused a radical ontological dualism and held that marriage and procreation were to be shunned as intrinsically evil, a sect to which Augustine himself had once been an adherent. Augustine identified a threefold goodness in marriage:
the good of fidelity (bonum fidei),
the good of children (bonum prolis),
and the good of the sacrament or permanence (bonum sacramenti).
This good is threefold: fidelity, offspring, sacrament.
Fidelity means that one avoids all sexual activity apart from one’s marriage.
Offspring means that the child is accepted in love, is nurtured in affection, is brought up in religion.
The sacrament means that the marriage is not severed nor the spouse abandoned...
This is a kind of rule set for marriage, by which nature’s fruitfulness is honored and vicious sexual vagrancy is restrained.
[Augustine, De Genesi ad litteram, ix, 7, 12 [or 9,9,2]), Corpus Scriptorum Ecciesiasticorum Latinorum (CSEL) 28: 275-276]
For Augustine, it was chiefly “the sacrament” that distinguished the marriages of Christians from those of other people. Because of its essential goodness, marriage was a sacred reality and he analogized its permanence to the permanent character arising from baptism. [Reynolds, 293-297] “The sacrament” was primarily the property of perpetuity or indissolubility and not “sacramentality” in its later medieval and modern sense of a sacred rite that causes grace. So strong was this “sacrament” that, even after the irretrievable breakdown of a marriage through divorce, a “conjugal something” (quiddam coniugale) remained and prevented a new marriage. [Augustine, De nuptiis et concupiscentia, I, 11, CSEL 42:223. See also idem, De bono coniugali, 6-7, CSEL 41:196-197; and De adulterinis coniugiis, II, 4, CSEL 41:386] Augustine’s teaching on the perdurance of the sacrament even after divorce sowed the seed from which later generations reaped an understanding of marriage as one of the seven sacraments, one of whose effects was an indissoluble bond (vinculum).
Although Augustine defended the goodness of marriage, he clearly saw it as less good than virginity. Fallen humans were infected with the spiritually deadly virus of concupiscence. Concupiscence was evident in every form of human activity, but it was nowhere more evident than in the sexual instinct, which stubbornly refused to be mastered by reason and will. Hence, even within marriage, sexual relations could rarely be had without the commission of at least venial sin. [Idem, De bono coniugali, 6-7, CSEL 41:194-195] This dark view of sexual relations in marriage was also part of Augustine’s legacy to subsequent generations.
With the fall of the Roman Empire in the West and the settlement by largely Germanic peoples in its former territory, the Church confronted marriage customs that were markedly different from those of the Roman Empire. For these people, marriage did not come about when the parties exchanged consent, but as the end of a process involving several steps. each of which was necessary to constitute marriage: a man’s (or his father’s) petition to a woman’s father for her hand (petitio). betrothal by public agreement of the parties’ families (desponsatio), provision of a dowry to the woman’s family (dotatio), the handing over of the woman to the man (traditio), and the physical consummation of the union by sexual intercourse (consummatio). Until all of these steps had been completed. the marriage was incomplete. [Reynolds. 75-88]
Since decisions about the legitimacy of children and inheritance often hinged on whether a marriage existed, it was important to be clear about what constituted marriage. As the Church gradually acquired jurisdiction over marriage, it was forced to adjudicate matrimonial disputes. Two schools of thought emerged: the School of Paris, represented especially by Peter Lombard, held that marriage was constituted solely by the spouses’ consent in words concerning the present (as opposed to words concerning the future, which gave rise only to betrothal): while the School of Bologna, represented especially by Gratian. held that consent initiated a marriage but a marriage was not fully constituted (and. therefore, could be dissolved) until it had been physically consummated. This scholarly dispute with its enormous practical implications was ultimately resolved by a series of decisions by Alexander III and his successors in the twelfth century [See C. Brooke. 264-270]. These popes held that consent by the parties alone made a marriage [X. 4.4.3] but that, prior to consummation, it could be dissolved for sufficiently grave cause (e.g., entry by one of the parties into religious life) [X, 4.1.16] and that consent in words concerning the future followed by consummation transformed betrothal into marriage without the interposition of consent in words concerning the present. [X, 4.1.15-16] The consequence of these papal decisions was to trans-fer power to constitute marriage from families to the parties themselves and, thereby, to open the door to the social scourge of clandestine marriages, unions entered into without any public form.
Since it was now clear that marriage was constituted by consent and gave rise to certain rights and obligations, the path was open to understand marriage according to the model of a contract, another kind of agreement entered into by consent and giving rise to rights and obligations. While the contractual model for understanding marriage soon triumphed in the West, [LeBras, “Le Mariage,” DTC 9:2182-2186] it was not accepted with the same enthusiasm by the Eastern churches. Marriage was analogized to a contract in later secular Roman law and in the Nomocanon in Fourteen Titles, a collection of conciliar canons and secular laws governing ecclesiastical affairs compiled around 629. Nevertheless, the Eastern churches have preferred to view marriage as a “sacrament” or “mystery of the Church.’ [Meyendorf, Marriage: An Orthodox Perspective (Crestwood, N.Y.: St. Vladimir Seminary, 1975) 19-23]
It was also in the Middle Ages that reflection on Ephesians 5 and Augustine’s teaching on the “good of the sacrament” led the Church to an explicit consciousness of marriage’s sacramentality among the baptized. The first inclusion of marriage among the seven sacraments of the New Law by the Church’s magisterium occurred at the Council of Verona in 1184, perhaps in response to the resurgence of the rejection of marriage and procreation among the Cathars, a heretical sect with Manichaean tendencies. [X, 5.7.9. See Schillebeeckx, 2:165-170]
Although theologians had spoken of marriage as a “sacrament” prior to Verona, there was no clear consensus that the sacrament of matrimony was on the same level as baptism and Eucharist or that marriage was a cause of grace. [LeBras, “Le Mariage,” DTC 9:2196-2201] However, at Verona, the magisterium was running ahead of theology. In subsequent years, scholars struggled to elaborate a cogent theology of the sacramentality of marriage. While there was a consensus among theologians that marriage was the sacrament of the faithful and indissoluble union of Christ with his Church, there was considerable disagreement among them about how a natural institution had been elevated by Christ to sacramental dignity, what were the matter and form of the sacrament, whether the sacrament was a cause of grace, and, if so, what species of grace it caused. [LeBras, “Le Mariage,” DTC 9:2196-2224]
THE COUNCIL OF TRENT AND THE POST-TRIDENTINE ERA
THE sixteenth-century reformers challenged the Catholic Church’s teaching and discipline on marriage. They rejected the sacramentality of marriage, the Church’s jurisdiction over marriage, and its prohibition of remarriage after divorce in cases of adultery. They also sharply criticized the Church’s failure to impose a mandatory public form for the celebration of marriage to eradicate clandestine marriages. [Brundage, 552-561]
The Council of Trent responded to this challenge by defining matrimony “as truly and properly one of the seven sacraments of the evangelical law, instituted by Christ the Lord” [Council of Trent, sess. XXIV, de doctrina, c. 1] and by reaffirming the Church’s authority to establish impediments to marriage, to dispense from them, and, generally, to regulate marriage [Council of Trent, sess. XXIV, de doctrina, cc. 2-12] The council also condemned the reformers who had claimed the “church had erred when it taught and teaches” that the bond of marriage could not be dissolved because of the adultery of one of the partners. [Council of Trent, sess. XXIV, de doctrina, c. 7] The council, nevertheless, studiously avoided condemning Eastern Christians whose discipline allowed for remarriage after divorce because of adultery. [P. Fransen, “Divorce on the Ground of Adultery-the Council of Trent (1563),” Concilium 7 (1970) 95-96] Finally, the council decreed that henceforth, for the validity of their marriages, couples were required to express their consent before their proper pastors and two witnesses. [Council of Trent, sess. XXIV, de ref., c. 1] However, the council decided to make its decree effective only in parishes in which it had been promulgated. As a result, the decree lacked effect in many areas of the world where it could not be promulgated or its promulgation was judged inopportune, until the Sacred Congregation for the Council extended the obligation of observing the canonical form of marriage to Catholics throughout the world. [SCConc, decr Ne temere, August 2, 1907, ASS 40 (1907) 525-530]
SANCHEZ and LIGOURI
on the MEANING of SEX in MARRIAGE
REGARDING the purpose in marital intercourse, Sanchez’s position can be summarized as follows: if one is in the state of grace and does not intend an evil end, one virtually, although not explicitly, refers what one does to God. A married person in this state of mind seeking intercourse acts virtuously. Then, there is no need to fit the intention of married person in coitus to one of the categories of purpose. There is no sin in spouses who intend “only to copulate as spouses”. Thus, the requirement of procreative purpose or the purpose of avoiding fornication is eliminated. Sanchez also applies the methodology of Le Maistre and John Major, namely, the experience of the married couple seeking to love God. “Such a couple seek intercourse because they are married. If they are in a state of grace, and enter into intercourse considered to be natural, they do well. Their virtual intention is sufficient”532.
To the question, “Is conjugal use for pleasure alone a sin?”, Sanchez answers that such intercourse would be a “perversion of order”. That is, pleasure, which is to accompany an act, would be treated as an end in itself. The sin would be venial. However, this answer need not be understood as a rejection of the positive value of pleasure. The key word in the question is “alone”. The question deals with a hypothetical state of mind where other ends are excluded. The couple seeking, by a virtual intention, to serve God while exercising heir marital rights cannot be said as seeking pleasure alone533. However, in the analysis regarding marital intercourse, Sanchez does not speak about the role of love. The value of love is analysed in his discussion on the morality of acts short of sexual intercourse. Asking the question whether the couple may engage in “embraces, kisses and other touching customary among spouses to show and to foster mutual love”, even if there is the risk of ejaculation, he answers that to commit an act which may result in unintended ejaculation is not always evil 534. For example, it is not evil to eat, although as a result there may be unexpected emission during one’s sleep. He further argues that even if it is foreseen that ejaculation may occur, that risk may be justified by an urgent cause. For example. a confessor hearing confessions of a sexual character; a doctor doing a surgery affecting the genital organs535 . Similarly, for the married it is justifiable for the “urgent cause” of the need to “show and foster mutual love”536. Thus, Sanchez differs from the tradition that views all such touches only as preparation for immediate intercourse. Instead, he holds that sexual contacts of spouses apart from sexual intercourse foster their mutual love: “There is an urgent cause for touches of this kind to show and foster mutual love among spouses, and it would be great austerity, and love would be much diminished, if they abstained from touches of this sort”.537
Following Thomas Sanchez, many theologians defended intercourse “for pleasure”. The Augustinian friar Basil Ponce de Leon (1570-1629), John Sanchez (d. 1624), the Jesuits Gaspar Hurtado (d. 1647) and Martin Perez (d. 1660) were some of them. Antonio Diana (1585-1663), a theologian from Palermo, basing on the teaching of the Catechism that one could marry for beauty, and that some theologians would admit that one could marry for pleasure, argued that if one could marry for pleasure, one could have intercourse for pleasure. In general, theologians who defended intercourse “for pleasure” were classed as laxists. On the other hand, theologians who opposed intercourse for pleasure or any form of non-procreative intercourse were called rigorists. Most of the Louvain theologians and French theologians were such rigorists. Though the rigorists succeeded in getting a condemnation of the laxist position from the Holy Office, practically it did not end the theological debate. It was interpreted that only marital intercourse “for pleasure alone” was rebuked, and that intercourse “for pleasure” was not touched by the decree. Thus, intercourse “for pleasure” was still defended by theologians538.
In the continuing debate the position taken by Alphonsus Liguori became decisive. He underscored that the conjugal act did not at all need an “excuse” and that, the marriage act “is in itself permissible and honourable. And this is in accord with faith”539 This conviction is the basis of Liguori’s doctrine about the purpose of marriage, about the intention behind individual marital acts and particularly behind the request of one partner for intercourse540_ For Liguori, the same purposes which a man has in mind when he makes a marriage contract make a request for marital intercourse also morally good541. He held that purposes other than procreative could be considered lawful in marital intercourse and tried to explain his position with reference to the exposition of the ends of marriage. Three ends of marriage were distinguished by him:
1. intrinsic and essential, namely, indissolubility and the giving of a right to one’s body for intercourse;
2. Intrinsic and accidental, namely, procreation of offspring and the remedying of concupiscence;
3. extrinsic and accidental, namely, “to conciliate feuds, to obtain pleasure, and so forth”542.
By making reference to the ends of marriage while speaking on the lawfulness of non-procreative purposes of intercourse, the implication was that an issue involving the ends of intercourse might be decided by examining the ends of marriage. Liguori declared that, alt is certain that if anyone were to exclude the two intrinsic incidental purposes, he would sometimes contract not only validly but even lawfully”543 In particular, the procreative theory of marriage was challenged by this position. Although, according to the cross-reference the ends of marriage determined the ends of intercourse, the question was left unresolved why procreation could be excluded in marriage but not in intercourse544.
Liguori rejected the traditional position that any request for intercourse that was not inspired exclusively by the desire for offspring was always venial sin. Ile declared that such a request itself is evidently permissible and held that marriage as a remedy for concupiscence was lawful, provided that the end of procreation was not excluded545. Haring observes that Liguori freed himself from the “rigid presentation of the question as to whether the request for marital intercourse was a venial sin or not, or whether the concession to the request was actually free of guilt or not when it responds to the necessity of using intercourse as a “remedy for concupiscence” 546. Haring adds that Liguori was able to do this because he saw both the marriage contract and the marital act as expressions of mutual self-giving in an indissoluble union of love547. Haring explains as follows the subtle distinction between the Augustinian-Thomistic tradition and the approach of Liguori regarding the remedial effect of marital intercourse:
For Alphonsus it is the marital act in itself, as the expression of mutual self-giving and as the means of preserving the indissoluble bond of love, which has also, and therefore, a remedial effect. Here we see how vastly different are the Augustinian and Alphonsian concepts of marriage. If the marital act is purely a means to an end and justified only by an immediate procreational intention, then its use as a “remedy” always takes on a grossly material character. But if the marital act is seen essentially and primarily as the expression of mutual self giving in accordance with an indissoluble bond of love. then it has a “remedial” character because of its own nobility and dignity. Hence there is also derived a more sublime moral requirement, that is, so to behave that the marital act may be experienced by both partners as an expression of love548
Although he lived in a patriarchal society. Liguori stressed the fundamental equality of man and wife in the conjugal union and required that the husband should respond with loving solicitude to his wife’s implicit request for intercourse549. Answering the question “If the man retracts himself after semination, but before the semination of the woman, may she immediately excite herself by touches to seminate?”550, Liguori answers that, “All concede that wives who are colder by nature may excite themselves before copulation, so that they might seminate while having marital congress”551. Gardella comments as follows on this approach of Liguori:
With advice of this sort, moral theology was moving into an entirely different world from that in which consent to pleasure had been venial sin and passion held guilty of corrupting seed. Progressing beyond the allowance and recommendation of pleasure, Liguori and his successors developed a positive obligation of the married to pursue orgasm552.
Gardella, however, observes that although Liguori’s approach brought a positive change, a majority of his allowances for pleasure resulted from his suspicion of fallen human nature. That is, the depraved human nature often made demands that required extraordinary action if sins such as adultery or masturbation were to be avoided. That is why the refusal of sex “when seriously and persistently asked” was a mortal sin for the partner refusing553. Similarly, although having intercourse “in an unusual place, such as a church or a public place” would ordinarily be sinful on account of the possible scandal to others or the sacrilege involved, it might be allowed in a case of “necessity”554. Although under most circumstances a husband did not sin by omitting to seek sex from his wife, he would sin by this omission if the wife showed any indication of her desire by which she might seem tacitly to ask for sex, “because in women, on account of their innate modesty, such signs are taken for a true petition”555. In short, husbands and n short, husbands and wives had a duty to watch for the signs of desire so that sin might be avoided556.
Considering the issue whether marriage “principally for the extrinsic accidental ends such as “obtaining pleasure”“ was lawful, he opined that it was lawful, if the intrinsic ends were not excluded and if the extrinsic end was “decent”. According to him, the decent ends were peace, love among relatives, keeping the family honour, preserving health and similar things. Pleasure was among indecent ends. Marriage for the indecent ends was sinfully contracted. Applying this analysis of matrimonial ends to intercourse, it must be concluded that intercourse principally for pleasure is sinful557. However, the implication was that if pleasure was sought not “principally” or “alone”, it would be lawfuI558. Noonan says that it is interesting to see that although “love among relatives” is recognised as a lawful reason for marrying, love between the man and the woman is not at all mentioned as a motive for marriage.
In our consideration, we have tried to emphasise more on how Liguori contributed to a more positive approach to sexuality and sexual pleasure. This does not mean that there are only positive elements in his approach. It may be worth mentioning Vidal’s analysis of Alphonsus’s sexual morality. Vidal points out that sexual morality occupies considerably lesser space in the Alphonsian synthesis and opines that regarding the content, Alphonsian sexual morality does not have a great originality. Sometimes excessive rigidity also can be seen, perhaps for a pastoral prudence, thinking that a rigourism can be more salvific than benignity. In spite of all these, Vidal holds that in his time, some of the moral decisions of Alphonsus were excessively benign. Vidal highlights a few lesser bright aspects of Alphonsus’ treatment on sexual morality, but adds that it is important to acknowledge the very positive qualities that can be seen in his treatment on the morality of marriage. Alphonsus’ general orientation parts with the Augustinian pessimism and situates itself in a more optimistic understanding that he acquired especially through the knowledge of the theology of Sanchez.
531 Of the post-Tridentine moralists, Sanchez (1550-1610) was the authority on marriage. Many other theologians who wrote on marriage were generalists; Sanchez, instead, was a specialist on marriage. His The Holy Sacrament of Matrimony (1602), is said to be the most comprehensive treatment yet given to all the moral and canonical aspects of marriage.
532 THOMAS SANCHEZ, The Holy Sacrament of Matrimony, 9.8. Cfr. J.T. NOONAN, Contraception, 324.
533 THOMAS SANCHEZ, The Holy Sacrament of Matrimony, 9.11. Cfr. J.T. NOONAN, Contraception, 324.
534 Sanchez’s remark makes it clear that he is well aware of the traditional teaching of the theologians: ((How many teachers have I seen asserting it to be mortal among those for whom there is risk of pollution”. THOMAS SANCHEZ, The Holy Sacrament of Matrimony, 9.45.33.
535 THOMAS SANCHEZ, The Holy Sacrament of Matrimony, 9.45.4-5.
536 THOMAS SANCHFZ, The Holy Sacrament of Matrimony, 9.45.37. Sanchez says only that such acts would not be mortal; however, he does not say anything about venial sins. He also adds that he is not defending abase” acts, probably meaning acts like anal intercourse. Such qualifications may be coming from the awareness that he is proposing substantial innovations.
537 THOMAS SANCHEZ, The Holy Sacrament of Matrimony, 9.45.33-37. Cfr. J.T. NOONAN, Contraception, 324-325; Cfr. A. GUINDON, The Sexual Language, 170: Guindon says that views like that of Sanchez soon became permanent acquisitions in Christian conjugal ethics.
538 Cfr. J.T. NOONAN, Contraception, 326-327.
539 ALPHONSUS LIGUORI, Theologia moralis, 6.no. 900. (Liguori’s Theologia moralis was first published in 1748. Here I have depended on the critical edition by L. Gaudé): Cfr. B. HARING, Free and Faithful in Christ. II, 521. Haring has given this as, “This is a matter of faith”. In general I am giving the English translation given by Haring in his Free and Faithful in Christ or Love is the Answer. Where I differ from Haring’s translation, I shall indicate it. Alphonsus makes this statement referring to I Cor 7. And the overall context of this article is that he is here dealing with “De Usu Matrimonii”, pointing out the marital debt of the husband to the wife. He first makes clear the conditions which make the marital act licit and it is followed by the conditions which make the marital act illicit. Differing from Augustine, Alphonsus teaches that the conjugal act does not need an ((excuse”.
540 Cfr. B. HARING, Love is the Answer.
541 Cfr. ALPHONSUS LIGUORI, Theologia moralis, 6.no. 927: Cfr. B. HARING, Love is the Answer, 39. Haring comments that the emphasis is on the word “request”, since the Augustinian tradition allowed only a procreational intention as justification for this request.
542 Cfr. ALPHONSUS LIGUORI. Theologia moralis, 6, cap. I, no. 882: “It is possible to distinguish three kinds of meaning and purpose in marriage: its intrinsic essential purposes, its intrinsic incidental purposes and its extrinsic incidental purposes. There arc two intrinsic essential purposes: mutual self-giving, with the obligation of doing conjugal duties and preserving the marriage union by the indissoluble compact of mutual fidelity. The intrinsic incidental purposes are also two: the procreation of new life and the remedy for fornication. The extrinsic incidental purposes may be very numerous, such as, for example, to conciliate feuds, to obtain pleasure and so forth. From this point of view it is clear that (I) if anyone were to contract a marriage with the deliberate exclusion of its intrinsic essential purpose (in particular with the aim of not doing conjugal duties), he would not only be committing a sin but the marriage itself would thereby be nullified. On this doctrine generally all agree with St. Thomas. It is also certain that (2) if anyone were to exclude the two intrinsic incidental pur-poses of marriage, he would sometimes contract not only validly but even lawfully (for example when someone in advanced age contracts marriage without any procreative intention and without the intention of remedying concupiscence): it is enough that the essential purposes, as set forth above, be firmly maintained”. English translation my own. Cfr. B. HARING, Lave is the Answer, 40; Cfr. J.T. NOONAN, Contraception, 328.
543 AI.PHONSUS LIGUORI, Theologia moralis, 6.882. Eng. trans. my own. Liguori noted that Mary and Joseph were validly married even if ends of second and third kind were not present. Also, the same conclusion held true of an old man marrying without the hope of procreation or without the intention of remedying concupiscence.
544 Cfr. LT. NOONAN, Contraception, 328.
545 ALPHONSUS LIGUORI, Theologia moralis, 6.882. Cfr. B. HARING, Love is the Answer, 45.
546 Cfr. B. HARING, Love is the Answer, 45.
547 Ck B. HARING, Love is the Answer, 45-46. ALPHONSUS LIGUGRI, Theologia moralis, 927; 6.882
548 B. HARING, Love is the Answer, 48.
549 Cfr. B. HARING, Love is the Answer, 46.
550 ALPHONSUS LIGUORI, Theologia moralis, 6.919.
551 ALPHONSUS LIGUORI, Theologia moralis, 6.919.
552 P. GARDELLA, Innocent Ecstasy, 15-16.
553 ALPHONSUS LIGUORI, Theologia moralis, 6.940. English translation my own.
554 ALPHONSUS LIGUORI, Theologia moralis, 6.920.
555 ALPHONSUS LIGUORI, Theologia moralis, 6.928.
556 Cfr. P. GARDELLA, Innocent Ecstasy, 18-19.
As the Age of Enlightenment dawned, secular authorities sought to reclaim jurisdiction over marriage from the Church. To do so, they exploited the purported distinction between the marriage contract and the marital sacrament. The Church could have exclusive jurisdiction over marriage insofar as it was a sacrament, they argued, but, insofar as marriage was a contract, the State had jurisdiction over marriage, like other contracts. The Church’s response to this secular challenge to its jurisdiction over marriage was to affirm with in-creasing vehemence the inseparability and, at times, the identity of the marriage contract and the marital sacrament among the baptized. In 1852, Pius IX affirmed: “It is a doctrine of the Church that the sacrament is not an adventitious quality superimposed on the contract; it pertains to the essence of marriage itself.” [Pius IX, letter, September 19, 1852, CICFontes 2: n. 515]
This teaching was reaffirmed in 1880 by Leo XIII: “Thus there can be no true and legitimate contract which is not thereby a sacrament.” [Leo XIII, ency Arcanum divinae sapientiae, February 10, 1880, ASS 12 (1879-1880) 394] This teaching was incorporated into canon 1012, §2 of the 1917 code which held that, since the matrimonial contract among the baptized had been raised by Christ to sacramental dignity, a valid matrimonial contract could not exist among the baptized “without its being by that fact a sacrament.”
The 1917 code also consolidated a number of other aspects of the Church’s theology and discipline on marriage that had been slowly developing during the post-Tridentine era. Throughout this era, there had been a pronounced tendency toward juridicizing moral theology in general and the theology of marriage in particular. [J. Mahoney, The Making of Moral Theology (Oxford: Clarendon, 1989) 224-258] This tendency was clearly evident in the 1917 code’s hierarchical ordering of the ends of marriage and its narrowing the object of matrimonial consent. Canon 1013, § 1 of the 1917 code asserted: “The primary end of marriage is the procreation and education of children; the secondary, mutual assistance and the remedy of concupiscence.”
So secondary and subordinate were mutual assistance and the remedy of concupiscence to the primary end of marriage that the secondary end could be explicitly excluded from consent without invalidating the marriage, since it was not a sine qua non for the achievement of the primary end. [C. Wynen, January 22, 1944. AAS 36 (1944) 189; SRR Dec 36 (1944) 66-67]. Canon 1081, §2 defined the object of matrimonial consent as “the perpetual and exclusive right to the body for acts which are per se apt to generate offspring.” While the 1917 code’s articulation of the ends of marriage and the object of consent had the advantage of juridic clarity, it was far removed from the lived experience of most married members of the faithful and smacked of arid legalism.
Consequently, not long after the promulgation of the 1917 code, some theologians, while acknowledging the essential ordering of marriage to the procreation and education of offspring, argued that more emphasis should be given to the so-called secondary end of marriage and its personal dimensions. These “personalists” felt that the true Catholic teaching would be more clearly presented if less emphasis were placed on what [had] hitherto been commonly called the primary end of marriage, and more emphasis on the personal elements of conjugal love and the conjugal community of life. [J. Ford, “Marriage: Its Meaning and Purpose,” TS 3 (1942) 333]
The “personalist” project received an icy reception from the Holy See. In 1944, the Holy Office responded negatively to the question “whether the opinion of certain modem writers can be admitted, who ... teach that the secondary ends are not essentially subordinate to the primary end, but are equally principal and independent?” [SCOf, decr, April 1, 1944, MS 36 (1944) 103; CLD 3, 401-402] In 1951, Pius XII affirmed that the essential subordination of the secondary ends of marriage to the primary end is a principle which the very internal structure of the natural order reveals, which the heritage of the Christian tradition embodies, which the Supreme Pontiffs have repeatedly taught, and which finally is crystallized into legal form by the Code of Canon Law. [Pius XII, alloc, October 29, 1951, MS 43 (1951) 849; CLD 3, 403]
THE Second Vatican Council devoted paragraphs 48 to 52 of its Pastoral Constitution on the Church in the Modern World to marriage. Although the council sought only to highlight “some major features of the church’s teaching,” [GS 47] its teaching marked a watershed in the Church’s understanding of marriage. Avoiding the familiar term “contract,” the council consistently spoke of marriage as a “covenant” Although the explicit reason given for this preference for “covenant” was that it was a term more congenial to the tradition of the Eastern churches, [Vatican II, AcSynVat, IV/4:536] the term was also more in harmony with the personalist approach to marriage that suffuses Gaudium et Spes.
This personalist approach was evident in the council’s description of marriage as “an intimate sharing (communitas) of married life and love” [GS 48] and in its repeated emphasis on the importance of conjugal love. The council did not present this conjugal love as a purely spiritual reality. Instead, it taught:
This love is uniquely expressed and perfected through the marital act. The actions within marriage by which the couple are united intimately and chastely are noble and worthy ones. Expressed in a manner which is truly human, these actions signify and promote that mutual self-giving by which spouses enrich each other with a joyful and thankful will. [GS 49]
Ignoring the 1917 code’s articulation of the object of consent as the perpetual and exclusive right to the body, the council defined consent as “that human act whereby spouses mutually bestow and accept each other.” [GS 48] Despite its teaching on the importance of conjugal love, the council reiterated traditional teaching that the “sacred bond” of marriage is indissoluble and that its continued existence is not dependent on the continued love of the spouses [GS 48] and deplored the “plague of divorce.” [GS 47]
The council also reiterated the traditional teaching that “by their nature, the institution of matrimony itself and conjugal love are ordained for the procreation and education of children, and find in them their ultimate crown.” [GS 48] It recognized, however, that marriage is endowed by God “with various benefits and purposes” [GS 48] and that its focus on the procreative end of marriage should not be understood as “making the other purposes of matrimony of less account.” [GS 50] In this, the council passed over in silence the strict hierarchical ordering of ends enunciated in the 1917 code and insisted on by the preconciliar magisterium.
The revised code has attempted to translate this conciliar teaching into canonical language as well as to integrate it with the rest of the canonical tradition.
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