A Canonical Commentary
the last several weeks I have been approached by several people who’ve asked me questions regarding the Holy Father’s last motu proprio, Summorum Pontificum. It has become clear to me, based on these questions and based on many misunderstandings, misinterpretations, and miscommunications I’ve seen in the press (real and virtual) that a commentary of the document will be useful to many – both lay and ordained.
Consequently, I hope that this commentary will meet this need and will be appreciated. In addition, should any questions regarding this commentary or the motu proprio arise, feel free post them as comments to this. I hope to use this blog as a forum to further examine and comment on the motu proprio.
First things first: what is the law and what are the documents at issue?
Before we embark on any kind of canonical analysis, we need to define what documents we are analyzing and the proper weight that needs to be assigned to them. This is true for any document issued by the Vatican and, in particular, documents issued by the Holy Father.
The Holy Father is the supreme legislator for the Church, but he is also a fundamental part of the Church’s magisterial expression (see e.g. Lumen gentium 18, 25, and CIC canon 749). Additionally, he is the bishop of Rome and the universal pastor. [i]
The pope can therefore issue documents that are pastoral, legislative, magisterial, and informative, with various levels of authority. Some of these forms include encyclical, apostolic constitution, homily, motu proprio, etc. Nevertheless the name by itself is not sufficient to characterize the document and a careful reading is necessary to avoid confusion. If the pope were to issue an encyclical (normally not a legislative document) and halfway into it he were to write “Therefore, we decree with immediate effect that…” it can be accepted that what follows the sentence is legislative and binds the Church.
In order to properly interpret the motu proprio then, let’s apply this analysis to the documents recently written by the Holy Father and released to the Church on July 7th 2007. The pope issued two documents: a letter to bishops written in Italian, Spanish, English and several other languages, and an apostolic letter “motu proprio” issued only
The letter to bishops
I have read the letter to bishops in the three languages cited above, and noted that the translations are very close – as close as can be expected when a document is rendered in different languages.
Every translation, however, is inevitably a fraud and there aan be no expectation of precision or authority from a document that is not issued in a single definitive language. [ii] Furthermore, the official legislative language for the Church is Latin. As a result, and based on the content of the letter which is not prescriptive, I conclude that the letter to the bishops accompanying the motu proprio is not legislative but merely pastoral. In other words, the Holy Father wrote the letter to explain his motivations for the new legislation, to comfort the Church and assure them he had Her best interest in mind, and to outline the process (mental and external) he had followed in drafting the new law.
The real conclusion that must be emphasized is that because the letter is pastoral and not legislative, it may not be used to interpret, temper, or otherwise modify the law when the law itself is unambiguous on its face. If a part of the law were truly ambiguous and a genuine doubt remained about its meaning, then the letter could be consulted to provide insight into the mind of the legislator. This would have to be done with honesty and care to reconcile the various versions of the letter itself (again, reference CIC canon 17).
The Apostolic letter motu proprio
As noted above, the motu proprio was issued in Latin and only in Latin [iii]; Latin is the official legislative language of the Church and this mere fact puts us on notice that the document may be legislative. Furthermore, following a number of paragraphs that provide historical and pastoral background, as well as a number of observations about the Church’s current state, the Holy Father uses the word DECERNIMUS [iv]. This word is the first person plural (used by the Holy Father in official communications to refer to himself) of the Latin verb decerno, which means: decree, establish, or decide. In other words, in that sentence, the pope is shouting “Look! What follows is the law of the Church!!” Consequently, I will focus the remainder of this commentary on the legal text that follows the pope’s “shout”, beginning with Art. 1.
Before starting the analysis, however, let me also point out something else: the pope did not explicitly abrogate any existing law. What this means is that only those laws that are in direct conflict with the new provisions of the motu proprio are to be considered abrogated; the rest remain in full force (and that is important on a point in the analysis that follows).
Commentary on the motu proprio
The first article establishes that the Roman missal promulgated by Paul VI is the ordinary expression of the lex orandi of the Church whereas the older missal edited by Bl. John XXIII is >an extraordinary expression of the same. In analyzing this article there are a couple of important matters to be noted.
FIRST the 1962 missal is not the extraordinary liturgy one of the extraordinary liturgies of the Eucharist approved in the Latin Church. I know of at least two others: the Ambrosian and the Mosarabic liturgies that are also approved.
SECOND the word extraordinary must be understood in the proper canonical context. According to tenets of canonical interpretation, laws which provide rights or privileges are to be construed liberally, whereas laws which constrain are to be construed strictly (see e.g. CIC canon 18, 36, 77).
Put in another way this means that when the law “giveth” it must be interpreted so that it “giveth” as much as possible; when the law “taketh away” it must be interpreted to “take away” as little as possible. As a result, the right to use something that is extraordinary must be subject only to the limits imposed by the law, and then these limits must be interpreted in the most narrow manner possible.
Article 2 provides that any priest may use the 1962 missal for Masses celebrated without the people (excepting the Easter Triduum). The article is explicit that no permission is required from the Holy See or from the priest’s ordinary It is essential when reading this to point out that local ordinaries may not issue particular law that limits rights granted by universal law [v] (and the motu proprio is universal law). Consequently, any restriction that an ordinary (diocesan bishop, religious superior, etc.) may attempt to place upon priests’ right to use the 1962 missal in their private celebration of the Eucharist (for instance, requiring the priests take tests) is not simply illegal, but void ab initio (from the beginning).
Article 3 deals with religious communities and is clear on its face.
Article 4 provides that the faithful may be admitted to the “private” Masses celebrated by priests according to the 1962 missal if they ask for it of their own initiative. There are a couple of things that are worth pointing out with respect to this article.
First, the faithful may be admitted (admitti possunt) but are not required to be admitted. Priests remain free to celebrate such Masses privately. Second, the faithful must ask to attend of their own initiative; this means they can’t be invited, although there is no reason why priests who would welcome such requests could not make this fact known. This is a subtle point, but worth expanding; informing can border on inviting but as long as there is no explicit invitation letting people know where and when such celebrations take place is permissible.
Article 5 contains very powerful language that must be carefully analyzed and understood.
The first sentence states that “In paroceiis, ubi coetus fidelium traditioni liturgicae antecedenti adhaerentium continenter exsistit, parochus eorum petitiones ad celebrandam sanctam Missam iuxta ritum Missalis Romani anno 1962, libenter suscipiat” which I would translate as “In parishes where there has continued to exist a group of faithful attached to the preceding liturgy, their pastor must freely accept their requests to celebrate the holy Mass according to the Roman missal of 1962”.
Now let’s look at what this means by answering the following questions:
1. What is a group?
2. What does it mean that it continues to exist (or exists continuously)?
3. What is the pastor’s responsibility?
In answering the first question, we must understand what size might be required and whether any form of organization or formal recognition is necessary. In analyzing this we must point out that the word used by the legislator is coetus. This word implies more than two people but does not imply very many; I am aware of canonically recognized coeti as small as 5 members. Based on precedent, I conclude that a group of five families would clearly constitute a coetus for the purpose of the law. I would also go further and suggest that a broad interpretation of this right of the faithful implies that a number as low as three would qualify.
To be fair, I understand that many might consider coetus genuinely ambiguous. To these people I would once again reply with CIC canon 17. Applying this canon, the word appears plain but, even if it weren’t, recourse to a parallel place (other interpretation of the word, as I’ve done in the paragraph above) gets the number 5.
With respect to organization, coetus is not a word that is used in the current law (the ius vigens) to describe any association of the faithful, not even private ones (the most informal type); the code uses the word consociationes to refer to any group of faithful that come together on their own according to some rule (see e.g. CIC canon 299). Clearly, organization of the group is neither the intent of the legislator nor the requirement of the law. Therefore, what the law intends by coetus is a small set of individuals or families (whether organized or not) that share the common trait of being attached to the preceding liturgy.
The next word we must analize is “continenter” or continuously.
Before doing so, let’s dispel an error which has crept into the discussion of the motu proprio due to the version posted on the USCCB’s web site (that uses the word stabiliter in place of continenter). Stabiliter is a term of art in canon law, and it is used to describe things that are established and stable in time (including the future) such as ecclesiastical offices, etc. The Vatican version of the motu proprio does not use the word stabiliter. I can only guess that the USCCB posted an early draft version they had received for review without checking that it was identical to the final version.
Precisely because the word the legislator selected is continenter it does not imply any requirement about future existence; what it does imply, is an uninterrupted past. How far in the past we must go back to establish continuous existence is less clear. Any parish where, continuously since 1970, there have been at least some parishioners (and they need not have been the same ones for the entire time) attached to the preceding liturgy would clearly meet this requirement. Similarly, any parish where
a similar group has been present since its erection (if the parish was erected after 1970) would clearly meet this requirement. A situation where the group of the faithful might not meet either of these requirements would be less clear and, I would think, should be left up to the prudential judgment of the pastor.
Finally, we address the pastor’s responsibility. The pastor must freely accept these requests. It is important to note that the form of the verb suscipio used is the third person singular subjunctive. This means that the pastor is not merely encouraged to accept the requests, but he is directed to do so (a more literal translation to English might be “let him freely accept", although this does not convey the force of the Latin). In other words, rejecting such a request should not be done lightly and there must very strong reasons. Furthermore, the language is such that a rejection implies a failure to provide the faithful something they are entitled to and should be referred to the diocesan bishop (who, as the Holy Father points out in his other writings, remains the moderator of the liturgy for his diocese) for help.
In further analyzing the responsibility of the pastor it is useful to read the article’s second sentence. The pastor is to harmonize the good of these faithful (requesting the preceding liturgy) with the ordinary pastoral care of the faithful in his parish and under the governance of the bishop, avoiding discord and fostering the unity of the Church. It is important to note that this sentence establishes the pastor’s duties, but does not, in any way, diminish his obligation to freely accept the faithful’s needs according to the first sentence. If he should find that he cannot fulfil his duty under this second sentence, he must still freely accept the faithful’s lawful requests for the preceding liturgy but should seek the advice and counsel of his bishop to help him implement the requests in accord with his duties presented in the second sentence.
Article 5 § 2 states that celebration according to missal issued by Bl. John XXIII may occur on weekdays, but also up to one time on Sundays and feast days. The meaning of this section is clear but it must be clarified that this limit does not prevent the pastor from seeking an indult, if pastoral needs demand it, to celebrate additional Masses according to the preceding liturgy. Because the motu proprio did not explicitly abrogate prior law and does not directly conflict with legislation permitting indults (quattuor abhinc annos), it is still licit and lawful for a diocesan bishop to permit the additional celebration of Masses according to the preceding liturgy.
Article 5 § 4 requires priests using the 1962 missal to be idonei. Idonei means suitable and is used extensively in canon law. In general, the word is used on its own but in some cases (see e.g. CIC canon 378) additional explicit requirements are listed. The implication is that if specific requirements are not supplied by the legislator, a minimal set must be applied. Here, because the Holy Father did not list explicit requirements, and the fact that restricting laws must be interpreted strictly means that idonei refers to the minimum requirements necessary to use the missal to celebrate a valid and licit Mass.
This means such a priest must know the meaning of the words he is praying (but needs to have no expansive knowledge of Latin – handwritten edge note translations on his missal would probably suffice) and must understand the rubrics. Once again, because this is a right provided by the universal law, no particular law may abridge, limit, or impose additional requirements.
It is true that in the letter to bishops Benedict XVI states that “the use of the old Missal presupposes a certain degree of liturgical formation and some knowledge of the Latin language” but, remember, the letter is not the law. The motu proprio is the law. There can be no question but that liturgical formation and knowledge of Latin is desirable (for priests as well as for the faithful) and bishops and pastors should be mobilizing to provide it; this, however, cannot be interpreted in a way that would modify a strict interpretation of the law: >priests need only be minimally idonei! Clearly, if any priest should abuse the law and celebrate an illicit or (heaven forbid) invalid Mass, the diocesan bishop would have a duty to intervene immediately and take whatever actions necessary to remedy the situation.
Article 6 speaks of the lectionary and is clear on its face.
Article 7 provides an avenue for hierarchical escalation for groups of faithful whose requests are not fulfilled by pastors or even their bishops. Interestingly, by including this article, the legislator makes the request to a pastor similar to an administrative recourse according to CIC canon 1732 et seq. If this is true (and I am merely speculating based on the language here) then the pastor’s silence for thirty days following the request could be construed as a rejection and trigger escalation to the bishop immediately.
Article 8 provides for the Ecclesia Dei commission helping bishops and is clear on its face.
Article 9 deals the use of older liturgical books for the other Sacraments and is clear on its face.
Article 10 permits bishops, if they judge it appropriate, to establish personal parishes or a chaplain for celebrations according to the preceding liturgical norms. This canon must be read permissively; it allows bishops to dedicate priests or personal parishes to the older liturgy. It does not, in any way, diminish the rights of the faithful or the duty of pastors created in other sections of the motu proprio (e.g. article 5).
Article 11-12 deal with various administrative points, focusing on the continued role of the Ecclesia Dei commission.
The last paragraph, unnumbered, isimportant. Every law in the Church is established when it is promulgated but it is effective when its vacatio ends – think of the law being on vacation (see e.g. CIC canons 7-8). Unless the legislator specifies otherwise the default period of vacatio is 90 days. The purpose of the vacatio is to give the Church (bishops, priests, deacons and faithful) time to prepare for the effect of the law and fully implement it upon the effective date.
The motu proprio has been promulgated and is now established as the law of the Church. On the other hand its effects will not be in force until 9/14/2007. During this time, even as I write this, the Church must be preparing for full implementation. In a way, this canonical commentary is my contribution to the motu proprio’s vacatio being profitable; more importantly, however, bishops and priests should be securing copies of the 1962 missals and otherwise preparing to receive the requests of the faithful.
I suggest that where pastors expect such requests but see no practical way to satisfy them, they should already be seeking episcopal help; where bishops face a similar dilemma, they should already be in touch with the Ecclesia Dei commission to enlist their assistance. Finally, I point out that the legislator chose a vacatio of less than the canonical default for this law. This implies an expectation that preparation for the law’s impact on the Church is a relatively light matter; this observation further confirms the strict interpretation of terms of the law such as article 5 § 4.
[i] Then pope’s titles are catalogued in the Annuario Pontificio and include Vicar of Christ, Servant of the servants of God and, until recently, Patriarch of the West.
[ii] I mean no disrespect to the Eurocrats of Brussels who believe otherwise and continue to legislate authentically for Europe in multiple parallel languages.
[iii] Different version of this Apostolic letter have been found with some minor differences. I use the version published in the Vatican’s website which I assume to be the one closest to the version published in Acta Apostolicae Sedis.
[iv] Capitalization in original.
[v] The reverse is allowed; local legislators may dispense from obligations of the merely ecclesiastical universal law.
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Insights, analysis, answers, and reviews by Federico, attorney and canon lawyer (JCL, Catholic University of America). You can send me an email at this address.
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