Roche’s Gamble — And the Vatican Law of Power

A look at how Cardinal Roche, Prefect of the DDW is arrogating power to his Dicastery that properly belongs to the Ordinaries. Not that I'm surprised. He's what my Gran would have called a nasty bit of work.

From The Pillar

By JD Flynn, MA, JCL

In the implementation of 'Traditionis custodes,' Cardinal Arthur Roche has been criticized for an approach that seemed to arrogate authority to his office, beyond the motu proprio's text.

In the years since Pope Francis promulgated Traditionis custodes, it has fallen to Cardinal Arthur Roche, prefect of the Vatican’s liturgy office, to interpret the pope’s policy, and to engage with the diocesan bishops tasked with implementing the policy in their local churches.

As the Dicastery for Divine Worship oversees that process, Roche has been criticized for an approach that seemed to arrogate authority to his office, in excess of what was actually given to it in Traditionis custodes, or in the 2022 reorganization of the Roman Curia, for that matter.

In the Church’s canon law, governing authority ordinarily stems from ecclesiastical office — from a specifically delineated set of prerogatives and obligations which come by official appointment to a particular function.

But while Roche has faced criticism in recent months, he’s also demonstrated a keen insight for the way things sometimes work in the Church; whatever the canon law says, governing authority - or at least real practical power - is sometimes gained by those who act like they have it, and convince others of the same. Decrees are important, to be sure, but in the administrative life of the Church, perception is sometimes more powerful than a decree.

“Power resides,” quoth George RR Martin, “where men believe it resides.”

In the years since Traditionis custodes was promulgated, Roche has seemed to some Vatican-watchers to gamble, one roll of the dice at a time, on the notion that as long as the Dicastery for Divine Worship is aiming for a robust interpretation of the pope’s liturgical reform, it can also centralize liturgical authority to itself, far beyond the dictates of canon law, and with very little resistance or correction.

The cardinal took a big gamble in December 2021, when his office asserted a set of apparently normative interpretations of the pope’s liturgical policies, and reserved to itself some powers which had seemed in the actual text of Traditionis custodes to belong to diocesan bishops.

And in recent months, Roche has made another gamble — telling at least some U.S. bishops that they do not have the authority to dispense from certain provisions of Traditionis custodes, even while - to the mind of many canonists - the papal text itself does not support that claim.

Sources confirmed to The Pillar this week that one California diocese had been recently informed that diocesan bishops are not allowed to dispense from Traditionis custodes’ prohibition against permitting the Extraordinary Form of the Mass in parish churches.

In a letter to at least a few U.S. bishops, the Dicastery for Divine Worship noted that while diocesan bishops are generally permitted to dispense from universal disciplinary laws, they can not dispense from such norms if their dispensation is reserved to the Holy See. That, of course, is the policy established in canon 87 of the Code of Canon Law.

But the dicastery then made a claim which has canon lawyers scratching their heads — namely that all provisions of Traditionis custodes are reserved to the Holy See, and that diocesan bishops, therefore, have no dispensing power over its norms.

The problem is that, on its face, Traditionis custodes does not actually claim that dispensations from its norms are reserved to the Holy See. Canon law says that laws which restrict the rights of bishops must be delineated explicitly, and the papal motu proprio does not address the prospect of dispensations at all.

Roche’s letter on the subject cited a provision of the motu proprio which designated the dicastery to exercise oversight over Traditionis — but that provision made no mention of reserved dispensations.

And since Traditionis custodes did explicitly mention required consultation with the Vatican on some issues, many canonists argue, it might well have mentioned reserved dispensations just as easily. But since it didn't, the dicastery has now made a retroactive claim to a kind of implicit reservation – an unusual canonical situation, to say the least.

For many canonists, again, the issue seems clear — the law itself requires that Vatican restrictions on a bishop’s governing authority be stated explicitly, and Traditionis does not contain the restrictions that Roche has claimed.

On the one hand, this might suggest simply that the cardinal is out over his skis — that the motu proprio was formulated hastily, and that Roche’s dicastery is trying to implement the pope’s vision despite the actual wording of the text.

And complaints about the dicastery’s approach to legal interpretation might well seem like the persnickety whining of “doctors of the law” — the pontiff obviously wants his motu proprio implemented, and Roche is obviously aiming to curtail bishops looking for ways to soften the policy’s impact.

But many canonists have suggested the issue is much more significant than a quarrel over dispensations.

Some argue that it is a violation of natural justice for the Holy See to promulgate laws, and then interpret them in ways that defy their plain meaning.

And unchecked violations of natural justice, some canonists say, inevitably lead to social breakdown.

But however much canonists fulminate, Roche’s gamble seems to be paying off in the short term. The Pillar has confirmed that bishops who received Roche’s correction on dispensations - however much outside the law it is - are mostly complying with it, albeit perhaps begrudgingly.

While a recourse to the Church’s Apostolic Signatura is possible, no bishop has yet said he intends to make one.

And thus power presumed became power assumed.

For the Church, of course, the consequence of that kind of approach to legal authority is to degrade the rule of law across the whole ecclesial society – to undermine confidence that, when push comes to shove, canon law will be anything more than a set of suggestions, or worse, a set of norms manipulated to say what they plainly don’t, for the sake of those who understand how to use them.

When the rule of law gives way to the law of power, in any society, social dysfunction follows, as local leaders lose the confidence to act on their own authority — lest they be told they don’t actually have it.

But whatever the consequences, will Roche succeed in assuming more authority for his dicastery than it actually has?

To date, he’s already been successful - whether with the tacit consent of the pope, or without his knowledge.

If he wanted to, Francis, could, of course, modify the law to allow Roche the kind of authority he seems to be claiming — or the pontiff could have actually structured his motu proprio in the way Roche reads it.

But the pope, while an inveterate legislator, has not shown much interest in questions about legal theory in the life of the Church, or their impact on social function — and thus it is not clear whether he has explicitly supported the Dicastery for Divine Worship’s approach to implementing Traditionis custodes.

Still, eventually Roche may reach the end of the road — if diocesan bishops raise to the pontiff the problems they experience with the dicastery’s approach to legal interpretation, the pope may decide he’s sympathetic to them, as he sometimes does after personal audiences. Or the pontiff may decide he's had enough, and that clipping Roche’s wings is a good enough way to keep the peace.

In the meantime, though, Roche’s continuing approach indicates that while Francis has urged that curial reform be rooted in a respect for just procedures and policies, some of his prefects seem more concerned for the outcome of their work than for the way it is conducted.

How long will diocesan bishops find that situation tenable?

That, of course, remains to be seen.