WOW! WE CAN BLAME THE PILLAR’S JD FLYNN AS WELL AS THE BLOG, “WHERE PETER IS” FOR CARDINAL ROCHE HAVING A HISSY FIT ABOUT HIS ROLE IN MICROMANAGING BISHOPS AND PARISH BULLETINS

 I wish that “Where Peter is” would have been around when so many were complaining about the Supreme Pontiff, Pope Benedict XVI’s Summorum Pontificum and not allowing it to be implemented as written. 

I wonder why Pope Benedict did not instruct the then Prefect of the Congregation of Divine Worship to make sure bishops implemented Summorum Pontificum and made sure that the Extraordinary Form of the Mass was placed in to bulletins to indicate the times and places this Mass is celebrated. 

Here is J D Flynn’s take on Cardinal Roche seeking Pope Francis’ validation of Cardinal Roche’s ability and mandate to micromanage diocesan bishops and make sure that parish bulletins don’t advertise the TLM.

Just so you know, JD Flynn wrote a piece for the Pillar which complained about Cardinal Roche overstepping his authority since Pope Francis legislation did not give him the power to micro manage bishops in regards to TC or micromanage parish bulletins. 

“Where Peter is” was able to point out to Cardinal Roche what JD Flynn had written. The good cardinal was inflamed by the impudence  of this lay person, JD Flynn, writing about Canon Law and the pope and denigrating Cardinal Roche’s role in imposing TC on bishops and micromanaging bulletin content.

That strikes me as a bit of clericalism. But I digress. 

Cardinal Roche got Pope Francis to legislate the Prefect’s ability to micromanage local bishops and parish bulletins. 

JD Flynn is humbled to have play such a role in such an important aspect of today’s Church, her greatest problem the celebration of the TLM by faithful priests and laity. The German apostasy as well as various cardinal’s apostasy, one in this country, pales in significance to these dreadful TLM Catholics  and their bulletins who pose a greater threat to the authority of the pope:

A rescript and some canon law, if you like

 Yours in Christ,

JD Flynn
editor-in-chief
The Pillar

I woke up this morning to one of the biggest surprises of my life. 

To be honest, readers, I’m not even sure exactly where to start. I guess at the beginning.

Ok, here we go: 

You might recall that almost two weeks ago, I wrote an analysis which addressed some canonical problems - identified by me and by other canonists with whom I regularly compare notes - about the implementation of Traditionis custodes, as undertaken and overseen by the Vatican’s Dicastery for Divine Worship and the Discipline of the Sacraments.

The central point of that analysis was that Cardinal Arthur Roche has made some canonical claims which do not conform to canon law. Most notably, the cardinal recently told some U.S. bishops by letter that Traditionis custodescontained a kind of implicit reservation to the Apostolic See of the power to dispense from its disciplinary norms, including the prohibition of celebrating the Extraordinary Form in parish churches.

The analysis pointed out that the cardinal had seemingly overstepped his authority, because can. 87 §1 provides that a bishop is only prevented from locally dispensing with universal disciplinary laws when their dispensation is “specially reserved to the Apostolic See.” 

Since Traditionis custodes makes no mention of any special reservations, I wrote, there was not then a legal basis upon which to claim that bishops can’t dispense from the parish church requirement. I added that whether Cardinal Roche was doing so with or without the tacit consent of the pope, the cardinal was claiming authority which exceeded the limit of his dicastery’s legal mandate.

To my surprise, Cardinal Roche responded to my analysis last week. In response to a request for comment on the analysis, he told the website “Where Peter Is” that:

“It is an absurdity to think that the prefect of a dicastery would do anything other than exercise the wishes of the Holy Father as clearly outlined in their mandate and the General Norms of Praedicate Evangelium. The article in the Pillar is not really an attack on me but on the Pope’s authority which for Catholics is an astonishing act full of hubris.” 

Don’t worry, I didn’t take it personally.

But I did write a response, which I’d meant to include in this newsletter. The response, some 2,000 words worth, aimed to explain that, per can. 87, the reservation of a dispensation to the Apostolic See, rather than to the diocesan bishop, must be made explicit in the law. 

The response had footnotes and pictures and everything.

But this morning, in a rescript ex audientia sanctissimi, Pope Francis made a new law. 

The law said that “the use of a parish church or the erection of a personal parish for the celebration of the Eucharist using the Missale Romanum of 1962” is now among “dispensations specially reserved to the Apostolic See.”

That about settles it. The pope saw fit to change the law, and he did so, using the genre of legislation called the rescript ex audientia sanctissimi.

Believing, as I do, in the pope’s authority as the universal legislator of the Church, I take his special reservation of that dispensation to the Apostolic See as an important piece of clarity about the implementation of Traditionis custodes, and am grateful that bishops can better implement the law with clarity about what prerogatives are theirs, and which belong to the Dicastery for Divine Worship.

I am flummoxed, I must admit, or humbled, to see that an analysis I wrote sits on a direct trajectory that led to a change in the universal law of the Church. That doesn’t happen every day.

And there might well be traditionalist Catholics who are wishing I’d kept my trap shut. Oh well. I’m not their advocate. But I care a lot about good governance, and I call it like I see it.

—
I’ll offer a few other notes, which will get into the canonical weeds a bit. Skip ahead if that’s not your cup of tea. I won’t be offended.

Note one: 
There seems to be some question, based upon the wording of the text, about whether the pope has made new law, or whether he has authentically interpreted the original text of Traditiones custodes, or given instruction as to how it should be applied.

I’m of the mind that the pope made new law, for a few reasons.

In the first place is that the rescript ex audientia sanctissimi is a mechanism by which, among other things, the pope legislates, as Pope Francis has done before. No one would argue that the pope’s 2019 changes to the Normae de gravioribus delictis, for example, were an authentic interpretation of the law — they were a change to the law itself. This case is similar.

Second, if the pope were authentically interpreting the law as written, he would presumably say so directly, in order for the authentic character of the interpretation to be made known. And if he were giving an instruction, he would do so using the legal instrument called - believe it or not - an instruction, which, according to can. 34, “clarifies the prescripts of laws and elaborates on and determines the methods to be observed in fulfilling them.” 

Third, if the pope were interpreting the law, he would be setting an extraordinary precedent — namely, the Holy Father would be indicating that dispensations can be implicitly reserved to the Apostolic See, despite the specialiter of can. 87, and the preponderance of canonical scholarship to the contrary. 

I don’t think he’d do that, but if he did, the implications would be monumental. Plus, there is the text of the rescript itself, in which Pope Francis affirms that bishops might have already granted the newly reserved dispensations, and he does not call those acts invalid — he just says they should contact the Dicastery for Divine Worship to address them.

-
Next note: 
In 2021, the Dicastery for Divine Worship issued a document, called the Responsa ad dubia, which addressed a number of implementation questions regarding Traditionis custodes. 

While some claimed that document had binding force of law in the Church, others, including canonical scholars and canonically-trained journalists, disagreed. One scholar noted that the Dicastery for Divine Worship has itself clarified that responsa ad dubia - responses to questions - do not possess official force unless they are published in the official journals of the Church. He also noted that such responses don’t, in themselves, create new law. They are meant to help bishops apply laws in their dioceses — but when private responses deviate from the stated law, the stated law prevails.

And he noted that while the Dicastery for Divine Worship does have the prerogative to execute the law, to oversee Traditionis custodes, and to help bishops apply it, the pope did not give the dicastery the authority to authentically interpret the law — to officially explain what it means, or to write new laws.

Nevertheless, there will likely be some claims today that when the pope mentioned in his rescript the Responsa ad dubia, he was affirming that the text had had some binding legal force. But for my part, I do not actually see that in the text of the pope’s rescript. Instead, the pope affirmed this morning that the dicastery exercises vicarious administrative authority with regard to Traditionis custodes — a fact that I don’t think anyone has called into question.

And since we’re talking about the Responsa ad dubia, it’s worth noting that the 2021 text never actually claimed that the “parish church dispensation” was reserved. 

Here’s the text of the relevant section:

The Responsa asks this question: “Can the diocesan Bishop ask the Congregation for Divine Worship and the Discipline of the Sacraments for a dispensation from the provision of the Motu Proprio Traditionis custodes, Art. 3 § 2, and thus allow [the Extraordinary Form] in the parish church?

The answer to that question is yes, just like Roche’s dicastery said it was. 

Of course the bishop can ask the dicastery for a dispensation! The dicastery is competent for a lot of things. But that’s not the question some cardinals believed it was. It was a different question from this one: “Must the diocesan bishop petition the dicastery for a dispensation because the dispensation is reserved, or can he give it himself?”

Must the diocesan bishop petition the dicastery because the dispensation is reserved? 

“Yes,” Pope Francis answered today, “it is now.” That’s the law now. Per canon 9, it is not retroactive, but it is the law now. 

But as to the Responsa ad dubia: Even if it had binding interpretative or legislative authority - which it doesn’t - it didn't actually reserve the dispensation. It just affirmed that the dicastery had dispensing power, without actually making a formal or explicit judgment on the prerogative of the diocesan bishop.

-
Third note:
I’ve seen questions this morning about whether this particular reservation is really in keeping with the instruction of Christus dominus 8 regarding the proper prerogative of the diocesan bishop, or in accord with the pope’s vision of a more synodal and decentralized Church. 

I leave that to others to debate, but with this caveat: It’s up to the Roman pontiff to apply the Church’s doctrinal principles in law, and the See of Peter is judged by no one.  

We’ll cover reactions and debate, but from my point of view, the pope has spoken, and his law is binding. 

-
Final note:
There is, actually, a legal issue worth examining in the pope’s Feb. 21 rescript, mentioned to me this morning by a canonist who preferred not to be named. 

You might have noticed that the rescript addresses two things — the parish church issue, and the issue of the bishop’s need for permission from Rome before he permits recently ordained priests to offer the Extraordinary Form.

When Traditionis custodes was first published, the initially promulgated texts, in various languages, said that a bishop must consult with the Dicastery for Divine Worship before permitting priests ordained after the motu proprio to celebrate the older liturgy. In December 2021, Roche’s dicastery said that was actually a problem with translation, and that the official Latin edition, which had not previously been released, required that bishops do more than consult — that they needed to get permission from the dicastery before letting newly ordained priests offer the older Mass.

All of that was a bit controversial, and some people cried foul about the appearance of a switch from the published versions of the text to a suddenly emerging official version with a different meaning.

The Feb. 21 rescript apparently aims to address that — it says that with regard to “the granting of permission to priests ordained after the publication of Motu proprio Traditionis custodes to celebrate with the Missale Romanum of 1962,” the “dispensation” is “reserved in a special way to the Apostolic See.”

Here’s the question: What dispensation?

A dispensation, according to can. 85, is “the relaxation of a merely ecclesiastical law in a particular case.”

A permission is not the relaxation of a law, formally speaking — and in fact can. 59 distinguishes between “dispensations” and “permissions,” when it says they are both species of rescripts, administrative acts in law.

So what’s going on here? 

It seems clear that the pope probably means to say: “Hey. You bishops really have to get the dicastery’s permission before you allow young priests to say the old Mass.”

Fair enough.

But that’s not concretely what the law actually says, since dispensations and permissions are not the same thing. Formally speaking, the new law now refers to an unnamed dispensation - perhaps it would be formally interpreted to mean a dispensation from the requirement of obtaining permission.

In that case, today’s rescript would be saying something like this: “Hey bishops, if you want a dispensation from the requirement of asking us for a permission, you need to ask for that dispensation from us.”

I don’t know if this will be clarified or not, but I do know that what the law says, and what the pope seems to mean are not nearly aligned in the text.

-
Ok, just one more thing:
Some of you might be asking what any of this has to do with the Gospel of Jesus Christ.

It’s a very fair question. Canonists have to answer it all the time. 

And for me, the answer is this – Our law is meant to order our ecclesial society in such a way that grace, faith, and charisms have primacy. The law is meant to ensure that we all respect one another, and respect God himself, as we work together for the mission of the Church: the proclamation of the Kingdom, the worship of God, the care of the poor.

Law aims to “safeguard the unity of God’s people.” — Pope Francis said that.

He also said that canon laws “reflect the faith” - that they’re drawn from our doctrine - and that they have a “salvific end.”

In other words, being a society of laws helps us to be a society of Christians. And because I believe the pope believes that, I think it’s worth wanting the law to be clear about what’s expected of every member of the Church. Knowing that helps us to live our vocations. Ambiguity about that leads too often to confusion, frustration, and hurt. 

Law gives us clarity, or it’s meant to, and without it, societies became afraid, sclerotic, or disenchanted.

I don’t want Christians to be disenchanted. I don’t want to be disenchanted myself, for that matter, which is why I think that it’s important curial officials observe the law, and Catholics - at least some of us - be attentive to what the law is.

Because good governance helps us become saints.

In the meantime, there may well be another round of all this. But for now, whatever Catholics think of the pope’s new legislation, I am grateful that the pope aimed to address an issue of real difficulty in the Church’s life, in the manner he judged best.

I’m grateful for Cardinal Roche, and grateful to have him as a Pillar reader. 

And I know he is right that I often have too much hubris. I will work on it this Lent, I’m sure of it.

I’m also grateful for the gift of the Church, and, as a Catholic, grateful that God has given us a pope as his vicar, and a Roman curia to assist him.  

May Our Lady, the Mirror of Justice, pray for us all.

Yours in Christ,

JD Flynn
editor-in-chief
The Pillar