Traditional Latin Mass: Canonists Question the Legislative Force of Recent Vatican Guidelines

So, essentially, the Responsa ad Dubium are smoke and mirrors without the force of law. 

From the National Catholic Register

By Edward Pentin

ANALYSIS: The interpretive document considerably tightens already-sweeping restrictions on the traditional form of the Roman Rite.

VATICAN CITY — The Vatican document to bishops on how to implement certain restrictions on the traditional rites of the Mass and the sacraments has drawn concern from some canonists over the weight of its interpretation and authority to further limit use of the traditional Latin form of the Rome Rite.

Canonists speaking to the Register contend that although the recent document is meant to be merely an interpretation of certain passages of the apostolic letter Traditionis Custodes (Guardians of the Tradition), it moves beyond this papal document, an action that exceeds the powers of its author, Archbishop Arthur Roche, the prefect of the Congregation for Divine Worship and the Discipline of the Sacraments (CDW).

The interpretive document, called “Responsa ad Dubia on Certain Provisions of the Apostolic Letter Traditionis Custodes issued Motu Proprio” and published Dec. 18, considerably tightens already-sweeping restrictions on the traditional form of the Roman Rite that had come into force with the Pope’s document, issued on July 16, 2021.

Written in the form of responses to dubia (questions), which the congregation said it had received from “several quarters and with greater frequency” regarding the correct application of the motu proprio, the Responsa Ad Dubia prohibits traditional rites for marriages, baptisms, confessions, last rites and burials, except in “canonically erected personal parishes” — that is, exclusively in those parishes already designated by the bishop and dedicated to the faithful who frequent the former rite. These are few in number and, since July 16, no longer to be erected.

Archbishop Roche also made it clear that confirmations and ordinations according to the older rite are no longer to be allowed.

Other stipulations in the guidelines include banning priests from saying more than one traditional Latin Mass on a Sunday, allowing them to celebrate it on a weekday only if they have no Novus Ordo Masses scheduled, and enforcing concelebration on traditional priests.

The document was signed by Archbishop Roche on Dec. 4 and earlier approved by Pope Francis on Nov. 18.

Council for Legislative Texts Not Consulted

The Responsa, which the Register has learned from multiple Vatican sources, was written without consulting the Pontifical Council for Legislative Texts — the main Vatican department responsible for interpreting Church law — does not have any legislative force in itself, according to the law of the Church and the CDW’s own rules.

In 1969, the congregation indicated that any Responsa ad Dubia published in its official bimonthly journal Notitiae were to be considered private responses and as having no official value unless they were published in the official record of the Church. The Responsa, signed on Dec. 4, has so far only been published, on Dec. 18, on the Vatican website and as an article in the Vatican newspaper L’Osservatore Romano, but not in the official gazette of the Holy See, where papal legislation is usually published, the Acta Apostolicae Sedis — Acts of the Apostolic See.

This policy, repeated in Notitiae in 1997 but in slightly different terms, “explicitly” means that the Responsa ad Dubia “have no legislative force,” according to Dominican Father Pius Pietrzyk, adjunct professor of canon law at the Pontifical Faculty of the Immaculate Conception (Dominican House of Studies) in Washington, DC.

“They merely express the thinking and practice of the congregation on a particular legal issue,” Father Pietrzyk told the Register. “Therefore, unlike the motu proprio Traditionis Custodes, these Responsa have no legal force in se.”

His comments echo a paper issued by the Latin Mass Society of the U.K., in consultation with several canonists, which said the Responsa “is not an instruction or a law, but an administrative act, an interpretation of Traditionis Custodes.” It said it has force insofar as it is in line with what the motu proprio requires, but it cannot go beyond it, “and is itself subject to the Church’s law.”

It also added that the Pope’s approval of the document “is generic not specific: Only in the latter case would it become an act of the legislator, rather than of the dicastery [Congregation].”

Father Pietrzyk stressed that the Holy Father has the “right and authority to regulate the liturgy of the universal Church,” within boundaries limiting papal authority, and the Church does not question his authority. Furthermore, the Second Vatican Council made clear in its constitution on the liturgy, Sancrosanctum Concilium, that “regulation of the sacred liturgy depends solely” on the authority of the Church, that is, both the Holy See and the local bishop.

But he said the head of a Curial department “is not the same as the Supreme Pontiff” and that, as prefect of the congregation prefect, Archbishop Roche “exercises vicarious power, which flows from the Supreme Pontiff, and therefore relies on the strictures of law for its authority.” However, he added, he does not have “legislative power — that is, he does not establish new, universally binding law.”

“Rather, he exercises authority according to laws established by the Supreme Pontiff,” Father Pietrzyk explained. “As a result, the scope of his authority relies on the parameters of that established law. He cannot of his own accord increase the ambit of his authority.”

This does not mean the Responsa ad Dubia “has no value,” he added, and that, legally speaking, Responsa can be an “important source” when considering gaps in the law, but it “does not establish new law.” Rather, the Dominican canonist said, it is “meant to assist ordinaries in the application of law when express provisions are lacking.”

Given that these responses are “simply an expression of the mind” of the CDW on how it believes ordinaries should apply Traditionis Custodes, and that they do not “have the force of law,” Father Pietrzyk said “bishops and pastors are free, both legally and morally, to arrive at another conclusion, after due consideration of the mind of the congregation, and considering the pastoral circumstances in their local communities.”

‘Confused’ and ‘Contradictory’

Cardinal Raymond Burke, prefect emeritus of the Apostolic Signatura, the Church’s highest court, told the Register the Responsa ad Dubia are binding “only inasmuch as they are coherent with the doctrine and discipline of the Church, according to the fundamental principle of the regula iuris [rule of law], which, when it is not respected, makes the law an arbitrary tool in the hands of individuals advancing a particular ideology or agenda.”

In this context, he believes the Responsa ad Dubia are “confused” and “contradictory” when read in conjunction with the motu proprio itself, and as such, “what the congregation pretends is not only contrary to the good order of the Church but contrary to reason.”

“For instance,” Cardinal Burke said, “it takes to the Congregation for Divine Worship and the Sacraments acts which belong properly to the diocesan bishop, even though Traditionis Custodes insists that the diocesan bishop knows what is best for the good of souls.”

And he questioned how it can be for the good of souls if it is being applied at a time when the traditional rite “has a great vitality in the Church today” and is attracting large Mass attendances and vocations, while elsewhere the Mass is suffering a “great absence of the faithful” and few vocations.

The document also has many other points of concern for canonists. The Responsa appears to lack a “sufficient understanding on the legal and ecclesiological norms of concelebration,” said Father Pietrzyk, and on that issue alone, it is “impossible to square” with the teaching of the Second Vatican Council, which stipulated priests have a right not to be required to concelebrate. Canon 902 states that priests are “completely free to celebrate the Eucharist individually” but not when “concelebration is taking place in the same church or oratory.”

A further problem concerns Responsum No. 5 — that the Holy See must authorize a diocesan bishop to allow priests ordained after the publication of Traditionis Custodes to celebrate the old Mass.

A new Latin version of Traditionis Custodes, which appeared after the motu proprio was promulgated in Italian, speaks of licentia (permission) that a bishop has to seek from the Holy See to allow priests ordained after the publication of the motu proprio to celebrate the Missale Romanum of 1962. This particular sentence was inserted into the Responsa, but the original Italian of the promulgated text mentioned an obligatory but non-binding consultation of the Holy See was required.

Father Pietrzyk said that, given “promulgation is a necessary part of a law” and that the text the congregation used is a Latin version that has not been promulgated, its “printing” of the Latin in the Responsa “has no legal force.”

For the sake of the just application of law, he added, “it cannot expect the faithful to adhere to a norm that it has not promulgated through the means it itself has given for the proper recognition of what a law is.”

A Vatican official pointed out to the Register that it is not possible to “change a law after promulgation; you would need to have it re-promulgated.” The official said that Pope Francis doesn’t usually produce documents in Latin and added that, in any case, it made little sense to have a bishop seek permission of the Holy See for a priest to celebrate the old Mass, as the Holy See will not know those priests, whereas the bishop does.

Exceeds Traditionis Custodes

Canonists have also pointed out other areas where the Responsa exceeds Traditionis Custodes and in their view therefore lacks legal force, as this breaches Canon 18. That canon stipulates that restrictive laws are to be interpreted strictly; some canonists, however, argue that the Responsa exceeds the restrictions laid out in Traditionis Custodes. The second Responsum stipulates that a bishop is no longer authorized to grant permission to use the 1962 Pontificale Romanum, a liturgical text containing the rites and ceremonies usually performed by bishops in the Roman Rite, and so traditional ordinations and confirmations are no longer permitted.

Traditionis Custodes only mentions the use of the Missale Romanum, and so the reference to the Pontificale Romanum exceeds “the executory authority of the prefect,” Father Pietrzyk said, noting that the 2011 Vatican instruction Universae Ecclesiae gave explicit permission for the use of the Pontificale Romanum in use in 1962 for the conferral of major and minor orders and the sacrament of confirmation, in certain circumstances.

“Those permissions were untouched by Traditionis Custodes,” Father Pietrzyk explained, “and therefore diocesan bishops are free to continue to use those pursuant to those norms, despite the statements to the contrary in the Responsa.”

This is significant in view of Cardinal Vincent Nichols of Westminster recently prohibiting traditional confirmations in his English diocese on the basis of the Responsa.

Some canonists speaking to the Register on background argued that all the provisions in the Responsa contrast the suprema lex (supreme law), according to which the action of the Church authorities should favor the salus animarum (health of souls), a principle of divine law received in Canon 1752.

Cardinal Burke said it is the “primary responsibility of the diocesan bishop to provide for the good of souls, in accord with the Church’s constant doctrine and discipline,” and recalled that the Pope does not enjoy “absolute power” to remove the legitimate exercise of power of the local bishops. Furthermore, he disputed the overarching reason given for both the motu proprio and the Responsa, which is to discipline faithful who are agents of division and even schism within the Church.

Cardinal Burke said such cases need to be dealt with individually, “in accord with the regula iuris (rule of law).” And he said he himself had found traditional faithful to be “agents of unity in the Church” who “respected and loved the Holy Father and the bishop as their true shepherds.” He acknowledged some individuals had “gone astray in their thinking or were strongly tempted to go astray, as happens in any body of the faithful,” in both forms of the Roman Rite, “but these individuals were hardly characteristic of the faithful involved.”

“In the same way,” he added, “priests and lay faithful, who do not follow the more ancient usage but respect their brothers and sisters who do, are deeply concerned about the manner in which these brothers and sisters are being treated by the highest authority in the Church. They do not see them as a blight on the communion of the Church but as truly full members of the Church.”

Father Pietrzyk also pointed out what he sees as another important consideration: Despite Pope Francis stating in Traditionis Custodes that previous “norms, instruction, permissions, and customs” are abrogated, this does not mean that Pope Benedict’s 2007 motu proprio Summorum Pontificum, which made the older rite more available, and its 2011 application document, Universae Ecclesiae, are now void. He argues that Traditionis Custodes appears to both abrogate and derogate the previous laws, and it is “not readily apparent which is meant.” The Responsa ad Dubia also has “no power” in itself to abrogate these earlier documents, as it is not legislative in nature.

Prevailing ‘Lawlessness’?

Given the absence of any legal force, canonists believe there is little the Vatican can do to enforce the Responsa ad Dubia. The Congregation for Divine Worship could seek the approval of the Pope to issue true binding norms, but if it does, it must observe the canonical norms in promulgating such a document. As it has not done this, “it cannot in justice demand obedience to the Responsa, although it may rightly expect ordinaries to consider its advice respectfully,” Father Pietrzyk said.

The disregard for canon law throughout the document is simply reflective of a prevailing “lawlessness in the Vatican,” the official quoted above said. “It’s just another example, and it’s a great problem.”

The official’s comments echo those made by Italian canonist and consultor to the Pontifical Council for Legislative Texts, professor Geraldina Boni. Last November, Boni noted in a book titled Finis Terrae per lo Ius Canonicum “problems with imperfect drafting” of ecclesial legislation during Francis’ pontificate, including “poor attention to formal aspects, inaccurate terminology, inner incoherence and lack of coordination with the whole legal system.” Boni also affirmed that the Pontifical Council is no longer called upon to give authentic interpretations of Church law.

Father Pietrzyk stressed that “the lack of sufficient attention to proper legal form and canonical tradition have raised a myriad of questions,” and he fears “this has also led to, and will continue to foster, confusion.” Concern for the law is “not mere legalism,” he said, quoting a speech of St. Paul VI to the Roman Rota in 1970, “but necessary to protect the common good and to foster freedom of the members of a given society.”

“This is just as true in the society of the Church,” Father Pietrzyk said, adding that Church authorities must be rooted in the natural law and observe the formalities of Church law.

He said, “I regret that these Responsa ad Dubia, despite their good intention, fail in some significant ways to do just that.”