LEGAL CONSIDERATIONS ON "TRADITIONIS CUSTODES" - written by a Priest and Canon Lawyer
by Fr. Pierre Laliberté, J.C.L.*
The motu proprio “Traditionis Custodes” was issued by Pope Francis on 16 July 2021, along with an accompanying letter.
As a restrictive decree, this present motu proprio of Pope Francis should be interpreted strictly, in accord with the legal maxim Regula Juris 15 (odiosa restringenda, favorabilia amplificanda). Interestingly, there is no vacatio legis on the document either.
Pope Francis indicates in the first paragraph that the bishops constitute the principle of unity of the particular churches and govern them through the proclamation of the Gospel. As the specified end of the document is the “constant search for ecclesial communion”, it would also appear that hermeneutically, this document should be interpreted in a way which genuinely fosters ecclesiastical communion between the faithful, priests, and bishops, and does not promote negative feeling and ill-will amongst any members of the Christian faithful who are attached to the traditional liturgical forms.
It is worthwhile to indicate what this motu proprio does not place restrictions upon. No mention whatsoever is made of the pre-conciliar Breviarium Romanum, Pontificale Romanum and Rituale Romanum. No express abrogation is made of any notable document concerning the traditional Roman Missal, and such abrogation should not therefore be implied. The traditional Missal remains, as it always was, never abrogated. The rights established by Quo Primum, by the theological and liturgical tradition of the Western rites, and immemorial custom remain intact. No mention is made of the traditional rites of the various religious communities (Dominican, Carmelite, Praemonstratensian, etc.) nor those of the ancient sees (Ambrosian, Lyonnais, etc.). There is no indication that the right of a priest to celebrate privately according to the 1962 missal is in any way infringed.
When read in comparison with the extensive granting of rights conceded by Summorum Pontificum and clarified and expanded by Universae Ecclesiae, when there is no express revocation of these rights indicated by Pope Benedict XVI, one must conclude canonically that they still exist.
There is a serious lack of clarity in this document which this brief analysis will attempt to address, and it is evident that its ambiguities will be, sadly, taken advantage of by those with less than a genuine love for the Church, her faithful people, and her heritage.
2. Documentary Analysis
Article 1, discussing the liturgical books promulgated by Sts. Paul VI and John Paul II, indicates that they are the “unique expression of the lex orandi of the Roman Rite.” In the absence of any indication to the contrary, one must conclude that the status of the Extraordinary Form liturgical books remains intact.
Article 2 recognizes the diocesan bishop as the “moderator, promoter, and guardian of the whole liturgical life of the particular Church.” This is true and has always been the case. This article merely recognizes that the bishop regulates the general liturgical life of the diocese, which encompasses also the use of the pre-conciliar Missale Romanum, and to authorize its use, just as a bishop would authorize the right of any priest to celebrate the liturgy.
In considering Article 3, it is worthwhile to note that the provisions of this article refer to the “Missal antecedent to the reform of 1970.” Strictly understood, the Missal antecedent to the reform of 1970 is the editio typica of 1965 with the alterations of Tres abhinc annos of 4 May 1967. This is not the 1962 Missal. To this author’s knowledge, the 1965 missal is used hardly, if ever.
Article 3, number 1 asserts that “these groups do not deny the validity and legitimacy of the liturgical reform dictated by Vatican Council II and the Magisterium of the Supreme Pontiffs.” This should not pose a problem, as the fundamental principle of the liturgical reform, antecedent to any changes, as indicated in Sacrosanctum Concilium 4, remains that “in faithful obedience to tradition, the sacred Council declares that holy Mother Church holds all lawfully acknowledged rites to be of equal right and dignity; that she wishes to preserve them in the future and to foster them in every way.”
Article 3, number 2 notes that the bishop of the diocese is to designate one or more locations where the faithful adherents of these groups [which celebrate according to the Missal antecedent to the reform of 1970] may gather for the Eucharistic celebration, not taking place in the parochial churches and not erecting new personal parishes. This remains unclear legally, as it could merely be implied as a restriction placed upon the 1965 editio typica. While the text indicates that these groups may gather “not in the parochial churches and without the erection of new personal parishes”, there remain any number of other locations where such celebrations may take place.
Article 3, number 3 indicates that the bishop can establish the days on which Eucharistic celebrations are permitted according to the 1962 Missal. There is no indication given that the right of a priest to do so is infringed. The bishop also can make such a designation. And as is the case in virtually all communities where the Extraordinary Form is celebrated, the readings are typically proclaimed in the vernacular according to the provisions established in Universae Ecclesiae 26: “As foreseen by article 6 of the Motu Proprio Summorum Pontificum, the readings of the Holy Mass of the Missal of 1962 can be proclaimed either solely in the Latin language, or in Latin followed by the vernacular or, in Low Masses, solely in the vernacular.” Number 4 indicates that a priest should be appointed who is “suited for this responsibility”, and gives examples of the positive characteristics which should be inherent in such a priest.
Article 3, number 5 and 6 descibe how the bishop is to positively guide the growth of such communities and parishes, namely to ensure that they are “effective for their spiritual growth” and to “determine whether or not to retain them.” Of course, the accent here is on the positive: bishops should encourage the effectiveness of the growth of such communities and parishes. The following subsection notes that there is also no strict forbidding of bishops to authorize the establishment of new groups, but rather merely to “take care” not to authorize their establishment.
Article 4 establishes a distinction between those ordained subsequent to 16 July 2021 who “should” submit a request to the diocesan bishop, who will consult the Apostolic See, and those ordained previously. There is no indication that these newly ordained priests must do so, and no indication of penalties to which they would be subject if they were not to do so. This is a hortatory, not a compulsory, statement. Similarly, those ordained prior to 16 July 2021 are also encouraged in article 5 to request from the diocesan bishop the faculty to continue to celebrate according to the traditional Missal. Again, these two (2) articles should be read in a way which, in accordance with the express aims of the present motu proprio, would foster the positive growth and understanding in communion between priests and their bishops.
Article 6 asserts that the institutes of consecrated life and societies of apostolic life previously under the purview of the Pontifical Commission Ecclesia Dei now are under the jurisdiction of the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, and article 6 asserts the competence of the Congregation for Divine Worship and the Discipline of the Sacraments, as well as the aforementioned Congregation, over the observance of these provisions.
While the final article of this motu proprio appears rather sweeping in its abrogation of “previous norms, instructions, permissions and customs that do not conform to the provisions of the present Motu Proprio”, it should be reiterated that the provisions of this present motu proprio are restrictions which demand strict interpretation.
*Pseudonym for a Priest and Canon Lawyer in the Latin Church