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Javier Hervada e-mail(Inicie sesión)

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Javier Hervada e-mail(Inicie sesión)


1. In response to the question whether matrimony is a society or a community, it is emphasized that the question, as such, is improperly formed, because, while the concept of society that has been applied to matrimony is a philosophical-juridical notion, the notion of community is a sociological concept. Matrimony is a society -a union for certain ends- but it presents differences in regard to the notion of society in general, elaborated by the proponents of natural law. For this reason, it must be considered as a society in the strict, but analogical, sense. Matrimony is also a community, but its essence is not the community of life nor the community of love, but the «unity of the man and the woman in their natures». Matrimony can be described as the community which the man and woman form, whose basic structure is founded upon the unity in the natures. Two individual and complementary natures are integrated by means of a juridical coupling which binds them, and, by the virtue of which, each spouse is a co-participant of the other in manhood and in femininity. The community of life and of love are contained in the «unity of the natures», and, from this unity, these elements are born as its own manifestations and attributes. But they are not the essence nor the formal constituent of matrimony.

2. Having analysed with care the nature of conjugal love, it is concluded, affirmatively, that this love is not the loving sentiment, without an act of the voluntad (dilectio). Its essence is not, properly speaking, sensible love, but rather the love of the will. Conjugal love is a specific type of love. One loves the entire person of the other spouse, but in as much as he is a man or she is a woman. One loves the person, characterized by the sexual distinction. Conjugal love is not the end of matrimony. In regard to matrimony, such a philosophical category is not applicable to love, because it is not a product of matrimony, but something previous to it, and its principal motor. Love is related to the ends of matrimony because those ends are the proper works of love, which is an operative force. There are two essential characteristics of conjugal love: fullness and totality. These include the surrender for all of one's life (perpetuity). the exclusiveness (unity and fidelity), and the loving of the other spouse in all of his or her sexual dimension (the acceptance of the other's potential paternity or maternity; to love the other as a possible father or mother, without excluding completely or in part the fecundity of the union).

3. Man and woman, by nature, have some differentiating traits which, by their own virtue, are complementary. The complementing cannot be denied, but it does not signify that the man is superior to the woman. Both are equal in value and dignity: not only in that which they have in common (to be human persons), but also in those things which each possesses distinctly (masculinity and femininity). Man and woman are not incomplete beings which require being made complete, mutually, as if each one had an incomplete human nature. Man and woman are not complementary in respect to their own persons. (Both participate completely in the human nature and are complete human individuals). They are, rather, complementary in respect to the order of the ends of matrimony. In relation to these ends, the man and woman contribute complementary values and activities. The mutual complement is not realized through personal qualities, but rather by means of the natural potencies affected by the sexual distinction. In consequence, matrimony does not unite them in their qualities, but in their natural sexual potencies.
The specifically matrimonial complementing is not extended to all of the facets of life but only to the ends of matrimony: mutual help in the home, and the procreation and education of children. The mutual complement is not the end of matrimony, but rather specific trait of the activity that tends to the ends of matrimony. That is, in the activity to obtain the ends of matrimony, the man and woman contribute complementary activities.

4. There does not exist any contradiction between natural law and the exigencies of love. Nor can love be considered as the supreme measure of the relations between man and woman. There exist, in effect, orderly and disorderly loves. The order of love is virtue and natural law. The dynamics of conjugal love is the dynamics of the person who loves, penetrated by will, freedom and responsibility. It is not a mere fact, but a duty, an active responsibility. The juridical dimension of matrimony is a dimension of justice inherent in human nature, and which does not receive its force from the human sources of Law.

5. Not all of the unions between man and woman, although they may be recognized by positive law, are truly matrimonial. They may receive the name of matrimony, but only those unions which are in accord with the natural law are truly matrimonial. What is the criterion to distinguish a matrimony in conformity with the natural law -the only true matrimony- from the other unions? There are three requisites which identify a matrimony: unity, perpetuity, and dedication to one's children. These three requisites (which St. Agustine called the «three goods of matrimony») are the golden rule of matrimony and of conjugal love.

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Materias Investigación, Derecho


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El matrimonio, ¿tópico social o institución permanente?