What is the Difference in the Definition of Marriage in the Code of Canon Law (1917), in H. Doms Meaning, and in John Paul II's Familiaris Concortio. What Foundation in Scripture and Tradition do the Three Approaches have?

An essay presented for a course in Moral Theology at Allen Hall Seminary .

June 1998 - Oddvar Moi

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INTRODUCTION

The title of the essay indicates that there have been three quite different definitions of marriage in the Church during this century. This is the view presented in Theodore Mackin's book What is Marriage? Marriage in the Catholic Church. He says for example about the understanding of marriage in the Church in this century: "It is a changed conception, some say so changed as to be substantially different from what it was during the first two-thirds of this century and for about seven centuries earlier." [1] It is mainly the application of Canon Law on marriage annulment cases that has given Mackin this understanding. Among many examples he says about the notion of a needed capacity to form a marital relationship: "It was Gaudium et Spes that expanded the meaning of capacity and incapacity beyond boundaries that pre-conciliar jurists had imagined possible. [2]

On the other hand; Ramón García de Haro, in his book: Marriage and the Family in the Documents of the Magisterium, argues through the whole book that the Church's understanding has never changed, though there has been a development. I will be drawing on both Mackin's and de Haro's book as I go through the time period given for the essay. Mostly on de Haro's book, though, since I find his arguments more convincing and more applicable to moral theology - Mackin argues very much fro a Canon Law perspective.

How do I understand the word definition in the title of the essay? Has the Church ever had any kind of precise definition of what marriage is? Mackin answers this question very clearly in the negative: "The Catholic magisterium has never tried to formulate a definition of marriage in the strict sense of this term. ... The neglect or reluctance or refusal to define marriage in this rigorous way is surely evident in Gaudium et Spes. ... the document's description of marriage is too abundant, too diffuse, at points too imprecise in its predicating to quality as such a definition." [3] Since there isn't any definition or understanding of marriage in a strict sense, I will be looking at the changes in the understanding - in a wide sense - of marriage in the Catholic Church during this century.

The title also identifies three documents that are to be studied: The Code of Canon Law (1917), H. Doms Meaning, and John Paul II's Familiaris Concortio. From the context I understand this to mean the three periods of time or three traditions of interpretation, instead of only these three document strictly speaking.

I addition to describing the definitions of marriage in these three periods of time, and comparing and discussing them, I am also asked to mention the foundation in Scripture and Tradition that each of these three approaches have. Since I don't find this point to be a major importance for my discussion of the understanding of marriage, I will deal with it briefly at the end of the essay. The general movement back to the sources - the Bible and the early church - , that is so important for the last decades leading up to Vatican II, applies also to this area, of course. But I have found it to be impossible to do justice to such an important development - back to the 'fontes' in this essay on the understanding of marriage.

BACKGROUND

A quite wide range of descriptions or definitions of marriage have been given through the centuries. There will be no time in this essay to go through all of these, but I will give two examples from the time just before the time period that we will study more in depth starts.

The first example is from the Catechism of Trent, the Roman Catechism, Published in 1566, soon after the end of the Council of Trent, but very influential and much read for centuries. It is quite typical in the sense that it gives a very rich definition of marriage, and it shows "inclusiveness and flexibility". [4] Its definition includes both the contract, the companionship, children as one of the ends of marriage and the several blessing of marriage:

Definition of Matrimony

The Motives and Ends of Marriage

The Three Blessings of Marriage

Offspring

Fidelity

Sacrament

The second document I will look at was published much closer to our proper period, in 1880, and is an Encyclical of Pope Leo XIII, Arcanum Divinae Sapientiae. On Christian Marriage. Here the propagation of the human race is mentioned as an end of marriage, but so is mutual help and happiness of husband and wife:

PERIOD I - THE NARROW DEFINITION OF MARRIAGE

Parallel to this rich understanding of marriage there was another path of development. Here "the goal of marriage that is procreation came under gradually more frequent emphasis". [7] This became more and more clear during the nineteenth century and by the beginning of this century the "definition of marriage had become the product of a reductionist process. Simplicity and univocity had been secured. ... Two major elements from the ancient inheritance were the core of the definition, namely the primary goal of offspring, and the essential object of marital consent, the exchange of the parties' right to their sexual acts." [8] A new thing is the distinction between primary and secondary ends; this is actually the first time anything is called the primary end of marriage.

A background for the definitions of marriage in the Code of Canon Law 1917 is also the felt danger in the Church from modern society. The "doctrinal and legal crisis about marriage in Europe, which broke open in the 17th and 18th centuries, led to a decay in morals. Materialism, the propaganda of the neomalthusians (which obscured the end of marriage), the increasing number of divorces, etc., ended of by shaking the Christian convictions of not a few persons." [9]

As we just saw; in the period in which the Code was promulgated, the majority of canonists conceived marriage as a contract of yielding rights primarily to the body on the part of the spouses. "The Code ... did not give a definition of marriage, perhaps in the desire to avoid a formulation ... less responsive to the theological moral tradition (which tended to emphasise in marriage the community of persons, husband and wife) ... With respect to the ends of marriage, it followed the traditional thesis: it did not include conjugal love among the ends; it placed as the primary end the procreation and education of children, and as secondary ends the 'remedy for concupiscence' and 'mutual help'." [10] Here are a few of the canons from the Code:

In Henry Davis S.J., Moral and Pastoral Theology we have an example of how this new definition was used in practice. Davis' treatment of marriage is, as one would expect, very formal: "Marriage is the lawful contract between man and woman by which is given and accepted the exclusive and perpetual right to those mutual bodily functions which are naturally apt to generate offspring." [12] The primary purpose of the contract is the generation and education of offspring and the secondary purpose is mutual help and the allying of concupiscence. Soon it becomes even more technical: "Marriage as a contract has, for its material object, the persons who enter into the contract. Its formal object is the mutual relation of the contracting parties, to the exclusion of others ..." [13]

Later Davis mentions the two essential properties of marriage. The first is its unity or exclusiveness, which is due to the fact that marriage is an "exclusive contract". [14] The second essential property is its indissolubility whilst both parties to it are alive. "It is intrinsically indissoluble in the sense that the parties cannot dissolve the bond, and this stability is derived from Natural law itself." [15]

Then Davis defines the two purposes of marriage: "The primary and essential purpose of marriage, intended by God, is the procreation and upbringing of offspring. This is an obvious postulate of nature, foe man has this ineradicable tendency." [16] As Davis is writing this book the personalists have presented their alternative understanding, and he argues strongly against them: "No other primary purpose than procreation and the rearing and education of offspring can be rationally maintained. ... This is due to nature itself, and is imposed by Natural law, for Natural law commands man to work out his ultimate perfection. It is, therefore, absurd to think that the purpose of marriage is in any true sense the sexual self-expression of man and woman." [17] After this the secondary and also essential purposes of marriage are mentioned; mutual help and "the allaying of or lawful outlet for concupiscence", [18] described in the traditional (and very technical) way. Finally Davis defines the three "Specific and Substantial Benefits" of marriage, bonum prolis, fidei, Sacramenti, referring often to the then latest Encyclical, Casti Connubii. [19]

This tradition started by the 1917 Code continues in many ways in the Encyclical of Pope Pius XI from 1930, Casti Connubii. On Christian Marriage. Here the pope uses words like: "For each individual marriage, inasmuch as it is a conjugal union of a particular man and woman, arises only from the free consent of each of the spouses; and this free act of the will, by which each party hands over and accepts those rights proper to the state of marriage ..." [20] He also says something very similar to the new tradition that marriage has a primary end: "To take away from man the natural and primeval right of marriage, to circumscribe in any way the principal ends of marriage laid down in the beginning by God Himself in the words 'Increase and multiply,' is beyond the power of any human law." [21]

It is important to note, though, that the primary/principal ends are mentioned in plural, not singular as in the 1917 Code. Pius XI also quotes Leo XIII's Rerum Novarum here, showing that this emphasis on the most important ends of marriage didn't start with the Code of Canon Law. Indeed, it has always been the teaching of the Church, and still is. The novelty was that offspring was identified as the singular, primary end of marriage, and all other ends were secondary.

The Code of Canon Law also limited the definition of marriage very much, from the more elaborate and rich definitions often seen earlier, e.g. in the Roman Catechism. And already in Casti Connubii Pius XI breaks with the new, limited definition, since he "brings to the forefront an element that had once been named clearly in the Catechism of the Council of Trent, but which had since then been almost entirely forgotten. This element is a kind of love specific to marriage, called in the Latin of the encyclical first amor, then caritas." [22]

And he doesn't stop here, but goes on to say that a "sharing of life" is the chief purpose of marriage, when marriage is looked at more widely, clearly showing that the definition of marriage in Canon Law didn't say everything there was to say about marriage. This important paragraph was soon the be quoted in Herbert Doms' book the Meaning of Marriage. [24]

Twenty years after this encyclical, in 1951, Pope Pius XII gives a talk to the association of Italian Midwives, where he presents a very restrictive view of marriage, a much more limited description than the one in Casti Connubii. This is, I think, due to the tension and the debate about marriage that 'raged' the last twenty before this speech. Books on marriage by Herbert Doms and others personalist had for example. been banned in 1944, a fact that Pius XII actually refers to in his speech. The speech is also indicative of the end of Pius XII's pontificate; in the early 50's the Vatican authorities reacted against and censored several modern theologians. Here the midwives are told that "Personal values" and the need to respect such are a theme which, over the last twenty years or so, has been considered more and more by writers. In many of their works, even the specifically sexual act has its place assigned, that of serving the "person" of the married couple." [26]

This is not in agreement with the teaching of the Church, says Pius XII, who then goes on to define the primary end of marriage as the upbringing of new life, and explicitly says that the other ends of marriage are less superior:

The pope doesn't want to deny or diminish what is good and just in personal values resulting from matrimony, and is somehow open to a wider description of marriage. But, he insists, these "must not be divorced completely from the primary function of matrimony - the procreation of offspring." [28] This is of course also the teaching of Vatican II, Paul VI and John Paul II, and for me this example clarifies what this discussion is really about: It is not about now many things that can be included in a wide definition of marriage, but rather what is the most important element of the definition, or about the usefulness or possibility of a narrow and technical definition of marriage. There is obviously also quite a bit of misunderstanding, since words and definition a used in different ways by the authors represented in this essay.

PERIOD II - THE PERSONALIST VIEW OF MARRIAGE

From 1951 we need to backtrack about twenty years to look at the view of marriage that increasingly challenged the Code of Canon Law's very limited definition. This new view was suppressed, but at the beginning of the Vatican Council in 1963 it had obviously had a great impact on the bishops nearly all over the world. To study this new personalist understanding of marriage, we look at Herbert Doms' book The Meaning of Marriage, published in English in 1939, but written in German a few years earlier.

Herbert Doms starts his famous book by saying that "there is a great deal of confusion in the modern world on the subject of marriage - its purpose, essential nature and, consequently, the laws that should govern it. In striking contrast to this confusion, Catholic tradition seems at first sight to adopt a very firm position towards marriage in maintaining that it is first and foremost an institution ordained for the procreation and education of children, an end to which all the other ends are to be subordinated." [29] Doms continues to say the Canon Law is very clear on this point and that this view originally comes from St. Thomas Aquinas. [30] A large part of Doms is actually used to discuss and attack St. Thomas' view on marriage, and partly also St. Augustine's view (e.g. on p. 46). A whole chapter with this discussion is not included in the English edition, though, since the publishers considered it to be too technical.

The teaching of the Church on marriage is not well received in the moderns days of the 1930s, though, mainly because new knowledge acquired through psychology understands marriage in a very different way. More attention is given to the actual relationship between husband and wife and theologians have started to "distinguish between the meaning and the purpose of marriage and of physical union, and to specify community in love as the 'meaning.'" [31]

And, very surprisingly for many, this "emphasis on marriage as a community rather than as merely an institution to reproduce and educate children has for centuries been part of the teaching .. of the Catholic Church." [32] Doms identifies two streams of thought; one regarding the child as the principal purpose of marriage and the other putting more emphasis on the unity of husband and wife, and the help they give one another.

Doms then identifies several theologians and other sources that give an alternative to view of marriage in the 1917 Code. First he mentions St. Bonaventure and St. Alphonso Ligouri and he quotes extensively from the Roman Catechism. This catechism that was published after the council of Trent gives as the first reason why man and woman should marry precisely the community of the sexes: [33] "This catechism lays far more emphasis than does St. Thomas on the need of husband and wife for intimacy and on the supernatural basis of their deep moral community. It explains why Christ chose just this sanctified union of man and woman as symbol of His intimate union with the Church." [34]

He mentions several other theologians and finally arrives at the Encyclical published only a few years before his own book. "Discussion of this point has recently been very lively. The Encyclical Casti Connubii has taken it into account in refusing to consider marriage just as an institution for the generation and upbringing of children. ... It is a matter of great importance that the Encyclical should have adopted this position. There has of course been no fundamental change of attitude; love and community of life have always been recognised as a true purpose of marriage, if not the first purpose. The Encyclical is important because it provides a timely recognition that we are not unjustified in looking at marriage from a point of view different from that of St. Thomas." [35]

Through several chapters Doms looks at sex and procreation and says among other things that: "There is no doubt at all that the chief biological reason for having sexual differentiation in plants and animals is to preserve and propagate the species", but is it the only or the chief reason for the sexual differences between man and woman? [36] For humans sex is very important and "is easily the most powerful factor of all social and cultural structures. .. The sexual act originates in the depths of the spirit because it is freely willed and involves the giving of the whole personality to somebody else." [37]

Doms claims that the sexual apparatus is meant to "serve husband and wife at least as much as it is meant to serve their children. ... Men and women are drawn together by their desire for completion. They want as persons only to fulfil each other. But thanks to nature they tend, when they do this, to procreate new human beings." [38]

Doms sums up his main points in this way:

Doms, von Hildebrand and other theologians with similar view met resistance, as we have already seen. But it is important to point out that Doms was not a 'liberal' and that he didn't attack the moral teaching of the Church in any way. He says very clearly for example that marriage is for life. And the reasons he gives for this view is an integral part of his understanding of marriage. It is because the sexual act is a complete self-giving; it "can only be fulfilled in an indissoluble marriage." [40] Likewise he argues against artificial contraception: "To put an artificial object in the way of this fulfilment (i.e. the man's seminal fluid entering the woman's vagina) represents a corruption of the integrity of the act itself." [41] This last argument is very similar to Humanae Vitae, and the teaching of John Paul II.

PERIOD III - THE PRESENT UNDERSTANDING OF MARRIAGE

Before Vatican II marriage had been described in many different ways by the Church: As a consent to a union between a man and woman, with the end of procreating and educating children, a "conjugal society" (Leo XIII), a "spiritual and moral union" (Pius XII in 1953) or simply "the idea of consent to the yielding of mutual right to the body" (Codex Iuris Canonici, 1917). [42] Ramón García de Haro insists that "the Magisterium had never understood conjugal love as a secondary end of marriage. Therefore, Vatican Council II will be able to locate it - without disturbing but rather developing the Tradition - as the formal, life-giving principle of the conjugal community: a community of life and love, whose end is the procreation and education of children." [43]

The task assigned to the Council, according to de Haro, was "to find, in a world that was progressively becoming de-Christianised, appropriate ways for bringing to life the rich doctrine of the Church" [44] and apply this to marriage and several other issues. Applied to marriage, the only solution that would work, was to "awaken once more the energies planted by God in the family, promoting .. holiness in marriage and in the family, in the midst of the world, and in this way lead the world back to God." [45]

The Council absolutely needed to speak about marriage in a human and pastoral way, and less with juridical and technical terms. In addition to this change of language, the understanding of language had also developed in some areas. One change we already have looked at is the new personalist understanding of marriage, which by 1963 had influenced the bishops more than most people expected. One example of this influence is Karol Woytila's book Love and Responsibility from 1960. Another important change was a reintroduction of biblical terms to describe marriage, most important of all the term covenant.

The result of all this is that the way marriage is described in the documents of the Council clearly changed; the word end disappears - especially primary and secondary ends, and the former third end; remedy for concupiscence is taken completely out - , the word covenant is used instead of contract (except in some translations of Gaudium et Spes) and the love between husband and wife is more clearly described than ever before. The Council really accomplished a lot in defining doctrinal questions that had not been fully resolved before: It expressed "more precisely the nature of the conjugal covenant in a way that would foster a better understanding of the place of conjugal love within marriage (and it) shed light on the relationships between love and procreation." [46]

When we turn to Vatican Council's Pastoral Constitution Gaudium et Spes. The Church In The Modern World, we can identify three important truths that are affirmed about marriage: 1) Marriage is presented as a specific vocation to holiness, in a way never previously done in a document of the Magisterium. 2) (The most important point for this essay) The definitions of "the role of conjugal love in the structure of marriage, (is) a necessary aspect for understanding its dynamism and (was) at the time the subject of no little polemics, due both to an inexact understanding of the data of Tradition and to the influence of ideas nourished by the growing selfishness of the environment." [47] 3) The relationship between love and procreation is clarified.

It is impossible to do justice to Gaudium et Spes in this essay; I will only quote a little bit from No. 48 - showing how well the Council fathers were able to reconcile and integrate all the discussed areas of the understanding of marriage - and add two comments:

The first thing to note is that the former perceived tension between love and the institution of marriage is resolved and seen to be complementary in this document. "Love and the institution 'come to be in a mutual and essential dependence, and they constantly require each other: love has need of the institution in order to be conjugal, and the institution of marriage always implies a radical exigency to be enlivened by love.'" [49]

Secondly, the document also resolves the much debated question about the ends of marriage. Gaudium et Spes teaches as the Church always has taught, that conjugal love has as its intrinsic end the procreation and education of children. The new is that this is the end both of the institution of marriage and of conjugal love. [50] (See quote from GS, no. 48 above.) "The most novel affirmation of GS, and that which signals true theological advance of the issue, is that conjugal love - and not only marriage - has as its end the procreation and education of children." [51]

Soon after the Council, in 1968, Pope John Paul II published his Encyclical Letter: Humanae Vitae, On the Regulation of Birth. This document is of course famous (or for some infamous) for its teaching on contraception, but it also has a very rich teaching on conjugal love. Developing further what had been accomplished at the Council, it marks a deepening of the personalist conception of marriage. In it, conjugal love is described as "destined not only to give life to the personal communion of the spouses, but it is the way in which they cooperate with God in giving life to a new human person. By their mutual self-donation, the spouses not only 'seek a communion of persons' in order 'perfect each other', they also through this communion, 'share with God the task of procreating and educating new living beings'." [52]

The love between husband and wife are also described in this beautiful way in the Encyclical:

The last document we will look at in some depth is also the place where the Church's teaching on marriage and the family is most developed. In 1981 Pope John Paul II published the Apostolic Exhortation Familiaris Consortio, On the Family, a document he himself called: "A summa of the teaching of the Church on the life, the tasks, the responsibilities, and the mission of marriage and of the family in the world today." [55]

The exhortation is a result of the fifth Synod of Bishops in Rome in 1980. Therefore the document gathers together the proposals of bishops from all over the world, and in it the teaching of Vatican II on marriage and the family is "deepened and amplified." [56] John Paul II's own interest in and teaching on marriage from as early as the late 50's is clearly also a reasons for the document's clarity and profound content. It is a very long exhortation and I will only mention a few aspects from Part II: The Plan of God for Marriage and the Family. This part discusses the notion of marriage, its fundamental structure and its origin in the conjugal covenant.

In this Part II marriage is presented as a community of persons, brought to life by love and at the service of life. The principal novelty of Familiaris Consortio in this respect is "in the profundity with which it succeeds in showing how the various goods and properties of marriage flow from the very reality of the person and of his innate vocation to love. This allows it to deepen the personalist concept of conjugal love, already shown to be so fertile in Gaudium et Spes. .. Moreover, the rooting of the person in the person of the image of God who is Love gives to the traditional teaching of the Church on marriage an incomparable attractiveness." [57]

The origin of conjugal love, a love that is both faithful and exclusive, is rooted in, and the spouses are united in the fact that that they are created in the image of God:

The exhortation also sheds new life on the relationship between conjugal love and procreation. Like Gaudium et Spes it insists on the fact that the ordination to life is not a characteristic only of the institution of marriage, but also of conjugal love itself: "According to the plan of God, marriage is the foundation of the wider community of the family, since the very institution of marriage and conjugal love is ordained to the procreation and education of children, in whom it finds its crowning." [59]

Familiaris Consortio takes a new step in deepening the Catholic doctrine on this matter, when it shows, "in vigorous language, that the tendency to give life is the deepest inclination of true love, its essential truth": [60]

Finally (in my brief study of the document), the understanding of marriage is deepened even more when it is stated that the community of marriage and conjugal love reach their proper perfection in Christ. Christ on the cross is the fullness of the revelation of God's love for us, and the sacrament of marriage then "becomes a sign of and a participation in the new Covenant." [62]

To conclude this treatment of the third period I will include a few quotes from the Catechism of the Catholic Church (1993), that show how well the conflicts and disagreements of the first part of the century have been resolved with and after the Council:

On the Sacrament of matrimony

On the 6th commandment

FOUNDATION IN SCRIPTURE AND TRADITION

Finally we will look a little bit on how these main three traditions for understanding marriage are founded in Scripture and Tradition. At first sight they seem to use mostly the same tradition, at least when it comes to Scriptures; where they all refer to Genesis, Jesus in Matthew 19, Paul in 1 Corinthians and Ephesians, and sometimes other New Testament writing. There is sometimes also an indirect reference to the ancient Roman and German tradition of marriage, much discussed in the Middle Ages. There is only one exception here: The Code of Canon Law 1917 has taken out all references to the Bible, from where they used to be in the older compilations of the Canons.

Also when it comes to Church Tradition the use is fairly similar in the different documents. In Arcanum, 1880, St. Jerome is referred to several times, and St. Augustine is mentioned two times in the text and two times in the footnotes.

In Casti Connubii, 1930, St. Augustine is quoted more than in any other document - 10 times in the text and as many times in the footnotes - indicating the dependence on St. Augustine for this more narrow definition of marriage in this Canon Law tradition.

In Gaudium et Spes, 1965, the Scripture references are the normal ones and both Pius XI and Pius XII are quoted in addition to St. Augustine (4 times in footnotes) and St. Thomas (3 times in footnotes).

Humanae Vitae, 1968, refers to St. Thomas once but not at all to St. Augustine. In addition to this, several document from II Vatican Council are referred to and so are the (old) Roman Catechism.

Familiaris Consortio, 1981, is the only document to have a few references to Old Testament books other than Genesis - Hosea and Ezra. The Church Fathers St. Tertullian and St. John Chrysostom is also referred to addition to St. Augustine, two times, and St. Thomas four times.

I also mentioned earlier in the essay (page 8) how Herbert Doms argues strongly against St. Thomas and partly against St. Augustine and how he later (page 9) agrees more with St. Bonaventure and St. Alphonso Ligouri and finds much support in the Roman Catechism.

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BIBLIOGRAPHY

DOCUMENTS THAT DESCRIBE THE HISTORICAL DEVELOPMENT

HISTORICAL DOCUMENTS (ordered chronologically)

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NOTES

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