The Relation of the Juridical and Sacramental in Matrimony according to Thomas Aquinas

334 Pages·2012·1.93 MB·English

by  John Mortensen

UNIVERSITÄT FREIBURG

FACULTY OF THEOLOGY

BETH M. MORTENSEN

THE RELATION OF THE JURIDICAL AND SACRAMENTAL
IN MATRIMONY
ACCORDING TO THOMAS AQUINAS

Thesis for Doctorate directed by
PROF. BARBARA HALLENSLEBEN

FREIBURG – SCHWEIZ

2012

Abbreviations of Frequently Cited Works
Works by Saint Thomas Aquinas
In IV Sent. Scriptum super Sententiis, Liber IV
SCG Summa Contra Gentiles
ST Summa Theologiae
In I Cor. Commentary on I Corinthians
In Ephes Commentary on Ephesians
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Table of Contents
Abbreviations of Frequently Cited Works .................................................................................................... i 
INTRODUCTION ................................................................................................................... 1 
The Current Climate .................................................................................................................................... 1 
The Aims of the Present Work ..................................................................................................................... 5 
CHAPTER I: THE ESSENCE OF MARRIAGE ................................................................. 9 
1. The Causes of Marriage ............................................................................................. 11 
A. The Centrality of Consent to Sacrament and Contract ....................................................................... 13 
B. Marriage has its cause in us ................................................................................................................. 17 
2. The Ends of Marriage ................................................................................................. 20 
A. The Two Ends of Marriage and the Common Good ........................................................................... 24 
B. Parents naturally lay up treasure for their children ........................................................................... 27 
CHAPTER II: THE MARITAL ACT ................................................................................. 33 
1. The Marital Act as Remedy for Concupiscence ........................................................ 34 
A. Three definitions of concupiscence ...................................................................................................... 35 
B. Concupiscence as sensual pleasure ...................................................................................................... 36 
C. Concupiscence as disordering ............................................................................................................. 41 
D. The Remedy for Concupiscence is Grace ............................................................................................. 47 
2. The Marital Act as Debt ............................................................................................. 52 
A. The Origins of the Debt ......................................................................................................................... 53 
B. Justice and the Conjugal Act ................................................................................................................ 57 
C. The Marital Debt as a Path of Sanctification ....................................................................................... 58 
3. The Marital Act and Original Sin ............................................................................... 62 
CHAPTER III: LOVE IN MARRIAGE ............................................................................. 64 
1. Marriage as greatest friendship .................................................................................. 65 
A. Friendship and Justice .......................................................................................................................... 66 
B. The Shared Good at the Heart of the Greatest Friendship ................................................................. 68 
2. Charity in Marriage .................................................................................................... 70 
A. Marriage in the order of charity .......................................................................................................... 70 
B. The union of the spouses ...................................................................................................................... 75 
CHAPTER IV: MARRIAGE AND LAW ........................................................................... 80 
1. Slavery in contrast with Law ...................................................................................... 81 
2. Law is true freedom ................................................................................................... 85 
A. Aquinas’s Account of Marriage Seen from a Juridical Perspective .................................................... 86 
3. Marriage and law ........................................................................................................ 92 
A. Marriage as the intersection of procreation and law .......................................................................... 92 
B. Marriage and the common good ........................................................................................................... 93 
C. The Common Good of the Universe ..................................................................................................... 94 
CONCLUSION ...................................................................................................................... 97 
Marriage, Law, and Human Nature .......................................................................................................... 97 
Marriage, Law, and Divinity ................................................................................................................... 100 
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APPENDIX: TRANSLATION OF IN SENT. IV, 26-42.................................................... 103 
Preface to the translation of Aquinas’s Treatise on Marriage ..................................... 103 
A. On Saint Thomas’s Use of Language ................................................................................................. 104 
B. Situating Saint Thomas’s Treatise on Marriage Historically ........................................................... 120 
COMMENTARY ON THE SENTENCES IV ............................................................ 129 
BIBLIOGRAPHY ................................................................................................................ 319 
Primary Sources ...................................................................................................................................... 319 
Secondary Sources .................................................................................................................................. 321 

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INTRODUCTION
The Current Climate
In 1950, Rev. James P. Lyons, described Thomas Aquinas’s importance in the study
of marriage as follows:
Saint Thomas and his school have perhaps done more than any other
theologians to clarify the structure of marriage and to indicate its place in the
divine order of things . . . But beyond this, Thomism has a special value in a
study of marriage, and especially in a study of the philosophical note of the
essential structure of marriage. For Thomism is, par excellence, [quoting
Gilson] ‘the theology of the natural.’1
Lyons also quotes L. Misserey who commented on the French translation of the
Supplement to the Summa Theologiae, “Without any exaggeration one can say that Saint
Thomas has laid out for future generations the diagram of Christian marriage.”2 In fact, it
would not be inaccurate to say that until the 1960s, Saint Thomas’s doctrine of marriage
was considered synonymous with official Catholic teaching.
The Dismissal of Thomistic Marriage Theology
However, since mid-century the prevalent social tumult has largely conduced to the
rejection of Saint Thomas’s treatment of marriage. The same forces that militated against
the Church’s perennial teaching singled out Saint Thomas in particular. In his 1993 article,
“Le remedium concupiscentiae comme fin du mariage,” Theo Belmans, O. Praem.,
catalogues numerous scholars and theologians spanning the 20th century who criticized
Saint Thomas’s teaching on matrimony.3 Belmans’s more extensive work, Le sens objectif
de l’agir humain: pour relire la morale conjugale de Saint Thomas, appearing as it did

1 J.P. Lyons, The Essential Structure of Marriage: A Study of the Thomistic Teaching on the Natural
Institution, Catholic University of America Press, (Washington D.C.) 1950.
2 L. Misserey, Le Mariage, (French translation of the Summa Theologica, Supplement), t.1., 6. Desclee, Paris,
1931.
3 Belmans, “Le remedium concupiscentiae comme fin de mariage.” Revue Thomiste, XCIII (1993), pp.289-
303. Among the authors Belmans cites as directly rejecting or contradicting Aquinas’s teaching are H. Doms,
J. Fuchs, Bernhard Haering, J.-M. Aubert, B. Krempel, L. Janssens, Richard McCormick, John Noonan, M.
Mueller, D. M. Pruemmer, to name only a few; Belmans traces the roots of this movement to the 19th century
work of F. X. Linsenmann.
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toward the end of the period of greatest tumult and confusion, contains an even more
exhaustive list of opponents of Saint Thomas on this subject.4
Undoubtedly part of the reason for this antagonism was the very fact that Saint
Thomas was identified with Church teaching. The comprehensiveness that made him
universally praised and consulted up until that time brought him under attack afterward.
Certainly his very emphasis on order and law provoked much of the opposition.
At the same time, especially in the 1970s and 1980s, a concurrent problem arose.
Thinkers who claimed to support or agree with Aquinas often ended by misinterpreting or
misconstruing his teaching, as we shall see in the case of Guy de Broglie in chapter 1, and
John Milhaven in chapter 2. Even those scholars who do not adopt a stance of dissidence
with respect to the Church may be unaware how easily the categories of modern philosophy
can insinuate themselves into one’s reading of Saint Thomas.
Belmans summarizes the impact of this dismissal and confusion thus:
Le manque de familiarité avec la doctrine de saint Augustin et saint
Thomas, avalisée depuis bien des siècles par l’Eglise—sinon son rejet formel
qui n’est que trop fréquent—nous a valu la situation que nous vivons
actuellement en Occident.5
Time for a Renewed Interest
The last twenty years has seen a renaissance in marriage theology, inspired, fueled
and enriched by John Paul II’s “Theology of the Body”. One aspect of genius in John Paul
II’s masterwork is his use of marriage as prism through which a catechesis of the entire
faith may be given. In a parallel trend, scholars have been returning to Thomas Aquinas in
recent years with new vigor and an appreciation for ressourcement.
Yet these two trends rarely converge. Despite new interest in both the area of
marriage studies and of Thomistic law theory, recent studies of Saint Thomas’s marriage
theology have been relatively sparse. In the realm of marriage studies, Aquinas’s account is
viewed as outdated because of its emphasis on the juridical.6 The contractual terms in

4 Belmans, T. G. Le sens objectif de l’agir humain: pour relire la morale conjugale de Saint Thomas; Libreria
Editrice Vaticana, Citta del Vaticano, 1980.
5 Theo Belmans, “Le ‘remedium concupiscentiae’ comme fin du mariage,” p. 289.
6 For example, in describing changes in the approach to marriage found in Vatican II documents, Tracey
Rowland claims a general sense of relief in the Church’s abandonment of “the Stoic categories for analysing
the sacrament of marriage. Marriage manuals no longer speak of marital dues and rights and reduce the whole
reality of marital fidelity to parental responsibilities.” (Tracey Rowland, Ratzinger’s Faith: The Theology of
Pope Benedict XVI. Oxford: Oxford University Press, 2008, p. 40 ). Rowland descibes the writings of the
popes since Vatican II as tacitly in contrast with the Thomistic tradition, moving toward “an overtly scriptural
presentation of the meaning of human sexuality with reference to a fundamentally personalist ontology, not
narrowly focused on any particular faculty of soul but on the entire person . . .rather than with reference to the
principles of contract law.” (Ibid., p 40-41). Meanwhile, canon lawyer Ladislas Orsy complains that there is
not enough theology in the new Code of Canon Law: “Inevitably, there is a lack of harmony and cohesion; at
times the new and the old coexist in an uneasy and precarious balance. For instance, after the initial emphasis
on marriage as a covenant, the canons revert to the contractual terminology; no less than forty times they
speak of the marital contract or of contracting marriage!” (Ladislas Orsy, Marriage in Canon Law: Texts and
Comments, reflections and questions. Wilmington, DE: Michael Glazier, 1986, p. 47.) Paul Palmer’s
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which he discusses the sacrament, the vocabulary of duty that he applies to marital
intimacy, and the account of procreation as the couple’s duty to the human race mystify
enthusiasts of the poetic, humanistic account drawn from the late Holy Father.
Significantly, John Paul II did more to bring about the current richness in marriage theology
than any other person, yet he did not dismiss Saint Thomas. As Michael Waldstein shows,
the Theology of the Body advances nothing contrary to Thomas’s account, though several
of its themes represent developments and translations of Aquinas’s teaching.7
Meanwhile, Aquinas’s theories of law and government continue to provoke lively
interest in the fields of political philosophy and jurisprudence. While some of this research
addresses various aspects of marriage, these references tend to be tangential or at least
conclusions deduced from Saint Thomas’s principles. Scholars like John Finnis and Jean
Porter, for example, champion a revival of Aquinas’s natural law theory; yet when they
discuss marriage, it is to employ his teaching to advance their own positions rather than
investigating seriously Thomas’s own teaching on marriage.8 In the case of Porter, this
leads to a position directly opposed to Aquinas’s doctrine. Very rarely does current
scholarship study Aquinas’s own account of marriage in order to find what contributions it
can make to theology in light of present developments.
Certainly in some quarters, it is assumed that since Aquinas furnished the model for
marriage theology for nearly 700 years, his teaching has therefore been thoroughly mined
for all that it can contribute to the current conversation. However, this assumption not only
neglects the new considerations that have opened up in the theology of marriage lately. It
also underestimates the discoveries made in the last century in every area of theology, by
returning to the actual texts of Saint Thomas in ressourcement.
A Methodological Obstacle
However, the richness that has arisen from increased ressourcement brings to light
one possible factor in the sparse attention that has been paid to Aquinas’s marriage theology
lately. Saint Thomas of course never finished his Summa Theologiae, so his only

arguments against the construal of marriage as a contract will be examined in Chapter 1, but Orsy’s
astonishment that marriage should be discussed as a contract in the Code of Canon Law itself seems nothing
short of absurd. One of the aims of this paper will be to show that Aquinas’s approach to marriage is very
much “focused on the entire person” and deeply theological—not in spite of his language of “dues and rights”
or “principles of contract law,” but precisely in and through the meaning of the juridical.
7See Waldstein,“John Paul II and Saint Thomas on Love and the Trinity.” First part: Anthropotes, 18/1 (2002),
pp. 113-138; and second part: Anthropotes, 18 (2002), pp. 269-286.
8 See Porter, Ministers of the Law: A Natural Law Theory of Legal Authority (Grand Rapids, Mich: William
B. Eerdmans Pub. Co, 2010), in which Porter argues that Aquinas’s jurisprudence would allow for
homosexual marriages; Kevin Flannery points out the errors in this interpretation in his response: “Marriage,
Thomas Aquinas, and Jean Porter,” (Journal of Catholic Social Thought, Vol 8(2011):2, pp. 277-289). John
Finnis uses Aquinas’s natural law theory to argue against homosexual marriage, but he also fails to grasp
some essential elements of Thomas’s theory of law. His approach will be discussed very briefly in Chapter 4.

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substantial treatise on marriage is found in his student work, the Commentary on the
Sentences of Peter Lombard. Thus, in the Providence of God, Aquinas left no lengthy
discussions of marriage after his earliest analysis, though marriage does receive two much
shorter considerations in the Summa Contra Gentiles. These texts, along with a few brief
references in the Scripture commentaries, Aquinas’s conference on the sacraments, and
similar smaller texts, are all that we have of Saint Thomas’s marriage theology.
One result of this fact is that for the most part we will never know what developments
occurred in Saint Thomas’s thinking with regard to this subject from the time he was a
student at the University of Paris until the end of his career.9 Another consideration that
students of Thomas must keep in mind is that in his most extensive account of marriage,
Thomas was compelled to follow the organizational structure of themes in Peter Lombard’s
Sentences. This fact in itself is no insurmountable obstacle, for Thomas’s commentary is
sufficiently indicative of his own unique vision.
That Aquinas’s teaching on marriage changed very little over the course of the rest of
his career is witnessed to by the fact that his students, commonly believed to be under the
direction or inspiration of Thomas’s socius Reginald of Piperno,10 transferred his text from
the Commentary on the Sentences directly to the Supplementum virtually without change.
Over the last forty years, scholarship has increasingly relied on the treatise on marriage in
the Supplementum alone, since it is commonly considered to be a faithful summary of the
text in the Commentary on the Sentences. Nevertheless, this is a text that Thomas did not
compose. While universally accepted as containing the substance of the treatise on
marriage in the Commentary on the Sentences, the portion of the Supplementum that deals
with marriage does omit portions of Thomas’s original treatment of marriage. It seems
impossible that such an abbreviation of the text could occur without its losing at the very
least some nuances that the original text possessed. Since one of the criticisms laid at
Aquinas’s door is a certain heavy-handedness, a lack of delicacy in approaching the
complex nature of marital relations, it seems especially important to attend to these very
nuances as much as possible. Nevertheless, recent scholarship almost unanimously relies
on the Supplementum rather than the Commentary on the Sentences when considering Saint
Thomas’s teaching on marriage.11
It is therefore as a small attempt to help remedy this lack that we include our own
translation of Saint Thomas’s treatise on marriage (In Sent. IV, Distinctiones 26-42) as

9 An important exception to this statement is the subtle but exciting development traced by Frère Leblanc,
which will be discussed in Chapter 3 (Leblanc, M. “Amour et procreation dans la théologie de saint Thomas,”
Revue Thomiste, XCII, (1992) 433-459). Frère Leblanc’s discovery is a testament to us of how rewarding and
fruitful it can prove to meditate on Aquinas’s own words in a spirit of docility without importing the
categories of subsequent commentators. Through his careful and humble study, Frère Leblanc uncovered a
subtle shift over the course of Saint Thomas’s career and through the medium of his study of Scripture which
affected Saint Thomas’s manner of viewing marriage.
10 Recent editors of Thomas’s works, including the Leonine editors, reject with considerable indignation the
attribution of the Supplement to Reginald (De Textu Critico Leonino Summae Theologiae, Torino: Marietti,
1948, pp. xii). See part II of this work for a brief discussion of the authorship of the Supplement.
11 Two notable exceptions are the article of Kevin Flannery, OP, “Marriage, Thomas Aquinas, and Jean
Porter,” and that of Frere Marie Leblanc, mentioned in footnote 9.
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