From the Right to the Body to the Right to Partnership in
North American Scholarship: Whats Missing? A Survey of Studia Canonica in the
1970s and 1980s
Tara Bognar, Poster presented at the Faculty of Law, McGILL University, Montral, Qubec (CMPL 502 - Canon Law)
INTRODUCTION
The consent of bride and groom has always been central to the creation of a marriage. The specific content of consent has changed over time, especially markedly through 1960s and 1970, both theologically and juridically, culminating with the revised code released in 1983. This paper will critically examine articles publised in Studia Canonica that deal with the issue of consent, and especially ius in corpus, throughout the 1970s. This paper has two goals in two parts: to develop an overview of the response the North American community to the changes in the content of consent and to consider the mode of discourse and its implications.
THEN: IUS IN CORPUS, NOW: CONSORTIUM
The concept ius in corpus can be found in canons dealing with marriage and consent in the 1917 code. 082 read:
Consensus matrionialis est actus voluntatis quo utraque pars tradit et acceptat ius in corpus perpetuum et exclusivum, in ordine ad actus per se aptos ad prolis generationem.
In 1082, sexual activity is directly connected to and justified by procreation. Also, vaginal intercourse is required to consummate marriage. The initial consummating sex act, called copula requires free consent. The role of consent in sexual activity after marriage is ambigious. If a spouse had, in his/her mind, reserved the right to refuse consent at will, the marriage could be annulled for a lack of sufficient consent to ius in corpus. (Morissey, 1973 at 10), implying that in a valid marriage it is ontologically impossible to not consent.
In contrast, in the revised code, ius in corpus is absent and partnership is primary:
10961 : For matrimonial consent to exist, it is necessary that the contracting parties be at least not ignorant of the fact that marriage is a permanent partnership between a man and a woman, ordered to the procreation of children through some form of sexual cooperation.
PART I: SURVEY OF ARTICLES
In the articles published in Studia Canonica throughout the 70s and early 80s there is a movement parallel to that of the Code: from an emphasis on perpetual consent to the sexual act towards consent to a perpetual state of marriage.
1971-2 Lesage: Lesage affimed: [le] droit aux actes susceptibles de produire la conception dcoule de la fin essentielle du mariage qui est procreatio atque educatio prolis, and explicitly excluded the possibility of a spouse validly refusing participation in sex (Lesage 1971 at 19,26). The next year, with a subtle change in emphasis, he exhorts: authentic consortium vitae requires that a spouse not make use of his partners body as an object, forgetting that it too has a soul (1972 at 102).
1974 Ahern: Ahern reiterates a distinction that had fallen out of use in the context of ius in corpus: between the possession of a right and its use. That distinction notionally allows the possibility that a couple could agree that although the right to sex exists, they agree to not use it except when sex is mutually desired. Furthermore, he contends that since canonists have taught that sexual relations can be morally refused at times, for example, if one person is sick, there can be no absolute right to sex. Rather: it seems necessary only to give the right to marital relations when it would be reasonable to have them (101).
Ahern makes three important suggestions. He calls for a juridically more complex notion of marriage, rejecting the simple language of rights and duties. He suggests that it is the state of marriage that is both permanent and continuous, not the right to sex. Thirdly, and most radically, he suggests that the right conferred by the permanent state of marriage may be the right to consent to sexual relations. (101)
1976 Ruiz: Ruiz suggests that the qualities of ius in corpus, perpetuity and exclusiveness, ought to describe the state of marriage itself. Thus, he holds that an internal unwillingness to consent to a perpetual and exclusive communaut de vie et damour conjugale should have the same invalidating effect on a marriage as restriction of sexual access. (294).
1976 Jukes: Jukes, innovatively, explicitly refers to sociological realities, noting that in his pastoral experience, the pair relationship is more primary for couples than procreation and ius corpus. (326)
1976 Humphreys: Humphreys characterizes the traditional view of marriage as merely a license for sex and lauds the current deeper thinking about the nature of marriage, that prioritises the community of conjugal life (346). He is open to a dynamic understanding of the marital relationship and looks to the world to define it.
1978 Picard: Picard represents a counter example, insisting that le droit lacte conjugal est intgral (omne jus) et nadmet pas de restriction. (47)
1979 Fellhauer: Fellhauers survey claims authority for the revision of the canons regarding consent and marriage by tracing its origins to early and medieval thinkers. He claims, If theological tradition is an accurate indication, the consortium of husband and wife may be seen to be the most fundamental natural fact of marriage, more fundamental even than procreation (159)
1980 Kenyon: Kenyon seeks to preserve ius in corpus, affirming that each party to the bond has a right to the conjugal act. This right does not admit of limitation, nor does it admit of conditionality. (136-8) The use of the right to procreative sex may be interrupted, but only by mutual consent, implying that mutual consent to the sex act is not required.
1983 Gallagher: Gallagher contends that ius in corpus is implicit in the new code, although he notes that some critics find it not present enough and would like to see a definition of matrimonial consent which combined both the exclusive right to sexual intercourse and the mutual covenant for the consortium vitae. (152)
1988 Mendona: Menona resists the tendency to exclude ius in corpus, insisting that it is encompassed in consortium. (274)
1990 Burke: This paean to the emotional value of procreative sex seems to have mostly given up on the survival of ius in corpus, in and of itself, as a defining indicator of marriage. Rather, consent to ius in corpus becomes a symptom or indicator of whether there has been consent to true consortium. (49)
Although the status of ius in corpus is not really resolved by 1983 (or 1990), the place in a marriage for unfettered, unilateral sexual access of one spouse to the other seems to be greatly reduced if not eliminated. The new legal conception of marriage is much more progressive and that is one of the reasons I find it fascinating that the discourse seems almost completely void of an awareness or sensitivity to gender and feminist concerns.
PART II: ANALYSIS OF THE DISCOURSE
The revised code that deleted ius in corpus from the (at least the explicit) definition of marital consent was released in in 1983. In 1984, Canada criminalized marital rape. I am inclined to think that three phenomena: the feminist movement of the 70s and these two evolutions in the legal treatment of consent to sex in marriage, might be related. One would never think so from Studia Canonica, whose authors seem almost willfully blind the context of their writing.
Occasionally, one can find a hint that an author is aware of the possibility that the law is not as gender neutral as the language of the code. Lesage notes that seeing sex as primarily a source of pleasure is a mistaken masculine conception, and cautions that a spouse not make use of his partners body as an object. (Lesage, 1972 at 102)
Ahern, in his footnotes, actually alludes to the possibity of a husband raping his wife:
if having done all she could be expected to do to persuade the party not to continue seeking relations, relations occurred [italics mine], then the wife may perhaps morally use contraceptives. (974)
This is the closest that any author comes to acknowledging that ius in corpus, is a right that is, in practice, enforceable by husbands against wives but not really the other way around.
In Fellhauers historical survey, he describes a case where
it was judged that the couples decision not to cohabit was a mutual one and that the ius in corpus had not been denied, although the man [italics mine] had never intended to implement it.
The assumption is that the possibility that the woman might have desired it need not be considered because it is clearly the mans perogative to request, or, more disturbingly implement sex, and the womans to not deny it. (Fellhauer, 1979 at 89)
One of the strangest examples of superficial gender neutrality is in an article about impotence. The codal definition of sex requires ejaculation in the vagina, or orgasm, from the male and only the presence of a penetrable vagina from the female. (Hudson 1978 117). Yet, this article notes that
the man was capable of partial penetration and ejaculation despite the lack of sexual pleasure on the part of his wife. The absence of sexual pleasure by one or both [italics mine] parties may indicate a lack of marital affection, but it does not constitute proof of antecedent and perpetual impotence (Bauhoff and Mendona 1990 233)
In fourteen years, only one author openly criticized the concept ius in corpus (Ahern), and the rest simply defended a broader view of marriage. Nevertheless, despite the disinclination to openly consider the implications of ius in corpus on womens lives, the overall shift in both law and doctrine was towards a more feminist, mutual conception of sex and marriage. I wonder whether the fact that proponents of ius in corpus merely restated the principle without bringing an intellectual or conceptual defence indicates that despite the complete absence of explicitly feminist concerns, in the zeitgeist of the 70s in North America, it might have been considered indefensible.
The somewhat oblique relationship between the style of discourse in Studia Canonica and the actual conclusions reached implies that there was perhaps more being not said than said. Perhaps by avoiding the discourse of feminism and womens experiences, scholars preserved their credibility in their academic and religious communities. Perhaps they did not feel competent to or comfortable with bringing a more feminist approach to their studies. Perhaps cultivating the appearance of not critiquing the old Code and of not considering the lived experiences of the law was even necessary to permit the achievement and acceptance of a more egalitarian Code. No doubt, more explicitly feminist approaches to Catholic law found other venues for expression. Certainly, hints of a more humanist, feminist approach to law can be found in Studia Canonica, especially, I would suggest, in the articles of Ahern and Serrano Ruiz: Aherns suggestion that marriage confers the right to consent rather than the right to sexual access, is a shining, brilliant kernel in the decades worth of articles.
Yet it is worthwhile to consider what was lost with this style of discourse. Some possibilities include: the opportunity to explore what marital sex might mean integrated into the framework of partnership from a more egalitarian perspective; the opportunity to explicitly include womens experiences in the body of Catholic scholarship; and the opportunity to honestly explore the actual impact of the law on the lives of individuals.
CONCLUSION
There is no doubt that the evolution of juridical and doctrinal approaches to marital consent throughout the 70s is striking and almost entirely positive from a feminist perspective. The subtlety with which it was approached by elite North American scholars provides a very interesting and unique opportunity to consider the intersections between social change, religious change, and religious scholarship, even in the very limited scope of this paper.
REFERENCES
M. Ahern., The Marital Right to Children: A Tentative Re-examination, 1974 Studia Canonica 8:91-107
J. Humphreys., Questions actuelles de jurisprudence matrimoniale, 1971 Studia Canonica 5:5-27
J. Jukes., Questions actuelles de jurisprudence matrimoniale, 1976 Studia Canonica 10:315-329
G. Lesage., Towards a Further Description of Christian Marriage: An essay of exploration, 1974 Studia Canonica 8:315-329
G. Lesage., The Consurtium viae conjugalis: Nature and Applications, 1972 Studia Canonica 6:99-113
F. Morissey., The Incapacity of Entering into Marriage, 1973 Studia Canonica 8:5-21
J.M. Serrano Ruiz., Le Droit La Communaut de Vie et Damour, 1976 Studia Canonica 10:271-301
G. Lesage., Questions actuelles de jurisprudence matrimoniale, 1971 Studia Canonica 5:5-27
G. Lesage., Questions actuelles de jurisprudence matrimoniale, 1971 Studia Canonica 5:5-27