The Legality of the Old Rite

In the following article I shall endeavor to make a case for the public re-introduction of the pre-1962 Roman liturgy, both Mass and Office, from the perspective of Ecclesiastical law. First, I will specify what I mean by the pre-1962 liturgy. Then I will explore the concepts of abrogation, reprobation, custom, and the competing concepts of law present in the Tridentine decrees and the 1983 CIC.

Part I: Defining the Old Rite

By the "old rite" in the context of this blog I generally mean the Roman liturgy as it existed at the dawn of the 20th century, prior to the textual reductions of Pius X and John XXIII to the Office, the ceremonial changes of Pius XII to Holy Week, the vitiations of the kalendar, and the festive ranking system. 

A few posts ago, when discussing Msgr. Schneider's comments on the un-reformed Breviary, a commenting reader asked, presumably in derision, why not go beyond Trent? Why not re-introduce medieval sequences and see how far back into history we can transport ourselves. For the purposes of this article we will confine ourselves to the liturgical books promulgated at Trent and in use in the Latin Church, excepting for local tradition, until John XXIII. Consequently, this includes the typical editions published by Pius X, Pius XII, and early in the life of Papa Roncalli. 

The reason for this is that arguments about Canon Law must be reasonable. Canon Law is not very like modern secular law of the Common Law tradition, whereby established precedents and judicial decisions from prior times guide our contemporary interpretation of law. Additionally, the Codex is not a sacred book in the way law is sacred and uplifting to quotidian society. It is a rule book for governing holy things rather than the holy thing itself; in this it is subject to criticism and historical contrast, but it cannot be interpreted to mean anything other than what it plainly says, the very strange case of the FSSPX not withstanding.

The "Tridentine" liturgy neatly comports to this argument because its use is reasonable in that it is practical, something that could be done without resorting to medieval commentaries, reproducing long lost manuscripts, or resurrecting long dead cultures that used these traditions. The Tridentine liturgy, so named, was ratified by both an ecumenical council and an indefinitely (not the same as eternally) binding papal decree; it was built upon ancient custom and crystallized according to the highest standards of Church law: general episcopal ascent and the judgment of the pope in unison.

"Reasonable", in canonical terms, generally means compelling or necessary, but in the context of someone asking for something it could also mean practical. In this, the Tridentine liturgy, up to '62, is also "reasonable" in that it could be revived without extravagant effort. Before Summorum Pontificum there were enough Missals from which the 1962 Mass could be derived, but most Missals seem to be more recent prints. The older liturgy is accessibly easily enough through the same existing books, older books which can be found with little effort for purchase, and even smaller scale re-printing which one hopes might expand to a larger base.

Legally, a distinction must be adumbrated concerning the Tridentine Office and the Divino Afflatu scheme. In the penultimate paragraph of the aforementioned document Pius X explicitly suppresses the immemorial psalter and declares those who violate his new schema will incur the wrath of Ss. Peter and Paul. This issue will be addressed when we discuss abrogation and its place in law below. Otherwise, there are no such statements in subsequent 20th century liturgical reforms that openly repeal the existing forms, they merely introduce new ones with the assumption clergy will adapt them.

Part II: The Place of Custom

When a liturgical tradition has textual and practical continuity for over a millennium the most immediately obvious canonical precedent is that of custom. Custom in the common parlance means common or habitual practice, but also unwritten law. The Angelic Doctor's own words about "custom" in the Summa, II.97, form the basis for the canonical understanding of custom and, in many respects, are a more complete understanding of Ecclesiastical custom than what is in the current Codex.

Saint Thomas discusses custom in a larger question about whether human laws should be changed and how. In article 2 the Common Doctor observes that "the binding power of the law is diminished, in so far as custom is abolished." More broadly, he means that custom is one with the law and that to change custom is to change law, written or unwritten. Just as Divine Law proceeds from the "reasonable will of God," so Human Law proceeds from the "will of man, regulated by reason." Thomas presumably pauses from calling Man's will "reasonable" because it is not always reasonable, but can be tempered by reason; along a similar vein a great deal of what men do is habitual, not intentional, making those habits inapplicable to law and custom.

As a basis for the rest of his answer, Aquinas adduces St. Augustine's views on Christian custom having the force of Divine Law:

"The customs of God's people and the institutions of our ancestors are to be considered as laws. And those who throw contempt on the customs of the Church ought to be punished as those who disobey the law of God." 

Law is normative, but for Thomas man-made law is also fungible, even Ecclesiastical law. The repetition of external action in union with interior will forms a reasonable custom from which law derives and which has the power to alter law.

"Wherefore by actions also, especially if they be repeated, so as to make a custom, law can be changed and expounded; and also something can be established which obtains force of law, in so far as by repeated external actions, the inward movement of the will, and concepts of reason are most effectually declared; for when a thing is done again and again, it seems to proceed from a deliberate judgment of reason. Accordingly, custom has the force of a law, abolishes law, and is the interpreter of law."

If liturgical historians ever wanted a tight definition of "organic development" they would find it in Thomas's above words. Like administrative law, liturgical norms gain structure, substance, and interpretation through custom. 

Part III: Codex Iuris Canonici MCMLXXXIII

Modern Canon Law, according to the 1983 Codex, makes provision for existing customs and the intentional creation of new customs. Canons 23-28 deal with the erection of customs; intentional customs must:

• not violate Divine Law
• be introduced to a "community of faithful" capable of receiving it under its legislative head
• not violate current Canon Law (unless it has been used for thirty years or holds the force of immemorial custom)

The old Mass and Office certainly do not violate Divine Law, unless all of those Counter-Reformation Saints were as legitimately canonized as Papa Montini.

It is the second of these points that is most critical to understand, that a custom must prevail upon a "community of faithful" capable of receiving it under its legislative head, whoever that happens to be. A custom cannot be a private practice. If a parish priest, for example, were to come upon a Pius IX era Breviary and wish to say it, he really would not carry the force of custom if he were only to use this Office privately. He would, however, have legitimate access to it if he celebrates Mass, whenever he celebrates the pre-Conciliar rites, according to the same rubrics, kalendar, and commemorations; the same would apply for any public celebration of the Office. John Beal's commentary on the Code goes on to remark that a custom must be stable and an intentional norm for a community. There can be no variation, optionality, or mixing-and-matching; otherwise a custom is not realized. This is critical, as custom, both canonically and Scholastically, have the force of Law because they govern popular behavior and belief as much as Law if not more. If it is not "popular" then it cannot be a custom, just a personal habit. 

Who is the legislator or canonical authority for such a decision? Presumably the head of a "community of faithful" as envisioned by the Law, be it an Abbot in a monastery, a Mother Superior in a convent, the parish pastor, or a bishop, should one wish to expand orthopraxis.

With respect to the old liturgy there is the issue of the abrogation of the Roman Psalter by Pius X, which could seemingly end conversation about a liturgical revival, at least of the full blown Latin rite. This is not necessarily the case. In his New Commentary on the Code of Canon Law, Beal observes that the canons regarding custom suppress "reprobated" custom, which is not the same as abrogated custom—custom administratively suppressed, but not something inherently wrong. He goes on to observe that abrogated customs could be legitimized again, whereas a reprobated custom is one that violates Divine Law, morals, or the liberty of the Church. 

The Tridentine Office does exist contrary to modern Law. It also enjoys immemorial custom in every sense of the word. One can pinpoint its official publications and typical editions after the Council of Trent, but its contents reach back centuries and its essentials far beyond that. Indeed, most of it is so very old that no one could really say when its specific contents started. Along the same lines, it met canonical abrogation, but simultaneously enjoys the highest state of approval possible, that of a pope in union with an ecumenical council and the full force of custom. Its revival would be contrary to the current force of liturgical norms, but would, simultaneously, be quite legal in virtue of its "reasonable" nature, the ability of a community of faithful to receive it under the correct authority, and its immemorial precedent.

In short, Pius X, and potentially Pius XII, suppressed the old rite, yet the 1983 Codex provides for immemorial custom to be reasonable enough to contravene existing law and for new custom to be imposed on those who would receive it.

Part IV: Greater Concepts of Law

Canon Law's recognition of custom reminds us of an opening point of this short article, which is that while the Codex cannot be read as saying anything other than what it does (ex. Archbishop Lefebvre rejecting the 1983 CIC altogether), it is not the only source or end of law in the Church. In fact, the general idea of Canon Law today has a very different tone from the medieval decretals from which is derives. Canon Law, both in the 1917 and 1983 forms, comes across as prescriptive, whereas the older outlook was that law is proscriptive and protective. Custom and stability give form to Law itself, which must be stable. Any system of law that changes at a whim debases the authority of the law giver.

Before Canon Law, at still embedded in the general outlook of Catholics and of the Councils we are bound to believe, custom and canons reign supreme, both of which are protective and proscriptive by nature. In our case, Pius V confirmed the Roman rite in the interest of perpetuating its use, not dictating what it is. In light of this plain fact, we can apply Saint Thomas's statement on the legal force of custom—and the Summa was placed on the altar, beside the Gospels, at Trent—guides our outlook on all Church law.

This more ancient and more universal outlook on law and custom resides in the very document which began the question of pre-Conciliar forms, Summorum Pontificum. Upon its issuance in 2007 many understandably raised their motu proprio copies in the air and screamed the old fashioned Traditionalist bromide "Never abrograted." How Michael Davies would have loved to see that day!

The passage of time has discovered another far more illuminating and enduring phrase within Summorum, that "What earlier generations held as sacred, remains sacred and great for us too, and it cannot be all of a sudden entirely forbidden or even considered harmful." 

Concluding Thoughts

The historic concept of Canon Law, omnipresent in councils and theology, is that law derives from custom and should custom be stable, it gives guidance to the understanding and interpretation of law. In no greater point is this more apparent than in the older Roman liturgy as it existed after Trent, which passed on what had been understood as the Roman rite and which tangibly, firmly continued to be the Roman rite for centuries. Modern Canon Law accommodates for both the introduction of custom and the use of immemorial custom, even if contrary to abrogation. Under this aegis, the leader of a Catholic community could reasonably revive use of the old rite if he did in fact intend to do so as a custom, that is, as the normal way of practicing the old Mass and Office in a given place.

Fathers, let go of apprehensions and buy a Ordo for the old Ordo. Get out of the folded chasubles or have them made. Embrace the old liturgy as a custom, both of the past and the future.