Canonists Cast Doubt on the Force of the Responsa Ad Dubia

Dr Shaw looks at some very serious canonical difficulties with the Responsa to the Dubia on Traditionis Custodes, tho' I'm sure Rome doesn't care.

From the Catholic Herald

By The Hon. Joseph Shaw, DPhil, FRSA

On Saturday 18th December a document was published by the Congregation for Divine Worship tightening up restrictions on the Traditional Latin Mass: Responsa ad dubia. This is a clarification of Pope Francis’ Motu Proprio Traditionis Custodes, answering questions (‘dubia’) sent to the Congregation by bishops.

Since then canonists all over the Catholic world have been examining the document, which appears to tighten the screws on the availability of the Traditional Mass considerably compared with Traditionis Custodes itself. By a stroke of the pen it prohibits marriages, baptisms, burials, and even blessings, using the older books, outside a tiny number of ‘personal parishes’. Similarly, it prevents priests from saying more than one Old Rite Mass on a Sunday, and allows them to say it on a weekday only if they have no Novus Ordo Masses to celebrate.

The ban on parishes noting the times of Traditional Masses on their bulletins has caused widespread ridicule. However, it suggests a level of attention to detail, and a desire to make the Traditionist phenomenon disappear from view, which is more than a little alarming. There is no reference to this, or to the other points just mentioned, in Traditionis Custodes, which now appears quite mild by comparison.

This actually raises a problem which the canonists have noted: a summary of relevant arguments has been made by the Latin Mass Society in a handy guide here. The key point is that the Responsa is not a new law, but an interpretation of another document by a Vatican Congregation. In the places where it goes beyond Traditionis Custodes, it is skating on some pretty thin ice.

The ice disappears altogether when its proposals are contra legem: in conflict with the law of the Church. Thus, Bishops have the authority to determine when there is pastoral justification for a priest to celebrate additional Masses, for example, from Canon 905 §2. This right is not something which can be stripped from them on the say-so of the Prefect of a Vatican Congregation, howsoever wise and benevolent he may be. And yet that is exactly what the Responsa appear to be doing when it limits the number of Traditional Masses which a priest may say.

Again, it may have irritated some in Rome that so many bishops—and not just the Tradition-friendly usual suspects—invoked Canon 87 §1, which allows a bishop to set aside the universal law of the Church when the good of souls requires it, in order to allow Traditional Masses to continue in parish churches, contrary to Traditionis Custodes. The Congregation seems to be trying to claw back the force of the original ban by asking bishops to come to it for a dispensation, should this be really necessary. However, the Congregation cannot repeal Canon 87 §1; still less can it wave aside the theological foundation of this prerogative of bishops, which is found in the texts of the Second Vatican Council (Christus Dominus8). 

The fundamental right and duty of bishops to exercise discretion over what happens in their dioceses was, in fact, what we were told Traditionis Custodes was trying to restore, after Pope Benedict’s 2007 Motu Proprio Summorum Pontificum ushered in a period in which priests were given the right to start celebrating the Traditional Mass at will, and bishops were told to find ways of accommodating groups of the Faithful who wanted it. Pope Francis proclaimed: “I have desired to affirm that it is up to the Bishop, as moderator, promoter, and guardian of the liturgical life of the Church of which he is the principle of unity, to regulate the liturgical celebrations.”

The idea that bishops were in practice unable to control the situation under Summorum Pontificum does not stand up to scrutiny: as a rule, the dioceses of bishops who didn’t want Traditional Masses didn’t have them. But it now seems the Congregation for Divine Worship only wants bishops to have discretion if it can determine the outcome in advance.

Bishops now have the choice, as expressed by JD Flynn, between doing what they have been told just because this has come from the Holy See, and following Pope Francis’ own principle: “diocesan bishops don’t answer to curial prefects”.

Joseph Shaw is the Chairman of the Latin Mass Society