Analysis of the decree of disciplinary action against the franciscans of the immaculate
by Roberto de Mattei, Mario Palmaro, Andrea Sandri, Giovanni Turco
The decree of the congregation for institutes of consecrated life and societies of apostolic life of July 11, 2013 (prot. 52741/2012) […] is an act of such gravity as not to be capable of being considered of mere internal relevance for the intended recipients alone. […]
The decree imposes upon the Franciscan Friars of the Immaculate - contrary to what is established by the bull "Quo Primum" of Saint Pius V and by the motu proprio "Summorum Pontificum" of Benedict XVI - a ban on celebrating the traditional Mass.
In doing so, it deprives of a good of incommensurable value - the Mass (celebrated in the ancient Roman rite) - both the friars and the faithful who through the ministry of the friars have been able to participate in the Tridentine Mass, as well as all of those who in the future could eventually have participated in it.
The decree therefore does not concern only a good - and with this, "the" good - of which the friars are deprived (save express authorization), but also a good - and with this, "the" spiritual good - of the faithful, who through the ministry of the friars desired and still desire to access the traditional Mass.
These find themselves subject - in spite of themselves and apart from any offense, and therefore without reason - to a sanction in clear contrast with the spirit and the letter both of the indult "Quattuor Abhinc Annos" and of the apostolic letter "Ecclesia Dei" of John Paul II, and of the motu proprio "Summorum Pontificum" of Benedict XVI.
These documents, in fact, are clearly motivated by the intention of satisfying the need for participation in the Mass according to the classic Roman rite, on the part of all the faithful who have the desire for this.
Thus the decree bears an objective relevance for all those who - for the most diverse reasons - treasure and love the Latin-Gregorian Mass. These faithful currently constitute a conspicuous part, and certainly not a negligible one, of Catholics, scattered all over the world. Potentially they could coincide even with the totality of the members of the Church. The decree objectively impacts them as well.
It likewise impacts all those who, even if they are non-Catholic - for different reasons, as historically emerged on the occasion of the appeal presented to Paul VI in 1971 - should have at heart the continuation of the traditional Mass. The decree (well beyond, therefore, the incident relative to one religious institute) bears a universal relevance under this profile as well. […]
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As for the prohibition of the celebration of the Mass in the ancient Roman rite (also called the “extraordinary form”), many grave problems are posed by the decree that objectively highlight logical and juridical anomalies that are equally manifest.
First of all, with regard to this prohibition imposed on the Franciscan Friars of the Immaculate, deriving from the imposition on them of the sole faculty of celebrating in an exclusive way according to the new missal (also called the “ordinary form”) save express authorization, one cannot help but point out that this is clearly in contrast with what is established for the universal Church as much by the bull "Quo Primum" of St. Pius V (1570) as by the motu proprio "Summorum Pontificum" of Benedict XVI (2007).
The bull of St. Pius V, in fact, establishes universally and in perpetuity: “by virtue of the apostolic authority we grant, to all priests, by these presents, the perpetual indult of being able to follow, in a general way, in any church, without any scruples of conscience or danger of incurring any penalty, judgment, or censure, this same missal, which they will have the full faculty to use freely and licitly, so that prelates, administrators, canons, chaplains, and all other secular priests, whatever may be their degree, or regular, to whatever order they may belong, may not be bound to celebrate the Mass in a manner different from that which we have prescribed nor be forced and driven by anyone to change this missal."
In its turn, the motu proprio of Benedict XVI establishes that "it is therefore permitted to celebrate the Sacrifice of the Mass following the typical edition of the Roman Missal, which was promulgated by Blessed John XXIII in 1962 and never abrogated." And it specifies that "for such a celebration with either Missal, the priest needs no permission from the Apostolic See or from his own Ordinary."
The motu proprio furthermore affirms that "if communities of Institutes of Consecrated Life and Societies of Apostolic Life, whether of pontifical or diocesan right, wish to celebrate the conventual or community Mass in their own oratories according to the 1962 edition of the Roman Missal, they are permitted to do so." Analogously it declares that "ordained clerics may also use the Roman Breviary promulgated in 1962 by Blessed John XXIII."
The same motu proprio establishes unequivocally that "we order that all that we have decreed in this Apostolic Letter given Motu Proprio take effect and be observed from the fourteenth day of September, the Feast of the Exaltation of the Holy Cross, in the present year [2007], all things to the contrary notwithstanding."
As is clear from the two aforementioned texts and from their essential connotations, the freedom to celebrate the Tridentine Mass belongs to the universal legislation of the Church and establishes a right for every priest.
Analogously there is derived from this a right for the faithful adhering to this “liturgical tradition.” As for them, in fact, the Code of Canon Law recognizes: “The Christian faithful have the right to worship God according to the prescripts of their own rite approved by the legitimate pastors of the Church" (can. 214).
Thus the prohibition, save authorization, established by the decree objectively fails to take into account this universal legislation of the Church, deliberating - through an act evidently to be subordinated to it (in terms of both matter and form) - in a way that contrasts with the universal and permanent discipline. Which, by reason of its apostolic origins, enjoys - as illustrious scholars argue - the character of irreformability.
The prohibition of the celebration of the Tridentine Mass on the part of the decree is unjustly discriminatory toward the Latin-Gregorian rite, which not only dates back from the Council of Trent to St. Gregory the Great, and from these to the apostolic tradition, but according to the unequivocal appreciation of the motu proprio “Summorum Pontificum" of Benedict XVI must be "duly honoured for its venerable and ancient usage." It, in fact, is an expression of the “lex orandi" of the Church. It is therefore a good to be protected. Not an evil to be shunned.
Moreover, the imposition on the friars of the celebration of the new missal alone supposes a regulation of special authorization with regard to the Latin-Gregorian missal, which is objectively nonexistent. Or otherwise it introduces its application, in the face of legislation of clearly different and opposing content.
It is clear, in fact, that the regime of authorization of a particular act or activity presupposes an ordinary prohibition, to which an exemption may be given in extraordinary cases (particular and determined). But this (or ordinary interdiction) is explicitly excluded by the law of the Church, which declares as a faculty of the priest, to be exercised freely and without any authorization, that of celebrating the Tridentine Mass.
It must also be pointed out that the interdiction (save express authorization) of such a celebration brings out three further objective anomalies of the decree.
This, in fact, establishes a regime of authorization for the traditional Mass, indicating generically as holder of the power of authorization the “competent authorities.” But with the regulation established by the indult "Quattuor Abhinc Annos" and by the apostolic letter "Ecclesia Dei" having been abrogated, it is not clear what is precisely the competent authority to release authorization in words. All the more so in that the competency in this matter certainly surpasses the congregation of institutes of consecrated life, and if anything should be referred to the pontifical commission "Ecclesia Dei."
It is singular, moreover, that the authorization according to the decree is to be granted "to every religious and/or community," almost as if the Mass were celebrated not by the individual priest, but even by a whole community, in its entirety (potentially including the friars who are not priests). Almost as if the authorized community could authorize in its turn, transmitting (how?) the authorization (on the part of whom?), procedurally (on what conditions?) to the individual celebrant.
A further anomaly of the decree is marked by the fact that this regime of authorization is temporally undetermined. That is, no terms of applicability are indicated for the regime of authorization imposed only on the Franciscan Friars of the Immaculate. How long will the request for authorization be imposed? Until a certain date? Until the attainment of a certain objective? In perpetuity?
The text of the decree says nothing in this regard. Contrary to the need for specificity - or rather for rationality and justice - of any provision (in fact, even a penalty that would coincide with an entire lifespan or be perpetual has its specificity). This is a demand of natural law and canon law (cf. can. 1319). Having ignored which manifests an evident detriment both of the punitive character and of the remedial character of any restrictive provision (in this case, of a faculty proper to each priest).
On the other hand, the prohibition of the celebration of the Latin-Gregorian Mass - although referred to by the decree as having been decided by the pope - remains objectively circumscribed within the domain of a decree of a Roman congregation.
It follows that - at least in terms of its form and the obligation arising from it - it cannot help but share the limitations of the decree itself and its necessary submission to the universal legislation of the Church. In fact, unlike any pontifical disciplinary deliberation whatsoever - "ex professo," if carried out within the domain of his power of jurisdiction, or indeed of the "munus gubernandi," and as such legitimately possible in conformity with positive divine law and the solemn definitions relative to it - the measure in question cannot help but remain circumscribed to the decree itself, within the limits of the faculties of one of the Roman congregations.
In any case, the imposition derived from the decree like any sort of disciplinary deliberation by anyone cannot help but be measured objectively by natural law - or indeed by justice - and by positive divine law, to which canon law, discipline, and ecclesiastical jurisprudence must necessarily conform.
In fact, as Benedict XVI recalled in the speech on the occasion of the inauguration of the judicial year of the tribunal of the Roman Rota of January 21, 2012, "the 'lex agendi' cannot but mirror the 'lex credendi.'"
The motu proprio of July 7, 2007 with which Benedict XVI liberalized the celebration of the Mass in the ancient rite:
The letter with which pope Ratzinger accompanied the motu proprio:
And the subsequent instruction of the pontifical commission "Ecclesia Dei" of May 13, 2011: