The Enormous Loophole in Traditionis Custodes

Q:  My fellow-parishioners and I are so shocked and hurt by the Holy Father’s deliberate destruction of the Traditional Latin Mass [in Traditionis custodes, his new motu proprio]….  Everyone agrees it’s so badly written, there are many internet articles explaining the document’s inconsistencies as I’m sure you’re aware.  We’re wondering if somehow this can be said to render the document unworkable, because it’s so unclear.  Or maybe there’s a loophole that somehow we can use….  –Ciara

A:  Ciara is on to something here!  It’s certainly true that many thousands of words have been written about this motu proprio in numerous languages, by Catholics who are not only completely flabbergasted by the message, but also confused about what the wording of the document even means.  If an award existed for the most confusing and poorly written Vatican document ever issued, Traditionis custodes (Tc) would probably win hands-down.  It contains more than one internal contradiction (more on those in a moment), and is chock-full of imprecision from start to finish.

Fortunately for us, the Code of Canon Law contains a canon that is perfectly clear and directly applicable to this situation—and when it’s applied correctly, it quickly becomes evident that there is indeed an enormous loophole in this document, which renders much of it entirely meaningless.  Let’s first take a look at that canon, and then examine what the text of Tc actually says.

Of relevance to us here is canon 18, which says that laws which establish a penalty, restrict the free exercise of rights, or contain an exception from the law are subject to strict interpretation.  Tc definitely involves “the restriction of the free exercise of rights,” because it limits the freedom of Catholic priests to celebrate the Traditional Latin Mass.  Thus canon 18 is directly pertinent to this situation.

What does “strict interpretation” mean?  Well, by way of example let’s consider an imaginary Vatican document that declares, “Priests who do X are to be punished with excommunication.”  As per canon 18, you cannot extrapolate and conclude, “Priests will be excommunicated if they do X or Y or Z,” because that’s not what the document says.  Likewise, it would be impossible to claim that this imaginary assertion applies also to deacons and/or seminarians.  The text only speaks of “priests,” and therefore it would only apply to priests.  Period.

We looked at a real-life situation where canon 18 was clearly applicable in “Canon Law and Bad-Mouthing the Pope.”  In that case, the issue was whether canon 1370.1, which says that one who uses physical force against the Pope incurs excommunication, also applies to a person who speaks out verbally against the Pope.  The answer, in short, is an incontrovertible no.  That’s because canon 1370.1 specifically mentions “physical force,” and in accord with canon 18, we cannot extrapolate to include other, non-physical actions against the Pope as well.

Bearing canon 18 firmly in mind, let’s now try to figure out what Tc actually says.  The confusion begins immediately in Article I, which declares,

The liturgical books promulgated by Saint Paul VI and Saint John Paul II, in conformity with the decrees of Vatican Council II, are the unique expression of the lex orandi of the Roman Rite.

Note that Article I doesn’t actually tell us to do anything; it is merely an assertion of fact.  That’s not necessarily a problem in itself; the Code of Canon Law contains quite a few canons which are constructed in the same way, and are commonly referred to as “theological canons.”  We took a look at an example of this in “Contraception and Marriage Validity,” where we saw that canon 1055.1 gives us no rules, but simply provides the Church’s theological description of the sacrament of marriage.

But the theological canons in the code are, of course, historically and theologically accurate—while Article I is neither.  We can leave it to church historians and liturgists to explain why “the lex orandi of the Roman Rite” actually includes both the Traditional Latin Mass and the Novus Ordo; what we’re interested in for our purposes here is the wording of the text.  Is Article I asserting, indirectly, that the Traditional Latin Mass is now abrogated?  No, and for two reasons:
(1) Article I doesn’t say that the Traditional Latin Mass is now abrogated (and as per canon 18, this would need to be explicitly stated, since the text must be interpreted strictly!); and
(2) Elsewhere Tc explicitly states that in certain circumstances the Traditional Latin Mass is permitted.

So if Article I isn’t abrogating the Traditional Latin Mass … what’s its point?

Sadly, Article I isn’t an aberration.  The next Article makes sense, but subsequently it is directly contradicted by another Article of the same document!  Article 2 tells us this:

It belongs to the diocesan bishop, as moderator, promoter, and guardian of the whole liturgical life of the particular Church entrusted to him, to regulate the liturgical celebrations of his diocese.  Therefore, it is his exclusive competence to authorize the use of the 1962 Roman Missal in his diocese, according to the guidelines of the Apostolic See.

Fine.  But later on, Article 4 tells us this:

Priests ordained after the publication of the present Motu Proprio, who wish to celebrate using the Missale Romanum of 1962, should submit a formal request to the diocesan Bishop who shall consult the Apostolic See before granting this authorization.

So on the one hand, it is the “exclusive competence” of the diocesan bishop “to authorize the use of the 1962 Roman Missal in his diocese”—except that he has to “consult the Apostolic See before granting [the] authorization” for priests of the diocese to use the 1962 Roman Missal in his diocese.  If the bishop has exclusive competence to authorize the use of the 1962 Missal, then what’s the point of consulting with the Apostolic See whenever he wants to do this?

As we saw in “Canon Law and Bishops of Bling,” there’s a big canonical difference between consult and consent.  The Church may very well require a diocesan bishop to consult with someone else before doing X; but even if the feedback the bishop receives is entirely negative, the bishop can nonetheless freely choose to do X anyway.  This is in great contrast to a bishop being required to obtain consent from someone else—which means that if the other(s) is/are opposed to X, the bishop would not be legally permitted to do X.

Now Article 4 of Tc requires a bishop (who is exclusively competent to do this himself, remember?) to consult with Rome before allowing a priest to say the Traditional Latin Mass in his diocese.  But since consultation is not synonymous with consent, Rome could easily say “we don’t think you should do this!” and the bishop could then do it nonetheless.  So what exactly is the purpose of this consultation with Rome?  And how does it jibe with the bishop’s stated competence, which is said to be “exclusive”?  Tc fails to explain.

But these internal inconsistencies are nothing compared with the gigantic, game-changing loophole that we find in Article 3.  This rather lengthy Article addresses already existing Latin-Mass “groups” in a diocese, and proceeds to impose new limitations on them, which the fairly obvious intention of trying to eliminate them entirely.

Or does it?

Let’s not forget that any document which restricts rights is to be interpreted strictly, in accord with canon 18.  And let’s look at the wording of the first line of Article 3:

The bishop of the diocese in which until now there exist one or more groups that celebrate according to the Missal antecedent to the reform of 1970: …

Every subsection which follows in Article 3 is predicated on this first phrase.  But there’s a problem here: “the Missal antecedent to the reform of 1970” is not the 1962 Roman Missal.

Let’s quickly review the different Roman Missals which were approved by Rome around the time of the Second Vatican Council:
(1) The 1962 Roman Missal was issued by Pope (now Saint) John XXIII, more than a year before the promulgation of Sacrosanctum Concilium, the Second Vatican Council’s Constitution on the Sacred Liturgy.  When Catholics speak of the “Traditional Latin Mass,” this is ordinarily the Mass to which they are referring.  When Pope Benedict XVI issued Summorum Pontificum in 2007, permitting expanded occasions of celebrating the Traditional Latin Mass, he spoke specifically of “the typical edition of the Roman Missal, which was promulgated by Blessed John XXIII in 1962 and never abrogated.”
(2) The 1965 Roman Missal was issued around the end of the Second Vatican Council, and incorporated the reforms mentioned in Sacrosanctum Concilium. While it definitely reflects some changes when compared to the 1962 Missal, it is still recognizably the Traditional Latin Mass.
(3) The 1970 Roman Missal gave the Church the Novus Ordo Missae, which is, as most Catholics know, markedly different from the Traditional Latin Mass.  There have subsequently been several editions and new translations in the world’s languages, but this is the Mass with which most Catholics are familiar today.

Thus it is clear that when Tc speaks of “the Missal antecedent to the reform of 1970,” this phrase should be applied to the 1965 Missal.  Interestingly, this Missal seems to have been little used around the world—and in fact, it is completely ignored by some in the Church who purport to provide a history of the revision of the Roman Missal after Vatican II (see here and here for examples).

Now let’s look at the subsections of Article 3, which many are wrongly assuming restricts the celebration of Mass using the 1962 Missal.  Among other things, the bishops of dioceses where Mass is celebrated for groups using “the Missal antecedent to the reform of 1970” are told in paragraph 2

to designate one or more locations where the faithful adherents of these groups may gather for the eucharistic celebration (not however in the parochial churches and without the erection of new personal parishes)…

And the bizarre phrase is reused in paragraph 4, where bishops are told

to appoint a priest who, as delegate of the bishop, is entrusted with these celebrations and with the pastoral care of these groups of the faithful. This priest should be suited for this responsibility, skilled in the use of the Missale Romanum antecedent to the reform of 1970 [emphasis added]…

Paragraph 3 of Article 3, however, tells us something different!  Now bishops are instructed

to establish at the designated locations the days on which eucharistic celebrations are permitted using the Roman Missal promulgated by Saint John XXIII in 1962.

But don’t forget that paragraph 3—like all the other subsections of Article 3—pertains only to “The bishop of the diocese in which until now there exist one or more groups that celebrate according to the Missal antecedent to the reform of 1970.”  Thus if your diocese doesn’t have any groups that celebrate Mass using the 1965 Roman Missal, paragraph 3 (along with all the other paragraphs of this article) doesn’t apply.

In contrast, Articles 4 and 5 of Tc speak explicitly of “the Missale Romanum of 1962.”  These are among the few sentences of the document which can be described as coherent.

Are you confused yet?

If you’d like to double-check to see whether your parish or your Latin Mass “group” is using the 1965 Roman Missal, a.k.a. “the Missal antecedent to the reform of 1970,” you can find a link to the entire text of that missal if you scroll further down on this page.  And by the way, kudos to the non-canonist who wrote that article containing the link, who correctly spotted this issue which so many canonists have (understandably!) missed.

At this point, the scoffing will invariably begin.  “Come on, you know that’s not what Pope Francis meant!”  Maybe it’s not.  But we can’t know with complete certainty “what he meant”; we can only know with complete certainty what he actually said.  And as canon 18 tells us, we cannot extrapolate, we cannot make assumptions, we cannot broaden the wording of a document like Tc, which limits rights.  It would not only be presumptuous to do that; it would also be illegal.

In the world of US civil law, there is case law which says that “an unintelligible text is inoperative.”  In other words, if you can’t make head or tail of what a law means, you can’t possibly follow it, and shouldn’t be faulted for failing to do so.  Unfortunately, in the world of canon law such a legal principle has never been explicitly stated, presumably because it was not needed—until now.

It is simply inconceivable that this document, which affects so many Catholics around the world, was drafted and then reviewed/edited by genuine experts in church history and liturgy.  On the contrary, Tc gives the distinct impression that it was composed by only a single individual who (to be perfectly frank) didn’t know what he was writing about, and didn’t bother even to check the internet to make sure he got the historical facts straight—and then failed to seek the comments/input of officials in the appropriate Vatican offices (in this case the Congregation for Divine Worship, as well as the Congregation for the Doctrine of the Faith, particularly its section comprising the former Pontifical Commission Ecclesia Dei).  In short, it looks to be the work of someone writing in a hurry, someone who isn’t accustomed to writing with precision.  We can only wonder what the history of this document really is.

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