Natural Law, marriage, and the thought of Karol Wojtyla.

• Author: Coughlin, John J.
• Position: Pope John Paul II

INTRODUCTION

At the mid-point of the last century, Dean Roscoe Pound wrote that the legal profession constituted "a learned art as a common calling in the spirit of public service." (1) Yet, contrary to this wonderfully noble appreciation of our profession, lawyers may sometimes take an unreflective and mechanistic approach when counseling a client who is considering a divorce. (2) Over the last five decades, the national divorce rate has risen to approximately fifty percent. (3) Recent significant statistical evidence indicates that the culture of divorce has left neither divorced spouses nor their children in a more advantageous situation. (4) The natural law tradition has long perceived a nexus between the general well being of society and the health of marriage and family life. (5) In the natural law tradition, if marriage is understood as a private, inner experience rather than an objective social reality, the social foundation is destabilized. (6) This essay suggests that natural law affords a more complete and balanced understanding of marriage and family life than the present mainstream perspective, which has its roots in liberal theory. (7)

It is far beyond the modest aims of this essay to provide a complete historical and philosophical analysis of the natural law tradition on marriage or of the developments that have led to the demise in the United States of that tradition. (8) Rather, I shall discuss the loss of the natural law perspective from legal theory. Following this prolegomenon, I shall attempt to sketch in broad strokes two features of the tradition, especially as retrieved in the philosophical writings of Karol Wojtyla. (9) The first concerns marriage and family as the fundamental human community, and the second considers marriage as a virtuous relationship. The two features are contrasted with certain aspects of the understanding of marriage derived from liberal theory. The essay concludes with practical suggestions for the legal profession and legal education with regard to counseling clients about marriage.

At the outset, it must be mentioned that this essay is not intended to propose that divorce be eliminated from the law of the state. (10) To be sure, it would probably be impossible to return our present pluralistic society to a time when divorce was not an option. (11) Yet the culture of divorce and its consequences for individuals and society indicate that perhaps the legal profession ought to pause and reflect about the impact of the current state of affairs. (12) In contrast to an approach in which the lawyer unreflectively views facilitating a divorce as a mechanistic procedure, the natural law alternative suggests, when counseling clients, lawyers might benefit by appreciating the profundity of the marital relationship. Such an appreciation would be beneficial in maintaining a balanced perspective on what is at stake for individuals, spouses, children, and society as a whole.

1. The Demise of the Tradition.

   During the renaissance of law from the eleventh to the thirteenth centuries, the medieval canonists integrated various aspects of religious and secular thought to create a natural law theory of marriage. (13) The theory held that marriage was a permanent association between a man and women intended to nourish the bond of conjugal love and to enable the procreation and education of children. (14) Among the principal effects of the new legal theory were greater equality for the wife; a focus on the mutual and free consent of the spouses as necessary to the validity of marriage; and the possibility of permanent separation from bed and board in cases of adultery, desertion or protracted ill treatment. (15) Although the theory was consistent with the Christian view of marriage, it was thought to stand independent of revelation; it viewed marriage as an association derived from nature for the good of individuals and especially for society. (16)

   A sea change in the understanding of law itself during the eighteenth century belied the general concept of the natural law as well as its position on marriage. A foundational principle of the common law recognized that there existed a superior body of law by the test of which all positive law (17) was to be judged. In application this meant, for example, that although the sovereign might be above the positive law, he or she was bound by the natural law. (18) Blackstone wrote that the common law was "founded in principles that are permanent, uniform and universal ... which every man has implanted in him." (19) This view of the common law, which considered the courts as the depositories of the custom and usage derived from, or at least consistent with, the natural law, was widely accepted in the Colonies at the time of the American Revolution. (20) It was of particular importance in matters of equity, when a chancellor's decision rested on reason and conscience. (21) In Wightman v. Wightman, the famed Chancellor James Kent declared a marriage invalid on the ground of the lack of proper mental capacity of one of the parties:

   That such a marriage is criminal and void by the Law of Nature, is a point universally conceded. And, by the Law of Nature, I understand those fit and just rules of conduct which the Creator has prescribed to Man, as a dependent and social being; and which are to be ascertained from the deductions of right reason, though they may be more precisely known, and more explicitly declared by Divine Revelation. (22) Kent's reasoning reflected the classical notion of natural law as a set a reciprocal rights and responsibilities inherent in the nature of each human being and ordered by divine intention to advance the common good. The classical tradition, however, was gradually yielding to a new theory of individual rights.

   An increasing secularization characterized the approach to legal and political questions during the "golden century of human reason." (23) The Protestant Reformation had led to a growing call for religious freedom as a matter of individual conscience. (24) Although Thomas Hobbes and John Locke acknowledged the validity of natural law, they considered the human being as a free individual who entered the social contract. (25) Additionally, the new economic theories of thinkers such as Adam Smith favored individual liberty to pursue private gain. (26) These various influences gave rise to a theory of law that focused on the rights and powers of the individual.

   The eighteenth century view of law was in harmony with the liberal theory. (27) Government was by the consent of individuals, who entered a "pactum subiectionis rather than a pactum unionis." (28) The era witnessed a gradual shift away from the traditional conception of the common law as a fixed and determinate body of rules reflecting ancient custom and divinely designed principles. Supreme Court Justice James Wilson delivered a series of lectures in 1791, in which he "acknowledged the obligations derived from natural law," but "reduced them to private questions of conscience." (29) Justice Wilson's view reflected the predominant conception of law that held that it was the voluntary consent of individual men, instead of the authority of some higher law, which formed the obligatory basis of statutes, custom, and even the natural law itself. (30) The view was consistent with the theory of John Austin, who held that the state creates the law. (31) It marked the waning of the medieval and common-law conception that the sovereign had power over the positive law, but was bound by the higher principles of natural justice. Statutory law passed by the legislature increasingly was viewed as supreme, as it was thought best to reflect the consent of the people. No longer would judges understand their role as the guardians and interpreters of a higher, transcendent, and immutable corpus of law. Nor would they continue to understand the common law as primarily derived from these higher principles in order to furnish justice in individual cases. (32)

   The transformed view of law led to the prospect that traditional legal structures, such as the institution of marriage, would be eviscerated of the claim to an objective moral value. (33) Marriage could no longer claim a legitimacy based upon its status as a permanent institution derived from human nature, which transcended cultures and history. (34) To the contrary, the existential human situation at any given historical and cultural manifestation might give rise to law that regulated human sexuality and procreation in a variety of ways. (35) In addition to, or theoretically even to the exclusion of, lasting monogamous relationships between males and females, the law might recognize as privileged any number of possibilities such as cohabitation, polygamy, homosexual unions, or some other type of arrangement. (36) The demise of the natural law tradition as affording the moral predicate for legal structures led to the relativity of value. It reduced marriage to merely a social convention, which two individuals elect based upon respective subjective preferences.

2. Marriage and Family as Fundamental Community.

   In contrast to a focus on marriage as a mere social convention reflective of subjective preference, the natural law tradition considers marriage and family to constitute the most fundamental form of human community. (37) This natural community flows from the unity of the person as body and spirit and the complementarity of the sexes. (38) From a teleological perspective, the tradition identifies two inseparable ends of marriage. (39) First, conjugal love, or what Wojtyla describes as the sensual and spiritual intimacy of the spouses in marriage, demands a profound justification. (40) The depth of this community requires commitment on the part of the spouses to a lasting and exclusive fidelity to each other. (41) According to Wojtyla, this special form of love elicits from the participant the total gift of...