In another entry I posted some material taken from a media brochure issued by the SSPX with their claims about why the excommunications of the SSPX bishops in 1998 were never validly incurred/imposed.
Here is the relevant section:
According to the 1983 edition of the Code of Canon Law:
1. A person who violates a law out of necessity is not subject to a penalty (Canon 1323 §4).
But even if no state of necessity existed:
if one inculpably thought there was, • he would not incur the penalty (Canon 1323 §7),
and if one culpably thought there was, • he would still incur no automatic penalties (canon 1324 §3; §1, 80).
2. No penalty is ever incurred without committing a subjective mortal sin (canons 1321 §1, 1323 §7).
Archbishop Lefebvre made it clear that it was his duty before God as a bishop to perform the episcopal consecrations to ensure the continuance of the Catholic priesthood. Even if he had been wrong, there would still have been no subjective sin.
Consequently, the accusations of excommunication were illegitimate and thereby always null and void.
This is an argument. I would like to know if this is what was determined in the study done by the Holy See before the Holy Father lifted the censures.
Ed Peters, on his excellent blog In The Light of the Law, tackles this thorny bush of claims and canons and claims.
He has a different take
Why the original SSPX excommunications were valid
While we await the L’Osservatore Romano article that is to offer an account of how Pope Benedict XVI arrived at the decision to lift the excommunication imposed on the four priests who received episcopal orders illicitly (c. 1382) from Abp. Marcel Lefebvre in 1988, the materials now coming from the Society of St. Pius X continue, in my opinion, to add to the burden such an article must carry if the remission is to make sense to otherwise well-disposed outside observers. [Exactly. As I have been writing for days, I would like to know what went on with the "study" of the question on the part of the Holy See. Did they come to the conclusion that the excomm's weren't every really incurred? If so, I would say "justice delayed is justice denied". If they were validly incurred, then the gesture of the Holy Father is that much more generous and purposeful.]
In the meantime, for the benefit of those who would like to see some responses to the canonical arguments by which the SSPX claims that the 1988 excommunications were never incurred in first place, let me very briefly note the following:
[This is great stuff... read slowly.]
SSPX Arg. 1. A person who violates a law out of necessity is not subject to a penalty (Canon 1323.4). Correct, but [but!] in asserting what amounts to an affirmative defense, the burden is on the SSPX to prove that it was objectively [not subjectively... "we really feel it is necessary" isn't a good enough argument] necessary for them to ordain four bishops in violation of universal canon law and the specific prohibitions of the Holy See. Of course, most people who break the law think they are justified in breaking it. But it’s not the offender’s opinion of "necessity" that counts, it’s lawful authority’s determination of "necessity" that matters. And Rome is the lawful authority here, not the SSPX. [But what about "emergency powers"? Rome gets to make that judgment also.]
SSPX Arg. 2. Even if no state of necessity existed, if one inculpably [the key here] thought there was, he would not incur the penalty (Canon 1323.7). Correct, but [but!] the burden is, as above, on the SSPX to prove that they were "without fault" in thinking that it was necessary for them to ordain four bishops against universal canon law and the specific prohibitions of the Holy See. Now, if the SSPX bishops could show that, by late June of 1988, after all that had transpired to that point, they were "without fault" in still thinking it was necessary for them to violate canon law and papal prohibitions, then I don’t know who could not show themselves to be "without fault" for breaking just about any law and disregarding just about any papal directive. [True. Another point here is that some people raise the question of if, in his advanced years, the late Archbishop wasn't perhaps less sharp than he should have been. No matter: the other bishop was involved and the four men who were consecrated were involved and made their choices.]
SSPX Arg. 3. If one culpably [the key word] thought there was [necessity], he would still incur no automatic penalties (Canon 1324.3; [other citations garbled]). Correct, but [but!] this argument avoids the crucial point that the excommunications which were lifted last week were not automatic excommunications, they were imposed excommunications (see c. 1331), that is, ones formally declared, by the Holy See no less. [The SSPXers incurred the excommunication automatically, that is true. BUT... this was confirmed by the proper authority, the Cong. for Bishops, under the direction of the Roman Pontiff.] Whatever was the canonical status of the SSPX bishops on June 30, 1988, by July 1 [when the Congregation issued the confirmation decree] they labored under declared excommunications, not automatic ones.
SSPX Arg. 4. No penalty is ever incurred without committing a subjective mortal sin [the key here is "subjective"] (Canons 1321.1, 1323.7). Incorrect. [!] Canon law does not attempt to read the souls of Catholics and does not require proof of them having committed "subjective mortal sin" before visiting penalties on offenders among them. [Remember that we look at sin in a couple ways. First, an act can be objectively sinful. Killing someone, for example, is objectively sinful because it is against the Decalogue. But there are circumstances which lessens a person's actual guilt for that objectively sinful act. There is the state of mind, the reason, the attendent circumstances such as external pressure, duty, etc. So, there is the objective dimension and the subjective dimension of human acts.] Canon law does require that the underlying act be one that is objectively gravely sinful, [objectively] but [but!] who doubts that ordaining Catholic priests to the episcopate against the norm of canon law and the express prohibition of the pope is objectively sinful? The "culpa" mentioned in these two norms refers to legal responsibility in the external forum, [objective] not to moral responsibility in the internal forum.[objective considered in the light of the subjective] The Holy See reasonably concluded that the external, observable actions of the SSPX bishops were in violation of canon law. That’s all that was necessary.
In sum, while I think that Canon 124 suffices to put the burden on the SSPX bishops to prove the alleged invalidity of the excommunciaitons they incurred in 1988, to the degree they think that their arguments above accomplish that goal, I disagree. I would only add that, if anyone still wants to claim that the SSPX excommunications were invalid, please read John Paul II’s m. p. Ecclesia Dei adflicta (2 July 1988), esp. para. 1-3, and show us where the pope missed the point. PS: Good luck.
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Some other quick points, if only for the record:
The SSPX censures were incurred in the context of Canon 1382 (illicit episcopal ordinations). What various SSPXers said before and since about the Church, Vatican II, "Modernist Rome", the Holocaust, and so on, might well be offensive, but it must be distinguished from assessment of the canonical crimes they committed in June of 1988. The pope’s action last week, however it will be explained, is focused, I expect, only on their illicit ordinations. [Exactly.]
The age-old question "Are popes above canon law?" admits of no easy answer, but this much should be said: first, don’t confuse actions which are only praeter legem (outside, or beyond the law) with actions that might seem to be contra legem (against the law); second, it is easier for popes to act praeter legem than it is for others to so act (c. 331). [Right.]
I, in company with many others, hold that latae sentenitae penalties have outlived their usefulness in canon law and are today simply a source of neuralgic and distracting debates. They should be abandoned. [I don't agree. There are some crimes which are not public which incurr latae sententiae excommunications. In that case the person who did something without public knowledge would at least feel the burden of knowing he incurred the censure and may feel compelled to reconcile in the internal forum. I have as a confessor helped a few people along this lines. Their knowledge that they had incurred a censure, though virtually no one else knew, drove them to seek the lifting of the excommunication/irregularity.]
I, in company with many others, hold the Book VI of the 1983 Code needs to be revised to make it clearer how ecclesiastical leadership has the canonical authority to impose sanctions on offenders in accord with law (c. 221) but without becoming embroiled in an at-times hopeless tangle of affirmative defenses and "pastorally-inspired" mitigations and exceptions.
Excellent analysis. I hope this clear up some questions.