Cardinal Brandmüller on the Motu Proprio: “A law must be accepted to be valid”
July 29, 2021
With his motu proprio Traditionis custodes, Pope Francis has practically unleashed a hurricane that has upset those Catholics who feel attached to the “Tridentine” rite of Mass revived by Benedict XVI’s Summorum Pontificum. From now on—according to the essential declaration of Traditionis custodes—Benedict’s Summorum Pontificum will be in large measure suspended and the celebration of Holy Mass, with some exceptions, will be allowed only according to the Missal of Paul VI. A look at the blogger scene and other media outlets reveals how a global protest has erupted against this document, which is unusual in form and content.
In contrast to the protests relating to the content of the Traditionis custodes, it is necessary now to make some reflections here that refer to fundamental principles of ecclesiastical legislation—in regard to Traditionis custodes. If the discussion about Traditionis custodes has so far concerned the legislative content of the motu proprio, here the text will be considered from a formal point of view as a legal text.
First of all, it should be noted that a law does not require special acceptance by the interested parties to acquire binding force. However, it must be received by them. Reception means affirmative acceptance of the law in the sense of “making it your own.” Only then does the law acquire confirmation and permanence, as the “father” of canon law, Gratian († 1140), taught in his famous Decretum. Here is the original text: “Leges instituuntur cum promulgantur. Firmantur cum moribus utentium approbantur. Sicut enim moribus utentium in contrariem nonnullae leges hodie abrogatae sunt, ita moribus utentium leges confirmantur” (c. 3 D. 4). “Laws are established when they are promulgated. They are confirmed when they are approved by the behavior of those who use them. For as due to the behaviors of users in an opposing direction, quite a few laws today have been abrogated, so through the behaviors of the users the laws are confirmed.”
This means, however, that for a law to be valid and binding, it must be approved by those to whom it is addressed. Thus, on the other hand, some laws today are abolished by non-compliance, just as, on the contrary, the laws are confirmed by the fact that those concerned observe them.
In this context, reference can also be made to the possibility provided for by customary law, according to which a justified objection against a law of the universal Church has, at least initially, a suspensive effect. This means, however, that the law need not be obeyed until the objection has been clarified.
It should also be remembered that, if there is a doubt as to whether a law is binding, it is not binding. Such doubts could be due, for example, to an inadequate wording of the law.
Here it becomes clear that the laws and the community for which the laws are enacted are linked to each other in an almost organic way, to the extent that the community’s bonum commune [common good] is their goal. Put simply, this means that the validity of a law ultimately depends on the consent of those affected by it. The law must serve the good of the community—and not vice versa, the community (serving) the law. The two things are not opposed to one another, but linked one to the other, neither can exist without or against the other.
If a law is not observed, or is no longer observed, whether from the beginning or after a time, it loses its binding force and becomes obsolete. This—and this must be strongly emphasized—naturally applies only to purely ecclesiastical laws, but in no case to those based on divine or natural law.
As an example of a lex mere ecclesiastica [a merely ecclesiastical law], consider the Apostolic Constitution Veterum sapientia of Pope John XXIII of February 22, 1962, in which the Pope prescribed Latin for university teaching, among other things. Young scholar that I was, I reacted only by shaking my head. Well, Latin was the norm at the Gregorian University in Rome, and this made good enough sense given the babel of languages among the students, who came from all continents. But whether Cicero, Virgil and Lactantius would have understood the lessons is doubtful. And then: the history of the Church, even of modern times, taught in Latin? With all the love professed for the Roman language—how could it work? And so it remained. Veterum sapientia was hardly printed before it was soon forgotten.
But what this inglorious demise of an Apostolic Constitution meant for the prestige of papal authority became evident only five years later, when Paul VI’s Encyclical Humanae vitae (1968) was nearly drowned amid protests from the Western world.
The thing is done, therefore, friends, and now, patience. Never has unenlightened zeal served peace, or the common good. It was St. John Henry Newman who, quoting the great Augustine, reminded us: “Securus iudicat orbis terrarum” [“The verdict of the world is conclusive” (link)].
In the meantime, let’s pay close attention to our language. “Verbal disarmament” has already been called that. In more pious words: no violation of brotherly (and recently sisterly) love! Now—seriously again: what a grotesque idea that the mystery of love itself should become a bone of contention. Again, we quote Saint Augustine, who called the Holy Eucharist the bond of love and peace that unites the head and the members of the Church. No greater triumph of hell could be imagined that if this bond were broken again, as has happened many times in the past. Then the onlooking world would grin: “Look how they love each other!”
Cardinal Walter Brandmüller was born in 1929, was ordained a priest in 1953, and earned a doctorate in theology in 1963. In 1971, he taught medieval and modern church history at the University of Augusburg and continued until 1997, during the same period he served as parish priest in Walleshausen. In June 1998, he was appointed President of the Pontifical Commission for Historical Sciences and subsequently retired in December 2009. In 2001, he was elected President of the International Commission for Comparative Ecclesiastical History. He is a world-renowned scholar of church history and has published many books and articles on the Crusades, on the Spanish Inquisition ,and on the Reformation. In November 2010, he was ordained bishop and created a cardinal by Benedict XVI.
In contrast to the protests relating to the content of the Traditionis custodes, it is necessary now to make some reflections here that refer to fundamental principles of ecclesiastical legislation—in regard to Traditionis custodes. If the discussion about Traditionis custodes has so far concerned the legislative content of the motu proprio, here the text will be considered from a formal point of view as a legal text.
First of all, it should be noted that a law does not require special acceptance by the interested parties to acquire binding force. However, it must be received by them. Reception means affirmative acceptance of the law in the sense of “making it your own.” Only then does the law acquire confirmation and permanence, as the “father” of canon law, Gratian († 1140), taught in his famous Decretum. Here is the original text: “Leges instituuntur cum promulgantur. Firmantur cum moribus utentium approbantur. Sicut enim moribus utentium in contrariem nonnullae leges hodie abrogatae sunt, ita moribus utentium leges confirmantur” (c. 3 D. 4). “Laws are established when they are promulgated. They are confirmed when they are approved by the behavior of those who use them. For as due to the behaviors of users in an opposing direction, quite a few laws today have been abrogated, so through the behaviors of the users the laws are confirmed.”
This means, however, that for a law to be valid and binding, it must be approved by those to whom it is addressed. Thus, on the other hand, some laws today are abolished by non-compliance, just as, on the contrary, the laws are confirmed by the fact that those concerned observe them.
In this context, reference can also be made to the possibility provided for by customary law, according to which a justified objection against a law of the universal Church has, at least initially, a suspensive effect. This means, however, that the law need not be obeyed until the objection has been clarified.
It should also be remembered that, if there is a doubt as to whether a law is binding, it is not binding. Such doubts could be due, for example, to an inadequate wording of the law.
Here it becomes clear that the laws and the community for which the laws are enacted are linked to each other in an almost organic way, to the extent that the community’s bonum commune [common good] is their goal. Put simply, this means that the validity of a law ultimately depends on the consent of those affected by it. The law must serve the good of the community—and not vice versa, the community (serving) the law. The two things are not opposed to one another, but linked one to the other, neither can exist without or against the other.
If a law is not observed, or is no longer observed, whether from the beginning or after a time, it loses its binding force and becomes obsolete. This—and this must be strongly emphasized—naturally applies only to purely ecclesiastical laws, but in no case to those based on divine or natural law.
As an example of a lex mere ecclesiastica [a merely ecclesiastical law], consider the Apostolic Constitution Veterum sapientia of Pope John XXIII of February 22, 1962, in which the Pope prescribed Latin for university teaching, among other things. Young scholar that I was, I reacted only by shaking my head. Well, Latin was the norm at the Gregorian University in Rome, and this made good enough sense given the babel of languages among the students, who came from all continents. But whether Cicero, Virgil and Lactantius would have understood the lessons is doubtful. And then: the history of the Church, even of modern times, taught in Latin? With all the love professed for the Roman language—how could it work? And so it remained. Veterum sapientia was hardly printed before it was soon forgotten.
But what this inglorious demise of an Apostolic Constitution meant for the prestige of papal authority became evident only five years later, when Paul VI’s Encyclical Humanae vitae (1968) was nearly drowned amid protests from the Western world.
The thing is done, therefore, friends, and now, patience. Never has unenlightened zeal served peace, or the common good. It was St. John Henry Newman who, quoting the great Augustine, reminded us: “Securus iudicat orbis terrarum” [“The verdict of the world is conclusive” (link)].
In the meantime, let’s pay close attention to our language. “Verbal disarmament” has already been called that. In more pious words: no violation of brotherly (and recently sisterly) love! Now—seriously again: what a grotesque idea that the mystery of love itself should become a bone of contention. Again, we quote Saint Augustine, who called the Holy Eucharist the bond of love and peace that unites the head and the members of the Church. No greater triumph of hell could be imagined that if this bond were broken again, as has happened many times in the past. Then the onlooking world would grin: “Look how they love each other!”
Cardinal Walter Brandmüller was born in 1929, was ordained a priest in 1953, and earned a doctorate in theology in 1963. In 1971, he taught medieval and modern church history at the University of Augusburg and continued until 1997, during the same period he served as parish priest in Walleshausen. In June 1998, he was appointed President of the Pontifical Commission for Historical Sciences and subsequently retired in December 2009. In 2001, he was elected President of the International Commission for Comparative Ecclesiastical History. He is a world-renowned scholar of church history and has published many books and articles on the Crusades, on the Spanish Inquisition ,and on the Reformation. In November 2010, he was ordained bishop and created a cardinal by Benedict XVI.
(First published in Italian at Marco Tosatti's Stilum Curiae; in German, at Kath.net;
translated by Robert Moynihan for the Moynihan Letters)
