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A THEORY OF BONUM CONIUGUM Love your neighbor as yourself! (Mt 22,39) Klaus Lüdicke* It is a great honor for me to be able to speak in honor of Jim Provost.1 From the start, though, I should admit that I speak a language that is understood by a rather limited number of people in canonical circles. Most canonists use English or romance languages rather than German. For this reason, I am also thankful to my colleague Monsignor Ronny Jenkins, who is not only an expert canonist, but also well acquainted with German . I could not have hoped for anything more than to have my manuscript translated by him! The subject that I have chosen for this lecture concerns a theory of the bonum coniugum. When the American Rotal auditor, Kenneth A. Boccafola , recently wrote on this topic, he suggested that it might appear to be an audacious, if not presumptuous one: ,,In these brief reflections about «the good of the spouses» I have tried to understand how and why this term came to be used in c. 1055 of the present Code of Canon Law. We have seen how the object of marital consent came gradually to be considered in a broader sense, namely as also necessarily embracing ordination to the good of the spouses, and this terminology was explicitly introduced into the magisterium and jurisprudence of the Church. The term, used in the Second Vatican Council to underline the personalist rather than institutional aspect of marriage, passed into Rotal jurisprudence under various terms and then was debated by the Commission to Revise the Code and was finally included in the text of the new Code. It seems that most authors and jurists agree both that the «good of the spouses» is an end of marriage and that it is essential that marital consent be ordered to the «good of the spouses». Nonetheless, Tribunal Judges are still struggling to understand the juridic implications of this terminology inserted into the defThe Jurist 69 (2009) 703–730 703 * Professor of Canon Law, Westfälische Wilhelms-Universität München. 1 This text was the sixth annual Provost Memorial Lecture and was given in Caldwell Hall on the Catholic University of America campus on Wednesday, March 18, 2009. 704 the jurist inition of marriage in c. 1055 and whether or not the concept actually adds any new content to the three Augustinian bona that have traditionally been used to express the essence of matrimonial consent.2 I will take the same path with you now that Boccafola took in his article ; but my goal is to present you with a more optimistic outcome. I will treat the subject in this order: 1. From marriage as a contract directed to a purpose to the consortium as a purpose in itself: the so-called personalist image of marriage of Vatican II 2. The adoption of the bonum coniugum by the code 3. Approaches to the meaning of the bonum coniugum a) with regard to content b) with regard to the canonical system 4. The legal relevance of the question concerning the meaning of the bonum coniugum 5. The search for a notion of the bonum coniugum a) doctrine b) jurisprudence 6. The juridic notion of the bonum coniugum 7. The application of the ground of marriage nullity a) Simulation in relation to the bonum coniugum b) Defectus discretionis iudicii, can. 1095, 2° c) Incapacitas assumendi onera, can. 1095, 3° 2 Kenneth A. Boccafola, “Reflections of a Rotal Auditor on the Bonum Coniugum,” Studies in Church Law 3 (2007) 53–71, at 70. 1. From marriage as a contract directed to a purpose to the consortium as a purpose in itself: the so-called personalist image of marriage of Vatican II It is not entirely easy to grasp what happened at the Second Vatican Council concerning its treatment of the subject of marriage. We have had the text of the pastoral constitution Gaudium et spes before us now for more than forty years, and we are (for the most part) content with it. The council achieved its goal of speaking to men and women in the language of the times, and of grasping...

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