A brief legal analysis of “Traditionis custodes”

We present to you a legal analysis of the Apostolic Letter issued motu proprio Traditions Custodes written by a priest, a friend of our website, who studies canon law. We would like to express our deep gratitude for his efforts and permission to publish the text. This text applies not only to the Polish dioceses but to all those where there are no personal parishes for traditional communities.

A brief legal analysis of Traditionis Custodes with reference to the Polish dioceses

1. Introduction

The Apostolic Letter motu proprio Traditionis Custodes (henceforth: TC) is undoubtedly a universal law issued by a competent authority that has been in force since the moment of its promulgation, namely its publication in L’Osservatore Romano on 16 July 2021. It is undoubtedly an example of restraining laws (leges odiosӕ).

2. Legal norms

The application of laws is regulated in Book I General Norms of the Code of Canon Law from 1983 and especially Title I Ecclesiastical laws. For the issue in question, the following norms are of exceptional importance:
– Can. 10: Only those laws must be considered invalidating or disqualifying which expressly establish that an act is null or that a person is effected.
– Can. 17: Ecclesiastical laws must be understood in accord with the proper meaning of the words considered in their text and context. If the meaning remains doubtful and obscure, recourse must be made to parallel places, if there are such, to the purpose and circumstances of the law, and to the mind of the legislator.
– Can. 18: Laws which establish a penalty, restrict the free exercise of rights, or contain an exception from the law are subject to strict interpretation.
– Can. 19: If a custom or an express prescript of universal or particular law is lacking in a certain matter, a case, unless it is penal, must be resolved in light of laws issued in similar matters, general principles of law applied with canonical equity, the jurisprudence and practice of the Roman Curia, and the common and constant opinion of learned persons.
– Can. 20: A later law abrogates, or derogates from, an earlier law if it states so expressly, is directly contrary to it, or completely reorders the entire matter of the earlier law. A universal law, however, in no way derogates from a particular or special law unless the law expressly provides otherwise.
– Can. 21: In a case of doubt, the revocation of a pre-existing law is not presumed, but later laws must be related to the earlier ones and, insofar as possible, must be harmonized with them.
– Can. 87 §1.: A diocesan bishop, whenever he judges that it contributes to their spiritual good, is able to dispense the faithful from universal and particular disciplinary laws issued for his territory or his subjects by the supreme authority of the Church. He is not able to dispense, however, from procedural or penal laws nor from those whose dispensation is specially reserved to the Apostolic See or some other authority.

3. General outline

To all restraining laws one should apply the rule of law included in canons 10 and 18, namely odiosa restringenda, favorabilia amplificanda (restraining regulations are to be interpreted strictly, favourable regulations are to be interpreted broadly). Given that TC undoubtedly falls into the category of restraining laws, as it abolishes and limits the rights given before, especially in the Apostolic Letter motu proprio Summorum Pontificum (henceforth: SP), this rule must find its use in the interpretation and the application of the norms of TC. As a result, according to can. 17, one should strictly follow the letter of the document and its norms, not extending them “by default” to the issues not included. Furthermore, according to can. 20 and 21, one should acknowledge that, apart from the norms directly opposing those included in TC, other regulations of SP are still in force, as the legislator did not express the wish to abolish SP and the text of the new motu proprio does not directly go against or discard the previous one as a whole. As it may be deduced from the document, its only function is to repeal certain norms which are incoherent with those included in TC.

4. Thorough description of the norms of TC

Art. 1: The expression lex orandi is not legal but theological. This article should be regarded as a general norm, but not restraining. Therefore, according to can. 10 and 18, it is absolutely unlawful to state that it forbids the usage of the liturgical books not promulgated by saints Paul VI and John Paul II: if it were the will of the legislator, it would be expressed directly. This is confirmed by the fact that the further provisions of TC allow for using other liturgical books. This, in turn, excludes the possibility to interpret the article as a restraining one, as in that case, the document would contradict itself. Whose expression is the celebration of the liturgy according to the old books is not a question of a juridical nature, but rather of a theological one.
Art. 2: It transfers the right to allow for celebrations according to the 1962 Missal, which parish priests and rectors of churches were previously entitled to, to the diocesan bishop. Here it should be highlighted, however, that the article does not regulate nor limit the possibility. Therefore, the bishop can grant his permission in a general way, not for each and every celebration separately.
Art. 3: It imposes the following duties on the diocesan bishop, regarding the groups of the faithful (not limiting them to only those formally established) participating in the celebrations according to the 1962 Missal:
a) § 1 – making sure that the groups acknowledge the validity and orthodoxy of the liturgical reform, the regulations of the Second Vatican Council and the papal Magisterium. As there are no specific norms provided, the way to assess it is the bishop’s responsibility. One should remember, however, that according to the rules of law, the presumption of innocence and good will (prӕsumptio boni viri) is in force.
b) § 2 – appointing a place of celebration for the group or groups, with the exception of parochial churches. This exclusion, however, does not apply to all celebrations according to the books from before 1970 but only to the place of regular celebration for the groups. Therefore, it must not be interpreted as an absolute ban on celebrating “the old liturgy” in parochial churches (can. 17 and 18). Furthermore, according to can. 87 – § 1, it should be highlighted that the legislator did not reserve nor forbade to grant dispensations from its regulations. In addition, according to art. 2 it is the diocesan bishop who regulates the liturgical life in his diocese and permits celebrations according to “old books”. Therefore, in the circumstances in Poland granting dispensations is possible and justified. According to can. 90 § 1, there should be a “just and reasonable cause”. Lack of other appropriate places for celebration is definitely one. Can. 86. cannot be applied here, as art. 3 § 2 does not define what is constitutive for institutions or legal acts;
c) § 3 – appointing days for the aforementioned celebrations – there are no reasons for it to be a general act and not a permission for every single liturgy. In the case of readings, one should remember that TC does not forbid to proclaim them in Latin nor require them to be read only in vernacular languages. Moreover, it is obvious that Francis’ motu proprio, allowing for celebrations of the liturgy according to the 1962 Missal cannot contradict its own provisions, requiring celebrations not to be in conformity with the book which requires readings to be proclaimed in Latin. This regulation is to be interpreted according to can. 17 and 21, in light of art. 6 of SP, especially point 26 of the Instruction on the Application of the Apostolic Letter Summorum Pontificum issued by the Papal Commission Ecclesia Dei. Therefore, the readings can be proclaimed firstly in Latin and then in the vernacular or solely in the national language in the case of Low Masses. This is also a widespread habit, which is the best interpretation of the law, according to can. 27;
d) § 4 – establishing of the office of and nominating the delegate of the bishop, who has to be a priest. TC gives the following requirements: he should “be suited for this responsibility”, “be animated by a lively pastoral charity and by a sense of ecclesial communion”, “possess a knowledge of the Latin language“ and “be skilled in the use of the Missale Romanum antecedent to the reform of 1970”. If the priest has already been celebrating the Mass according to the 1962 Missal, one should assume that the last two requirements are fulfilled with no more evidence necessary, according to a maxim of the Roman law: Manifestum non eget probatione (obvious facts need no proof).
e) § 5 – the issue of personal parishes does not apply to Poland;
f) § 6 – the ban on establishing new groups. It does not exclude, however, giving legal status to the already existing groups or approving them;
Art. 4 – The text is clear and does not require any further interpretation. As there are no specific norms regarding new priests requesting the right to celebrate the TLM, according to can. 19 and 20, requirements included in SP art. 5 § 4 (they have to “be qualified and not prevented by law”) should be applied. The celebrations are not limited solely to the places listed in art. 3 § 2 TC, as the article applies only to the places established for the groups mentioned in art. 3.
Art. 5 – each and every priest who (at least once) has celebrated the liturgy according to the 1962 Missal should obtain a permission from the bishop for the continuation of the right. As it is a limitation of the right already gained and used, on the grounds of SP art. 2 and according to can. 18, this article has to be interpreted without adding further requirements except for those included in SP art. 5 § 4 (they have to “be qualified and not prevented by law”). These celebrations are not limited only to the places and days mentioned in art. 3 § 2 of TC, as it only applies to the liturgies for the groups enlisted in art. 3 TC.
Art. 6 and 7 – these do not apply directly to dioceses;
Art. 8 – it revokes all norms, instructions, permissions and customs which go against the articles above. According to can. 10, 17 and 18 it must be highlighted that TC invalidates only the norms which are contrary to the text of the law and not those concerning the issues of the rites using liturgical books other than those published after 1970. Consequently, according to can. 20 and 21, it should be acknowledged that questions not included in the TC provisions are still regulated by the previous law, namely SP. It stems from the fact that there is no remark in the motu proprio itself nor in the letter of Pope Francis regarding the annulment of SP. It is especially significant when we refer to art. 9 of SP which allows for using the 1962 breviary and “the old ritual” and pontifical to administer sacraments. It must be stated and highlighted once again that, according to can. 87 § 1, the diocesan bishop has the right, in justified cases, to dispense the faithful from universal laws, which is not forbidden nor reserved for the Holy See in the provisions of TC.