Lex Dubia non Obligat
By Roberto de Mattei
The case of the Franciscans of the Immaculate Conception church brings a canonical, moral and spiritual issues back on the agenda, which often arrested in the post-Conciliar years and occasionally "exploded": the problem of obedience to an unjust law. A law can be unjust not only when it violates the law of God and nature, but even if it hurts a canon law of a higher rank in the legal hierarchy. This is the case with the decree of 11 July 2013, by the Congregation for Consecrated Life , putting the Franciscans of the Immaculate Conception under provisional administration.
The violation of the law is not in the provisional administration, but in the part of the decree, that claims to force the Franciscan Friars of the Immaculate to waive the celebration of the Holy Mass according to the traditional Roman Rite. In addition to the Bull Quo Primum of St. Pius V (1570) there is the Motu Proprio Summorum Pontificum of Pope Benedict XVI. (2007), and thus a universal Church law that gives every priest the right to:
Accordingly, it is allowed, according the sacrifice of the Mass of Blessed John XXIII. promulgated in 1962 and never abolished typical edition of the Roman Missal, to celebrate the Extraordinary Form of the Liturgy of the Church.
Article 2 of the Motu Proprio clarifies that it neither requires permission from the the Holy See nor from his superior when the Mass is celebrated sine populo.
Article 3 adds that it is not just the individual priest, but Communities of Institutes of Consecrated Life and Societies of Apostolic Life - whether pontifical or diocesan right, is allowed in the Convention or, in its own oratory community's Mass to keep the celebration of the Holy Mass according to the edition of the Roman Missal that was promulgated in 1962.
If an individual community or an entire Institute or a whole society wants to commit such celebrations often, usually or always, it is the responsibility of superiors, to decide according to the norm of law, and according to the laws and particular statutes. In this case there is no need to invoke the divine and natural law, it is sufficient that the Church as the legal source. An eminent jurist like Pedro Lombardia (1930-1986) recalled that Canon 135, paragraph 2 of the new Code of Canon Law which establishes the principle of legitimate legislation in the sense that the legislative power is to be exercised in the manner prescribed in the right way, especially the canons 7-22, the title of the codex form, which is devoted to the ecclesiastical laws.
The Codex recalls that the universal or general laws of the Church are those which were promulgated by publication in the official gazette Acta Apostolicae Sedis (Can. 8), in Can. 12, § 1 states: General Laws require all those for whom they are adopted; Can. 18 states that laws which impose a penalty or restrict the free exercise of rights, or contain an exception to the Act, are subject to strict interpretation, Can. 20 adds: A subsequent law raises a former wholly or partly on when it says this explicitly or opposed to it directly or is the whole matter of the earlier law assigns comprehensive , and finally sets Can. 21 states: In doubt, the revocation of a previous law is not presumed, but later laws are to be set in relation to earlier and to bring with them as far as possible in line.
Canon 135 finally determined the basic principle of the hierarchy: A lower legislator cannot validly issue a law contrary to higher law. Not even a Pope can abolish the act of another pope, except in the prescribed form. The unassailable rule in moral and legal states is that a law of a higher source that affects an area larger and of more universal significance, has title to a superior rule of law, has priority (Regis Jolive, 1959).
According to Canon 14 for the canonical standard to be mandatory, may not be the object of legal doubt ( dubium juris ). If there is a lack of legal certainty, the axiom applies: lex dubia non obligat. If there is a doubt, the honor of God and the salvation of souls will have precedence over any actual consequences that may follow from an act at the personal level. The new Code of Canon Law Canon recalls the past that the Church always has in mind the salus suprema lex animarum (Can. 1752). Saint Thomas Aquinas already taught this when he was in his Quaestiones quodlibetales , explaining that the purpose of canon law aims for the peace of the Church and the salvation of souls (12, q. 16, a 2) and all the great canonists have followed him in this.
The Cardinal Julian Herranz, president of the Pontifical Council for Legislative Texts in a speech delivered on the 6th of April 2000 spoke on the salus animarum as a principle of canon law, he recalled that this is the highest principle of ecclesiastical legislation. But that requires basic considerations ahead that are missing in the debate, because often the moral and metaphysical foundation of law is forgotten.
Today there is a purely legalistic and formalistic conception which tends to see the law as a mere instrument in the hands of those who have power (Don Arturo Cattaneo, 2011). According to the legal positivism, which has infiltrated into the Church, what is considered correct, is issued by the authority. In reality, this is jus divinum is the basis for legal expressions and demands the primacy of jus in front of Lex. The principles of legal positivism distort the foundations and replaced legal validity of the jus through the application of the Lex. The law can is only seen the will of the rulers and not the reflection of the divine law, according to which God is creator and foundation of every law. He is the living and eternal law, absolute principle any law (jus divinum, ed. Juan Ignacio Arrieta, 2010).
For this reason, in a conflict between human and divine law, God and not the people is to be obeyed (Acts 5:29). The obedience is owed to superiors because they represent the authority of God, and they represent, because they keep the divine law and apply it. St. Thomas Aquinas affirms that it is better to fall into the current excommunication and exile to foreign lands where the earthly arm of the Church does not reach, than to obey an unjust command: ille debits potius excommunicatione, sustinere (...) vel in alias regiones remotas fugere (Summa Theologiae, Suppl, q. 45, a 4, 3 Upper).
Obedience is not only a formal procedure that causes us to submit to human authority. It is primarily a virtue that leads us on the path of perfection. Not who vested interests, obeying from fear or submissive human attachment is not really obedient, but who chooses the true obedience which is a compound of the human will with the divine will. For the love of God, we must be prepared to obey this highest act of His law and His will, to detach ourselves from the bonds of false obedience, poses the risk to let us lose faith. Unfortunately, today a false sense of obedience is common that sometimes borders on sycophancy and in which the fear of human authority is provided through the divine truth.
The resistance to unlawful commands is sometimes a duty to God and to our neighbor, the need for exemplary acts of metaphysical and moral stolidity. The Franciscans of the Immaculate had obtained from Benedict XVI. the extraordinary goods of traditional, falsely "Tridentine" so-called Mass, accepted and celebrated again today by thousands of priests lawfully throughout the world. There is no better way to express their gratitude to Benedict XVI. and at the same time to express their protest against the injustice done to them, than to continue to celebrate in the serenity of a clear conscience, the Holy Sacrifice of the Mass in the traditional Roman Rite. No law can force their conscience. Maybe only few will do this, but compliance to prevent greater evil, will not help to avert the storm that goes beyond their Order and the Church.
Text: Corrispondenza Romana
translation: Giuseppe Nardi
Image: Corrispondenza Romana
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