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Reception Theory, Binding Law, and Traditionis Custodes

by Tony M.

Because Pope Francis’s motu proprio Traditionis Custodes (TC) is highly restrictive and harsh, quite a number of traditional Catholics would like nothing better than a reason to view it as non-binding law. Surprisingly, quite a number of bishops are, at least initially, viewing it with considerable misgiving and some are making noises in the direction of “implementing” it without the full force of law. One attempt to drain TC of any binding force is to employ against it “reception” theory. This theory of law says that in order for a law to be true law – in order for it to be morally binding on its subjects – it has to be “received” by them first. That is, they have to treat it as valid law which binds them. Here is an explanation of this theory, in a nutshell:

The canonical doctrine of reception originated in the statement of Gratian after canon 3 in Distinction IV of his Decretum (circa 1140). He cited Isidore of Seville and Augustine on the establishment of laws, and then wrote: Laws are instituted when they are promulgated and they are confirmed when they are approved by the practices of those who use them. Just as the contrary practices of the users have abrogated some laws today, so the (conforming) practices of the users confirm laws.

I understand the strong inclination to embrace “reception” theory for law, in this case. I really do. But we saw it used 10,000 times by liberals and revolutionaries against perfectly good law, and it was always a bad theory in their mouths. I hesitate to reverse and say it’s a good theory when others use it against a bad law. However, I think there is something a little like “reception theory” that is – perhaps – a valid position about church law, and I want to lay it out. (And in the alternative, there are other ways of understanding the constraints of law, as options to take against TC being binding, that might work instead of reception theory.)

Catholics have an extremely long and well-founded train of theory about law in general, and no expression of it is more solid than that of St. Thomas Aquinas. He is about as crystal clear as it is possible to be, in laying out the basics of “law”, in his Treatise on Law part of the Summa Theologica. And not just the basics: he extrapolates from the basics to make important points about law and – significant for our purposes – when it is binding.
He lays out, in 4 articles, the 4 elements that tell us what “law” really is:

1. An ordinance of reason;
2. By the authority who has care of the community;
3. For the common good;
4. And promulgated.

In laying these out, he shows the causes of law, under the 4 KINDS of cause: the matter, the form, the agent, and the final cause (the end or purpose). Here, the “form” is the ordinance of reason – the ratio that comprises an intelligible kind of action combined with a rational basis which undergirds the command; the “matter” is its promulgation in a public announcement; the agent is the one in authority; and the final cause, the end or purpose, is the common good. He is speaking at the highest level of generality about law here; as such, this applies to eternal law, divine law, human law, and ecclesiastical law.

Later he clarifies that a bad law (he says, an “unjust” law) is no law – i.e. that it is not morally binding.

If they be just, they have the power of binding in conscience, from the eternal law whence they are derived, according to Proverbs 8:15: "By Me kings reign, and lawgivers decree just things." Now laws are said to be just, both from the end, when, to wit, they are ordained to the common good—and from their author, that is to say, when the law that is made does not exceed the power of the lawgiver—and from their form, when, to wit, burdens are laid on the subjects, according to an equality of proportion and with a view to the common good. For, since one man is a part of the community, each man in all that he is and has, belongs to the community; just as a part, in all that it is, belongs to the whole; wherefore nature inflicts a loss on the part, in order to save the whole: so that on this account, such laws as these, which impose proportionate burdens, are just and binding in conscience, and are legal laws.

On the other hand laws may be unjust in two ways: first, by being contrary to human good, through being opposed to the things mentioned above—either in respect of the end, as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity or vainglory—or in respect of the author, as when a man makes a law that goes beyond the power committed to him—or in respect of the form, as when burdens are imposed unequally on the community, although with a view to the common good. The like are acts of violence rather than laws; because, as Augustine says (De Lib. Arb. i, 5), "a law that is not just, seems to be no law at all." Wherefore such laws do not bind in conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his right, according to Matthew 5:40-41: "If a man . . . take away thy coat, let go thy cloak also unto him; and whosoever will force thee one mile, go with him other two."

Secondly, laws may be unjust through being opposed to the Divine good: such are the laws of tyrants inducing to idolatry, or to anything else contrary to the Divine law: and laws of this kind must nowise be observed, because, as stated in Acts 5:29, "we ought to obey God rather than man."

So he makes it clear that law fails to be binding when it fails to BE law, by failing in one or more of the 4 causes of law.

It is easy to misunderstand what Thomas really means when he gets into laws that fail because of not being for the common good. It is necessary to be careful here, because he does not mean that if a law is not ACTUALLY going to help toward the common good, it is no law. Law is “for” the common good in this sense: the common good is the purpose the legislator has in giving the law.

This is a difficult point, and I want to be clear, here, if I can. St. Thomas explains that the whole reason there needs to be positive law (including laws made by humans) AT ALL is that when you have many agents with free will, and (a) they are intended to achieve a united purpose, and (b) they do not all see equally and clearly all pieces of HOW to achieve that united purpose, then if each agent acted on his own judgment to try to achieve the common good as best he could see by himself, the common good COULD NEVER actually come into being. Each agent’s perceptions of what might be a good action would end up conflicting with some other agent and they would defeat each other. Achieving the common good would be impossible.
Then instead of each agent directing HIMSELF to act for the common good, each agent needs to be directed toward the common good by a unified mind, a person who organizes the whole and unifies the actions of many so they harmonize rather than conflict. This is the one in authority – this is the WHOLE PURPOSE of there being a human authority: to make it so that efforts by many can build together instead of interfere and destroy each other.

Now, it is of course likely that no human authority actually sees perfectly how to achieve the common good in toto. But even in the case of imperfect understanding, by being a SINGLE mind directing the actions of many, he will enable at least a partial success in achieving the good; not even THAT much can be achieved without there being someone in authority.
In this idea of law, all that is needed for a true, valid law is that the ruler have a basic understanding of the common good to be achieved, have a grasp of the present facts and conditions which constitute the ground from which communal action may achieve the good, and apply his practical reason to determining a course of action for achieving it in a feasible way, then direct others based on that. Critically, it is the ruler’s practical reason that is the judge of the practical method to achieve the good, not that of the subjects – that is the entire reason there is one in authority to begin with. So, it is an invalid model for the subjects to say “I don’t think your new rule is going to be a very good method to get to the good we (all) want, so it ‘isn’t law’ because (I think) it won’t in actual fact ‘serve the common good’.“ It isn’t the subject’s prudential, practical reason, which decides whether the rule will achieve the good, it is the ruler’s. So a disagreement by subjects as to whether the chosen rule will in fact work to achieve the common good desired is NOT the measure of whether the law is valid law.

Because final cause is a cause via intention, it is the RULER’s intention that determines whether the prescribed rule is “for the common good.” If, as a as a corrupt dictator he intends to serve his own pockets, or if as a degenerate tyrant he intends only to fill his own bed with desirable maidens, these rules have no force of law because his intent has nothing to do with the common good, rather the opposite. This is what Thomas means by a bad “law” being no law.

Arguably, though, St. Thomas more or less hints at something that is similar to “reception theory” when he talks about a law being changed by custom:

All law proceeds from the reason and will of the lawgiver; the Divine and natural laws from the reasonable will of God; the human law from the will of man, regulated by reason. Now just as human reason and will, in practical matters, may be made manifest by speech, so may they be made known by deeds: since seemingly a man chooses as good that which he carries into execution. But it is evident that by human speech, law can be both changed and expounded, in so far as it manifests the interior movement and thought of human reason. Wherefore by actions also, especially if they be repeated, so as to make a custom, law can be changed and expounded; and also something can be established which obtains force of law, in so far as by repeated external actions, the inward movement of the will, and concepts of reason are most effectually declared; for when a thing is done again and again, it seems to proceed from a deliberate judgment of reason. Accordingly, custom has the force of a law, abolishes law, and is the interpreter of law.

So once a law is made and exists for a time, a new practice in society that is incompatible, if repeated enough to become custom of sorts, and is not suppressed by the authorities, would indicate that the legislator has CHANGED his will on the matter, so that the new practice now is compatible with his will, and his LACK of action against it effectively promulgates that new intention. Thus custom can change law:

As stated above (I-II:96:6), human laws fail in some cases: wherefore it is possible sometimes to act beside the law; namely, in a case where the law fails; yet the act will not be evil. And when such cases are multiplied, by reason of some change in man, then custom shows that the law is no longer useful: just as it might be declared by the verbal promulgation of a law to the contrary.

Thus a common phrase in this context is “an unenforced law is no law.” But the REASON is that by the ruler failing to take steps to correct the failure of the authorities under him to enforce the law, that ruler thus makes his will known implicitly, that he no longer intends that people follow that law. It is on account of the ruler’s own action, later, manifesting a changed will regarding the rule set forth, that makes it to be properly not a law, and thus ceases to have binding force. The ruler himself changes the law.

Let me note here that it is exceedingly difficult, after a law is rightly written and in force, to later rightly ascertain WHEN it occurs that we no longer have a binding law because it “is not enforced”, sufficiently to remain “law in fact”. Two simple examples: (i) on observing people doing 70 mph in a 65 mph zone all day long, without being stopped for speeding, one might be inclined to say “speed limit is not enforced.” But in reality, if the police see someone doing 80, he is stopped and ticketed: SOME limit is enforced, just not at the boundary line listed, because the police are willing to grant a certain “benefit of the doubt.” A speed limit is enforced. (ii) The IRS says that tips (i.e. for waitresses and bartenders) are “income” and must be included for tax purposes. However, people might imagine that “the IRS doesn’t enforce that rule”, because the IRS rarely takes explicit action to punish violations. But the “rarely” is, actually, only a small percentage of the time, it isn’t the same as “never”, nor even “only once in a great while.” It happens every year, in those cases where (a) the IRS at random audits a person, and (b) can locate data that is secure enough to establish the fact of tips not reported. The “small percentage” is not a result of any official disregard of the problem. This shows just two types of difficulties in ascertaining “enforcement.”

And, in the very nature of the concept of a law being changed by repeated practice, it is effectively impossible for there to be a bright-line demarcation of when the law as written ceases to be binding. Even an instance of a highly publicized refusal on the part of prosecutors to take a case could be due to other factors than lack of desire to prosecute – it can be from lack of clear evidence, or for procedural obstructions. So, it is quite hard to make a solid, justified case for a law ceasing to be binding, until it is far and away clear that the authorities have no intention of enforcing it. And, in effect, the law as written must initially have the presumption in its favor, the claim of it being changed by practice must have the burden of proof.

However, it is different for a law that is in conflict with some practice out of the starting gate, for, the whole reason such restrictive laws are made is to STOP some practice: (At least in normal situations), it would be crazy if the pre-existing practice were, for that very reason, protected from being changed by law.

If, however, the same reason remains, for which the law was useful hitherto, [i.e. the purpose for which the law was made to begin with], then it is not the custom that prevails against the law, but the law that overcomes the custom.

It is also very dangerous to suggest – across the board – that a law needs to be “received” in order for it to become law at all. One reason is that this would seem to subject divine law (such as the ceremonial law given to Moses by God) as being “not law” until the Israelites deigned to agree to it. God’s decrees do not require our consent in order to become binding. To say it more generally: it is not impossible for a legislator’s stated will to morally bind his subjects against their desire. To assert otherwise is to fail to understand law in general.

Yet, St. Thomas allows that there CAN BE qualifiers or limitations on this. In speaking of human law, he breaks it down into different types of cases:

but the law that overcomes the custom: unless perhaps the sole reason for the law seeming useless, be that it is not "possible according to the custom of the country" [I-II:95:3], which has been stated to be one of the conditions of law. For it is not easy to set aside the custom of a whole people…
The people among whom a custom is introduced may be of two conditions. For if they are free, and able to make their own laws, the consent of the whole people expressed by a custom counts far more in favor of a particular observance, than does the authority of the sovereign who has not the power to frame laws, except as representing the people. Wherefore although each individual cannot make laws, yet the whole people can. If however the people have not the free power to make their own laws, or to abolish a law made by a higher authority…

The first comment harkens back to a dictum by St. Isidore of Seville:

A law will be moral, just, possible, in accord with nature, in keeping with the custom of the homeland, suitable to the place and time, necessary, useful, clear so that it not mask something unsuitable, not for private benefit, but conceived for the common utility of the citizens.

St. Thomas is distinguishing between two different types of civil orders: one in which “the people” is the root legislator and the officer is limited to putting their will into effect with further details; the second is where the ruler holds the sovereign power to make the laws, and not merely as the agent of “the people.” In the former case, custom has a greater force of law than the will of the official who carries out the will of the people. In the latter case, it does not. Clearly, with divine law, the ruler is sovereign and not bound to observe the will of the people. With direct democracy like in Athens, the people were the sovereign, and the acts of individual officials (such as generals) were as agents for the people. It is a bit muddled to sort out mixed societies like republics.

And also difficult for ecclesiastical law, which is decidedly not either a democracy or a republic. It would be, at a minimum, very difficult to approve “reception” theory with regard to ALL decisions made by Church authorities. For example, in the very early Church, the Apostles had to decide whether new converts must conform to Jewish law requirements. The final decision that they were not required to conform to Jewish law could not have been held – by the people – to be “not received” because they didn’t think it good, or because they thought it incompatible with prior customs. “The people” were not competent to pass judgment on the apostolic decision in the matter, and were not in a position to “receive” or “not receive” this new law. It was binding, period.

The difficulty also lies in this: church law is “law” in something of an imperfect or extended sense. This stems from the nature of the Church and its purpose.

b. Rules have a different purpose in the Church. They serve to keep good order and protect personal rights, but their ultimate aim is the spiritual good of the members, mutual love among them, and, indeed, their eternal salvation.

Unlike civil law whose object is primarily an action in conformity with the rule, an action which contributes to the common good regardless of the intention by the subject obeying the law, (whether he does so willingly or grudgingly), Church law has as its object primarily charity which cannot be so much commanded as elicited in connection with the outward action. So, arguably, a different standard may apply to canon law so that obedience stands to canon law somewhat differently than in the case of civil law. However, it is probably unhelpful to try to use “reception” theory to explain why sometimes church law can be not obeyed with an upright conscience.

A Better Approach

I believe the standard Thomistic account of law is a better model to use for this. The reception theory assertion that “contrary custom has abrogated certain laws” pretty much falls apart as useless, under St. Thomas’s account, because contrary NEW practices not eliciting new enforcement to suppress the new practice manifests a different intention of the legislator – that’s WHY it abrogates a prior law, and it has no application to a new law at all. The exception is when it is “the people” who are the sovereign lawgiver, and this certainly does not apply in church law.

For St. Thomas, a law fails to be binding to the extent it fails to be law, i.e. to the extent it runs afoul of the 4 stated causes of law.

Let’s take the easiest first: promulgation. For these purposes, a law is “promulgated” when the lawgiver has made known to the subjects what his will is, and that he intends to bind others to the rule. In this case of TC, there may be a few aspects about which Francis’s will is unclear, (and in those respects I would say there is no binding obligation), but by and large his will is clear.

However, other aspects of the Thomistic model do come to play here. In order for a ruler to rule, he has to apprehend “the good”, apply his practical reason to a set of facts, (i.e. the conditions that confront the community) and then craft a “solution” that constitutes a pathway of action that reasonably tends toward the good apprehended. What that means, then, is the ruler can fail either (A) in the part of apprehending “the good”, or (B) grasping the actual facts at hand, or (C) in applying practical reason toward those facts regarding a course of action.

And, when I went back over TC (and the accompanying letter), I realized something: Francis has MAJOR FAILS for points A and B. The first major fail is in his article 1 in TC: that the Novus Ordo “is” the unique expression of the lex orandi of the Latin Rite. Even ignoring, for the moment, his descending into a bit of word-salad foolishness in compounding “expression of the lex orandi” with “of the Latin Rite”,* it is still off. As a matter of SHEER FACT, the Traditional Latin Mass exists, and it too is one of the masses that “express” the lex orandi of the Latin Rite. So also is the Dominican mass. And the Ordinariate mass. And so on with the other masses he seems to have forgotten in his haste.

(Also, even if these other masses stop being used for a time – e.g. for one solid year – it would remain true that they “exist” in that history contains them, and thus they will forever be real, valid, expressions of the prayer of the Latin Rite. Just as the Pythagorean Theorem is, always, a valid proof whether anyone teaches it anymore or not. His first article simply fails. In order for the TLM not to express the prayer of the Latin Rite, it would be absolutely necessary for the “lex orandi” to have essentially changed from TLM to Novus Ordo. Since this is both DIRECTLY contrary to what Paul, JPII, and Benedict said, Francis cannot now “make” it true by merely saying it. Also, if it were true that the Novus Ordo comprised a different lex credendi, it would (by that fact) seem to comprise heresy. (See note*.) )

This is of critical importance, because (similar to a good legislator), Francis tried to EXPLAIN to us the “reason” behind his ordinances in TC. But his reason just doesn’t work. And, in fact, when he goes into greater depth in his letter, his faulty reason for TC is even more clear: Francis has come to the point of view that is, effectively, entirely contrary to that expressed by Benedict, who quite clearly intended that the two masses co-exist because there is nothing wrong with having two masses in the Roman Rite (since that rite has had MORE than two masses for many centuries). And, indeed, the fact that there were more than two (immemorial) masses under the Roman Rite when Pius V issued Quo Primum, masses which he did NOTHING to suppress, proves beyond doubt that the Church can have two masses which “express the lex orandi” of the Latin Rite.**

The accompanying letter also shows something else: The Church has been in little doubt that Francis simply does not like traditionalists on account of their attachment to the old mass; he sees that attachment as both defective in itself, and (now) sees it as damaging the Church. His distaste is, clearly, a bias, a mere personal preference. What is entirely unclear, though, is that the informational basis upon which he claims this damage, even COULD BE well founded. His source (as he asserts) is the survey of the bishops, but one obvious problem is that the bishops have been a notoriously anti-TLM bunch for 40 years, and for the last 8 years they have known quite clearly that their immediate superior doesn’t like it when they say stuff that is supportive of the old mass: he has this bias, and he doesn’t promote people who violate his bias. The likelihood that he (a) received reliable information in the survey, and (b) that he READ that information in a reasonable fashion, is, shall we say, not promising. As a result, Francis’s practical reason is engaged on (i) probably erroneous particulars of the so-called “damage”; and (ii) with respect to a gross misunderstanding of the nature of the whole “problem” of having two masses – i.e. a mis-apprehension of “the good” to begin with.

Now, St. Thomas does allow that a subject may, for example, disobey the LETTER of the law in a case where following the law would (for some reason unknown to the ruler) actually defeat the SPIRIT i.e. purpose of the law – at least under time constraints where you can’t go to the ruler and say “hey, we have these conditions that are unlike the conditions you made the rule for….” and ask for an exception. He does not say it explicitly, but it seems to be implied by his model, that if the WHOLE BASIS of the ‘law’ is not supported by reason, then the subjects could not-follow the law “until they could show the ruler how his ‘rule’ fails to be an ordinance of reason.” Which, if the ruler is controlled by bias, is (probably) never, so they might have to wait until a new ruler comes along? (I am not confident this is right, and would welcome correction.)

Perhaps I am mistaken here but my suggestion is that those situations where “reception theory” has a valid place in practice is in those situations where the apparent law as issued FAILS one of the 4 items on the list of causes of law, and the usual culprits are 1 and 3, (not 4). And the real basis upon which a law is “not received” is that the subjects – or at least a critical portion of them – see quite clearly that it fails 1 or 3. In this case, we have a pretty strong candidate for TC failing 1 – it is not an ordinance of reason, because the reason stated is a blatant failure. It also appears to fail 3 – it is not ordered to the common good, but NOT because the ruler happens to be mistaken about whether the rule (if followed) would achieve the object he intends; rather, it is that the object he has in mind is not the common good at all (or part of it), but only appears to him as a good because of his bias. If he were more able to appreciate diversity in the Spirit, he might see the good of the TLM.

*It is my sense that the phrasing Francis used, “the unique expression of the lex orandi of the Roman Rite” is, just slightly, gobbledygook. The “lex orandi” is the “law of prayer”. It comes from the phrase “lex orandi lex credendi”, which is typically translated as “the law of prayer is the law of faith”, or, more loosely, as how we pray reflects and influences what we believe, (though the influence really goes both ways, it is not a one-way street). “Lex” in “lex orandi” does not mean, strictly, the written rule books telling us how to carry out the liturgy, it means the prayer itself, the very substance of the mass (and of the divine office), representing a “rule” of the mind and heart: the ACT of praying a certain way exercising a regulating influence on how we think and adhere to the Faith. Since the Church has always accepted that the peoples of the different rites (that are united with Rome) all have the same faith, we cannot understand by “lex orandi lex credendi” a notion that the prayers of different rites imply different faiths. Thus it would be erroneous to consider a “lex orandi of the Roman Rite” that referred to a faith ESSENTIALLY different from the “lex orandi of the Byzantine Rite”. Hence the “lex orandi” is not “OF” one rite, it is (for all rites), the “lex orandi” of the Church. In context, the substantive object to which “the lex orandi” points is the FAITH OF THE CHURCH, and it cannot be taken as pointing to one specific rite in distinction from other rites. The prayer of the Roman Rite is the rule of faith of the Church. The prayer of the Byzantine Rite is the rule of faith of the Church. Etc.

To give it a charitable meaning, Francis must have meant something less heinous than that the Novus Ordo mass, as a "rule of belief", points to a different faith than the Byzantine rite mass. Probably he meant to refer to the specific charism of the Latin Rite in its particularity, for each rite has its own special flavor. Because this is so, none of the masses of the different rites can claim to display ALL ASPECTS of the faith in an equal way: they are not the same. It is not necessary to think of one rite as “better” than another, simply, in order to allow for the possibility that one rite is better than another with respect to one specific aspect of apprehending the faith. There are different charisms: diversity in the Church.***

Within each rite, there can be different “uses” which, while being similar in most respects, diverge from each other enough to be recognized as distinct in some stable, specific sense. Within the Latin Rite, besides the dominant Roman Use, there have been these uses: Dominican, Sarum, Carmelite, Benedictine, and Anglican/Ordinariate. Like with Rites, different uses can excel in one or another aspect, compared to other uses. While there is nothing fundamentally impossible that one use is, simply, BETTER than the other uses, they all “express” the charism of the Latin Rite in some manner or measure. The Roman Use of the Latin Rite has co-existed with other uses for many centuries.

It is, simply speaking, false to say that the Roman Use is the only mass that expresses the Latin Rite charism. Since a new ordinance cannot change history, it is impossible to eradicate the FACT that there have been other masses than the Roman Use that expresses the charism of the Roman Rite. It may be possible to suppress those uses, leaving only one use current, but this would be irrelevant to whether other uses express the charism of the Latin Rite.

**Some traditionalists have been arguing since 1970 that the Novus Ordo does not carry a full expression of the faith of the Church, and that this is, as such, its major defect. The more extreme version of that claim is that the Novus Ordo is an illegitimate mass because it is so defective an expression of the prayer of the Church that it is, foundationally, a failure. The less extreme version is merely that it is a significantly defective expression of the faith of the Church. But there is an interesting facet of Francis’s assertion: if it were true that the Novus Ordo is THE unique expression of a certain charism as the prayer of the Church, it would by that very fact be A DIFFERENT RITE than the mass that preceded 1970. Since the mass of Pius V and John XXIII is, without any possible doubt, a mass of the Latin Rite, the Novus Ordo would constitute a new Rite, i.e. the “Novus Rite”; Francis would be asserting that the Novus Rite is the Rite of the Roman Church. This would present Francis with 2 major problems:

(1) It is argued that it is not valid for a pope to simply generate a rite by innovation. All of the rites claim, effectively, apostolic authority, via Tradition. And in this respect, the apostolic authority is NOT the authority handed on to the bishops, not even to the pope: the whole point is that the Tradition springs from the 12 men appointed and consecrated by Christ, alone. A new rite of mass initiated by Paul VI, new because it does not derive expressly from the Apostles by Tradition, would be outside the pope’s authority. (I do not have enough historical knowledge to evaluate the premise of this argument.)

(2) As was discovered by the Church in the centuries ensuing after the Apostles, the Patriarch of the Roman Church does not have the authority to suppress different rites merely because they are different from the Roman Rite. The authority of the pope to regulate the prayer of the Church is, essentially, a conserving authority: he could only act to suppress a rite on account of some divergence in its practice from its roots, from Tradition. A claim to suppress the TLM merely because it is not the SAME as the new “unique” expression of the (new) charism of the rite chosen by Rome would be a violation of the rights of rites. (Had to say that!) And an act to suppress the TRADITIONAL rite simply because it remains connected by Tradition to the apostles is utterly contrary to the Church in every way, and outside the pope’s authority.

So, either (a) the Novus Ordo is actually a newer, revised version of the Latin Rite mass, (so that it retains the needed connection via Tradition to the apostolic authority), or (b) everything Francis is trying to do in TC is outside his authority, since the only “problem” he is citing is, merely, the diversity between the TLM and the Novus Rite. And if (a), then it is unintelligible that it be THE unique expression of prayer of the Latin Rite, given other uses. Either way, article 1 of TC seems to fall apart as a ground for suppressing a mass.

***According to story, Charlemagne attempted to abolish the Ambrosian Rite (of Milan).

He sent to Milan and caused to be destroyed or sent beyond the mountain, quasi in exilium (as if into exile), all the Ambrosian books which could be found. Eugenius the Bishop, (transmontane bishop, as Landulf calls him), begged him to reconsider his decision. After the manner of the time, an ordeal, which reminds one of the celebrated trials by fire and by battle in the case of Alfonso VI and the Mozarabic Rite, was determined on. Two books, Ambrosian and Roman, were laid closed upon the altar of St. Peter's Church in Rome and left for three days, and the one which was found open was to win. They were both found open, and it was resolved that as God had shown that one was as acceptable as the other, the Ambrosian Rite should continue.

Comments (10)

This is mainly a comment of pure assent, so that you know people are actually reading and appreciating these posts.

While I think there is something to what Card. Brandmueller et al are saying, they are a bit too quick, I think, to assign a theoretical backing to their intuitive cognition that something about this is wrong.

Broadening the scope a bit, I have an idea that part of the reason we are having such trouble grounding that intuition, is that in all our arguments over precisely when a pope is infallible or not, we have almost completely lost sight that the pope is the steward, not the master, over the household.

A steward is very much like the master in most respects, but he is limited in how he can liquidate or destroy property, for instance. That is not meant to derogate his authority, but simply the reminder that he exercises his authority on behalf of another, in trust, and that trust not only grants authority but imposes duties, since all must be managed for the benefit, first all of the master, but also for those the master has placed in the steward's charge.

What I think people are intuiting here is a steward treating the master's property as his own, but without situating it in the proper framework where such a thing could be disputed.

To use a blunt example, imagine a steward throwing out the priceless paintings and sculptures in his master's mansion, or selling off the family heirlooms, including the ancient sword the master had intended to hand down to his son, simply because the objects in question were not to the steward's taste. Prooftexting to the stewardship agreement that says he has the power to "buy, sell, and dispose" of assets--and moreover, it did not specifically exclude the above items--simply misses the point. (And wouldn't save the steward legally, were this a real example.)

Thomas, I think what you are saying is true.

I think the difficulty is that most Catholics are fairly used to thinking of the pope's special capacity as that of infallibility; but what is at stake here is not his correctness but his authority. That comes under "papal primacy", not "infallibility."

And it is true that the pope has "full" primacy of authority in the Church ... among the Church Militant ... as Vicar of Christ. As you say, though, this very role is constituted as a steward, not as the "principal". His authority is derivative, and circumscribed: the pope's primacy of power is not that of an absolute monarch's outrageous claims "whatever I say, goes". The fullness of his power is that it is highest of all those in the VISIBLE Church, but that does not make it unlimited. He is circumscribed by the constitution of the Church, of which he is not the author.

The other difficulty, which I have been struggling to express clearly, is that the limits of this papal power are not best described as being limited by subject matter, which would be a typical way of describing limits to authority: the Congress has no authority to make law respecting religion, for example - leaving it to the states to do that (if they so choose). That subject matter was put out of bounds, by the Constitution which erects the Congress as an entity. Or, a limitation by method: The president has no authority to make laws; that's the purview of Congress, not the chief executive. Thus, we get used to saying what is, or is not, "within" the authority of a ruler by reference to constraints that can be seen, objectively, through what I would call a "procedural" examination: you can establish the result WITHOUT deciding whether the rule is a good one or a bad one, or by deciding how it stands to other laws and the common good.

But in the case of these attempts by Francis (and, as well, other attempts by popes of old trying to force other Rites on this or that matter, e.g. the date of Easter celebration), the realization that "the pope has not that authority" can only be arrived at by examining the specific content of the rule, and then further comparing that to other standards than merely "subject matter". The pope does in fact have the authority to make changes to the mass: everybody agrees that the mass of Gregory the Great was different from the Mass said by St. Peter. For that matter, clearly St. Ambrose made changes when he produced the Ambrosian Rite. So, "making changes" to the mass is not outside the scope of authority of the pope (and patriarchs, and even (in the early days), bishops). It's the specific kinds of changes Francis is making, and (even more importantly) the EXPRESS REASON he gives for these changes.

If the problem Francis is addressing is fundamentally one of a heresy - i.e. either or both of these claims - (1) the Novus Ordo mass is invalid; or (2) the Novus Ordo mass is so gravely defective as to be illegitimate - then seemingly the proper mode of fighting heresy is a teaching. You fight error with truth. If the fundamental problem is one of practice, then it makes sense to address the practice by saying what's wrong with it and mandating a different one. But Francis is skating on thin ice if he thinks he can address the TLM by saying that practice is "wrong" simply speaking. The Council did not say "this mass is bad" but rather "this mass needs some adjusting and reform". He cannot assert that the Novus Ordo, by being mandatory in the Roman Rite (which he theoretically can demand), thereby becomes the only Latin Rite mass that successfully expresses the faith - that assertion would itself be wrong.

Let me give an example of the ways a pope's authority can run up against limits: Starting in the 6th century or so, the Latin Church started expressing the creed by putting "Filioque" into the procession of the Holy Spirit: the Spirit proceeds from the Father and the Son. The Eastern Church objected to this as (a) a change, and (b) heretical. After nearly a thousand years of dispute and schism, at the Council of Basel-Florence, the Eastern bishops agree that the "Filioque" was not heretical as intended and qualified by the Latin Fathers. It remains true that it would be heretical in the sense originally taken by Eastern bishops. (Unfortunately, upon return to the East, most of the Eastern bishops repudiated the agreed-upon formulas.) The truth is that The Son proceeds from the Father in such way that the Son receives everything of the Father except fatherhood. The Father is also the principle of spiration by which the Spirit proceeds from the Father, and since this procession is NOT that of fatherhood, the Son receives it from the Father: the Son is also, with the Father, the principle of spiration from which the Spirit proceeds, but this is true of the Son because He receives it from the Father. (And by "receives" I mean only what is meant by the Son being "generated", not caused.)

Even after the popes of Rome had won the day on the doctrinal point, when Rome eventually welcomed back into communion with the pope those fractions of eastern Rites who wanted union with Rome, they did not insist that the Eastern Rites change their credo to say "and the Son"; instead the popes allowed them to leave a "blank space" after "proceeds from the Father". This blank space allows them to assert a truth (that the Holy Spirit DOES IN FACT proceed from the Father, as from its principle, without asserting a falsity (that the Holy Spirit proceeds from the Father alone), and without EXPRESSLY stating that the Holy Spirit also proceeds from the Son. Silence is not error - even though for centuries many individuals undoubtedly assumed that the bare "from the Father" implied "and not from the Son." Arguably, the Eastern version conveys better the fact that the Father is the root principle, and the Western version conveys better the unity of the Father and Son in the procession of the Holy Spirit. Neither version conveys the entirety of the truth perfectly. The popes, for the sake of unity, left in place a "rule of prayer" in those Rites that does not express every aspect of the truth, even though they knew that doing so would give "aid and comfort" to many who wanted to continue to believe that "Filioque" is actually wrong.

Maybe the popes - in theory - had the authority to tell the Eastern Rites, "No, you MUST conform your Mass creed to the Latin version." My theory is that in practice they DO NOT have the authority to overturn a Mass creed that had been explicitly approved by the Council of Chalcedon (381), and which had presumably been said at Rome before Rome added the Filioque, in the Eastern Rites where it had been stably said that way since (probably) even before 381.

While the bishop of Rome presumably has MORE authority over the mass of the Roman Rite, than he does over the Eastern Rites, this does not mean he has unlimited authority over it. He can revise it, and reform it. But in doing so, he cannot produce a result that says the Mass of 1500+ years duration somehow does not express the faith of the Church.

I just wanted to mention that this conclusion I drew forth - that the Pope's "unique expression of the lex credendi of the Roman Rite", on its face, is tantamount to saying that the TLM expresses a different faith - is not some wild and woolly hare-brained idea I ginned up out of phantasms. Here is a theologian who carefully lays out the very same result, with the very same reasoning I had:


This guy is anything but hare-brained and nutty.

I think the difficulty is that most Catholics are fairly used to thinking of the pope's special capacity as that of infallibility; but what is at stake here is not his correctness but his authority. That comes under "papal primacy", not "infallibility."

Absolutely, that is actually what I was intending to convey. The thought I was that trying to express was that in focusing so much disputation on whether this or that papal act were infallible, the conditions for infallibility, etc, we basically left behind all the older questions about the proper nature and scope of papal authority, and left them not merely unanswered, but unraised.

On the topic of procession, this is quite good: https://thomistica.net/essays/2019/7/14/three-divine-persons-distinguished-by-four-real-relations-on-the-correct-translation-of-st-i-q-30-a-2

Here is a worthy excerpt:

Thomas concludes that “spiration belongs to the person of the Father, and to the person of the Son, forasmuch as it has no relative opposition to paternity or filiation, and consequently that procession belongs to the other person who is called the person of the Holy Spirit, who proceeds by way of love.” By ruling out the possibility that procession belongs to either the Father or the Son due to the order of the processions of Word and Love, Thomas rules out the possibility of both sets of opposed relations belonging to only two persons. Spiration, therefore, cannot belong to only one of them because that would require procession to belong to the other. The only remaining option is that spiration belongs to both the Father and the Son, and distinguishes them both from the third person who is constituted by procession.

FWIW, my preferred mental image of the Pope is of a bonsai gardener. He tends the tree, watches over it, prunes it, waters it, etc.

If the gardener ever takes out a chainsaw rather than tiny pruning shears, something has almost certainly gone wrong, even if from a legal or textual standpoint it might be hard to say why he mustn't.

It is unlikely he was engaged with the express prohibition of chainsawing down the trees, because that is simply not what a bonsai gardener does. It isn't in the nature of the office.

We have bumped up against something similar here, I think, where the actions taken, from Pius X and the breviary through Paul VI and now PF, have been getting out bigger and bigger saws and using them with less and less care. There is no bright line between pruning and hacking, but it seems pretty clear that at sometime in the past we reached the hacking point.

I also finding it interesting that I bet many people that cheer the destruction of the ancient Roman Rite would be outraged to see a gardener hack down the 1500 year old bonsai tree in the back of the gardens because he wanted visitors to focus all their attention on the 50 year old one near the entrance that he liked better.

Yes, a gardener is a very good image. I think that Benedict actually used just that metaphor.

It is naturally the case that one should not look to the "rules" explicitly stated to see whether the gardener has the authority to lay waste to the entire garden: who would think that it even needs to be said? By saying "gardener of the garden", the very name of the position implies he cannot lay waste to the garden - what then would he be the gardener of? Similarly, a pope, a "pontiff", i.e. a supreme "bridger" between man and God, cannot lay waste to the very Rites which carry people across the bridge.

Mind you, I feel very keenly the implicit danger of talk of "laying waste", when we get into the area of the Novus Ordo, because the extreme wing of the traditionalists say the very creation of Paul VI was an act of laying waste. When I wade through the particulars, I understand their point, but I do not agree. This is, at least in part, because for a year I was at a place that had the Novus Ordo said ad orientem, in Latin, with some chant and some ancient polyphony. It was nearly as close to the TLM as the Novus Ordo can go, and I don't see how one can say it was not a mass, or not legitimate. What I could imagine some future pope say is that the Novus Ordo is, in effect, a different Rite and then simply SEPARATE the Novus Ordo from the TLM as under two separate juridical patriarchates. I proposed this over at Fr. Z's blog:


I don't know if this is "actually possible" in the sense of "according to the rule books", but I have read a fair amount of stuff about rites and uses, and at this point I am pretty sure that at rock bottom it's practice rather than principle, as long as you stick to the Faith and to the words of Consecration. There is no formal definition of "Rite", it's just "what happened". Similarly, there is no formal definition of a "use" within a Rite, it's just "what happened" and got accepted long enough to become immemorial custom. Once it's immemorial custom, it's pretty solid. So, if a pope comes along and simply DECLARES that he is formally setting the TLM in its own box as a "Rite" of its own, and erects a patriarchate to rule over it, and appoints some bishop who would be acceptable to the SSPX and to FSSP and ICKSP to be its Patriarch, the issue of "schism" would go away immediately. The Patriarch could then regularize the SSPX immediately, as a piece of his Patriarchate, on his own say-so. The Patriarchate would have the authority to elect its own new patriarch at the death of the old, who would merely have to submit to Rome a request for "communion with" the pope, not approval of the vote.

Is this ideal? No, not really. For one thing, it would - in a practical sense - cut the Novus Ordo off from its roots, making it nearly a free-floating construct. This would have the following negative results: (a) it would mean there would be little to no impetus to reform the Novus Ordo to correct its main failures - I mean first the failures that were present right in the Missal of Paul VI itself, and not just with the actual implementation. E.G. As Cardinal Sarah says quite forcefully, there is a place for silence in the Mass, and the Novus Ordo has virtually none.

(b) it would more or less permanently eradicate the main remaining impetus to keep Latin the official language of the Church. If Rome - i.e. the Rite practiced in Rome - is not Latin, then the Roman Church will eventually become the "Church of the Vernacular". Which would greatly lessen the perceived universality (catholicity) of the Catholic Church, and thereby the universality of the authority of the bishop of Rome. Perhaps the Church would (somehow) adapt to being - formally - "the Church of the Vernacular", with its universality perceived in some other fashion, but one may justly doubt the practical fruit of such a change.

In my ideal world, the next pope would publicly, from the balcony at which he is first announced, take a copy of TC and burn it to ashes in front of millions. The next day he would announce that Summorum Pontificum "Is" the current law. And then announce 2 more things: (a) the abuses WILL BE STOPPED. (b) There WILL BE a further reform of the Novus Ordo, so that it better reflects the intent of the Council. This correction will swing it closer to TLM, not because "closer to TLM" is per se and inherently the only way to be better, but because the Council never really intended to go as far as the changes generated at the first attempt. The reform will restore Latin and Gregorian chant to a significant role, while still leaving the vernacular in place for propers, readings, and other parts. Further, there would be a push to develop, as the Council intended, chant-forms in the vernacular that could stand alongside Gregorian chant without screaming "phony" and "out-of-place", but complementary. To achieve this last, the Vatican would commission new, young musicians interested in TLM to learn deeply of the traditions of Gregorian chant and Latin polyphony, AND THEN work to develop new forms adapted to their own vernacular languages but carrying the same order and purpose (and, to the extent possible, the "feel") of Latin chant.

Will it happen? No, virtually no chance of that. But it should.

Yes, it is a tricky spot. If the TLM is acknowledged as a separate rite, it solves a lot of practical problems--and practical problems matter! However, it does basically underline the fact the Paul VI went far beyond the reforms suggested by the Council and did something unprecedented, he effectively made up a new rite on the spot, and then declared it to be the ancient Roman Rite. The dissonance of that is difficult to handle, and even though it would be a bitter pill to admit what happened, well, as Pope Leo X, "Nothing is more useful than to look upon the world as it really is."

s/Leo X/Leo XIII/

In my ideal world, the next pope would publicly, from the balcony at which he is first announced, take a copy of TC and burn it to ashes in front of millions.

I love this. (I'm a Protestant, but I still love it.)

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