You may have made the idea of the common good in the minds of readers clearer but can you state more definitely what your own view concerning voting in the referendum is? Some people took your insistence that we did not have adequate information to imply that you would abstain.
To put it as bluntly and crudely as I can, in order to correct anomalies (such as recognition of divorce obtained abroad) and injustices (cropping up out of annulment procedures) that arise in the context of our present legislation, I agree with the suggestion made by Pierre Portelli when he interviewed me for a local television station.
He recalled that I had often aired the suspicion that most, although not all irretrievably broken marriages were in fact null because of the psychological immaturity of the spouses at the time of marriage, or their incomprehension of the duties of married life and so on. Plainly, the government could do little or nothing to alter the practice of the Church tribunals.
But could it not ensure that the civil courts conceded nullity in the way I had envisaged? This was also the way followed by the Eastern Christian churches, the practice of which was accepted by the Roman Catholic Church; for instance, an Orthodox woman whose first marriage had broken down and who had remarried would be admitted to Holy Communion in a Catholic Church under the general conditions laid down by the Vatican Council for such sacramental participation to be acceptable.
The suggestion by interviewer was that even at this late stage it would be wiser in order to avoid yet another acrid division within our people to alter (hopefully by consensus) in any way necessary the law concerning annulment rather than introduce divorce legislation that is so obnoxious to a very significant segment of our citizenry.
I know, of course, that there have already been cases where civil courts have granted annulments that had been rejected by the Church Tribunal, for instance a case in which a wife had left her husband who later took in another man to live with him, but such cases have been hitherto exceptional. Amendment of the law might be necessary if only to provide guidance for systematicjudicial practice.
You keep repeating that you can easily imagine circumstances in which it would be appropriate for a government to introduce divorce, although you are still awaiting convincing proof that such is the situation in Malta. What do you reply to those who remind you that Christ Himself said: “What Christ had joined together let no man put asunder”?
I take it that divorce legislation cannot affect marriage as a sacrament but it is not equally clear that the civil contract aspect of a marriage is anything that God, rather than human hands, has put together.
Moreover, a divorce law can be formulated in such a way that it will not even amount to dissolution of a civil contract, but only to depenalisation of the crime of bigamy in the circumstances specified by the law.
When clarifying the concept of the common good in relation to the divorce issue you quoted several sources, especially those involved in the polemic between Liberals (Rawls, Nozick) and Communitarians (Sendel, McIntyre). Some students in the Philosophy of Law Course, of which you have often been an examiner, asked: ‘How come you did not refer to the controversial views of John Finnis on the subject when they use his basic work as a textbook?’
Finnis has argued in a famous essay written in 1998 that the common good that is to be pursued by the state as such, or in other words the areas of human conduct with which laws are to be concerned, is restricted to peace, which again in practice means matters concerning the virtue of justice.
He also maintained this was the view of St Thomas Aquinas, even though there are several passages by Aquinas in which he follows Aristotle in holding that the state can legislate to help citizens pursue all the virtues that contribute to making a good life.
Finnis holds that such statements are made by Aquinas because the common good that is aimed at by the state specifically is only part of a much wider common good. Coherence with this wider common good has to be ensured in legislating for the sake of the peace and justice that are the only values the state exists to serve.
It follows that for Finnis, “public good” (as he calls the specifically political common good) is very limited. The good which the state provides through legislation is mostly instrumental, it is just means by which individuals and families are helped to seek and obtain the goods that are basic for a good human life and valuable in themselves.
On the contrary, Finnis regards marriage as a fundamental good with its own intrinsic value as it is the fullest form of friendship between man and woman which in turn is the highest form of human love.
The interpretation of Aquinas by Finnis has been contested in detail by Michael Pakaluk. He may be right in quarrelling with Finnis about the interpretation of Aquinas, without necessarily being also right to deny that the common good to be sought through legislation is only limited and instrumental.
In any case, it is plain that the question of divorce involves justice and is very pertinent to peace in the very wide sense in which the word is used by Finnis. Therefore the state should legislate about it, but the specific common good of the political community is subordinate to the basic intrinsic good of marriage itself. As I said last time, I myself prefer a simpler approach.
Fr Peter Serracino Inglott was talking to Miriam Vincenti.