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Title: Dobro małżonków : identyfikacja elementu ad validitatem w orzecznictwie Roty Rzymskiej
Authors: Pastwa, Andrzej
Keywords: Romana Rota; Rota Rzymska; małżeństwo; prawo kanoniczne
Issue Date: 2016
Publisher: Wydawnictwo Uniwersytetu Śląskiego
Abstract: “The clarification of […] the bonum coniugum exclusion hypotheses must be carefully studied by the jurisprudence of the Roman Rota” said Benedict XVI in 2011, referring indirectly to the diagnosis of the dean of the Roman Rota, Mario Francesco Pompedda, who stated in 1998 that the legal content of the clause of “the good of the spouses” constitutes one of the most crucial hermeneutic issues, which calls for more in-depth research. Now more than ever, the Pope’s memento appears akin to a compass designed to guide the service of the Apostolic Tribunal, one which makes it possible to determine clear judicial standards in the identification of the said element ad validitatem. Service, it is worth to add, which requires integrity and professionalism since, when it comes to the fundamental issues included in the sphere designated by the 2013 Rota allocution “Marriage and the relationship between faith and the natural order” (which, predictably, is where Benedict XVI situates the issue of “clarifying the essential element of bonum coniugum”), the words of John Paul II, who said that “legal hermeneutics requires […] a vision which encompasses the whole body of the Church’s teachings,” appear to become even more significant. In such an obvious way John Paul II and Benedict XVI — titans of spirit and intellect, caryphaeuses of humanism, measured with a simultaneous engagement in fides et ratio—refer to the potential of science. It is, thus, difficult to ignore the invitation expressed in those words—which also highlights the role of the creators of the Rota jurisprudence, “the exemplary juridical wisdom”—for the canon law experts searching for the truth de matrimonio in theoretical research. Indeed, the papal thought—bolstered by the severity of the problem, i.e. the risk of proliferation of erroneous interpretations of ordinato ad bonum coniugum (“the danger that threatens the correct application of the norms on incapacity [and exclusions], […] and to transform the simple shortcomings of the spouses in their conjugal existence into impediment”), particularly in the lower tribunals—calls for serious consideration. This, in turn, constitutes an important challenge for the scholars, as well as the judges of the Roman Rota, to transform (in the spirit of paradigmatic harmonization vetera et nova) personalistic ideas, grounded in tradition and conciliar magisterium, into legal praxis. Therefore, the following attempt of a scholarly approach to the title identification of the ad validitatem element in the Roman Rota jurisprudence is predominantly inscribed into the doctrinal and judicial context delineated above. The methodical ordering of the variety of judicial stances, valorizing the bonum coniugum formula, has been facilitated by the process of distinguishing, within the broad research area, particular premises: genetic and historical as well as epistemological and methodological, which resulted in the formulation of research hypotheses, formulated in the conclusions of the first part of the monograph and then verified (it could be said: successfully) in the following parts. Regarding the hypotheses, it should be noted that there exists a documented fact (included in hypothesis II-2), which proves that a special Papal magisterium, included in his speeches addressed to the Roman Rota, authorizes an optimal methodology of the judicial approach towards essentialia in matrimonio, which consists in leading the discourse along the axis: anthropological realism—judicial realism. Search query of all published (as well as unpublished) sentences pronounced by the Rota, which highlight the bonum coniugum formula to a greater or lesser extent, consciously directed toward the analysis of the two aforementioned surfaces: anthropological and stricte legal, confirmed the validity of that perspective. Thus, it demonstrated that a sine qua non condition for an appropriate selection (according to hypothesis II-3) of consistent jurisprudence with regard to bonum coniugum—both in “non-autonomous” as well as “autonomous” configurations—is the affirmation of the paradigm of the “realism” of the new matrimonial doctrine. Indeed, even though the reliability of the research in the sphere of ius matrimoniale can be encapsulated in the rule which states that “in hermeneutics of the law it is confirmed that the authentic horizon is that of the juridical truth to love, to seek out and to serve” (Benedict XVI), further interpretations of that rule should be, nonetheless, considered in the light of the epistemological postulate of approaching the particular objective issues (in this case: the issue of bonum coniugum) from the perspective of a comprehensive approach to the substantial description of institutum matrimonii in code legislation. It should be also added that the idea of matrimony encapsulated in the phrase toitus vitae consortium (and its subject-oriented explication: “[…] desiring the good of the other, in terms of a true and indissoluble consortium vitae.” [Benedict XVI]) (re)integrates the totality of essential matrimonial interpersonal relations (see: hypothesis I-1). The faithfulness to the “realism” of the renewed matrimonial doctrine, characterized (if one were to disregard the particular meritum of the famous allocutions of the Rota dating 1987, 1988, 1997 and 2001) by the attachment to the objective criteria of the natural character of the marriage, as well as the rule of the comprehensive approach—which, it should be emphasized, constitutes a characteristic feature of all (!) authors of the “exemplary” sentences—guaranteed, in turn, the consistency of the judicial stances analyzed in this monograph. On the one hand, it allowed the auditors of the Roman Rota, who situate “the good of the spouses” either in the sphere of bonum fidei (Raffaello Funghini) or that of tria bona matrimonii (Cormac Burke), to either temporarily (in the first case) or permanently (in the second case) cement the status quo in the “sphere” of substantia matrimonii; moreover, the process included a significant revision in the form of subject-oriented reinterpretation of St. Augustine’s goods. On the other hand, the fact that the other faction—which attributes systemic autonomy to the element of bonum coniugum (within the sphere of hypotheses described in canons 1095 no. 2 and 3 and 1101 § 2 of the Code of Canon Law) — favors the approach of building a “bridge” between matrimonial love (understood as the structural rule of legal relations in the marriage) and the “subjective aim of matrimony” (hypothesis I-2) heavily informed the contemporary—decisive and most probably irreversible—practice of transcending the rigid rules of the tria bona Augustini scheme in procedural designation of iura et officia essentialia. Further research fully corroborated the theories of a highly-regarded Italian scholar of Canon Law, Ombretta Fumagalli Carulli, who postulated that the essence of the new element of ad validitatem (bonum coniugum) should be perceived within the boundaries of three immanent and complementary aspects: (1) the dignity of the person, (2) the value of communion and communication, (3) the ethical imperative of benevolence. It is suffice to say that such a “definition” of the essence of marriage constitutes an excellent framework for both the precursors as well as the current and future proponents of clearly defined jurisprudence (see: hypothesis II-3), especially considering the situation in which—according to the circumstances of the particular cases—uniform treatment of the significance of ius-obligatio ad communionem amoris coniugalis in the context of the gift of marriage would/will dictate the preferential treatment of either the essential aspect of “mutual help” in the biblical sense (Antoni Stankiewicz) or the “dignity” aspect bonum coniugum, clearly connected with the rule of equality “in all that which pertains to the communion of the marital life” (Renzo Civili). The authorial jurisprudence of a highly-regarded auditor José María Serrano Ruiz brings significant contributions to the attempts of solving the issue mentioned in the title (see: hypothesis I-4). However, it should remain an open question whether the ironclad logic of his argumentation will find its future followers: he argues that the true consensus personalis—the expression of personal engagement (accompanied by the integral quantifier: totalitas)—can therefore actualize the necessary matrimonial disposition of the newlyweds (animus) when this constitutive act of covenant of love can be characterized in concreto by such values as truthfulness, responsibility, and openness to communication. All in all, the essence of this process lies in the requirement of true devotion and acceptance between the spouses, i.e. acceptance of the matrimonial goods humano modo. The conclusions, presented as a summarizing comparison between the paradigmatic depictions of bonum coniugum: (I) depictions which appear to have been an instrument of the past (the good of the spouses understood exclusively in nonautonomous configurations); (II) depictions which are open to further developments (the good of the spouses understood in autonomous configurations)—must remain open to discussion, for a lack of a better option. This particular scholarly approach: that of a constant search for the “signs of times,” is grounded in the teachings of Benedict XVI (see: hypothesis II-1) when he says, “Cases in which there is failure to recognize the other as spouse or in which the essential ordering of the community of conjugal life to the good of the other is excluded are [today – A.P.] quite exceptional. The clarification of these hypotheses of exclusion of the bonum coniugum must be attentively assessed by the jurisprudence of the Roman Rota.”
ISBN: 9788322630068
Appears in Collections:Książki/rozdziały (W.Teol)

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