Tradition and development in the Catholic Church's teaching on marriage: a response to Cardinal Trujillo.

AuthorCoughlin, John J.
PositionAlfonso Lopez Trujillo in this issue, p. 297 - Special Issue: The Nature of Marriage and Its Various Aspects

During the twentieth century, the teaching of the Roman Catholic Church on the nature of marriage remained fully faithful to ancient tradition and witnessed new developments. In his article, The Nature of Marriage and Its Various Aspects, Alfonso Cardinal Lopez Trujillo has afforded a splendid overview of both the timeless and adaptive features of the Church's teaching. (1) In commenting on the article, I have been asked to identify obstacles to the article's reception as well as to suggest possible resolutions. My brief response to His Eminence, Cardinal Trujillo, consists of two parts. First, I suggest that an epistemological issue is raised by the Church's insistence that marriage continues to constitute an objective social reality in the face of modern trends in favor of the subjectivity of marriage. Second, I will discuss the "personalist" perspective on marriage as a twentieth-century development in the Church's teaching, which represents an adaptation to subjectivity even as it maintains the objective tradition. My commentary focuses on Cardinal Trujillo's appeal to the natural law. Natural law holds that traditional marriage consists of one man and one woman who are united in an exclusive fidelity and a permanent bond. (2)

  1. MARRIAGE AS AN OBJECTIVE SOCIAL REALITY

    One of the most fundamental obstacles to the reception of the Church's teaching on marriage is an epistemological one. Toward the beginning of his article, Cardinal Trujillo observes that "[m]arriage is not a kind of 'Christian property' but a patrimony of humanity that affects believers and non-believers. Marriage involves man in his human reality." (3) In keeping with this observation, his article affirms the natural law approach to marriage. Natural law posits that marriage is a fundamental community that is necessary to the good of individuals and society as a whole. (4) For the individual, natural law holds that marriage constitutes a most basic form of human participation and solidarity. It represents the profound justification for the expression of sexual intimacy between a man and a woman. It affords the stable form of life in which children learn of human love and trust from their parents. (5) Socially, marriage is understood as the basic building block for culture and civilization. As an objective social reality, the family unit formed around marriage remains an essential element of the common good. A society's health depends directly upon the health of marriage and the family. (6) From the perspective of natural law, the fundamental community of marriage and the family constitute an objective social reality. (7) Critical of legal positivism, Cardinal Trujillo recognizes that the natural law approach to marriage conflicts with the epistemological assumptions of mainstream legal theory. (8) At the outset, it seems important to contextualize the discussion by acknowledging that the natural law approach to marriage and family represents an understanding of law that is not necessarily widely held in contemporary jurisprudence.

    St. Thomas Aquinas defined law as an "ordinance of reason for the common good, made by him who has care of the community, and promulgated." (9) According to the definition, law must be first and foremost an "ordinance of reason." This requirement raises an epistemological question. In other words, if reason is a primary measure of law, one might ask: "What counts as reason?" For St. Thomas, there is a close relation between law and "practical reason." (10) Practical reason identifies and applies reason for choice. (11) It would be incomplete to describe practical reason as a merely cognitive and abstract mental function of the intellect. Rather, practical reason relies on the harmony of the somatic, emotional, and higher cognitive functions in the human person. (12) Practical reason functions to recognize basic human goods, intermediate moral principles derived from the basic goods, and specific rules deduced from the intermediate principles. (13) Natural law theorists have long held that practical reason reveals marriage as a basic human good, and that practical reason is able to translate the basic good of marriage into positive law. (14) The Thomistic position reflects an epistemological optimism about the capacity of human reason to know the natural law and specifically to recognize marriage as an aspect of natural law. (15)

    In contrast to the Thomist understanding of law and practical reason, Alasdair MacIntyre distinguishes between two rival conceptions of reason that have been hallmarks of post-Enlightenment thought. (16) The first, or "encyclopaedist," conception understands reason as universal, impersonal, and disinterested. (17) It focuses on "the progress of reason in which the limited conceptions of reasoning and practices of rational enquiry generated by Socrates, Plato, and Aristotle were enlarged by their successors, albeit with new limitations, and then given definite and indefinitely improvable form by Descartes." (18) For the encyclopaedist, natural law theory represents a limited conception of reason that was propagated in one variation or another by historical figures such as Aristotle and St. Thomas Aquinas. In the encyclopaedist's view of the progress of reason, the notion of a natural law has long since been abrogated in favor of pure reason, which requires that all legal claims be subjected to rigorous critical evaluation. (19)

    The first modern conception of reason is evident in legal positivism, which calls for the separation of law from moral claims. (20) Legal positivism places a high value on equality and diversity, which are expressed in legal rights independent from moral claims. (21) A claim that suggests a particular group of persons should receive preferential treatment under the law must be based on reason. For the legal positivists, it does not suffice to argue that the claim represents a basic good that is prior to legal rights. For example, the claim of natural law--that marriage consists of one man and one woman who are united in an exclusive fidelity and a permanent bond--would need to sustain the pressure of critical evaluation in order for it to pass as a requirement of reason. (22) Pursuant to the positivist rubric, traditional marriage is not recognized as a basic good prior to any individual's legal right. To the contrary, adherents of this first modern conception of reason would tend to view traditional marriage as one of a number of possible ways in which human beings might elect to order living arrangements. For the encyclopaedist, reason cannot necessarily distinguish among traditional marriage, same-sex marriage, or couples living together without the formal structures of marriage. As this conception of reason requires that the law treat all human persons equally, it follows that the positive law ought to recognize the rights of persons to structure their personal relationships in accord with subjective preference, as long as the subjective preference remains otherwise lawful.

    The competing modern conception, which MacIntyre labels as "genealogy," views all claims of neutrality and disinterestedness as mere facades that mask particular interests and the drive to power. (23) Attributing the competing conception to Friedrich Nietzsche, MacIntyre describes it as "one in which reason, from the dialectic of Socrates through the post-Kantians, both serves and disguises the interests of the will to power by its unjustified pretensions." (24) Legal realism, which approaches law more for its instrumental possibilities than normative content, reflects this alternative modern conception of reason. (25) The critical legal studies movement and certain forms of feminist theory are also consistent with this second, modern approach to reason. (26) According to the genealogist perspective, natural law theory is nothing more than the creation of the powerful to maintain a social order and status that takes advantage of those who are less powerful. The genealogist rejects traditional marriage as an unwarranted and unjustified limitation on the individual's autonomy. MacIntyre points out that the modern conceptions of the encyclopaedist and genealogist are mutually exclusive. (27) The encyclopaedist sees reason as universal, impersonal, and disinterested, while the genealogist views such claims as a ruse that hides the will to power. (28) Nonetheless, the conceptions agree in conferring a unified history of reason. The first conception...

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