"A Formal Canonical Analysis of the Rescriptum" - Circular Logic and the Grandfathering of Existing Parish Masses

Does Francis's latest diktat even have the force of law, despite sounding legal? An actually qualified canonist takes a look.

From Rorate Cæli

By Fr Pierre Laliberté, JCL

Upon reading the rescriptum ex audientia of +Arthur Cardinal Roche dated 21 February 2023, several brief reflections come to mind:

 

1) Despite the Curial reforms issued in Praedicate Evangelium, the Dicastery for Divine Worship and the Discipline of the Sacraments still does not possess legislative authority. To "exercise the authority of the Holy See" in these matters, as described in Traditionis Custodes art. 7, is unclear. Therefore, the very notion that this rescript is a legal text is highly questionable, as it only rests on the authority of the prefect of this dicastery who signed it. Some have even remarked that such tactics are tantamount to "canonical gaslighting", as this is merely a weaponization of hierarchical authority against a perennially-valid, never abrogated liturgical rite which expresses the perennial faith of the Roman Catholic Church.

 

2) Those parish churches already offering the Traditional Latin Mass should be guided by the perennial principle of the law: "pacta servanda sunt", that agreements are to be kept. As a matter of justice, they should be understood as being "grandfathered" in. The power of the bishop to dispense is ordinary executive power. Those matters that the Holy See reserves to itself must be interpreted strictly, while the diocesan bishop's power to dispense is to be interpreted broadly.

 

3) The Code only reserves to the Holy See the dispensations of the following matters: priestly celibacy (c. 291); the obligation to associate at least two other consecrating bish­ops at an episcopal ordination (c. 1014); the age required for the presby­terate and diaconate when the time would be more than one year (c. 1031); the irregularities and impediments to receive the sacred orders foreseen in c. 1047, and matrimonial impediments of order (c. 1087), of a public perpetual vow of chastity in a religious institute of pontifical right (c. 1088) and of crime (c. 1078 §2). That a matter such as the usage of the centuries-old Roman Rite (an acquired right of all priests and faithful, continually guaranteed by Quo Primum) be subject to such stricture could easily be considered a violation of the natural law principle of proportionality.

 

4) The circular logic of this document is very evident by the diagram this author recently received (included above)./