**2. Code of Canon Law**

The 1917 Code of Canon Law lays down the lineaments of the Church's traditional understanding of marriage. The Code makes several terse assertions about the abstract nature of marriage, almost all of which were challenged as the twentieth century zigzagged down the decades. The Code begins with the assertion that marriage is 1] a contract, 2] which Christ made a sacrament. The Code lists 3] one primary, but twofold end of marriage, namely, 3a] the procreation and 3b] the education of children. After that it lists 4] one secondary end, which

<sup>5</sup> Haidt, *Righteous Mind*, 146–47; Max Scheler, "Über Scham und Schamgefühl," *Schriften aus dem Nachlass*, vol. 1, 2nd ed. [Bern: Franke Verlag, 1957], 65–152; L. William Countryman, *Dirt, Greed, and Sex: Sexual Ethics in the New Testament and their Implications for Today* [Philadelphia: Fortress Press, 1988]; Paul Ricoeur, "Wonder, Eroticism, and Enigma," *Sexuality and the Sacred*, ed. James Nelson & Sandra Longfellow [Louisville, KY: Westminster/John Knox, 1993], 80–84; also José Noriega, "*Eros* and *Agape* in Conjugal Life: The Mystery of Conjugal Charity," *Josephinum Journal of Theology*, 18 no. 2 [Summer/Fall 2011]: 357; Levio Melina, "The Body and its Vocation to Love in the Catechesis of John Paul II," *Josephinum Journal of Theology*, 18 no. 2 [Summer/Fall 2011]: 342.

<sup>6</sup> For example, recently Livio Melina writes: "contraception introduces into the bodily act of the reciprocal gift between a man and a woman the poison of a lie, which intimately falsifies the act, making it a self-gift that does not give completely, a receiving that does not really accept. It can truly be said that the contraceptive act is no longer a conjugal act: its objective intentional structure is no different from forms of sexual activity aimed only at hedonistic individual satisfaction, incapable of building true personal communion." See, "From *Humanae Vitae* to *Deus Caritas Est*: Developments in the Theological Thought on Human Love," *Josephinum Journal of Theology*, 18 no. 2 [Summer/Fall 2011]: 369.

likewise is twofold, namely, 4a] "mutual help" and 4b] "allaying of concupiscence." Lastly, marriage has two "essential properties," which are 5] "unity" and 6] "indissolubility."

In general, a contract is an agreement of wills between two or more parties. The nature of this consent is laid out by the Code in exact form: "Matrimonial consent is an act of the will by which each party gives and accepts a perpetual and exclusive right over the body, for acts which are themselves suitable for the generation of children" [1917: 1081.2].7 The Code presupposes that the marriage contract is not subject to negotiation. People are free to enter or not into marriage, but they are not free to alter the rights and obligations of this institution. This contract is not structured primarily for the individual needs of the spouses but for producing children for the species.

According to the Code, spouses consent to give and accept a right to use the other's body for purposes of sexual activity. In this, it follows St. Paul: "the wife does not have authority over her own body, but the husband does; likewise the husband does not have authority over his own body, but the wife does" [1 Cor. 7:4]. Once married, spouses must, if asked, pay the marital "debt" of sexual intercourse. Spouses do not have the authority to say, "No." In this sense, marital rape is not possible.

Contracts typically focus chiefly on behaviors and not on the interior attitudes that became so important in personalist philosophies later in the century. In the Code it is not necessary, for validity of the contract, that the spouses have any affection for one another. Indeed, spouses can get married even though they live in different countries and have not previously met.8 This is not to say that the Church encouraged loveless marriage. For example, Pope Leo XIII earlier wrote that spouses "are bound, namely, to have such feelings for one another as to cherish always very great mutual love" [1880: 11; L:6] [1]. But such love is not necessary for the validity of the contract.

One major reason why mutual love is not necessary for marriage is due to the influence of the Pauline writings. While there is a precedent for a connection between marriage and love in Ephesians [5: 25–32], the love urged there is not mutual.9 More importantly, few if any biblical texts have shaped Christian sexual ethics as much as 1 Corinthians 6–7. This text tends to make sex and love incompatible bedfellows. Paul said that a husband should relate to his wife as if he had no wife [1 Cor. 7: 29]. Augustine reinforced this attitude: "Thus it is characteristic of a good Christian to love in one woman the creature of God whom he desires to be transformed and renewed, but to hate corruptible and mortal intimacy and

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copulation–that is, to love the human being in her creaturehood but to hate that

The Code makes a specifically theological claim that "Christ our Lord elevated the very contract of marriage between baptized persons to the dignity of a sacrament" [1917: 1012.1]. It is now widely recognized that this is not a historically true statement.11 Still, after Trent, this claim is asserted to be theologically true, with the hazard that theological truth and historical truth follow separate paths. A further divergence appears in that the biblical Jesus and St. Paul recommend celibacy in sacramental terms, but the Church has chosen not to make vowed celibacy a

The Code draws a not-obvious conclusion from Christ's elevation of marriage:

Central to the Code is its natural law view of marriage's purposes. Activities are distinguished by the ends or goals they pursue. "The primary end of marriage is the procreation and education of children; its secondary end is mutual help and the allaying of concupiscence" [1917: 1013.1]. It should be noted that neither the flourishing of the individual spouses nor their personal communion are ends of marriage. Behind the Code's teaching on the primacy of procreation are the theologies of Augustine and Aquinas. For them, sexual activity was directed to the continuance of the species, not to the good of the spouses. In fact, Augustine thought that sexual activity was usually immoral, though excused by the good of procreation. Thomas developed a rather complete theology of marriage out of the nature of sperm. For him, unlike other bodily fluids, sperm is not directed to the man's good.

<sup>10</sup> Augustine, *The Lord's Sermon on the Mount* in *Ancient Christian Writers* [Westminster, MD: Newman,

<sup>12</sup> St Paul [1 Cor. 7] recommended celibacy instead of marriage. When Paul comments that a wife will be anxious to please her husband, he does not see this desire to please as an expression of love. Rather, he interprets it as an occasion for her to turn away from the Lord. The unmarried are described as holy in both body and spirit, while the married are those concerned about the things of the world. In other words, Paul's advice in First Corinthians does not present marriage as a central relationship where love of

<sup>13</sup> The "therefore" seems to be a reverse reading of history. For much of history prior to Trent, Christians got married without thinking of marriage as one of Christ's sacraments. When then the Church decided that marriage was a sacrament, it became necessary to say that all those previous marriages had been sacraments even if people were not aware of receiving a sacrament. See Joseph Martos, "Marriage: A Historical Survey," *Perspectives on Marriage: A Reader*, Kieran Scott & Michael Warren, eds., 3rd ed. [New

"Therefore it is impossible for a valid contract of marriage between baptized persons to exist without being by that fact a sacrament" [1917: 1012.2].13 This contention leads to some severe problems, which make church law foreign to the intuitions of most people. First, although most Protestant Churches deny that marriage is a sacrament, the Catholic Church teaches that Protestants who marry in fact receive the sacrament in spite of their sincere intention or adamant determination not to receive a sacrament. Second, the Church teaches that Catholics who are baptized but no longer believe are simply unable to get married, even though everyone has a right to get married. On the one hand, they will not and should not ask the Church to marry them, since they no longer believe. On the other hand, their attempt to marry civilly outside of the Church is invalid. Such people, as well as all those around them, likely think they are married, but the Church says they are in fact fornicating. Well-known canonist Ladislaus Orsy, S.J., describes these results

*DOI: http://dx.doi.org/10.5772/intechopen.95101*

which makes her a wife."10

sacrament.12

as "absurd."14

1948], bk. 1, ch. 15, #41.

York: Oxford, 2007], 60.

<sup>14</sup> Örsi, *Marriage in Canon Law*, 56.

<sup>11</sup> Örsi, Marriage in Canon Law, 53.

God and marital love of neighbor unite.

<sup>7</sup> Throughout this essay, references to Church documents will be made in the text itself. The online sites where these documents can be found are listed in the bibliography. Usually, in references to Church documents, I will add an "L." The "L" in the citation refers to translations made by Odile M. Liebard, *Love and Sexuality: Official Catholic Teachings* [Wilmington, NC: McGrath Publishing, 1978]. Liebard's numbering often makes it easier to locate exact citations, since Liebard numbers each paragraph. Unfortunately, he does so consecutively in a way that makes later documents begin their numbering with the next number after the last number in the previous document.

<sup>8</sup> This is still true; see the current *Code of Canon Law*, [1983: 1104.1]; Ladislas Örsi, S.J., *Marriage in Canon Law: Texts and Comments, Reflections and Questions* [Wilmington, DL: Michael Glazier, 1986], 52–53.

<sup>9</sup> Ephesians' recommendation [5:21–33] of mutuality, when spelled out, holds only that husbands should love their wives, in imitation of Christ's love for the Church and, curiously, as a form of loving their own bodies, but that wives should obey and respect their husbands.

*Evolution of Catholic Marriage Morality in the Twentieth Century from a Baby-Making... DOI: http://dx.doi.org/10.5772/intechopen.95101*

copulation–that is, to love the human being in her creaturehood but to hate that which makes her a wife."10

The Code makes a specifically theological claim that "Christ our Lord elevated the very contract of marriage between baptized persons to the dignity of a sacrament" [1917: 1012.1]. It is now widely recognized that this is not a historically true statement.11 Still, after Trent, this claim is asserted to be theologically true, with the hazard that theological truth and historical truth follow separate paths. A further divergence appears in that the biblical Jesus and St. Paul recommend celibacy in sacramental terms, but the Church has chosen not to make vowed celibacy a sacrament.12

The Code draws a not-obvious conclusion from Christ's elevation of marriage: "Therefore it is impossible for a valid contract of marriage between baptized persons to exist without being by that fact a sacrament" [1917: 1012.2].13 This contention leads to some severe problems, which make church law foreign to the intuitions of most people. First, although most Protestant Churches deny that marriage is a sacrament, the Catholic Church teaches that Protestants who marry in fact receive the sacrament in spite of their sincere intention or adamant determination not to receive a sacrament. Second, the Church teaches that Catholics who are baptized but no longer believe are simply unable to get married, even though everyone has a right to get married. On the one hand, they will not and should not ask the Church to marry them, since they no longer believe. On the other hand, their attempt to marry civilly outside of the Church is invalid. Such people, as well as all those around them, likely think they are married, but the Church says they are in fact fornicating. Well-known canonist Ladislaus Orsy, S.J., describes these results as "absurd."14

Central to the Code is its natural law view of marriage's purposes. Activities are distinguished by the ends or goals they pursue. "The primary end of marriage is the procreation and education of children; its secondary end is mutual help and the allaying of concupiscence" [1917: 1013.1]. It should be noted that neither the flourishing of the individual spouses nor their personal communion are ends of marriage. Behind the Code's teaching on the primacy of procreation are the theologies of Augustine and Aquinas. For them, sexual activity was directed to the continuance of the species, not to the good of the spouses. In fact, Augustine thought that sexual activity was usually immoral, though excused by the good of procreation. Thomas developed a rather complete theology of marriage out of the nature of sperm. For him, unlike other bodily fluids, sperm is not directed to the man's good.

<sup>10</sup> Augustine, *The Lord's Sermon on the Mount* in *Ancient Christian Writers* [Westminster, MD: Newman, 1948], bk. 1, ch. 15, #41.

<sup>11</sup> Örsi, Marriage in Canon Law, 53.

<sup>12</sup> St Paul [1 Cor. 7] recommended celibacy instead of marriage. When Paul comments that a wife will be anxious to please her husband, he does not see this desire to please as an expression of love. Rather, he interprets it as an occasion for her to turn away from the Lord. The unmarried are described as holy in both body and spirit, while the married are those concerned about the things of the world. In other words, Paul's advice in First Corinthians does not present marriage as a central relationship where love of God and marital love of neighbor unite.

<sup>13</sup> The "therefore" seems to be a reverse reading of history. For much of history prior to Trent, Christians got married without thinking of marriage as one of Christ's sacraments. When then the Church decided that marriage was a sacrament, it became necessary to say that all those previous marriages had been sacraments even if people were not aware of receiving a sacrament. See Joseph Martos, "Marriage: A Historical Survey," *Perspectives on Marriage: A Reader*, Kieran Scott & Michael Warren, eds., 3rd ed. [New York: Oxford, 2007], 60.

<sup>14</sup> Örsi, *Marriage in Canon Law*, 56.

Rather, sperm is designed by God to continue the species. Thomas then justifies the long-term bond of marriage because the education of children takes many years and women are not naturally capable of doing that task alone.15

Marriage, according to the Code, has a two-part secondary end. This end is to remedy the spouses' insufficiencies and evil tendencies. The first part is "mutual help," which refers to tasks that need to be done in the ordinary course of living, e.g., laundry. The focus is on deeds, not on sharing personal life with the spouse. The second part says that people get married in order to remedy concupiscence. For St. Paul [1 Cor 7:2, 5, 8, 36], marriage is a solution to the problem of lust. Similarly, Aquinas held that marriage is a sacrament because it is a remedy against sin.16 Luther memorably opined, "The temptation of the flesh has become so strong and consuming that marriage may be likened to a hospital for incurables which prevents inmates from falling into graver sins."<sup>17</sup>

While the primary and secondary ends of marriage focused respectively on the child and on the limitations and problems of spouses, the essential properties of marriage, which are "unity" and "indissolubility," name characteristics of marriage as an institution [1917: 1013.2]. "Unity," in the mind of the Code, like *fides* in Augustine,18 is not the same as love. Rather, it is a negative term, meaning exclusivity. It forbids sexual activity with anyone other than one's lawful spouse. "Indissolubility" likewise is negative: it forbids divorce. It is said to acquire "a peculiar firmness in Christian marriage by reason of its sacramental character." The Code had to add a qualification like "peculiar firmness" because from its very beginning the Church has dissolved indissoluble marriages. The Church–due to the pressure of real life difficulties, the Pauline privilege, the Matthean exception for *porneia*, the distinction between *ratum* and *consummatum*, and the Petrine privilege–altered any absoluteness deriving from Jesus's prohibition of divorce. Because of these exceptions, the vast majority of all indissoluble marriages in the world are, in principle, dissolvable. Throughout much of the twentieth century, pressure within the Church for further exceptions increased, often masquerading under the rubric of annulments.

It can be noted in passing, though the point is significant, that procreation is given as the purpose of marriage, not the purpose of sexual intercourse. Subsequently, there arose a focus on the specific nature of sexual act and of how it itself might be violated. Thus birth control even outside marriage eventually became an intrinsically evil act. Subsequently, this allowed the Church to teach that while, for good reasons, it was no violation of marriage to be infertile, it was a violation of sex to prevent it from being fertile. Similarly, there is no assertion of any inseparability between procreation and love since love was not necessary for the validity of a marriage.

Christians should not live by legal codes alone, and so it was important for theologians and the papacy to develop theologies of marriage during the rest of the twentieth century. More sensitive to communal reception and pastoral practice, such theologies progressively modified official Church teaching.

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2.18.65.

Confessors," [1997: III.13].

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The winds of the twentieth century were pushing against the wall of tradition. In response, Pius XI devoted an important encyclical, *Casti connubii*, to the topic of marriage. He resists some changes but welcomes others. Along with his predecessor Leo XIII, he still holds that, in things like marriage and sex, it is "more useful and salutary" that they "remain in their natural state, unimpaired and unchanged." God knows best, and only the wickedness of men would try to change this natural order [1930: 95; 1880: 25] [2]. Crucially, the pope holds that this order "is entirely independent of the free will of man" [1930: 6]. In this view, marriage is not an institution that humans through "trial and error" devised to meet certain needs and that might change when those needs change. The underlying image of marriage is that of entering an institution that has established rules and purposes. One cannot change these rules and purposes. And, once inside the institution, one cannot choose to

Pius XI upholds the absolute sexual prohibitions that have been the hard core of Church teachings in the area of sexuality: "Since, therefore, the conjugal act is destined primarily by nature for the begetting of children, those who in exercising it deliberately frustrate its natural power and purpose sin against nature and commit a deed which is shameful and intrinsically vicious" [1930: 54]. The probable background for these claims is, on the one hand, "sanctity" concerns surrounding sexuality and, on the other, the historical connection often made between contraception and murder, since both are understood to be against "life." The Church does not explain why sexual aberrances are "intrinsically vicious" or "intrinsically evil." In Church teaching few acts other than genital acts are placed in this category. For example, inspite of Genesis 3:16, there has been no prohibition of anesthesia during childbirth, Caesarian sections, or subsequent wet-nursing. To say that some acts are intrinsically evil is to say there are no exceptions. It renders needless any consideration of the particulars of real situations. That is, some acts are wrong, no matter how much good they might bring about or how much evil, for example, the death of

Nevertheless, contrary to this absolutism, the pope makes two strange concessions. Pastorally, he proposes that when one spouse is practicing contraception, the other spouse is guiltless as long as that spouse does not formally consent to the sin [1930: 59].19 For moral theologians, this should be an astounding claim. In no other area of life is such immediate and indispensable cooperating in serious sin allowed. In allowing this exception, which goes back to Augustine,20 the rights and duties of

Pius XI makes a second adaptation that had implications that occupied theologians through much of the rest of the twentieth century. Augustine held that sexual intercourse when procreation could not happen was sinful.21 Instead, Pius XI wrote that, although the "conjugal act is destined primarily by nature" for begetting children, it is not against this nature to engage in sexual intercourse when, due to "natural reasons either of time or certain defects," no children can be begotten [1930: 59]. Around the time of this encyclical, the menstrual cycle of women was being better understood. That new understanding laid the biological basis for the rhythm method and later for natural family planning. Pius proposed that, even

<sup>19</sup> The concession is repeated in the Pastoral Council for Families document, "Vademecum for

<sup>21</sup> Augustine, *Catholic and Manichaean Ways of Life* [Washington: Catholic University of America, 1966],

<sup>20</sup> Augustine, *Letters*, vol. 5 [New York: Fathers of the Church, 1956], #262.

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a wife, they might prevent [1930: 61].

marriage override the strictness of moral theory.

**3. Pius XI**

leave.

<sup>15</sup> Thomas Aquinas, *Summa Contra Gentiles*, trans. Vernon J. Bourke [Notre Dame: University of Notre Dame: 1975], bk. 3. ch. 122. Nevertheless it should be noted that Aquinas also describes a sweet friendship that grows between the spouses.

<sup>16</sup> For Aquinas, friendship and mutual help that are part of marriage belong not to its pre-lapsarian essence nor to its sacramental quality, but to its institution in civil law. ST 3:42.1–2.

<sup>17</sup> Martin Luther, *Luther's Works*, vol. 44 [Philadelphia: Fortress, 1966], 9.

<sup>18</sup> Augustine: *Against Julian* in *Fathers of the Church* [New York: Fathers of the Church, 1957], bk. 3, ch. 16, # 30.

*Evolution of Catholic Marriage Morality in the Twentieth Century from a Baby-Making... DOI: http://dx.doi.org/10.5772/intechopen.95101*
