Ed Peters: Why the original SSPX excommunications were valid

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.

+ + +

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.

Ed Peters: Why the original SSPX excommunications were valid
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42 Responses to Ed Peters: Why the original SSPX excommunications were valid

  1. Ed Peters says:

    Hi Father. Thanks for your kind words. Re ‘latae sententiae’ penalties, you have correctly outlined the counter argument to mine. Sometime, we should talk about which argument is better. Pax tecum. edp. [That would be a pleasure!]

  2. schoolman says:

    Great analysis. It all boils down to whether this act constitutes and act of “mercy” or an act of “justice”.

    Let’s see how the OR article positions it.

  3. Jeff says:

    My question is:

    What will these four aging bishops do when they confront the necessity of either dying without successors or ordaining more bishops?

    My guess is that this question is part of what is behind this move on the Pope’s part. They will have to make some choices and the choices they make will go a long way toward either healing the schism or cementing it.

  4. DM says:

    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?

    A lot of people. The SSPX. Their “canonically regular” sympathizers. Josyp Slipyj. Maybe even the Pope. State of necessity. Silent Apostasy. This is the entire argument here, for crying out loud!

    If you just blithely declare from the start that nobody could possible doubt that the SSPX are wrong, then OF COURSE you’re going to reach that conclusion when you parse the canons. But you still haven’t proven a darn thing.

    And invoking Ecclesia Dei as a trump argument? Ecclesia Dei was wrong once (about the Old Mass being abrogated). Who is to say it is not wrong again?

  5. schoolman says:

    Absolutely, Jeff. My guess is that we won’t see another illicit consecration by the SSPX. This act effectively breaks the cycle.

  6. Jordanes says:

    DM said: ”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?” A lot of people. The SSPX. Their “canonically regular” sympathizers. Josyp Slipyj. Maybe even the Pope. State of necessity. Silent Apostasy. This is the entire argument here, for crying out loud!

    I think you’ve confused the objective with the subjective. Or do you really believe that consecrating bishops contrary the canon law and against the prohibition of the pope is objectively good? Peters is not assuming what he must prove and is not reasoning in a circle. He did not “blithely declare from the start that nobody could possible doubt that the SSPX are wrong,” but stated something that even the SSPX bishops concede: that objectively it is wrong to do what Archbishop Lefebvre did, while subjectively such actions aren’t always culpable.

  7. Matt says:

    This is a great analysis.

    It seems to me that the position “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.” would probably increase the demand for Canon lawyers exponentially, else it would be practically a wholesale abandonment of penalties entirely. What we need is more attention to these automatic penalties, and more magisterial clarity about their application.

  8. tertullian says:

    SSPX has an interesting argument: we can’t be guilty ’cause we’re holier than the Pope(s).

    Classic solipsism –
    Etymology:Latin solus alone + ipse self
    : a theory holding that the self can know nothing but its own modifications and that the self is the only existent thing ; also : extreme egocentrism

  9. DM says:

    “Even the SSPX bishops concede: that objectively it is wrong to do what Archbishop Lefebvre did, while subjectively such actions aren’t always culpable.”

    That’s not what they concede at all, and not what the issue is. The SSPX don’t claim that Lefebvre was ignorant or coerced, and therefore not culpable; they claim that he was right.

    As for the loaded question of “Or do you really believe that consecrating bishops contrary the canon law and against the prohibition of the pope is objectively good?”, it’s a rhetorical trick because of course the gut instinct is to deny it.

    But one might as well ask if killing is objectively sinful. The instinct is to say yes, but under certain circumstances (as in self-defense), it can be sinless – and in certain even more extraordinary circumstances (as in the defense of innocents by a police officer), it can be heroic, and objectively so.

    The basic argument of the SSPX has not been refuted here – it’s been dodged.

  10. Jordanes says:

    DM said: The SSPX don’t claim that Lefebvre was ignorant or coerced, and therefore not culpable; they claim that he was right.

    Do they claim it is objectively good to consecrate bishops contrary to canon law and against the instructions of the Successor of St. Peter? That would be news to me if they did. Doesn’t seem like they’re claiming it is always good to do what they did in 1988, but that for various reasons what they did in 1988 was good, or at least not evil. They don’t deny that it is generally (objectively) wrong to consecrate bishops in spite of the Church’s express prohibition. If they do, then it would be difficult not to conclude that they really are schismatic.

    As for the loaded question of “Or do you really believe that consecrating bishops contrary the canon law and against the prohibition of the pope is objectively good?”, it’s a rhetorical trick because of course the gut instinct is to deny it.

    It’s not a loaded question nor a rhetorical trick, and the probable reason why you have a gut instinct to deny is that you know it is objectively sinful, not objectively good.

    But one might as well ask if killing is objectively sinful. The instinct is to say yes

    That instinct would be wrong. Killing, although always a natural evil, is not objectively sinful. Murder is, though subjectively one might not be culpable, that is, one might not be guilty of a sin even if one commits a murder.

    The basic argument of the SSPX has not been refuted here – it’s been dodged.

    Peters addressed the canonical argument specifically and directly, but I think you have dodged the argument.

  11. Michael R. says:

    It’s time for both sides to put this argument aside and move on, as the Pope has done.

  12. Namo says:

    The “main argument” in favour of the illicit consecrations, according to DM, seems to be that the SSPX believed, really and after due consideration, that they could not do otherwise. This should be taken seriously, and it generally is.
    What cannot be demanded is that everyone agree with this position, neither that the Holy See now reconsider the whole case and state that the excommunications have be wrong from the start. The distinctions between objective and subjective dimensions, between lawful and moral behaviour, between individual breaking of canon law and a general crisis of the Church are crucial.
    While it is understandable, that the SSPX bishops and followers would like to be “right” (who doesn’t), their reaction to the Holy Father’s generous act leaves a few questions:
    Are they willing to see it as a generous act, or will they continue to declare it simply their right?
    Will they continue to see and declare themselves the (only) true stewards of Tradition, or is there someone among them who dares to point out their own failures and shortcomings (at least those in foro externo)?
    Will they continue to see themselves treated unjustly (by the Pope, the bishops, the majoritiy of clergy and faithful), or is there someone among them able to recognise how their behaviour has harmed and continues to damage precisely the cause of Tradition and put obstacles in the way of its restoration, so dear to them – and others.
    Whether tradition has survived because of what the SSPX did or despite of it, is anything but clear. Certainly now is the time for a new start and for true reintegration. And if anyone thinks it will be less difficult than before – both for the SSPX and the Church in general, let him be healed of this illusion a.s.a.p. For a lot of missionary work needs to be, and the SSPX should offer its “actuosa participatio” in it.

  13. I am curious why we do immediately answer SSPX’s assertions with C. 333 §3? “No appeal or recourse is permitted against a sentence or decree of the Roman Pontiff.” The Motu Proprio of 1988 turned the 4 Bishops into “Nominati” Excommunicated Bishops. Any Questions?
    If the Pope does not make things clear juridically and doctrinally regarding Faith and Morals, for what purpose does he exercise his office?

  14. David says:

    The “argument” offered by those who oppose the claim of necessity appears to be as follows:

    – Ordaining bishops against the will of the pope is a clear violation of canon law, and violating canon law is objectively evil. Therefore, no necessity could have existed.

    What they neglect to address is that canon law itself allows for violations of the letter of the law in cases of necessity, so long as the act is not intrinsically evil.
    They appear to be incapable of distinguishing between laws which are pastoral in nature and laws which are moral in nature. For instance, abortion also subjects the person who commits it to latae sententiae excommunication. In this case, appeal to necessity cannot be made, since abortion is intrinsically evil. The ordination of a bishop, however, is NOT intrinsically evil. (If the Church didn’t have a law against it, it wouldn’t be evil, since God has not made a law against it.)

    Wisely, it appears that the Pope has now allowed the argument for necessity to be made in this case. The argument for the necessity of ordaining bishops against the will of the pope CAN be made, despite that JP2 did not allow it to be made.

    Peters “argument” that “lawful authority” (meaning the pope) has the right to determine necessity makes the law regarding necessity moot. If the pope perceived a necessity, then it would not be against his will. What he neglects is that the Pope is not the highest authority in the Church. Christ is.

    And the supreme law of Christ is the supreme law of the Church – namely, the salvation of souls.

    Here is the proof of necessity of the consecrations of 1988:

    1) There was a crisis in the Church – see JP2’s comments about “silent apostasy”
    2) The crisis in the Church, according to Cardinal Ratzinger at the time, was due to “the disintegration of the liturgy.”
    3) This disintegration of the liturgy was of the Novus Ordo liturgy, not the traditional liturgy. In many places, there were not, and still are not, any reverent celebrations of the Novus Ordo.
    4) Attendance at a reverent, non-abusive, non-sacrilegious, doctrinally sound mass is necessary for Catholics to maintain their faith.
    a) Maintaining the Catholic faith is necessary for salvation.
    b) The traditional mass is reverent and unquestionably and unambiguously doctrinally sound. The Novus Ordo may also be, but also may not be, as we have all seen on far too many occasions.
    c) The salvation of souls is the highest law of the Church.

    5) Popes Paul and John Paul I and II governed the Church as though the traditional liturgy were legally abrogated. Priests, including those of SSPX who continued to use the traditional liturgy were punished on this account.
    6) The traditional mass had not ever been legally abrogated.
    7) The traditional mass requires priests.
    8) The ordination of priests requires bishops willing to consecrate them.
    9) None of the other bishops in the world were willing to incardinate or ordain traditional priests, on account of the de facto (NOT de jure) prohibition of the traditional mass
    10) Therefore, it was a case of necessity for Abp Lefebvre to consecrate these men bishops.

    Even if you believe it was not a case of necessity, if you know anything at all about the Archbishop before 1988, you must conclude that he truly and really believed it to be a case of necessity. When the new mass was introduced, he and Cardinal Ottaviani and many other ‘conservatives’ predicted the following consequences would result from it:

    1) decline in vocations to the priesthood
    2) lessening of respect for the Blessed Sacrament
    3) reduced usage of the sacrament of confession
    4) reduced mass attendance
    5) reduced belief in the real presence
    6) reduced belief in the true and real sacrifice of the altar
    7) All of these things by 1988 had come to pass.

    How could any reasonable person not believe that the Archbishop did not truly believe it was caused by the Novus Ordo Missae, and that therefore, the way out of the crisis was to return to the old mass? (And therefore, even if there was no objective “necessity” the Archbishop at least mistakenly perceived a necessity?) Therefore, the latae sententiae penalty of excommunication has to be reduced.

    P.S. – Pope Benedict has apparently reached the conclusion that the way out of the crisis is to reintroduce the old mass. Fr Z refers to this as part of the popes “Marshall Plan”

  15. Astorg says:

    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.]

    Surely the whole point is that the excommunications were not imposed by the Congregation for Bishops; that body merely declared (confirmed, noted, stated, call it whatever you like) that they had been incurred latae sententiae (which by definition means automatically):

    Having taken account of all the juridical effects, I declare that the above-mentioned Monsignor Marcel Lefebvre, and Bernard Fellay, Bernard Tissier de Mallerais, Richard Williamson and Alfonso de Galarreta have incurred ipso facto excommunication latae sententiae reserved to the Apostolic See. (Card. Gantin, decree of July 1 1988)

    Read and read those words again. No additional penalty was imposedd on July 1.

  16. Joshua says:

    If it had just been a combox poster, I would agree with Astorg. They were latae sententiae, not ferendae sententiae

    But Ed Peters is a noted canonist. I trust he had a reason to say that the penalty being declared changes matters. Perhaps what is meant is that in the external forum the penalty must be held to have been incurred?

    Popes have unjustly abused excommunication before (thinking of Florence here) where it is probable that those declared such were not in fact cut off spiritually. But they still had to observe the canonical effects of such a penalty, however unjustly imposed, unless necessity required otherwise.

    The Catholic Encyclopedia makes a distinction between invalid and unjust excommunications. Fr. Feeney and his followers always claimed an invalid excommunication, one defective in form and hence not binding in any effect. The SSPX claim is not such, but rather that it is unjust.

    Excommunication is said to be unjust when, though valid, it is wrongfully applied to a person really innocent but believed to be guilty. Here, of course, it is not a question of excommunication latæ sententiæ and in foro interno, but only of one imposed or declared by judicial sentence. It is admitted by all that a null excommunication produces no effect whatever, and may be ignored without sin (cap. ii, de const., in VI). But a case of unjust excommunication brings out in a much more general way the possibility of conflict between the forum internum and the forum externum, betweenlegal justice and the real facts. In chapter xxviii, de sent. excomm. (Lib. V, tit. xxxix), Innocent III formally admits the possibility of this conflict. Some persons, he says, may be free in the eyes of God but bound in the eyes of the Church; vice versa, some may be free in the eyes of the Church but bound in the eyes of God: for God’s judgment is based on the very truth itself, whereas that of the Church is based on arguments and presumptions which are sometimes erroneous. He concludes that the chain by which the sinner is bound in the sight of God is loosed by remission of the fault committed, whereas that which binds him in the sight of the Church is severed only by removal of the sentence. Consequently, a person unjustly excommunicated is in the same state as the justly excommunicated sinner who has repented and recovered the grace of God; he has not forfeited internal communion with the Church, and God can bestow upon him all necessary spiritual help. However, while seeking to prove his innocence, the censured person is meanwhile bound to obey legitimate authority and to behave as one under the ban of excommunication, until he is rehabilitated or absolved. Such a case seems practically impossible nowadays.

  17. Ed Peters says:

    Thanks Joshua, maybe you can get folks to read the canon I cited for their convenience. It makes it patent that there are differences between automatic and declared censures. Also, there is a distinction between imposed and declared here, the former being used in the context of judicial cases, the latter in the context of administrative cases. I used the terms correctly.

    As for David’s reply, look, I have no desire to debate every commer here, but my point is NOT what you claim; else I could hardly have been writing on this matter in defense of pro-life sit-ins as far back as 1979. Here, the SSPX lit says that Abp. L acted as he did because it was necessary “in order to preserve the Catholic priesthood.” If you seriously want to argue that, but Abp. L action’s, the Catholic priesthood would disappeared, you’re free to make your case. I think it’s an absurd claim, but I could be wrong. MY point is the more careful one that legitimate authority CAN make the determination that an alleged necessity did not obtain, and that a defense based on such a claim fails.

  18. Ed Peters says:

    PS: I do see where my use of the common parlance term “imposed” to bring in the unitiated might have confused folks hip to the imposed/declared distinctions, but I immediately added the “id est” clause (“that is”), to make clear, I hoped, that we are dealing here with declared (here, administratively) sanctions, not automatic ones, so SSPX Arg. 3 fails on its face. Theoretically, an ls penalty could be delcared judicially per 1342, etc, but I can’t think of public case where that has happened. They all seem to be adminsitrative actions (on which you don’t want to get me started!)

  19. Astorg says:

    @Ed Peters: I did of course read the canon you quoted, 1324.3, which states, inter alia, that:

    In the circumstances mentioned in §1 [“The perpetrator of a violation is not exempt from a penalty, but the penalty established by law or precept must be tempered or a penance employed in its place if the delict was committed […] by a person who was coerced by grave fear, even if only relatively grave, or due to necessity or grave inconvenience if the delict is intrinsically evil or tends to the harm of souls”] , the accused is not bound by a latae sententiae penalty.

    Canon 1314, meanwhile, provides that:

    A penalty is for the most part ferendae sententiae, that is, not binding upon the offender until it has been imposed. It is, however, latae sententiae, so that it is incurred automatically upon the commission of an offence, if a law or precept expressly lays this down.

    The decree of July 1 expressly stated that the excommunication was incurred latae sententiae (automatically) and did not impose a sentence.

  20. Aelric says:

    At http://www.sspx.org/sspx_media_brochure.pdf the SSPX suggests that \”disobedience is not schism\” and that the illicit episcopal consecrations were disobedient, but did not deny papal authority (p. 4).

    Of course, what is not written is disobedience to a directive of the Roman Pontiff . No one claims that all disobedience is schism; the issue is whether this specific act of disobedience was schismatic.

    Then we find in the decrees of Vatican I (see: http://www.piar.hu/councils/ecum20.htm ) under Chapter 3:

    Wherefore we teach and declare that, by divine ordinance, the Roman church possesses a pre-eminence of ordinary power over every other church, and that this jurisdictional power of the Roman pontiff is both episcopal and immediate. Both clergy and faithful,of whatever rite and dignity, both singly and collectively,
    are bound to submit to this power by the duty of hierarchical subordination and true obedience, and this not only in matters concerning faith and morals, but also in those which regard the discipline and government of the church throughout the world.

    To distill: by divine ordinance, clergy are to submit by the duty of \”hierarchical subordination\” to the jurisdictional power of the Roman Pontiff also in matters of discipline and government.

    Canon 751 in part: \”schism is the refusal of submission to the Supreme Pontiff\”

    So, does SSPX actually claim that \’disobedience\’ to a directive of the Holy Father fails to deny the notion of \’hierarchical subordination\’ established by divine institution as promulgated by Vatican I? Is their argument that they acknowledge the Pope\’s divinely given jurisdiction but chose to disobey it; and that this does not rise to the level of \”refusal of submission\” and hence schism? I\’d like to know the essence of the position.

    I\’ve read the various ultramontane arguments, but the issue here seems to be that the Pope (not some \”man made\” structure or low-level manager) made his official and binding will known to the SSPX regarding the episcopal ordinations. I simply cannot (yet) see how an act of defiance of that manifest jurisdictional decree, in which the Pope has competence and which Vatican I teaches carries the weight of divine authority, can be said not to deny the same. This isn\’t as if I refused to stand on my head when the Pope said to do so.

    My last query regarding the SSPX brochure is where in canon law or in the Tradition of the Church is a \”sacramental bishop\” defined (c.f. page 4)? Was this an innovation by Archbishop Lefebvre?

  21. signum says:

    Sorry for bringing up a silly minor point but these things can be important:

    David, in your recent post you had a numbered list of seven items that were predicted consequences of the Novus Ordo. Please forgive my silly urge, but I thought I would draw attention to the obvious logical fact that No. 7 in the list ought to stand alone after the list and not be numbered with the other six points. With that change it makes perfect logical sense.

    Otherwise, with this sort of thing, one creates weird logical puzzles that could render the intended statement(s) meaningless.

  22. Steve says:

    “Men of good will”?

    It seems Fr. Z is working his hardest to keep throwing stones until the very end.

    Now he is ripping open the scar that just healed with the remitting of the excommunications, wounding
    the Mystical Body once again.
    [Oh brother! “ripping open the scar that just healed”? Have you not paid attention to anything here over the last few days? Never mind… that was a rhetorical question.]

    Can we let sleeping dogs lie? The Pope remitted the decree, thus the effects are the same as if it never happened.

    Do we REALLY want to start into whether they were valid? Something Canonists on both sides have been
    arguing over for 20+ years until FINALLY the decree came out?

    This is history! The Society has every right to believe the excommunications weren’t vaild in ’88 since
    the decree remitting them leaves this possibility open and the Holy See has never said the new decree means the old
    one was valid.

    Just when we should be rejoicing in a spirit of reconciliation, some would rather nitpick every single
    statement the Society issues, mocking it, writing sarcastic comments, etc.

    The Society is obviously near to the Holy Father’s heart. Otherwise there is no way he would be moving
    heaven and earth to bring them bakc in. I think we owe it to him to follow his example and welcome
    them back with open arms.

  23. Ed Peters says:

    Astorg, I didn’t cite to c. 1324, I repeated SSPX’s cite it; I cited c. 1331. Read it and you’ll see what I’m talking about. Best, edp.

  24. RJS says:

    “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.

    How about this: The hierarchy of the Church, including at least two Popes, deceived the entire Catholic world by implying that the old Mass was forbidden, and had been replaced. Since we now know that this was indeed a lie of virtually the entire hierarchy, the act of consecrating Bishop to preserve that Mass was justified. In addition, since the Seminaries became cesspools of immorality and heresy, which the Pope did nothing to correct, it was necessary to maintain good seminaries that could be trusted; and, since the these seminarians would need to be ordained, it was justifiable, due to the extraordinary situation that was present, for the Archbishop to go ahead with the Consecrations in order that these seminarians could be ordained.

  25. Astorg says:

    @Ed Peters: Canon 1331 establishes, in list form, the framework for censures imposed “if the excommunication has been imposed or declared.” I fail to see why this invalidates the SSPX argument that “if one culpably thought there was [necessity], he would still incur no automatic penalties”:

    (1) the bishops thought in 1988 there was necessity (canon 1324.3) and went ahead with the consecrations;
    (2) in such cases, excommunication is incurred ipso facto, latae sententiae (canon 1382);
    (3) on July 1 Card. Gantin declared (his very words, v. above comment) that (2) had occurred; he notified no ferendae sententiae penalty;
    (4) but canon law also provides that when there is necessity, “the accused is not bound by a latae sententiae penalty” (canon 1314).

    Since no ferendae sententiae penalty was imposed and the Congregation for Bishops declared that excommunication had been incurred latae sententiae, BUT that canon 1314 disallows latae sententiae where there is necessity, the SSPX arguably have a point.

    Of course the Pope could probably have gone ahead and excommunicated them anyway. But he never did.

  26. RJS says:

    \”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.\”

    In Ecclesia Dei adflicta, John Paul II missed the point by implying that the old Mass was abrogated, calling it “some previous liturgical and disciplinary forms of the Latin tradition”, and issuing an indult for something that was “never juridically abrogated and, consequently, in principle, was always permitted”. That’s where he missed the point.

    And I believe we will have evidence that he also missed the point regarding the excommunications. But for now, just as you would have rejected any arguments that the old Mass was never abrogated prior to the Pope admitting it, so too you will reject any argument that the excommunications were invalid.

    BTW, what was your position on the status of the old Mass prior to Summorum Pontificum?

  27. Miguel says:

    If I have to roll the dice on these issues, I’d rather spend eternity with the Archbishop Lefebvre than John XXIII, Paul VI and Bugnini. I’ll defer to the Lord on our location and accept His decision.

  28. prof. basto says:

    Miguel,

    Who told you that BLESSED John XXIII and Bugnini are in the same place. Perhaps you have “inside information” favoring the holiness of the late Archbishop Bugnini, of regrettable memory?

    It may well be – and I hope that – Archbishop Lefebvre is in heaven. But why assume that John XXIII and Lefebvre will spend eternity in separate places? After all, when you place a BLESSED in one camp and someone else in another, and talk of “eternity” (thus excluding purgatory), matters don’t look for that other person.

  29. Miguel says:

    Nobody told me, I’m admittedly guessing with an indication towards a preference.

    If I had inside information, I wouldn’t be commenting on a blog to pass time. That’s ultimately what we are all doing, yes?

  30. Jordanes says:

    RJS said: How about this: The hierarchy of the Church, including at least two Popes, deceived the entire Catholic world by implying that the old Mass was forbidden, and had been replaced.

    “Deceived” is the wrong word, because it usually has a connotation of an intent to mislead. It’s pretty likely that they sincerely believed they had juridically abrogated the pre-Vatican II liturgy of the Roman Rite. It’s hard not to see that they intended to.

    Since we now know that this was indeed a lie of virtually the entire hierarchy, the act of consecrating Bishop to preserve that Mass was justified.

    We don’t know that at all, but even if we did it wouldn’t necessarily justify consecrating bishops after the Pope has forbidden you to do so.

    In addition, since the Seminaries became cesspools of immorality and heresy, which the Pope did nothing to correct

    Nothing except for an apostolic visitation in 1981, Pastores Dabo Vobis in 1991, etc.

    it was necessary to maintain good seminaries that could be trusted; and, since the these seminarians would need to be ordained, it was justifiable, due to the extraordinary situation that was present, for the Archbishop to go ahead with the Consecrations in order that these seminarians could be ordained.

    In other words, since the Church and the Pope aren’t doing things correctly, I have to do it for them. The question then is: if this argument is valid for this situation, when isn’t it valid? And do we really need a Pope if I may with impunity act contrary to his instructions whenever I believe the Church needs me to take action to save her? After all, the Church has been in far, far worse states of decrepitude in her history, morally, liturgically, doctrinally, in matters of discipline, than she was in the 1980s. Reading some of those old historical accounts can make your hair turn white from shock and dismay.

    In Ecclesia Dei adflicta, John Paul II missed the point by implying that the old Mass was abrogated, calling it “some previous liturgical and disciplinary forms of the Latin tradition”, and issuing an indult for something that was “never juridically abrogated and, consequently, in principle, was always permitted”. That’s where he missed the point.

    That is irrelevant to Peters’ canonical arguments. If the pope erred on point, it doesn’t follow that he erred on a different point.

    And I believe we will have evidence that he also missed the point regarding the excommunications.

    You may be right, but your belief does not suffice to counter Peters’ canonical argument.

    But for now, just as you would have rejected any arguments that the old Mass was never abrogated prior to the Pope admitting it, so too you will reject any argument that the excommunications were invalid.

    It is easier to conclude that someone with whom one disagrees is inaccessible to reason than it is to interact with the state reasons for his position.

  31. Joan Ellen says:

    1. Thank you all for your very well thought out and helpful posts.

    2. Fr., forgive me, I’m going to take a turn here.

    3. Is it the disobedience and/or the automatic excommunications which make the SSPX Mass & Eucharist
    illicit or or is it some other code in Canon Law. (Especially in light of the Motu Proprio SP.)

    4. The same question for the jurisdiction needed for the Sacraments of Confession and Matrimony, please.

    5. Fr., how is a soul to know which is worse for it…a Mass with what I can only express as disobediences contrary to the Holy Father’s wishes… that have been made acceptable via dubia…altar girls, communion in the hand, the words for all in the Consecration, or we believe for Credo,
    etc., etc., etc., OR a Mass that contains no
    disobediences…dubia supplied or any other kind…, but is not licit because of possible…maybe even probable…necessity…as 4-6 Bishops, in the Church at the time, may have seen it.

  32. Papabile says:

    In re: Peter’s response to Arg 1.

    St Alphonsus de Liguori, Doctor of Canon Law and Moral Theology, and of course a Doctor of the Church, authoritatively teaches that a Catholic who relies upon a “probable” opinion which would exculpate him and remove him from being subject to a law does not in fact act in complete liceity. Therewith, the four Bishops of the Society of St. Pius X have from the beginning affirmed without interruption that they have simply relied upon more than just “probable” opinions, that is, actually nothing less than the dogmatic and definitive teachings of the Supreme Magisterium, i.e. the teaching that the rights of the True Faith exist with distinction to all other false religions (Quanta Cura 3[b]), as opposed to Dignitatis Humanae 6[d]. Now, Canon 14 of the CIC 1983 provides that every rime a doubt of law exists, a law does not oblige. Who says “probable” opinion ( in this case in the very least the teaching of Quanta Curs 3(b) ) says “doubt of law.” Indeed, there is a case to be made that the four bishops were obliged not to accept the teaching of Dignitatis Humsnse 6(d). Objectively, the four bishops were OBLIGED to uphold Quanta Cura 3(b)against any and all who would hold the contrary opinion, be they simple laymen or even Pope

  33. Papabile says:

    (Followup)

    Canon 1323[4] provides that one who is obliged to do something (“necessity”) is not subject to a penal sanction. Thus the four bishops can in fact make a strong case that they never were excommunicated due to them having merely remained firm in their adherance to the proscriptions of Quanta Cura, an encyclical letter to this day still binding every single Catholic on earth.

  34. Brian says:

    I wonder whether the question of necessity might also be considered as part of the broader issue of doctrinal questions about Vatican II, particularly ecumenism. The SSPX, for example, was scandalized by the the Pope’s inter-religious service at Assisi. They continue to argue that such ecumenism is misguided and contrary to Catholic Tradition and defined dogma. I’m not sure, but I assume that the SSPX might argue that the Pope was taken in by such “errors” that they needed to act in order to preserve Catholic tradition. Many see the SSPX as deluded in this regard; they, however, see themselves as perserving tradition in a deluded age.

  35. Legisperitus says:

    I’m still not convinced that John Paul acted “praeter legem,” since the only declaration he made was that they were excommunicated latae sententiae. Unless he acted praeter legem sub silentio.

  36. ekafant says:

    Excellent discussion Father. I look upon it very simply. There are lots of good arguments, but the SSPX was basically saying, the emperor has no clothes. I remember when the consecrations happend. I was 21 at the time, a non-Catholic, and my Catholic friends were discussing this issue. For me, it seemed quite clear that the Archbishop acted in the right. I think one point should be noted, that as an Archbishop of the Church, Levebre had a much greater responsibility to uphold the faith than any of us have to. Our duties and resposibilities are much less than an Archbishop. Nevertheless, what a wonderful day Saturday was. I got my kids a big pizza in celebration, and they said “Thanks Pope Benedict”.

  37. David2 says:

    David, and others,

    The “elephant in the room” in so far as the question of necessity is concerned seems to be the Protocol of Agreement between the Holy See and the Priestly Society of St Pius X of 5 May 2005 signed by Abp Lefebvre and (then) Cardinal Ratzinger, and the subsequent negotions. Considerons ce qui se passerait…

    The Protocol was signed (http://www.unavoce.org/protocol.htm)

    That Protocol was followed by several letters back-and-forth between the Holy See and Abp Lefevbre, all of them in Francais…(http://www.dici.org/thomatique_read.php?id=000112).

    On 30 May 1998 Cardinal Ratzinger wrote, “[O]n the question of the commission, whose purpose was to favour reconciliation, not to make decisions, the Holy Father thought it best to keep to the agreement that Lefebvre had signed on 5 May\”; on the question of the ordination of bishops, the Pope reiterated his readiness to speed up the usual process so as to nominate a member of the Society to be consecrated on 15 August, and Lefebvre was asked to provide the necessary information on candidates for this purpose, but, His Eminence added, “Since you have announced again recently your intention to ordain three bishops on 30 June with or without the agreement of Rome, you must state clearly that you entrust yourself to the Holy Father’s decision in full obedience.”

    So the Holy Father was promising, in writing, to allow the Consecration of an SSPX priest as bishop on 15 August.

    Archbishop Lefevbre wanted to Consecrate 4 on 30 June.

    How on earth is that a case of necessity? Doesn’t the fact that JPII was willing to Consecrait an SSPXer as Bishop within a matter of weeks, really torpedo the case for necessity mady by David, or at least undermine it very significantly?

  38. not.a.canonist says:

    I am not capable of grasping the finer points of Canon Law, and all this just confuses me. When I get confused about the “excommunications”, I come back to the question of my soul. I ask myself, “What priest will teach me and help me to be a Saint?” I look at the SSPX priests and what they preach and how their Faithful pray, believe, and live. I look at the local Novus Ordo priests and what they preach and how their Faithful are. In all honesty I am forced over and over to acknowledge to myself that the SSPX priests are the ones who can most help me. It seems that I would be going against my conscience to deliberately go to a shepherd for my soul who I believe is less able to help me save my soul. So, that is why I keep trusting the SSPX for the care of my soul.

  39. Patrick says:

    not.a.canonist,

    If you want to take your lead from a suspended priest who daily (assuming he says mass every day) objectively commits a mortal sin, a priest who cannot even absolve your sins, go for it. But really, spiritually, it’s not a good idea. Maybe a better idea would be to entrust your formation to one of the thousands of really devout, really holy priests, many of whom say the Traditional Mass. They’re out there; you just have to look.

    David 2,

    There is/was no necessity. The only questions now is if these SSPX bishops will clean themselves up and come home, now that the Holy Father has so mercifully forgiven their transgressions.

  40. Upstart says:

    With all due respect to Dr. Edward Peters, I cannot agree to his opinion that “I [Dr. Peters], 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.”

    Forgive me, but didn’t Archbishop Raymond Burke, now Prefect of the Apostolic Signatura (chief judge of the world’s Catholics just after the Pope), issue a whole bunch of decrees declaring the incurring of latae sententiae excommunications on the part of a dozen individuals over the past few years?

    How did Archbishop Burke’s acts of declaring the latae sententiae incurring of penalties by the St. Stanislaus Kostka board members and the RCWP tie-died chiffon dancing lesbians, as an example, lead to “neuraligic and distracting” consequences?

    Dr. Peters appears to be obsessively stuck in the lab rat’s maze of progressive canonist Thomas Green of Catholic University of America, who, correct me if I am wrong, directed Dr. Peters’ doctoral dissertation in canon law…

  41. RJS says:

    David 2,

    Here’s an interview where Archbishop Lefebvre discusses why he went through with the consecrations. He also explains who it is that cut off the agreement with the words “It’s finished… there is no more protocol”. http://www.sspx.org/miscellaneous/one_year_after_the_consecrations.htm

  42. Aelric says:

    The Holy Father made a direct affirmation that the excommunications were validly imposed in his Wednesday general audience (quoting from http://rorate-caeli.blogspot.com/ )

    Precisely in the accomplishment of this service of unity, which qualifies, in a specific way, my ministry as Successor of Peter, I decided, a few days ago, to grant the remission of the excommunication in which the four bishops ordained by Archbishop Lefebvre in 1988, without pontifical mandate, had incurred.

    The excommunications were incurred and have been remitted.