Imposibilidad De Cumplir O Incapacidad De Asumir Las Obligaciones Essenciales Del Matrimonio?: Historia, jurisprudencia, doctrina, normativa, magisterio, interdisciplinariedad y psicopatología incidentes en la cuestión by Eloy Tejero (review)

258 the jurist IMPOSIBILIDAD DE CUMPLIR O INCAPACIDAD DE ASUMIR LAS OBLIGACIONES ESSENCIALES DEL MATRIMONIO?: Historia , jurisprudencia, doctrina, normativa, magisterio, interdisciplinariedad y psicopatología incidentes en la cuestión, by Eloy Tejero. Pamplona : Navarra Gráfica Ediciones, 2005, Pp. 1305. The Spanish contribution to collective canonical research is immense, to which this extensive new opus bears further testimony. The title of the book reminds us of the familiar features of canon 1095, 3º; but Tejero, well known in canonical circles, displays its origins and analyzes every facet of its development from 1917 to the present day. This enormous volume contains twelve hefty parts totalling forty-one chapters, a table of contents logically unfolding a full up-to-date bibliography, and references , including an extensive list of Rotal decisions pertinent to canon 1095 and the DSMs. In the twenty- nine pages of introduction alone, he explains the reasons for this research and indicates the abundant possible uses or abuses of the canon which might impede canonists from determining other grounds. For Tejero, the origin of the problem lies in the confusion arising from maximal usage, in certain Rotal sentences, of the terms ‘possibility-impossibility’ as if they were the equivalent of ‘capacity-incapacity’. He describes the evolution of the terminologies from impotence to moral impossibility and canonical incapacity. Many topics and juridic concepts related to canon 1095, 3º are extensively treated with a rational precision and prompt the reader to abandon all fuzzy thinking. Tejero’s analysis of the canon produces a labyrinth of subtle distinctions. Since paragraph 3º is a negative concept, he first analyzes the positive concept of “capacity” and the difference between capacity , ability, possibility, and facility in matters of matrimony. The author concurs with the many Rotal judges that consensual incapacity is the strongest term of all, and systematically probes the difference between the act of assuming and the act of fulfilling the essential obligations. The verb assumere in paragraph 3º brings us back to the moment of consent, the matrimonium in fieri: that one assumes the obligations and achieves their fulfilment can be observed only in the matrimonium in facto esse. When the 1983 code was promulgated, even the experienced Rotal ponentes found it difficult to specify what those essential obligations are, apart from the well known jus in corpus. This has been a cause of complaint in local tribunals. Tejero adds that among the canonists of the 1950s onwards, there has arisen a specific description of the essential obligations of matrimony, a description that is unknown outside its canonical treatment and is a real enigma, though it has been well re- ceived in paragraph 3º—it remains within the specific individual cases. Of course, the traditional bona and other related canons such as 1055 are to be kept in mind. Tejero observes that a couple, by mutual agreement, are free to decide not to carry out some elements of married life, even basic ones. His opinion is that paragraph 3º deals with the subject’s capacity for matrimony in fieri, and the expression “essential obligations” is to be understood in relation to this marriage in fieri. He alleges that psychiatrists repeatedly insist on drawing attention to certain psychic disorders which hinder the will by disturbing the understanding . While he shows the autonomy of paragraph 3º (psychic incapacity ) in relation to paragraphs 1º and 2º (lack of sufficient use of reason and grave lack of discretion of judgment), he affirms that all three species have enough in common to preserve an essential unity in canon 1095 as a whole. He also insists that we must get our meanings clear: Do we mean the incapacity of the subject to posit the juridic act that makes marriage ? Or do we mean the impossibility, inability, or difficulty to carry out the objective acts that properly belong to married life? He gives an account of how psychiatric expertise was brought into jurisprudence around the 1950s to the 1980s, in reference to consensual incapacity in anomalies involving homosexuality and nymphomania, which could give rise to simulation with the exclusion of the triple bona conjugii. When discussing simulation, he alerts us to beware of the term “not assuming .” We must not confuse...