Every spring, the Church rejoices not only in the victory of Easter and the glories of Mary in her month of May, but also in the ordination of new priests around the world.
This year, however, there is a black lining on the silver cloud. We are entering the first ordination season after Francis’s motu proprio Traditionis Custodes and many of the ordinandi, as well as their confreres in lower years, are suffering anxiety and distress. They entered seminary during the pax Benedictina, the liturgical peace of Benedict XVI, when they could serenely look forward to learning the fullness of their own Roman Rite, reaching into the Church’s treasury of grace for the benefit of the entire Mystical Body, including themselves. The unexpected termination of this peace, underlined by draconian strictures from the Congregation for Divine Worship, seemed to call into question whether or not they would ever be able to avail themselves of that which is “sacred and great” for all generations. The grim but not unrealistic expectation is that few or no candidates for whom approval to say the old Mass is requested from the CDW will receive it.
Fortunately, there is hope, and plenty of room for maneuvering. In this article I will summarize the ways in which the Responsa ad Dubia (RAD) violate the rights and duties of bishops; why bishops may and should dispense from certain provisions of TC, including the infamous seeking of authorization from Rome; and the areas of traditional liturgical life that TC and RAD do not actually touch. The good news is that every newly-ordained priest enjoys an inherent right to say the usus antiquior at least as a private Mass, and that no one, not even his local ordinary, can licitly prevent him from using the Ritual or the Breviary.
General problems in the RAD regarding episcopal discernment
Respected canon lawyer Fr. Gerald Murray calls into question the entire rationale offered in the RAD for the necessity of obtaining an “authorization” (licentia) from the CDW for a newly-ordained priest to say the usus antiquior, suggesting that the rationale is incoherent and therefore not actionable.
According to the RAD, the ordinand, to be eligible for permission, must agree that there is only one form of the Roman Rite, the Novus Ordo. However, if this is true, then the CDW would have no business regulating what is not (according to their own position) a form of the Roman Rite! If, on the other hand, it remains a form of the Roman Rite (as implied by its ongoing use), the local bishop is in possession of superior knowledge of his own clergy and the needs of his diocese. As Fr. Murray says:
Apart from a very rare case, the CDW has no independent information regarding a newly ordained priest. The diocesan bishop who seeks [or would be seeking] authorization for a newly ordained priest to celebrate the TLM has already found him to be suitable. To second guess his judgement on a matter in which he is in possession of the most complete information about the priest is an unwarranted interference in his role of moderating the liturgical life in his diocese.
Following this line, Ed Condon in an analysis at The Pillar notes:
A key point of the Council’s ecclesiology was a re-emphasis of the role of the diocesan bishop as a successor to the apostles, and as both pastor and governor of his particular church. One of the oft-repeated phrases of the Council was that bishops were ‘vicars of Christ, not of the pope.’… ‘In virtue of this power,’ the Council said, ‘bishops have the sacred right and the duty before the Lord to make laws for their subjects, to pass judgment on them and to moderate everything pertaining to the ordering of worship and the apostolate.’ While the authority of a diocesan bishop is exercised with—and under—the authority of the pope, the notion that local bishops understand best the pastoral and practical needs of the local faithful has been a hallmark of the so-called ‘spirit of the Council.’
Yet Rome’s Saturday responses [the RAD] make a number of striking departures from this principle…. Perhaps the most notable is the explicit expectation that bishops receive permission from Roche’s department before they can authorize any priest ordained after the promulgation of Traditionis custodes to celebrate the older liturgy. As a general principle of pastoral governance, it is diocesan bishops who know their clergy best—as spiritual fathers—and are best placed to judge both their spiritual needs and their individual suitability for different kinds of ministry. Some bishops may well read the new requirement as an intrusion, not just into the governance of their local Churches, but into their paternal relationship with their own clergy….
At the level of general principles, it is striking that a Roman department would try to issue a directive telling every bishop in the world what qualifies as a legitimate pastoral need among his own flock. And some bishops have already told The Pillar this would seem to undercut the bedrock principles of pastoral proximity and episcopal discernment which were so central to Vatican II… Even bishops who are either uninterested or even reflexively unsympathetic to the Extraordinary Form may resent being told what is or isn’t a legitimate pastoral need among their own flock. Some may intend to remind Archbishop Roche that they are, in the spirit of Vatican II, shepherds of their flocks, and not his local branch managers.
Moreover, the CDW played a shell game with the world’s episcopacy, substituting a required licentia for the “consultation” that was present in the original text of TC promulgated on July 16, 2021. This sleight-of-hand already disqualifies the requirement, for, as Fr. Murray points out, the “substantive change in language… is, in fact, a change in law”; this smuggling in of a new requirement, without “prominent notification of this change,” “is an irregular way to modify legal obligations” and cannot take effect without specific papal approval, which it lacks. It is therefore eminently reasonable and fitting for bishops to ignore the RAD requirement that they must obtain an authorization for their newly-ordained priests to use the preconciliar Missale Romanum; indeed, they may even ignore the baseless requirement to consult with the Vatican, for reasons now to be explained.
Specific canon law considerations
In the same interview, Diane Montagna askes Fr. Murray the following question:
Can an instruction issued by the prefect of a Vatican dicastery restrict or override the prerogatives of bishops and priests established in the Code of Canon Law or the Second Vatican Council, e.g., a bishop’s power to dispense from the law (canon 87 §1)?
The provisions of canon 87 §1 that permit the diocesan bishop, for reasons of ‘spiritual welfare,’ to dispense from disciplinary ‘universal laws and those particular laws made by the supreme ecclesiastical authority for his territory or his subjects’ remain in place, unless the pope specifically reserves such dispensation to himself or to some other authority. No such reservation is stated in TC or in the Responsa… Canon 87 §1 grants power to diocesan bishops to dispense from disciplinary laws when he judges this to be advisable for the ‘spiritual welfare’ of his flock. The general law of the Church grants this power, which can only be taken away by the Roman Pontiff when he ‘specially reserves’ the power of dispensation ‘to the Apostolic See or to some other authority.’ He has not done so in either TC or the Responsa…. There is no need [for the bishop] to seek from the CDW what he already enjoys by virtue of the general law of the Church.
The canon law notes of the Latin Mass Society of England & Wales on the RAD support the same interpretation:
Again, bishops’ power to dispense from the law set out in Canon 87.1, is simply the legal expression of the principle expounded by the Second Vatican Council in Christus Dominus 8. The role of the bishop, and his exercise of pastoral judgment, is emphasised by TC Art. 2.
The particular provisions of the RAD are dispensable as per the language of Canon 87, which does not place limitations on the “universal laws and particular laws made by the supreme ecclesiastical authority” that the local ordinary may dispense from for reasons of “spiritual welfare.” Accordingly, several bishops have invoked Canon 87 to grant a broad range of dispensations, including Bishop Thomas Paprocki of Springfield (here), Bishop Glen John Provost of Lake Charles (here), and Archbishop Alexander Sample of Portland (here).
Moreover, in keeping with Canon 18, “Laws which establish a penalty, restrict the free exercise of rights, or contain an exception from the law are subject to strict interpretation,” and considering the fact that neither TC nor RAD mentions private Masses, it follows that such Masses remain legitimate for any priest of the Latin Church (see here for more commentary). The only permission that would have to be given by the local ordinary is for public Masses, which of their nature fall under his pastoral purview.
Nota Bene. Fr. Murray argues the “harder case” because he starts with the assumption that the RAD have legal binding force, and yet still maintains that they do not oblige the bishop to obtain authorization. Other canon lawyers, however, are not convinced that the RAD enjoy such binding legal force. Fr. Pius Collins, O.Praem., Vice-Chancellor of the Diocese of Brentwood and Advocate in the Brentwood Diocesan Tribunal, published a piece in the 201st edition of the Canon Law Society of Great Britain and Ireland Newsletter (pp. 52–53) in which he argued:
[I]n a specific responsum [in 1997] the CDWDS stated, ‘Although the solutions which are proposed do not have legislative power, they nevertheless assume an official character since they actually express the teaching and praxis of this Congregation.’ Despite the apparent contradiction issued without any explanation, it is clear from the later statement of the CDWDS, and from universal law, that the responsa are neither legislation nor authentic interpretations of the law. Unless the Congregation is delegated legislative power by the Holy Father or the document in question is published in forma specifica, which fact must be noted in the document itself, the CDWDS cannot exercise any species of legislative power.
There is no indication that the responsa ad dubia on Traditionis Custodes were given in forma specifica; they were published on the Vatican website simply stating the Holy Father ‘was informed of and gave his consent to the publication’ of the responses. Further, no mention has been made (to the author’s knowledge) of the Holy Father having delegated legislative power to the Congregation. To be a universally binding act of executive power, such as a general executory decree, promulgation would have to follow the norms of cc. 8, and 31 §2, and, whilst the relevant volume of the Acta Apostolica Sedis has not yet been published, responsa have not in the past been published there. Therefore, these responsa do not fulfil the criteria for generally binding acts of executive power either. It seems, therefore, that the responsa are merely published private replies, replies which bind only those who submitted the initial dubia (c. 16 §3); even in these cases they bind these recipients only insofar as the replies themselves are consistent with universal law (cf. c. 33 §1).
The responsa seem to have an official character, though what that means is obscure, and they clearly express the mind and practice of the Congregation, but it is clear they do not bind universally. Commenting on c. 16 §3 Otaduy writes, ‘An interpretation made by judgment, decree, or rescript is binding on the parties and has general meaning only incidentally, through the jurisprudence and practice of the Roman Curia.’
Given the legal difficulties and even contradictions that many writers have pointed out in TC and RAD (see here for an extensive list of such difficulties), it would appear that Canon 14 comes into play: “Laws, even invalidating and disqualifying ones, do not oblige when there is a doubt about the law.”
Considerations specific to certain ordinandi
Diocesan or “secular” priests would normally use the Missale Romanum as established by the popes for the diocese of Rome and beyond.
Priests who are being ordained as members of religious orders, on the other hand, may well belong to orders that have their own editions of the Missale Romanum, such as the Missale Romano-Monasticum of the Benedictines and the Missale Romano-Seraphicum of the Franciscans. (Some orders, of course, have their own proper “uses,” such as the so-called Dominican rite.) From a strictly canonical point of view, these books are not conflatable with the Missale Romanum in its 1962 editio typica. The jurisprudence that developed around Summorum Pontificum tended to grant a wide latitude to the renewed use of these proper liturgical books for religious communities that wished to derive benefit from their own rich heritage.
To take an example, the last missal proper to the Franciscan Order was the Missale Romano-Seraphicum published in 1954. Since both TC and the RAD specifically mention only the 1962 editio typica of the Missale Romanum, it is clear that—again, as per Canon 18 about restrictive laws requiring as strict an interpretation as possible—this Franciscan missal is by no means included in the limitations and requirements that were imposed on priests who wish to celebrate using the 1962 editio typica of Missale Romanum. The same is true, a fortiori, of the Dominican rite.
Pertinent to this point is another issue with TC (and a corresponding problem with the RAD) raised by Fr. Gerald Murray, concerning the remaining-in-force of many aspects of Summorum Pontificum:
TC does not mention the Roman Ritual, the Roman Pontifical, nor for that matter the Roman Breviary (whose use is also not treated in the Responsa) that were in use in 1962. TC simply mentions the 1962 edition of the Roman Missal. [It says:] ‘Previous norms, instructions, permissions, and customs that do not conform to the provisions of the present Motu Proprio are abrogated’ [emphasis added].
I would argue that since TC makes no provision withdrawing the permission found in article 9 §1 of SP for the celebration of the sacraments of Baptism, Confirmation, Penance, Marriage, and the Anointing of the Sick, that permission is still canonically in effect following the promulgation of TC. Likewise, TC did not abrogate article 9 §3 of SP which states: ‘ordained clerics may also use the Roman Breviary promulgated in 1962 by Blessed John XXIII.’
TC did not abrogate SP as a whole, but only those provisions of SP that ‘do not conform to the provisions of’ TC. The new restrictions on the use of the Roman Ritual, and the prohibition of the Roman Pontifical, found in the Responsa are not found in the text of TC, and contradict the unabrogated provisions of article 9 of SP. What TC does not mention is clearly not regulated by TC. The Responsa offers authoritative instructions about provisions that are not found in the document it is clarifying, and in doing so goes beyond what is canonically possible. Thus, there is a well-founded doubt that these provisions enjoy canonical force. I would argue, in any event, that the unabrogated provisions of SP 9 remain in effect as a papal Motu Proprio prevails over an instruction such as the Responsa of the CDW, even with its papal approbation.
Given what Fr. Murray points out, it is clear that the use of missals other than the Missale Romanum of 1962 is simply not covered by TC or by the RAD, and that the application made by the Instruction Universae Ecclesiae of 2011, n. 34—“It is permitted to members of Religious Orders to use their proper liturgical books in force in the year 1962” (emphasis added)—retains its full applicability. Thus, a Franciscan could freely make use of the 1954 Missale Romano-Seraphicum, which was the proper liturgical book for Mass in force among the Franciscans in 1962.
From multiple points of view, then, it is not only possible but desirable and straightforward for a bishop to grant permission to a newly-ordained priest to say the usus antiquior, without any involvement of the Roman authorities.
First and foremost, there are serious doubts, expressed by many canonists, about the compatibility of TC and the RAD with more authoritative teaching from the last Council and provisions in canon law based upon that teaching, especially concerning the rights and duties of bishops toward the clergy and faithful entrusted to them. In addition, there are numerous difficulties in the interpretation and applicability of the RAD that cause it to lack obligatory force (can. 14)—if it even possesses any to begin with (cf. the opinion of Collins above).
More broadly, the ultimate framework of ecclesiastical law is the salvation of souls, to which the spiritual nourishment that souls receive from liturgical tradition is highly pertinent. Precisely as a legal principle, the salus animarum places limits on the implementation of other laws inasmuch as these are subject to prudential judgment and determination; no law can override it. Thus, the Latin Mass Society of England and Wales notes the framework within which the RAD must be placed:
All ecclesiastical legislation aims at the good of souls: the concluding words of the Code of Canon Law, indeed, tells us so: ‘Can. 1752: …the salvation of souls, which must always be the supreme law in the Church, is to be kept before one’s eyes.’ The authority of the Holy See and of bishops and priests is given, not for their own good, but for the good of souls… All of these statements remind us that it is in the context of the good of souls that Church’s legal provisions must be interpreted and applied.
Within the Church’s tradition, to apply a regulation in such a way as manifestly to harm the good of souls, is not just a pastoral or practical problem, but a failure to evaluate its legal force correctly…. This is therefore the crucial consideration in applying the Apostolic Letter according to the mens of the legislator. Bishops are to make arrangements and to give, or withhold, permissions, according to whether they believe it will be of spiritual benefit to the faithful attached to the older Mass, and to the priests who wish to celebrate it.
In response to a question about the salus animarum, Fr. Murray observes:
The salvation of souls is properly promoted when the Church provides spiritual nourishment and inspiration to the faithful, drawing on the spiritual treasures that the Church has safeguarded and promoted over the course of her pilgrimage on earth. Popes John Paul II and Benedict XVI heeded the pleas of numerous faithful Catholics to be allowed the freedom to worship according to the immemorial rites of the Church in use until the promulgation of the reformed rites after the Second Vatican Council. The fruits of this generosity are evident in the devotion and apostolic spirit of those growing number of Catholics who attend the TLM.
Since the bishop is responsible for making a pastoral discernment about the spiritual good of his faithful and clergy, he has the authority to dispense from particular or universal laws that are impediments to that good (can. 87).
In any case, because they are documents that restrict the exercise of rights, TC and RAD must be interpreted strictly according to their letter (can. 18). Since RAD cannot legislate beyond what TC lays down, and TC expressly abrogates only some provisions of Summorum Pontificum, the others that are not abrogated remain in force.
Since TC and RAD mention only the editio typica of the Missale Romanum of 1962, the proper missals of religious orders are certainly excluded from legal purview, and, arguably, so would be the pre-1962 editions of the Missale Romanum (the 1920 editio typica and the various editiones post typicam that followed, up to 1955), which have seen a veritable renaissance over the past decade under the beneficent influence of Summorum Pontificum, as awareness grows that the “sacred and great” principle points to a higher and more universal law than the legal positivism of papal fiat.
Finally, and most relevant to new priests and seminarians, there is no mention in TC or RAD of Masses not publicly scheduled (aka “private Masses”). That no bishop on earth has the authority to prohibit a private Mass in the usus antiquior is argued in this article and in this short book, of which priests and seminarians may request a free copy here.
Given all that we have seen, the best strategy for a new priest—unless he knows his bishop is supportive of the TLM—is simply to say the old Mass privately, recite the old Breviary, and use the Rituale without even discussing the matter with his bishop. At this point, we are biding our time until the unheroic generation that came of age in the 1970s is succeeded by more realistic (and therefore more traditional) prelates. A future pope will reverse TC and the RAD as surely as Paul VI’s policies yielded to the indult of John Paul II and the motu proprio of Benedict XVI. Irrationality, injustice, and contempt for tradition do not have the wherewithal to endure.
Our Lord Jesus Christ, Eternal High Priest, and Holy Mother Church, His Immaculate Bride, rejoice in all of their priests, who enter through the gates of ordination into lifelong sacrificial service of the altar and of the people. It is a cause of special joy to know that, in spite of attempted ideological purges, the great Roman liturgical tradition, sustainer of centuries of priests, will remain accessible to all who understand their ecclesiastical rights and, even more, the ineradicable claims of holy tradition.
Photo by Maciej Zurawski.
Dr. Peter Kwasniewski is a graduate of Thomas Aquinas College and The Catholic University of America. He taught at the International Theological Institute in Austria, the Franciscan University of Steubenville’s Austria Program, and Wyoming Catholic College, which he helped establish in 2006. Today he is a full-time writer and speaker on traditional Catholicism who has written many books and publishes on a wide variety of sites. His work has been translated into twenty languages. Visit his personal website at www.peterkwasniewski.com, his Substack “Tradition and Sanity,” his publishing house Os Justi Press, and his composer site CantaboDomino.