A Juridical Analysis on the FSSPX Consecrations

Just as in 1988, the argument begins. If the SSPX goes ahead with the Consecrations, will any excommunication issued by Rome be valid?

From Crisis

By Fr Mario Alexis Portella, JD, JCD

While an act may violate the requirement for a pontifical mandate, it does not necessarily juridically constitute a rupture of communion or schism.

In recent months, a range of mixed feelings has emerged both within and outside the Church regarding the announcement made by Fr. Davide Pagliarani, the Superior General of the Priestly Fraternity of St. Pius X (FSSPX), on February 2. He stated that on July 1 the FSSPX will have episcopal consecrations without a papal mandate. Fr. Pagliarani publicly revealed that he had sought an audience with Pope Leo XIV last year to address the circumstances surrounding the Fraternity, which would have encompassed a plea for permission to consecrate new bishops. After receiving no reply, and the fact that Rome only became interested just after the February 2 announcement, insisting that the consecrations be postponed, the FSSPX determined it would proceed irrespective of Rome’s lack of consent.

In light of allegations regarding disobedience and the possible formation of a “schism” that might result in the establishment of a parallel Church to Rome, it is noteworthy that the Code of Canon Law does not categorize episcopal consecrations conducted without papal consent as offenses against the unity of the Church. In response, the Fraternity released a statement contesting the notion that these episcopal consecrations are schismatic:

The society defends itself against any accusation of schism and, relying on all traditional theology and the Church’s constant teaching, maintains that an episcopal consecration not authorized by the Holy See does not constitute a rupture of communion—provided it is not accompanied by schismatic intent or the conferral of jurisdiction.

Yet, for the typical layperson and priest who have been captivated by the spectacle of certain canonists and theologians claiming that the Fraternity is acting in defiance of the laws of the Church and fomenting schism, it merits that some clarifications be made in order to understand that this is not theologically nor canonically accurate.

Before exploring the theological and canonical complexities, it is crucial to highlight that the legal stipulation for the consecration of a bishop necessitates the acquisition of a pontifical mandate—that is, a formal endorsement from the Roman Pontiff. This requirement is unequivocal and remains unchallenged.

This papal mandate, as specified in canon 1013 of the Code of Canon Law, is of such importance that a bishop who consecrates another bishop without the pope’s consent, as well as the bishop being consecrated, incurs latæ sententiæ (automatic) excommunication. (An excommunication is a disciplinary action of the Church to encourage an individual’s conscience toward repentance.) This sanction does not affect the validity of the consecration but its legitimacy, meaning the act is deemed illicit as it has not been performed in accordance with the regulations of Church law.

Although the Code clearly specifies the necessity of a papal mandate for the conferral of the episcopacy and delineates the consequences for consecrating a bishop without such permission, this does not suggest that either the consecrator or the person being consecrated is acting against the Church, nor does it automatically result in excommunication. Canon 1323, 4° sheds some light on this: “The following are not subject to a penalty when they have violated a law or precept…a person who acted…due to necessity, unless, however, the act is intrinsically evil or tends to be harmful to souls.”

In addition, canon 1324, 5° introduces an aspect of subjective assessment. It suffices for an individual who has committed the offense to simply have “believed” that he “acted by reason of necessity,” as when Archbishop Marcel Lefebvre, in 1988, consecrated four bishops and incurred a latæ sententiæ excommunication.

In addition, canon 1324, 5° introduces an aspect of subjective assessment. It suffices for an individual who has committed the offense to simply have “believed” that he “acted by reason of necessity…”Tweet This

Lefebvre performed the episcopal consecrations because, as he asserted, of the serious circumstances he faced, which he referred to as “Operation Survival,” in relation to modern church leaders who were unlawfully attempting to eliminate the Fraternity without any valid justification. As a result, he declared the excommunication to be “null and void” not acting as if he were the pope or the legislator but making use of canon law itself to defend himself and the FSSPX against its detractors.

So far as the Fraternity committing a schismatic act, it must be kept in mind, as St. Thomas Aquinas wrote in his Summa Theologiæ, II-IIæ, Q. 39, “schismatics properly so called are those who, willfully and intentionally separate themselves from the unity of the Church.” To put it mildly, there has to be a deliberate act to cut oneself off from the jurisdiction of the Roman Pontiff and establish a separate church, as with the Orthodox and the Anglicans, or like the present-day Chinese Catholic Patriotic Association (CCPA) established by the Chinese Communist Party (CCP) in 1957. Interestingly enough, while the CCPA is not canonically recognized by Rome, their bishops and clergy are.

Those who argue against the FSSPX saying that they will provoke schism, once more, cite canon 375, §2, which stipulates that “Through episcopal consecration itself, bishops receive with the function of sanctifying also the functions of teaching and governing,” i.e., the power of jurisdiction is conferred by episcopal consecration simultaneously with the power of order. Consequently, an episcopal consecration conducted contrary to the pope’s will would inherently be considered an act of schism.

This premise, which is based on the Vatican II document Lumen Gentium, n. 23,is unconventional and lacks a solid foundation. Pope Pius XII had articulated on three occasions in his encyclical Mystici Corporis Christi (1943):

As far as each ones own diocese is concerned, they [the bishops] each and all as true Shepherds feed the flocks entrusted to them and rule them in the name of Christ. Yet in exercising this office they are not altogether independent, but are duly subordinate to the authority of the Roman Pontiff; and although their jurisdiction is inherent in their office, yet they receive it directly from the same Supreme Pontiff.

Pius XII reiterated the same in Ad Sinarum Gentem (1954) and Ad Apostolorum Principis (1958), that the ordinary episcopal governance power held by bishops, exercised under the authority of the pope, is granted to them directly—i.e., without the mediation of episcopal consecration but by the same Roman Pontiff. Indeed, according to Cardinal Alfredo Ottaviani, so clear is Pius XII’s support for the papal theory that it “should now be rated as absolutely certain because of the words of the supreme pontiff, Pius XII.”

This is altogether different from the apostles, who received jurisdiction directly from the Lord Himself. Bishops, who are successors to the apostles, always received this faculty from the Bishop of Rome. If this power is bestowed directly by the singular act of the pope’s will, it is unclear how it could originate from the consecration. In fact, titular bishops, whether they are coadjutors or auxiliary bishops, possess no authority over any diocese, notwithstanding the aforementioned Lumen Gentium paragraph and canon.

While one might dispute whether a case of “necessity” truly applies in this situation, schism does not apply to the Fraternity, for they are not seeking to establish a counter church to Rome. This is particularly evident by the fact that they pray for the pope and the local ordinary by name during the Canon of the Mass as required by Church rubrics, an act no schismatic would take.