Why get married? Christian marriage in the 21st century"It is the year to revalue the beauty of marriage and the Christian family."Christian marriage: a great hopeBorn in Caracas, Venezuela, on June 4, 1962, Héctor Franceschi is a priest incardinated in the Prelature of Opus Dei. He is a professor of Marriage Law at the Faculty of Canon Law of the Pontifical University of the Holy Cross, where he is Director of the Center for Legal Studies on the Family. He is also a judge of the Ecclesiastical Tribunal of the Vicariate of Rome and of the Ecclesiastical Tribunal of Vatican City State.
Prof. Hector Franceschi, what is the meaning of the expression "legal anthropology of marriage", which since the late 1980s has been one of the central themes of your academic activity and scientific production?
-The juridical anthropology of marriage and the family seeks to study and understand each of the interpersonal relationships that constitute their framework, emphasizing the intrinsic juridical dimension of these relationships. From a perspective that we could call "juridical realism", according to which these realities are not mere cultural constructions or the result of the positive juridical orders of the States or of the Church.
Marriage and the family are original and originating realities, with their own intrinsic juridical dimension that must be recognized so that society, the Church and States can develop truly just normative systems that protect and promote the dignity of the human person, not understood as an isolated individual, but as a "being in relationship", which can only find its fulfillment in respect for the truth, for what "is", and in the search for the intrinsic and objective goods of family relationships.
An expression that is a child of the Holy Scriptures and that even finds explicit traces in some papal pronouncements: is it so?
-The expression "juridical anthropology of marriage" was taken up by Benedict XVI in his 2007 Address to the Roman Rota, affirming that "the anthropological and salvific truth of marriage - even in its juridical dimension - is already presented in Sacred Scripture. Jesus' response to the Pharisees who asked his opinion on the licitness of repudiation is well known: "Have you not read that the Creator from the beginning created them male and female, and said: 'For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh'? So they are no longer two, but one flesh. What therefore God has joined together, let no man put asunder'" (Mt 19:4-6).
The quotations from Genesis (1:27; 2:24) re-propose the marital truth of the "beginning", that truth whose fullness is found in relation to the union of Christ with the Church (cf. Eph 5:30-31), and which was the subject of such extensive and profound reflections by Pope John Paul II in his catechetical cycles on "human love in the divine plan".
Later, Benedict XVI makes an explicit reference to juridical anthropology when he states: "Starting from this double unity of the human couple, an authentic juridical anthropology of marriage can be elaborated (...) The contracting parties must commit themselves definitively precisely because marriage is such in the design of creation and redemption. And the essential juridical nature of marriage resides precisely in this bond, which for man and woman represents a requirement of justice and love from which, for their own good and that of all, they cannot withdraw without contradicting what God himself has done in them".
What position to adopt, then, in the face of juridical positivism and a relativistic and merely existential vision of the human person, marriage and the family, in order to make possible a real and fruitful dialogue with contemporary society?
-With regard to juridical positivism, Benedict XVI affirms: "For positivism, the juridical nature of the conjugal relationship would be solely the result of the application of a formally valid and effective human norm. In this way, the human reality of married life and love remains extrinsic to the 'juridical' institution of marriage. A hiatus is created between law and human existence that radically denies the possibility of an anthropological foundation of law".
Then, with regard to a relativistic view of family relationships, he observes: "In the face of the subjectivist and libertarian relativization of sexual experience, the tradition of the Church clearly affirms the naturally juridical nature of marriage, that is, its belonging by nature to the sphere of justice in interpersonal relationships. From this perspective, law is truly intertwined with life and love as its intrinsic duty-being. Therefore, as I wrote in my first Encyclical, 'in an orientation founded on creation, eros leads man back to marriage, to a bond characterized by uniqueness and definitiveness; thus, and only thus, is his intimate destiny fulfilled.' (Deus caritas est, 11). Love and law can thus be united to the point that husband and wife owe each other the love they spontaneously desire: love is in them the fruit of their free will for the good of the other and of their children; which, on the other hand, is also the requirement of love for their own true good."
Precisely because marriage and the family are institutions that belong to the order of reality, of being, their juridical nature is manifested in three essential dimensions: the interpersonal, the social and, in the case of the baptized, the ecclesial. Which of these dimensions is, in your opinion, the most important and why?
-Of the three dimensions, the most important is the first - the interpersonal - since the consent of the contracting parties is the foundational moment of the family community. In fact, if matrimonial consent were lacking, recognition by society and the Church would lose all meaning. This recognition does not have a constitutive character, but rather the recognition of a reality which, it is true, has in itself a social dimension, but which is above all a reality that only two persons, man and woman, can establish by means of their very personal consent, which no human power can supplant (cf. can. 1057 § 1 CIC).
The civil authority and the Church have the power to regulate the exercise of the right to marry, not so much to define or limit it arbitrarily, but rather so that citizens and the faithful can recognize the essential elements of marriage and the family community and thus, through the norms of the particular juridical order, can recognize the family and distinguish it from what the family is not.
In many Western countries, we no longer have a family model. The family is no longer "recognized", but rather "ignored" by state legal systems. In the face of this loss of orientation, how does the Church react?
-The Church has made a great effort to deepen our understanding of the beauty and grandeur of the reality of marriage and the family, an effort that has received a great impetus with Pope Francis' convocation of two Synods on the Family and, more recently, in the new itinerary for marriage preparation that the Holy See has proposed to the Episcopal Conferences and to individual bishops. The Church wants to embark on a new rediscovery of the familyclarifying the intrinsic truth of marriage and the family, also in the light of revelation in Christ, both to its own faithful and to society as a whole, aware of its mission as guardian of a truth it has received as a gift and as a mission, in which the very dignity of the person is at stake.
Hundreds, if not thousands, of pages of the Church's Magisterium have been devoted to clarifying the various aspects of the constitution and development of the family. However, the idea that - speaking in purely juridical terms - the Church would extend her jurisdiction to marriage, but not to the family, is widespread among the Church's jurists. While marriage would be a "contract" elevated to the dignity of a sacrament - which would justify the Church's jurisdiction over it - the family, on the other hand, would be a reality that would enjoy a juridical dimension, but not a "canonical" one. The family would obviously be the object and goal of the Church's pastoral action and Magisterium, but from a strictly juridical point of view, it would have little to do with the Church's juridical order.
On the other hand, it seems to me that this "Family Law" must be found at the basis of any juridical order on the family and marriage, that is, a "Family Law" that is neither canonical nor civil, but founded on the "family reality" and on the recognition of the dignity of the sexed human person, and this is what the juridical anthropology of marriage and the family is aiming at. In other words, "Family Law" cannot limit itself to the study of the positive norms of a given legal system, but must go beyond, to the truth of things, recognizing the existence of a field of reflection that has as its object the intrinsic juridical nature of the family.
Is it correct to say that marriage and family have a legal dimension that is not only intrinsic, but also common to both natural institutions?
- John Paul II affirmed: "What does the family as an institution expect from society? First of all, to be recognized in its identity and accepted in its social subjectivity. This subjectivity is linked to the identity proper to marriage and the family". As important as admitting the intrinsic juridical dimension of marriage and the family is to realize that both have the same juridical nature. Drawing on the words of John Paul II just quoted, we could argue that the identity of the family is linked to that of marriage and vice versa.
In other words, the family is founded by the conjugal covenant, i.e., by marriage. in fieriand a covenant that enjoys the necessary vital openness to the family will be truly matrimonial. This openness is realized in the traditional good of the offspring or, to use the terminology of the Code of Canon Law, in the essential purpose of the generation and education of offspring (cf. can. 1055 § 1 CIC).
In other words, there can be no true marriage if at the same time there is no family. At the very moment of the nuptial covenant, not only is the first family relationship - the conjugal one - constituted, but also the family is born. It is not the very existence of children that constitutes the family, but the openness and ordination to fertility, which is part of the very gift and acceptance as spouses. In fact, it is the marital consent of the spouses that creates the family.
Marriage, therefore, illuminates the path towards the juridical nature of the family, precisely because the efficient cause of both is the same: matrimonial consent. This path towards understanding the inseparable relationship between marriage and family enriches both institutions, because we understand why the family is founded on marriage and, at the same time, we grasp more easily the family nature of the first "family relationship", which is the conjugal one.
Ultimately, law and anthropology can only listen to each other in an attempt to define the duty to be and the dimension of justice inherent in the various spheres of human sexuality and, therefore, in marriage and the family. How?
Whereas ancient kinship systems revolved around the figure of the "father", the kinship system of the Christian West was built around the notion of a loved one. The spouses, in this biblical expression, constitute the unit, and in the family tree they occupy the place of a single social subject: husband and wife are no longer two, but one (for parental purposes, of course).
Contemporary systems have progressively moved away from this legal tradition since divorce has been accorded the same value as the recognition of the right to a divorce. ius connubii (right to marry). Modern legal systems pretend to be built on a falsely "spiritualistic" vision of the human person, understood as "a self-designed freedom", a freedom that would be unlimited to the extent that technology and scientific progress allow it to design itself at will. This is what happens in many Western systems of family law, which deny any objectivity in the fact of being male or female, recognizing, for example, the "right to change sex".
The same dynamic can also be observed in the field of filiation, as demonstrated by the majority of artificial fertilization techniques, the possible cloning of embryos, the phenomenon of "surrogate wombs", etc. According to this anthropological vision, family relationships would be nothing more than socially significant contractual relationships that would not exist as long as the State did not recognize them, but without limits to this power of "recognition", which, instead, would be an absolute power of creation, without any basis in the truth of the person and of individual family relationships. To stop this process of constant deconstruction, the importance of anthropological studies must be underlined.
At present, in my opinion, the problem lies in the fact that anthropologists are not jurists: they do not say what a particular kinship system should be like, but limit themselves to studying and describing it as it is (or as it appears). This is why the development of a "juridical anthropology of marriage and the family" is desirable, one of whose objectives would be to study kinship systems in the light of the dignity of the person. It would not be a matter of creating an artificial system, made "in a laboratory", but of analyzing the logic and dynamics of family identities and relationships, as dimensions ontologically linked to the human person as a "being in relationship".
The legal culture would thus have a basis on which to build the different family systems, taking into account that the fundamental concepts and notions would not be constructed "aprioristically" by the States, but would be defined by the scientific community, provided that it is open to the study of reality and does not blindly follow the dictates of the State or of a certain ideology or pressure groups.
