This
issue of the Angelus English-Language edition of
SISINONO is the fifth
and final
installment of the second half of a double study regarding
the “state of necessity” invoked by Archbishop Lefebvre
to justify his consecration of four bishops on June 30,
1988. In our issues of SISINONO of
July
and September
of 1999, we discussed the theological
aspects. Starting with the November
1999 we are discussing the canonical
aspects. These remarks are for those who admit the existence
of an extraordinary crisis in the Catholic Church but do
not know how to justify the extraordinary action of Archbishop
Lefebvre on June 30, 1988 when lacking permission from Pope
John Paul II, he transmitted the power of episcopal orders
to members of the Fraternity founded by him.
CANONICAL
STUDY – PART 5
The
Specifics Of The “Murray Thesis”
Rancor towards Archbishop
Lefebvre continues despite the passing of over a decade
since his actions. It has fomented unfounded accusations
against the Society of Saint Pius X.
It would be illusory
to expect anything different in the actual climate of decadence
of the Church and of once-Catholic societies. Nevertheless,
an exception was had with the "Murray Thesis"
sanctioned by the Pontifical Gregorian University [see The
Angelus English-Language Edition of SISINONO,
Jan. 2000, #36 - Ed.] which does justice to the distorted
charges against the Society. We will attempt to analyze
the essential nucleus of it, just as it appeared in the
summary of The Latin Mass Magazine (see "Gaps
in the New Code?," Fall 1995).
An
unauthorized consecration of a bishop cannot be described
as an intrinsically evil act, nor would it necessarily
be described as tending to the harm of souls, apart from
a consideration of particular circumstances which define
more specifically the nature of the act. In our case,
the direct violation of the Holy Father's express will
that the consecrations not occur gives this act of consecration
a particular objective character (prescinding here from
subjective considerations on the part of Archbishop Lefebvre,
which also legally condition the nature of the act in
question, as we shall see), i.e., that of disobedience
of a schismatic nature, as stated by the Supreme Authority
in the Church. A truly schismatic act always has the character
of an act harmful to souls.
Therefore, Archbishop
Lefebvre could not simply claim prima facie that
§4 exempts him from the penalty. A prior question needs
to be addressed, though: Can he legally claim that a state
of necessity existed at the time? Does the law grant him
that faculty?1
Therefore, we are
not in the presence of an "intrinsically evil"
act and not even one "harmful to souls" unless
it is proven that this act, in that it was carried out against
the express will of the pope, presents a "particular
objective character," that is, of a "schismatic
nature." But Fr. Murray recalls that, for the purpose
of a correct juridical evaluation of the act, the "nature
of the act in question" does not arise only from the
judgment which the Holy See has given to it, it arises
also from the evaluation which the author has given
to it. In our case, this was Archbishop Lefebvre, who always
invoked the existence of a grave state of necessity in order
to justify it. The view expressed here by Fr. Murray seems
absolutely correct, according to the law, because, for the
1983 Code of Canon Law the juridical relevance of
the act in question depends essentially on the valuation
which the acting subject (Archbishop Lefebvre) has given
to it, much more than on the valuation of the authority
(the Holy See).
But when do you have
a "state of necessity"? A state of necessity results,
recalls Fr. Murray, every time that there is "a conflict
between a subjective right and a canonical norm." But
this "conflict" must not be seen only in the case
of "ordinary" or "common" necessity,
that is, when there is danger of "losing a good which
is not indispensable to existence." The state of necessity
is also that in which one is constrained "to act against
that which is prescribed in order to avoid the danger of
an evil ensuing from the fulfillment of this disposition."2
A state of necessity exists, not only when, by obeying the
norm, one risks losing a good, but also when one risks incurring
an evil. In each case, a state of necessity always implies
disobedience to a norm and therefore to the will of the
legislator, which can be that already embodied in the norm
of the Code of Canon Law, or which is manifested
in the form of an individual precept toward those who feel
themselves to be constrained to transgress it.
We must examine the
criterion necessary to establish the actual existence of
the state of necessity. What needs to be done, from the
juridical point of view, is to analyze the relationship
between the necessity invoked by Archbishop Lefebvre and
Canon 1323,§7 of the 1983 Code, which dictates that
he is not subject to any penalty who has violated the law
or the precept, while considering as present, without fault
on his part, any of the circumstances provided for in Numbers
4° and 5° of the same canon, or in the cases of superior
or irresistible force, among which is the circumstance of
necessity, and legitimate defense [see The Angelus
English-Language Edition of SISINONO, Jan. 2000,
#35 - Ed.].
Canon 1323,7° contemplates
the possibility of an error on the part of the subject who
invokes necessity, but of an error without fault, a blameless
error. In this case also, the subject must not be considered
culpable, and is exempt from the penalty.
Fr. Murray examines
the position of Archbishop Lefebvre in the light of Canon
1323,7° because the existence of the state of necessity
is contested by the Holy See, which charges that the "necessity"
was artificially created by the Archbishop. Was this state
invoked following a diligent judgment on the part of Archbishop
Lefebvre (Canon 1323,7°) or a negligent one (Canon 1324,§7,8°).
The opinion reached must be formed by means of an analysis
totally in accord with the express norms and with the principles
of canon law. The logical progression followed by Fr. Murray
appears to us to be the following: 1) Archbishop
Lefebvre invoked Canon 1323,4° which concedes the exemption
from penalty to whomever acted having been constrained by
grave fear, even if the fear was only relative, or through
necessity, etc., provided that the act not be intrinsically
evil (i.e., lying, swearing falsely, etc.)
or harmful to souls; 2) the Supreme Authority,
on the contrary, has conferred on this act a "particular
objective character," that of "a disobedience
of a schismatic nature"; 3) a schismatic
act is always "harmful to souls"; 4)
if the act is "harmful to souls" then number
4 of Canon 1323 [invoked by the Archbishop] does not apply,
because in this case one is not totally exempt from penalty
, even though having the right to attenuating circumstances.3
The evaluation of
the conduct of Archbishop Lefebvre must therefore be twofold,
because it is a question of seeing whether 1)
his conduct essentially falls into the subject matter
of Canon 1323,7° according to which an error without fault
is admitted as a cause exempting from penalty, or, 2)
it falls into the subject matter of Canon 1324,8°, which
concedes simple attenuating circumstances sufficient to
exclude latae sententiae excommunication. Fr. Murray
says:
Culpability is not
a question of moral fault nor even of malice, but of an
imprudent attitude deriving from the lack of diligence.
According to Fr. Murray, it is sufficient that this fault
not be "grave."4
Was Archbishop
Lefebvre gravely culpable of a fault for thinking that
there was a state of necessity authorizing him to perform
the episcopal consecrations? If culpability is defined
as the "omission of due diligence" (Canon 1321,§2),
it would be hard to claim that Archbishop Lefebvre acted
without some measure of due diligence in studying his
decision to perform the episcopal consecrations based
on what he claimed was a necessity of acting for the benefit
of the Church.
His judgment was
proclaimed to be faulty by the Holy See, but does that
determination in itself mean that he was gravely culpable
- in the sense of forming a judgment in a negligent way
- for continuing to hold his judgment? It would seem not.5
"It would seem
not," because, as Fr. Murray points out, the law in
force obliges one to here consider the situation also (and
especially) from the point of view of the acting subject:
The issue here
is not simply the actual state of things as understood
by the Holy See, but rather also the subjective appreciation
of the person who violated the law. If he exercised due
diligence, and indeed thought there was a state of necessity
involving the securing of the good of the Church, then
[Archbishop Lefebvre] would seem to be exempted from a
penalty for the episcopal consecrations, according to
Number 8 of Canon 1323.
Who
is to judge if Archbishop Lefebvre exercised due diligence
in thinking about and forming a judgment on this matter?
Since it involves a question of the internal forum, i.e.,
his thoughts, then we have to leave that judgment to his
conscience as manifested by his statements…[I]t would
seem that the presentation of credible evidence that
he acted with due diligence...would exclude both the presumption
of culpability, and moreover, culpability itself.5
The Murray Thesis
maintains that in the case of the consecrations of Ecône,
one can apply Canon 1323,7°, which excludes from all penalty
one who has only believed himself to
be obliged to act in the state of necessity, provided that
there was not a grave lack of diligence on his part. But
the declarations of Archbishop Lefebvre do not allow the
possibility of maintaining that there was a lack of that
kind. His behavior proves this also, given that he consulted
at successive stages with different persons on the matter
[see Archbishop Lefebvre and the Vatican available
from Angelus Press. Price: $12.45].
At this point, from
a consideration of general character, it could be asked:
if the subject exercised due diligence, where is the error
in the evaluation? Doesn't that diligence exclude it? In
truth, Canon 1323,7° does not explicitly mention error,
but denotes a subjective judgment which may or may not correspond
to the facts.
An absolutely certain
state of necessity was the one which today
is recognized as having been present in the Church at the
time of the Arian crisis, when heresy had corrupted the
faith of a substantial part of the hierarchy. This is an
uncontestable fact. Equally certain was the state of necessity
of the Church at the time of its public persecution, for
example in Protestant England or in revolutionary France.
It is so in the case of supplied jurisdiction for the salvation
of the soul of one dying. A state of necessity implied by
the crisis of faith, and therefore of the Church, will,
however, be denied by those whose faith is no longer solid
because they have been seduced by heresy. And so today,
many admit the crisis of faith and of the Church, but almost
no one dares to draw the necessary conclusion, namely, that
souls find themselves in the state of necessity. This means
that whoever, as Archbishop Lefebvre and Bishop de Castro
Mayer, has proclaimed the state of necessity of souls, finds
himself part of a small minority , and his judgment appears
only his own, even if objectively based on the actual state
of affairs. But this judgment, even if considered erroneous
by the majority (therein is included the formally legitimate
authority), is nevertheless safeguarded by the 1983 Code,
provided it is a matter of a diligent judgment.
This latter is not as such necessarily precise, because
diligence shows the good faith of the subject, not the truth
of his conviction. Naturally, the diligent judgment can
be true, even if it can present the appearance of error
when it is the judgment of an individual only or of a minority
against the huge majority .The diligent judgment receives
complete protection from the 1983 Code of Canon Law,
with exemption from penalty; a negligent judgment, invalidated
by an error due to the subject's fault, receives a lesser
protection, but nevertheless exemption from latae sententiae
excommunication.
This last benefit
is that contemplated in Canon 1324, §1,8°, upon which the
Murray Thesis naturally rests. After concluding that Archbishop
Lefebvre and the four bishops consecrated by him could not
be penalized, in accordance with the provision of Canon
1323,7°, Fr. Murray says:
This canon [1324,
§1,8°] offers to Archbishop Lefebvre and to the bishops
consecrated by him perhaps the strongest argument that
they are not excommunicated. Number 8 of paragraph 1,
like Number 7 of Canon 1323, refers to the thoughts of
the person who committed the offence. The legal value
given to an individual's subjective estimation of the
existence of a state of necessity by the 1983 Code
of Canon Law seemingly renders the incurring of a
latae sententiae penalty impossible in the case
of a person who violated a law or precept, either culpably
or not, and without malice, while thinking that the state
of necessity required or simply permitted him to violate
a law or precept.6
This is therefore
the conclusion of a general character, perfectly based on
the positive law in force in the Church. Naturally, the
subject must have acted without malice or deceit whatsoever.
The negligent judgment about which Canon 1324, §1,8° speaks
is almost always due to negligence, not to malice. The Holy
See, however, as we know, has accused the Archbishop of
bad faith and therefore of a malicious attitude. Here is
Fr. Murray's reply:
If law A allows
one to violate law B in certain circumstances with impunity,
is a violation of law B in those circumstances really
a violation? It would seem not, since an act cannot be
authorized and not punishable, and yet be prohibited at
the same time. If there is no prohibition, then there
can be no violation. Law B falls, law A prevails, the
act regulated by law B is not subject to a prohibition
or a penalty; hence its completion involves no deliberate
violation, and therefore malice is not involved.7
The first
argument of Fr. Murray in favor of the impossibility
of accusing Archbishop Lefebvre of malice is based on the
observation that the exempting causes (and attenuating circumstances)
make the very concept of deliberate violation
of the law disappear, with the consequent impossibility
of imputing any malice to the acting subject. Moreover,
whoever violates the law on account of the state of necessity,
is convinced of doing it for safeguarding a superior good:
the purpose of his action is not to violate the law (something
that he does unwillingly), but to protect this good, and
such a purpose shows the absence of that which is commonly
understood by malice.
The second
argument is the following:
Furthermore, if
the judgment of the applicability of law A is not legally
reserved to a superior, but is rather left up to the individual
judgment of the person who violates law B, then his appeal
to law A [which exempts him from penalty - Ed.]
is not illegitimate and cannot simply be gainsaid by the
superior. The Code has given the person in question the
capacity, if not the right, to judge the circumstances,
and then mitigates or exempts him from the penalty attached
to a violation of law B based on the legal qualification
of his subjective appeal to, for instance, necessity.
If this supposition
is correct, then Archbishop Lefebvre cannot be alleged
to have acted with malice. It can plausibly be maintained
that his intent was not to violate a law, but rather to
act, with legal sanction, in a way that would, according
to his judgment, secure the good of the Church, by means
of a necessary transgression of Canon 1382 [already cited
by us, which provides for "latae sententiae"
excommunication for consecration without mandate - Ed.]
in the extraordinary circumstances he alleged to exist
in the life of the Church. This intent to obtain the good
of the Church by means of disobeying in this particular
instance, but not rejecting, the authority of the Supreme
Pontiff and the submission due to him [insofar as the
Holy Father - Ed.], would also exclude any direct
intent to commit a schismatic act.
If Archbishop Lefebvre
thought, even culpably, that he needed to act because
of the necessity of the Church, he is furthermore not
subject to a latae sententiae excommunication according
to Canon 1324, §3. And as we saw, the code of Canon Law
does not presume malice, but rather imputability (Canon
1321, §3). This presumption of imputability falls "if
it appears otherwise" (nisi aliud appareat).
Such an "appearance," indicating at the least
a possible lack of imputability, can reasonably be asserted
to exist in this case.13
This
point of the Murray Thesis is important. It points out how
Canon 1321 of the 1983 Code of Canon Law, with regard
to the infliction of a penalty, presumes "grave imputability
through malice or through fault." The external violation
of the law or of the precept must be referred to an imputable
subject. Once the violation has occurred, "imputability
is presumed, if it does not appear otherwise."14
And in the case that interests us this "otherwise,"
which causes imputability to fail, did with reasonable probability
appear, according to Fr. Murray. But why is this remark
so important? - Because it reminds us that, through canon
law, that which must be presumed, in the case of a violation
of the law, is imputability, not malice: malice must
be demonstrated. In the case of Archbishop Lefebvre,
the Supreme Authority has proceeded in a way exactly opposite:
it has presumed malice, without first
making sure of the actual existence of imputability. But
the latter was excluded or diminished on the bases of Canons
1323,7° and 1324,§1,8° and therefore malice cannot be presumed!
Therefore the Holy See has fallen into a true and proper
error of law, such as to allow us to consider invalid the
pronouncement of excommunication against Archbishop Lefebvre
invalid. Fr. Murray continues:
Hence,
it would seem incumbent upon the competent authority first
to establish Archbishop Lefebvre's imputability, and then
his malice in performing the episcopal consecrations before
declaring that the law has been violated in such a way
as to incur a latae sententiae penalty. Whereas
these two facts [imputability and malice -Ed.]
have not been established with juridical certainty, then
there exists a well-founded argument to reasonably contest
the validity of the declaration of the latae sententiae
excommunications against Archbishop Lefebvre and the
other bishops involved….
The
administrative declaration of the Holy See appears to
have failed to take into proper account the revised penal
law of the Code of Canon Law, especially as regards
the mitigation of and exemption from latae sententiae
penalties. Juridical malice has been presumed on the part
of Archbishop Lefebvre and the bishops consecrated by
him. Subjective convictions on their part as to an alleged
state of necessity are simply dismissed in an unsigned
communique, whereas the Code of Canon Law stipulates
that holding and acting upon such a conviction, even erroneously,
in effect prevents one from incurring a latae sententiae
penalty.10
Therefore,
according to Fr. Murray, there has been here also a possible
violation of Canon 220 of the Code of Canon Law,
which safeguards the "good reputation" which one
enjoys, because a person is branded as "schismatic,"
when there is on the contrary the well-founded reason to
maintain that this person has not incurred the penalty.
Such an action, an arbitrary attribution, "would be
a violation of that person's fundamental right to his good
reputation, which is guaranteed by the Code itself."11
Essentially, this
is the Murray Thesis, a thesis absolutely correct in point
of law which spells out the illegality of the procedure
followed. The partial retraction made of it afterwards by
its author is incomprehensible to us.
Is Tradition
Excommunicated?
Available from Angelus
Press. Price: $7.95
|
|
In relation to the
appointment of a bishop apparently conceded by the Holy
See to the Society, it behooves us to underline that it
was in reality a concession subjected to burdensome conditions.
In his letter of May 30, 1988, Card. Ratzinger wrote that
the Pope declared that he was "disposed" to nominate
a bishop selected by the Society, but on precise conditions:
1) He demanded additional names on the list
of candidates, in order not to be conditioned in his freedom
of choice.12
This was an entirely new demand being put forth, which,
by leading in fact to an extension of time, removed with
one hand what was conceded by the other, i.e., the date
of August 15 for the consecration; 2) He demanded
that the Archbishop write a letter to ask pardon and offer
submission,13
a request that had already been advanced before, but was
now augmented by new requests, so that Archbishop Lefebvre
would have had to publicly take a pledge not to carry out
the announced consecration of three bishops and to defer
to every decision of the Holy Father in this matter. This
request indicated a lack of trust in Archbishop. Pope John
Paul II did not concede the date of August 15th for the
consecration of a traditionalist bishop: he said only that
he was disposed to concede, and only
on certain conditions which made clear what Rome meant by
"reconciliation": a reabsorption, perhaps gradual,
which strikingly resembled unconditional surrender. This
"concession" of Rome did not convince Archbishop
Lefebvre that the state of necessity in the Church (or in
the Society) had passed. In a manner totally consistent
with his convictions and in light of his accurate appreciation
of the circumstances, the Archbishop asserted in his letter
to the Pope of June 2, 1988, that "the moment for a
frank and efficacious collaboration" with Rome had
"not yet arrived." He had to continue down the
path of providing for the "state of necessity"
in souls.14
The
Law Authorized By The State Of Necessity
State
of Necessity in the Church After the Council
We must discuss the
right which is born of the state of necessity. The state
of necessity exempts us from imputability, but does it engender
for us an actual right? Prof. May in The Disposition
of Law in Case of Necessity Within the Church (see The
Angelus English-Language of SISINONO,
Jan. 2000, #36; also Is Tradition Excommunicated?
available from Angelus Press. Price: $7.95) draws attention
to the fact that the 1983 Code of Canon Law
...does not say
what is meant by this item [i.e., "state of
necessity" - Ed.]; it leaves to jurisprudence and
lawyers the task of giving it a precise meaning. But it
is clear from the context that necessity is a state wherein
goods necessary for life are put in danger in such a way
that to come out of this state the violation of certain
laws is inevitable.15
The "violation
of certain laws" is not free in
the case of necessity as in the case of one who commits
a crime, but is "inevitable," because imposed
by necessity.
The observance of
the laws is clearly a good thing. Catholics know they must
"serve the Commandments" not only in faith and
morals, but even the norms of the positive law of the Church
and of civil authority. Nevertheless, there are goods superior
to observance itself, and these are "the goods necessary
for life," whose value is primary and essential. When
there is a danger these goods may be injured and their necessary
possession impeded, then it is lawful to violate the established
norm - for example, through an act of disobedience - to
prevent that from happening.
A situation in which
"the goods necessary to life" are put in danger
is clearly an exceptional situation of necessity. The juridical
significance of a situation of that kind is admitted by
all the modern legal codes, especially with its importance
from the standpoint of morality.16With
regard to the Church, what form can it assume? Dr. May says:
In the Church,
as in civil society, it is conceivable that there arrive
a state of necessity or urgency which cannot be surmounted
by the observance of positive law. Such a situation exists
in the Church when the endurance, order, or activity of
the Church are threatened or harmed in a considerable
manner. This threat can bear principally on ecclesiastical
teaching, the liturgy, and discipline.17
The "endurance,
order, or activity of the Church" represent per
se fundamental goods, because they are "necessary
to life," that is, the supernatural life of the faithful,
since without the Church there is no salvation. The good
of souls demands that the Church be maintained according
to its nature and the intention of its Founder. The most
basic sign of this conservation will be its fidelity to
the deposit of the Faith. The Church cannot be lost to the
faithful for any reason. But this good is threatened in
its three forms of existence [i.e., "endurance,
order, activity" - Ed.] when "teaching, liturgy,
and ecclesiastical discipline" are corrupted.
In consequence of
Vatican II these three forms of existence of the Church
have entered into the most acute crisis, because doctrine
has been attacked, on account of the heterodox conciliar
novelties; the liturgy has been
revolutionized in an ecumenical and Protestant manner; discipline
has been relaxed and adulterated by the democratization
of hierarchy and the relationship between the hierarchy
and the faithful.
This situation has
produced from inside the Church and is allowed to persist
by the Church's hierarchy. The danger to the goods of faith
and salvation is caused either through that which the hierarchy
does and wants to be done, or through that which the hierarchy
does not do and does not want to be done. In the first case
we have an unlawful use of authority, because it orders
the faithful to observe things contrary to the faith and
to the salvation of souls, beginning with ecumenism and
the secular form of freedom of conscience. In the second
case (the cessation of authority) we have a culpable (and
therefore morally illicit) omission of authority, which
does not keep watch over the deposit of the Faith, but allows
corruptions and errors to creep into doctrine, liturgy,
and discipline. The corrective interventions of the Magisterium
are in general limited to blatant excesses and only in a
substantially feeble manner; they never give the impression
that an effective change of course is sought. The only exception
was the prohibition of the priesthood to women. The abeyance
of authority persists because the authorities do not want
to battle the revolution introduced by Vatican II, but merely
to limit its excesses.
From
The State Of Necessity Is Born The Law Of
Necessity
The state of necessity
exists for priests and the faithful knowing they must keep
the Faith and secure the salvation of their soul. They suffer
from unlawful commands and the spectacle of disintegration
within the Church. They cringe at seeing faith in contradiction
to obedience, and obedience to the Magisterium of All Time
in contradiction to the current Magisterium, corrupted in
the faith, even if formally legitimate.18
The situation is
not hopeless. When objectively existing, the state of necessity
carries with it its own proper right, the right to act in
order to protect the threatened vital good, even if for
this purpose one has to violate some norms of the positive
law in force. The action performed in the state of necessity
is therefore the action of whoever has the right to act
in that way, a right instituted by the necessity itself.
And whoever acts by exercising a right is evidently not
able to be imputable of a penalty. Hence the words of Prof.
May: " A state of necessity justifies the law of necessity.
The law of necessity in the Church is the sum total of juridical
rules which apply in case of a menace to the perpetuity
or activity of the Church."19
There are rules in
force which are not expressly laid down by positive authority,
but are imposed by the nature of things. The thing here
is the situation that has come into being, which threatens
"the perpetuity or the activity of the Church.”
"Perpetuity"
of the Church refers to the spiritual and
material continuity of her doctrine which
cannot be interrupted. It is spiritual on account of its
content and quality; it is material on account of the activity
of the Church, which can be materially interrupted in whole
or in part by persecution. The spiritual continuity is the
continuity of fidelity to dogma, guaranteed by the constant
handing down of the Magisterium of the Church.
When errors are introduced
into the doctrine itself and therefore into the teaching,
then the perpetuity of the Church is endangered even if
error is not in every specific act of the official Magisterium.
On this account there has always been an objection to Vatican
II in the name of fidelity to dogma. The number of objectors
may be numerically small, but what counts is that it has
maintained the continuity of Catholic doctrine. It is an
indisputable fact that the marks of authentically Catholic
doctrine are found integrally in the seminaries of the Society
of Saint Pius X, and in a way as to be rendered practically
inefficacious, in those of the official Church.20
Application
Of The Law Of Necessity To The Concrete Case
The
persistent threat to the perpetuity of Catholic doctrine
represented by a teaching imbued with errors permits the
application of the law of necessity. This justifies the
Catholic who, by disobeying the commands of the authority
infected by error, attends the seminaries, the functions,
the catechism classes, etc., of the Society of Saint Pius
X which has as its proper object that of providing for the
serious state of necessity that has been caused in the Church.
The
logical succession, which justifies the coming into being
and the exercise of the law of necessity, can be represented
thus:
1)
The rite of Pope Paul VI and of the Novus Ordo,
concocted by a commission of experts with the collaboration
of Protestant heretics, is ambiguous and theologically
doubtful, after having acceded to the requests of the
same heretics and even possibly of non-Christians.
2)
As a consequence, this rite represents a grave danger
to the Faith for everyone.
3)
Catholics are obligated to attend this rite even though
the Tridentine Rite has never been formally abrogated,
just as they are obliged to accept all the decisions of
Vatican II and to conform to its spirit, which is at the
origin of the Mass of the "New Order."
4)
Commands that require doing something that places the
faith in danger are to be considered, essentially, morally
illicit and juridically invalid, (even if formally valid
because emanating from the formally legitimate authority).
5)
The faithful find themselves in a state of grave necessity,
because the primary goods of the Faith and of the salvation
of the soul are greatly threatened by the order to attend
a rite per se dangerous to the Faith.
6) The
faithful have the moral duty to defend the Faith, their
own faith, and that of others, according to their capacities;
this is a duty that is required of us by our Lord in the
sacrament of Confirmation.
7)
Besides this duty, right reason, supported by the customary
practice of the Church, recognizes a true and proper right
to act in order to defend the Faith, a right produced
by the objectively existing state of necessity in which
one may find themselves.
8) The
need to safeguard the primary goods of the Faith, endangered
by the commands of pastors themselves, authorizes the
faithful to disobey the order of the official authority
to attend the Mass of the Novus Ordo or the Tridentine
Mass according to Indult.
9)
Disobedience is legitimate because necessitated, because
it is the exercise of that right which springs from necessity
.
10)
Insofar as it is legitimate, disobedience is not imputable
and hence not punishable.
11)
Insofar as it is legitimate, disobedience is
not schismatic.
A
Repugnant Compromise
It
is necessary to disobey even the order to assist at the
Tridentine Mass conceded by the Indult by exercising the
right that necessity ascribes to us. The Indult of Pope
John Paul II grants permission to celebrate or attend the
Tridentine Mass on condition one admits "the legitimacy
and the doctrinal correctness of the Roman Missal promulgated
in 1970 by Pope Paul VI."21
Refusing to go to the Indult Mass is not to deny the authority
of the Pope; it is to legitimately disobey his command,
"If you want to attend the Tridentine Mass, you must
attend only that with the Indult granted by me", because
he orders us to participate in a function in which the danger
of losing the Faith is already present in the condition
required.
The
"Extraordinary Competence" Of The Clergy In The
State Of Necessity
The teaching of the
catechism and in seminaries, the ordination of priests,
the consecration of bishops, etc., are expressly
allowed by the custom of the Church in cases of necessity
or grave danger. They are manifestations of that "juridical
competence" which the state of necessity ascribes to
priests. With these acts the void created by the official
authority is filled.
It is a matter of
extraordinary competence, thanks to which a bishop is authorized
to perform ordinations against the will of the pope, and
the faithful to attend Mass in the Tridentine rite (not
of the Indult of the Holy Father). The character of "extraordinary
competence" in the case of the state of necessity means
that one can act not only in the absence
of a declared will on the part of the legitimate authority,
but also in the presence of its will
which forbids performing the act although authorized by
the state of necessity. This is because it is a matter of
an act "necessary and indispensable" for the salvation
of souls. The authorization does not arise here from a norm
of positive law, but immediately from
the reality [i.e., "the right springs from the
fact" -Ed.) and indirectly from a claim superior
to that of positive ecclesiastical law, that is, the claim
represented by the will of our Lord and which we must qualify
as normative. That right has, then, its ultimate foundation
in the divine constitution of the Church itself.
However, the law
of necessity must respect the "principle of proportionality."
It can be resorted to "only when one has exhausted
all possibilities of re-establishing a normal situation
relying on positive law," and it must be exercised
only in that measure "necessary for a restoration of
functions in the Church".22
It has a sphere that is not obviously predetermined by the
norms, but which must come about unmistakably from the nature
of the thing, that is, from the necessity of the situation,
without exceeding it. The respect on the part of Archbishop
Lefebvre for the "principle of proportionality"
and his scruple of always following the requirements and
competencies of the law of necessity are demonstrable. When
it is said, "Necessity knows no law," it does
not justify any action whatever, but only that it forces
one to ignore for a time the positive law in force. The
rights devolving from the law of necessity are not general,
but flow from a specific necessity;
therefore the action it justifies must be proportionate
to the exigencies of the situation.
Archbishop Lefebvre's
rejection of the "sedevacantist theory" finds
its broadest juridical justification in a correct interpretation
of the state of necessity: the competence that springs from
it, however, inasmuch as it is proportioned to the effective
necessity, is not such as to permit anyone to take advantage
of it to declare the Papal Chair vacant.
The competence established
by the state of necessity, since it concerns the safeguarding
of specific and determined goods, is limited to conferring
on the subject the right to point out those errors professed
and put into practice by the hierarchy, errors which place
those goods in danger, and to legitimately disobey explicit
or implicit commands which are equally dangerous for the
aforesaid goods.
Causidicus
[heavily edited
and abridged by Fro Kenneth Novak]
[This article concludes
the seven-part series on the 1988 Episcopal Consecrations
of Archbishop Lefebvre. The SISINONO issues
of July and September (1999) dealt with the theological
aspect. The SISINONO issues of November
(1999), January, March, and July (2000) dealt with the
canonical aspect. - Ed.]
1.
The Latin Mass, 1995, p.59. The literal title of the
paper for the licentiate of Fr. Murray is: "The Canonical
Status of the Lay Faithful Associated with the Late Archbishop
Lefebvre and the Society of St. Pius X: Are They Excommunicated
as Schismatics?" His reply is that they are not excommunicated
nor schismatic. The faithful who attend the Masses celebrated
by the priests of the Society do not perform any schismatic
act, they do not participate in any schism (also because,
as will be seen, for Fr. Murray, one cannot speak of formal
schism while the latae sententiae excommunication must be
considered invalid). The Murray Thesis dedicates a detailed
analysis to reject the hypothesis of schism for the faithful
and the priests: cf. The Latin Mass, op. cit.,
pp.55-58. The summary of the thesis, with ample extracts
of the text, is from Steven Terenzio: op. cit., pp.55-61.
We limit ourselves here to taking into consideration that
which seems to us the essential nucleus of the thesis.
2.
Op.
cit. p.59.
3.
Commentary
on the New Code of Canon Law, p.762.
4.
The
Latin Mass, op. cit., p.61, footnote no.10.
5.
Ibid.
p.60
6.
Ibid.
7.
Ibid.
8.
Ibid.
9.
Ibid.
10.
Op cit., p.61.
11.
Ibid.
12.
Cor
Unum, 1988, no.30.
13.
Ibid.
14.
Op cit. pp. 41-42.
15.
Dr.
Georg May, "The Disposition of Law in Case of Necessity
Within the Church," Is Tradition Excommunicated?,
Angelus Press, Kansas City, MO,p.111.
16.
RudolfV.Jhering,
Lo scopo net dirritto (1877 ess.), partial Italian
draft of G. Losano, Turin, Italy, 1972, p.185.
17.
Dr. Georg May, Is Tradition Excommunicated?, op.
cit., p.112. Also Dr. May in Die Krise der Kirche
ist eine Krise der Bischofe (Cardinal Seper), pp.119,
Una Voce Korrespondenz, 1987.
18.
Dr.
Georg May, "Neither Schismatic Nor Excommunicated,"
Is Tradition Excommunicated?, op cit., pp.1-40.
19.
Dr.
Georg May, Is Tradition Excommunicated?, op. cit.,
p.112.
20.
"We do not follow Bishop de Castro Mayer or Archbishop
Lefebvre as cult-leaders. We follow the Catholic Church.
But these two confessors of the Faith have been the only
bishops who have risen up against the auto-demolition of
the Church. We do not disassociate ourselves from them.
Just as in the 4th century, at the time of the Arian heresy,
it was a mark of orthodoxy to be 'in communion with Athanasius'
[and not with Pope Liberius - Ed.), in the same way
being united to Archbishop Lefebvre and to Bishop de Castro
Mayer is a sign of fidelity to the Church of All Time"
(declaration of Fr. Thomas d' Aquin, Prior of the Monastery
of Santa Cruz of Nova Friburgo, Brazil, in 1988, in the
Bulletin Officiel du District France, Fraternité
S. Pie X. Sept. 29, 1988, no.29, p.10).
21.
The
lndult Quattuor Abhinc Annos.
22.
Dr. Georg May, op. cit.
Courtesy of the Angelus
Press, Kansas City, MO 64109
translated from the Italian
Fr. Du Chalard
Via Madonna degli Angeli, 14
Italia 00049 Velletri (Roma)
|
