Ex post facto legislation from the Holy See?

By Phil Lawler ( bio - articles - email ) | Feb 21, 2023

The US Constitution (Article I, Section 9) prohibits ex post facto laws. A legislature can make an activity illegal, but it cannot make the prohibition retroactive: you cannot be punished for doing something that was legal at the time you did it.

The Code of Canon Law has a similar provision. Canon #9 states: “Laws concern matters of the future, not those of the past…” But the sentence continues with an important qualification: “… unless provision is made in them for the latter by name.”

Since I claim no expertise in canon law, I cannot offer an informed opinion on whether a canonical requirement that is imposed today applies to actions taken in the past. But that question now seems relevant. Because the Vatican today issued a document that seems to impose a requirement—a further restriction on the traditional Latin Mass—that did not previously exist.

Earlier this month I made the case (leaning heavily on the excellent analysis by J.D. Flynn in The Pillar) that Cardinal Arthur Roche did not have the proper authority to tell diocesan bishops that they must seek Vatican permission before granting their priests permission to celebrate the traditional liturgy.

Well, Cardinal Roche has that authority now, thanks to the rescript issued by the Vatican today. The new document, issued with the explicit approval of Pope Francis, gives the Dicastery for Divine Worship (which Cardinal Roche heads) the sole authority to issue dispensations from the strict provisions of Traditionis Custodes, which restricts the use of the traditional liturgy. Diocesan bishops cannot issue such dispensations on their own authority.

What makes this story particularly interesting is the fact that in December, Cardinal Roche claimed that he already had the sole authority to authorize dispensations. The Code of Canon Law (#87) ordinarily gives diocesan bishops the authority to grant dispensations on their own, except in cases in which the Vatican has reserved that authority. Traditionis Custodes did not say that the Holy See reserved that authority. In effect Cardinal Roche argued that it was implicit in the document. But—again, under any ordinary circumstances—the law is what the law says, not what any interpreter thinks the law implies. Unless that interpreter is the Pope. Because the Pope is the supreme legislator, and because Pope Francis issued Traditionis Custodes, his reading of the document is the final word.

Cardinal Roche categorically rejected the notion that his interpretation of the papal document might have gone beyond the Pope’s intentions. “It is an absurdity to think that the prefect of a dicastery would do anything other than exercise the wishes of the Holy Father,” he assured a friendly questioner. The cardinal went on to charge that Flynn’s article, gently raising the question of authority, was “not really an attack on me but on the Pope’s authority which for Catholics is an astonishing act full of hubris.”

Well, if Flynn’s analysis was absurd, why did the Vatican feel the need to shore up the authority of Cardinal Roche’s dicastery with the new rescript? Why did the new document take the trouble to state explicitly what the cardinal seemed to think any sensible reader would already have known already? Today’s document says that the Pope has “confirmed” the restrictions that Cardinal Roche announced in December (claiming that the Holy See has sole authority to issue dispensations, and thus stripping diocesan bishops of that right), but the rescript looks very much like a new piece of canonical legislation, imposing those restrictions. After all, if the restrictions were already in place, the rescript would have been unnecessary; a simple reference to the relevant language in the previous papal directive would have done the trick.

Is this rescript a case of ex post facto legislation, then? Remember that Canon #9 allows for such legislation, if “provision is made… by name.” The rescript does explicitly state that the authority to dispense from the provisions of Traditionis Custodes is reserved to the Holy See. Thus the bishops who issued such dispensations, thinking that their right to do so was clear under the provision of Canon #87—since nothing in Traditionis Custodes said otherwise—have now been stripped of that right—retroactively.

Again, the Pope is the supreme legislator of the Catholic Church. His right to make, alter, and interpret canon law is unquestioned. But in this case, as in others, his insouciant approach to the details of canonical legislation, and his disregard for the rights of diocesan bishops, belie his incessant claims to promote a “synodal” style of governance. As Vatican-watcher Andrea Gagliarducci put it in concluding his MondayVatican column this week: “Of course, all Popes are kings, but few use the prerogatives of kings. Pope Francis does. This cannot be denied.”