A Law Must Be Accepted to Be Valid
With his motu proprio Traditionis custodes, Pope Francis has practically unleashed a hurricane that has upset those Catholics who feel attached to the “Tridentine” rite of Mass revived by Benedict XVI‘s Summorum Pontificum [issued July 7, 2007].
From now on — according to the essential declaration of Traditionis custodes — Benedict’s Summorum Pontificum will be in large measure suspended and the celebration of Holy Mass, with some exceptions, will be allowed only according to the Missal of Paul VI.
A look at the blogger scene and other media outlets reveals how a global protest has erupted against this document, which is unusual in form and content.
In contrast to the protests relating to the content of the Traditionis custodes, it is necessary now to make some reflections here that refer to fundamental principles of ecclesiastical legislation — in regard to Traditionis custodes.
If the discussion about Traditionis custodes has so far concerned the legislative content of the motu proprio, here the text will be considered from a formal point of view as a legal text.
First of all, it should be noted that a law does not require special acceptance by the interested parties to acquire binding force.
However, it must be received by them.
Reception means affirmative acceptance of the law in the sense of “making it your own.”
Only then does the law acquire confirmation and permanence, as the “father” of canon law, Gratian († 1140), taught in his famous Decretum. Here is the original text:
“Leges instituuntur cum promulgantur. Firmantur cum moribus utentium approbantur. Sicut enim moribus utentium in contrariem nonnullae leges hodie abrogatae sunt, ita moribus utentium leges confirmantur ”(c. 3 D. 4).
(Our translation: “Laws are established when they are promulgated. They are confirmed when they are approved by the behavior of those who use them. For as due to the behaviors of users in an opposing direction [against the laws, not following the laws] quite a few laws today have been abrogated, so through the behaviors of the users the laws are confirmed”).
This means, however, that for a law to be valid and binding, it must be approved by those to whom it is addressed. Thus, on the other hand, some laws today are abolished by non-compliance, just as, on the contrary, the laws are confirmed by the fact that those concerned observe them.
In this context, reference can also be made to the possibility provided for by customary law, according to which a justified objection against a law of the universal Church has, at least initially, a suspensive effect [in other words, a law not received does not go into effect].
This means, however, that the law need not be obeyed until the objection has been clarified.
It should also be remembered that, if there is a doubt as to whether a law is binding, it is not binding.
Such doubts could be due, for example, to an inadequate wording of the law.
Here it becomes clear that the laws and the community for which the laws are enacted are linked to each other in an almost organic way, to the extent that the community’s bonum commune [“common good“] is their goal.
Put simply, this means that the validity of a law ultimately depends on the consent of those affected by it.
The law must serve the good of the community — and not vice versa, the community (serving) the law.
The two things are not opposed to one another, but linked one to the other, neither can exist without or against the other.
If a law is not observed, or is no longer observed, whether from the beginning or after a time, it loses its binding force and becomes obsolete.
This — and this must be strongly emphasized — naturally applies only to purely ecclesiastical laws, but in no case to those based on divine or natural law.
As an example of a lex mere ecclesiastica [“a merely ecclesiastical law”] consider the apostolic constitution Veterum sapientia [“Of the ancients the wisdom”] of Pope John XXIII of February 22, 1962, in which the Pope prescribed Latin for university teaching, among other things.
Young scholar that I was, I reacted only by shaking my head.
Well, Latin was the norm at the Gregorian University in Rome, and this made good enough sense given the babel of languages among the students, who came from all continents. But whether Cicero, Virgil and Lactantius would have understood the lessons [Note: given in a stumbling and fractured modern Latin], is doubtful. And then: the history of the Church, even of modern times, (taught) in Latin? With all the love professed for the Roman language — how could it work? [Note: In other words, Pope John ordered the classes to still be taught in Latin, but no one knew Latin well enough, so many simply did not obey the decree.]
And so it remained. Veterum sapientia was hardly printed and soon forgotten.
But what this inglorious demise of an apostolic constitution meant for the prestige of papal authority became evident only five years later, when Paul VI‘s encyclical Humanae vitae [in 1968] was nearly drowned amid protests from the Western world.
The thing is done, therefore, friends, and now, patience. Never has unenlightened zeal served peace, or the common good. It was St. John Henry Newman who, quoting the great Augustine, reminded us: “Securus iudicat orbis terrarum.” [“The verdict of the world is conclusive.” (link)] In the meantime, let’s pay close attention to our language. “Verbal disarmament” has already been called that. [In other words, in discussing this new law, do not resort to alarmed, abusive, “nuclear” language…”]
In more pious words: no violation of brotherly (and recently sisterly) love!
Now — seriously again: what a grotesque idea that the mystery of love itself [that is, the Mass, the Eucharist, the holy sacrifice of Christ] should become a bone of contention.
Again, we quote Saint Augustine, who called the Holy Eucharist the bond of love and peace that encloses [unites] the head and the members of the Church.
No greater triumph of hell could be imagined that if this bond [the bond uniting Christians in brotherly love] were broken again, as has happened many times in the past.
Then the onlooking world would grin: “Look how they love each other!”
[In other words, if the Church divides into competing factions, one hating the other, over this question, it would be the victory of Hell and the cause of amusement for the onlooking world.]
[End, Brandmüller on the legal bing power of the Pope’s decree]
Translated into English by Robert Moynihan
This item 12550 digitally provided courtesy of CatholicCulture.org