“We Are in Front of a Kafkaesque Paradox”: Canonical Remarks on the Rescriptum of February 21

Dr Kwasniewski looks at the canonical implications of the Rescriptum ex Audientia Ss.mi and points out that it contradicts Traditionis custodes.

From Rorate Cæli

By Peter Kwasniewski, PhD

If, formally, the Rescriptum ex Audientia Ss.mi of February 21, 2023 -- an administrative act by which a department head asks for and obtains (rescriptum: "written twice") something from the Supreme Pontiff (Sanctissimi) at the end of an audience (ex Audientia) -- aims to "implement" the motu proprio Traditionis custodes of July 16, 2021, from a practical point of view, it actually alters it in its substantial structure.

The Rescript, in fact, subverts the basis on which Traditionis custodes itself is founded, whose first words, an echo of Lumen gentium No. 23 (the Second Vatican Council's dogmatic constitution on the Church) are addressed to the bishops: "Custodians of tradition," begins the preamble of Pope Francis' motu proprio amending Benedict XVI's motu proprio Summorum Pontificum, "the bishops, in communion with the Bishop of Rome, constitute the visible principle and foundation of unity in their particular Churches." But if Traditionis custodes had pointed to the diocesan bishops for a regulation of the use of liturgical forms prior to the post-conciliar reforms, the Rescript of last Feb. 21 overturns that principle by reserving to the Holy See (and thus to the Dicastery for Divine Worship and the Discipline of the Sacraments) the regulation of an entire matter which, however, would itself have been left to the discretion of individual local Ordinaries by the same measure to which the Rescript says it wants to give "implementation."

We are, therefore, in front of a Kafkaesque paradox -- logical even prior to being juridical -- whereby the same Authority that with a normative act disposes of one thing, with a subsequent act revokes, in fact, the previous principle, without, however, formalizing this "reversal," and thus leaving an insoluble contradiction.

If, in fact, Traditionis custodes, in Art. 2, echoing the aforementioned conciliar magisterium, unquestionably affirms that "the diocesan bishop, as moderator, promoter and custodian of all liturgical life in the particular Church entrusted to him, is responsible for regulating liturgical celebrations in his own diocese" and that "therefore, it is his exclusive competence to authorize the use of the Missale Romanum of 1962 in the diocese, following the guidelines from the Apostolic See," the Rescriptum of Feb. 21 limits that competence, despite being defined as "exclusive," stating there is a new reservation of jurisdiction by the Apostolic See under the last part of can. 87, §1 of the Code of Canon Law -- a canon that, in fact, states: "The diocesan bishop may validly dispense the faithful, whenever he judges that it would benefit their spiritual good, from both universal and particular disciplinary laws given by the supreme authority of the Church for its territory or for its subjects, however, not from procedural or penal laws, nor from those whose dispensation is reserved in a special way to the Apostolic See or to another authority."

At first glance, the question seems unclear: why on earth in a Rescript dealing with the use of the liturgy prior to the liturgical reform of the 1970s is the canon concerning dispensations mentioned, namely the exemption from the observance of a purely ecclesiastical law that the bishop may grant in a particular case (cf. can. 85)?

The answer lies in the practice that took hold in some dioceses in the aftermath of the entry into force of Traditionis custodes,by which some Ordinaries saw fit -- exercising precisely that discretion which the Motu Proprio itself recognized to them -- to exempt themselves from observance of the papal normative provision by granting licenses to their diocesan priests to celebrate the Holy Mass according to the rubrics of the 1962 Missal, allowing the same celebration in parish churches, or erecting chaplaincies or personal parishes of the Ancient Rite.

This caused the zealous Prefect of the Dicastery of Worship, Cardinal Arthur Roche -- despite the fact that there were very precise norms on the subject dictated by none other than the Pope himself (cf. Traditionis custodes, Arts. 3 and 4) by which, in a detailed manner, the matter was regulated such that the Holy See reserved only the right to provide "guidelines" -- urged as he may have been by an imprudent publicity of "traditionalist" blogs, to chastise on several occasions bishops who allegedly "allowed" themselves not to adhere slavishly to Pope Francis's motu proprio, availing themselves of the possibility of can. 87, §1 CIC.

This, then, is the factual premise from which undoubtedly arose the Rescript of Feb. 21, preceded by meticulous "Responsa ad dubia" with the fanatical "Explanatory Notes" dated Dec. 4, 2021 (released Dec. 18), the content of which, however, went far beyond the aforementioned concept of "orientation" contained in Article 2 of Traditionis custodes.

On these Responsa, moreover, the Rescript seems to want to put a further seal of "authentic legitimacy" by emphasizing how they, after the assent to publication granted at the time, were further "confirmed" at the last tableside audience with the Pope. However, on this point it should be specified that this is not an "approval in forma specifica" of the document referred to, but only an "assent" to publication, which does not imply per se that the act in question can be considered as having "pontifical authorship" (and that, for that reason, it is to be considered as "non-appealable"), but rather only that it enjoys a certain stability, by virtue of the superior assent received to its publication (as happened recently the Responsum ad dubium about the blessing of same-sex couples on February 21, 2021).

It should be specified, however, that such procedures, in current curial practice, are rather casual. Just think of all the decrees of the dicasteries "approved in forma specifica," containing personal dispositions such as resignation from the clerical state or from the religious state as a result of dubious administrative procedures: of such acts the Pope, by affixing his signature at the foot of them, ipso facto assumes the authorship and therefore, implicitly, the responsibility -- without, however, probably being effectively and completely aware of the content or of what happened in that individual case.

An unhealthy practice, then, and a very dangerous one, because by virtue of a meat-grinder administrative mechanism, devoid of any legal guarantees since it functions in the most absolute arbitrary discretion, it makes the Pope an accomplice of the administration itself, and thus, in fact, a hostage to the decisions of others.

In light of this -- and without wishing to enter into a very complex as well as slippery quagmire -- not only the confirmation of assent, but also the Rescript itself somehow lose value, as much juridical as moral, because if until some time ago such special procedures (so recognized by the currently in force Regulations of the Roman Curia, cf. art. 126) had the sense of remarking in a special way the Pontiff's intervention in matters of faith and morals, today they seem rather to be the exhibition of a forced armor-plating that conceals a profound as well as embarrassing insecurity. If, in fact, the reassuring adage Roma locuta, quaestio soluta was formerly in force, today it seems rather that the position Rome assumes is the origin of chaos, juridical uncertainty, and therefore institutional instability, which very often results in embarrassing contradictions.

Returning, however, to the matter of the Rescript, it seems evident that the proclaimed reservation of the law regarding the granting of licenses and the indication of the modalities for the celebration of Mass according to the Ancient Rite is in open contrast both with what has already been established by the motu proprio TC itself, to which, paradoxically, it would pretend thus to give "implementation," but above all -- as Card. Müller in a recent interview noted -- conflicts with norms of divine law that regulate the power of diocesan bishops.

If today a bishop is not considered capable -- for that is what this is all about -- of discerning whether in the territory of his own diocese there might be conditions under which the faculty of the use of the ancient Missal could be extended without prior consent of the Dicastery, and if he is considered to need to be restricted in his own power to use liturgical books by forbidding him the use of the Pontifical in parishes, then it can be said that the entire theology on the hierarchical constitution of the Church, formalized most recently in the conciliar magisterium on the bishops, has in fact been nullified and has given way to a form of monocratic and self-referential government that is as unprecedented as it is dangerous.

If one reads what the Rescript provides where it states, "Should a diocesan bishop have granted dispensations in the two cases mentioned above, he is obliged to inform the Dicastery for Divine Worship and the Discipline of the Sacraments, which will evaluate the individual cases," one is taken aback by the obvious controlling curial will, which not only breaks a principle of juridical civilization whereby the law disposes for the future and the retroactivity of the norm is something exceptional (cf. can. 9), but also because it casts doubt (by attempting to consider them improperly and unjustly as measures that would have almost lost their value) on the choices already made by individual bishops, now mortifyingly "obliged" to communicate to the Apostolic See what, instead, they decided in the full exercise of their legitimate functions by applying a norm of universal law. On the other hand, it is obvious that what has already been established is objectively and juridically untouchable.

Such maniacal hypercontrol of the Dicastery of Divine Worship, along with this obsessive form of normatization, might cause great surprise in the current era, which is profoundly anti-legal and indeed openly hostile to "rules" and open rather to fluid models. It might be surprising that in an age in which sacrilege and profanation occur daily, very often under the silence and complicit blindness of institutions, that one should be so meticulous in defining the margins of what is permitted to a bishop in his own diocese, even preventing a priest from binating in the ancient rite when no one cares at all about the four Masses that, on average, a good parish priest celebrates every Sunday in the territory of the parish, now often lacking sufficient priests. It would seem absurd to imagine that in the age of "creative liturgies" where pagan symbols are displayed on the consecrated altars and evidently disconcerting sacrilegious gestures are made, where priests disguise themselves in costumes, where Masses are celebrated on mats in the middle of the sea, that the Holy See feels so strongly the need to surgically affirm that although the use of the Missal is tolerated, the use of the Pontifical is not equally permitted in parishes, and therefore it is permissible to deprive the faithful who enjoy that ritual form of the possibility of receiving, for example, confirmation in the Ancient Rite. It might be surprising to note the obsession with which, for years now, the only problem of ecclesiastical discipline worth attending to seems to be the repression of "traditionalist tendencies" while, on the other hand, churches, seminaries, monasteries, and convents are emptying, moral doctrine is giving way to psychologisms of dubious magnitude, and, in fact, a climate of ideological policing is being experienced whereby everyone can do what they want while being prevented from doing what has always been done.

It is evident that all of this is indicative of the degree of profound fear and insecurity that the innovators have in carrying out revolutions. If, in fact, Tradition has the solidity and robustness of its own principles and therefore does not fear a confrontation with diversity, with which, on the contrary, it intertwines and develops, consolidating itself even more and projecting itself into the future, not so the Revolution, which can do nothing but impose its "vision" through the same force that it has challenged and, in its own way, believes it has dismissed: auctoritas.

However, in the systems of law-based civilization, "veritas non auctoritas facit legem": it is not arbitrariness, nor the mere exercise of power that integrates the foundation of the norm to be considered binding -- as Hobbes argued -- but the indispensable and non-negotiable principles of divine law and natural law. The imposition of a law by force has never produced anything good, and moreover, revolutionary actions themselves, as is too well known, have always resulted, sooner or later, in a Saturnian meal.

What lies ahead -- and has already been going on for some time -- is an unprecedented battle in the history of the Church, with two equally fierce but unequal fronts facing each other, unequal in numbers and in 'institutional strength.' However, today's battle is not the same as the immediate post-conciliar one, for from then to now the ranks of those who have been enraptured by the beauty of Tradition are far thicker than before: in those days there was a different society, a different sense of obedience... yet Paul VI himself, while promulgating the new Missal, did not have the audacity to declare the previous one abrogated, probably aware of the anathema of St. Pius V's Bull Quo primum tempore.

Then again, with all due deference to the Solons of the Dicastery of Worship, the traditional liturgy has such a vast structural complex throughout the Church that it would be sheer folly to consider it possible to "normalize" everything [according to Roche's preferences]. The contrivances will always be found that will allow, as they have allowed before now, the ancient liturgy to survive. And if even rumors are becoming more and more insistent that this latest document is only the tip of the iceberg of a reviving war; and if, while today the bishops are being chastised, tomorrow it will be those who are as yet exempt from the observance of Traditionis custodes (i.e., the so-called "Ecclesia Dei institutes") who will be chastised; nevertheless, it should be made clear that restrictive and punitive action against them would inevitably result in an immense rupture to the unity of the Church, since it would be truly wicked to exclude them from communion should they not conform to the one reformed rite. And on the other hand, as things stand and with the degree of quality that obedience has in a Church in full crisis of the principle of authority, widespread repression would be unthinkable; indeed, would have the opposite effect.

("Osservazioni canonistiche sul Rescriptum del 21 febbraio" first appeared at Corrispondenza Romana on March 1, 2023.)