Rorate Caeli

IMPORTANT ARTICLE: LEGAL CONSIDERATIONS ON THE RESPONSA ON TRADITIONIS CUSTODES - "Congregation cannot make authoritative interpretations. Juridical status of document highly questionable, does not have legally binding force."

by Father Pierre Laliberté, JCL* 

On 18 December 2021, the Congregation for Divine Worship and the Discipline of the Sacraments (CDWDS) issued a peculiar document, a "Responsa ad dubia" regarding the 16 July 2021 motu proprio of Pope Francis, Traditionis Custodes
At the outset, some formal considerations on this document must be stressed. The main lines of the competencies of the CDWDS can be found as sketched in Pastor Bonus, the 28 June 1988 Apostolic Constitution of John Paul II. Articles 62-70 discuss the role of this congregation, which is to "foster and safeguards the regulation of the administration of the Sacraments, especially regarding their valid and licit celebration." (art. 63) The CDWDS, it must be mentioned, does not possess legislative power. 
As a consequence, this Congregation cannot make authoritative interpretations. Responses, in particular this document, are neither general decrees nor instructions (canons 29-34). Such responses to dubia are not binding executive decisions. While the CDWDS has noted that their responses are official and represent the mens Congregationis, they should be seen as just that - an expression of the mind of the Congregation. Since these Responsa do not appear to have been approved "in forma specifica" by the Holy Father, they would not have binding force, and would only bind those who posed the dubia. Despite this document being "consented to" by the Holy Father, the juridical status of this document is highly questionable, and thus cannot be considered as having legally binding force. Some have even stated that the document is "vox et praeterea nihil."
Beyond the futility of attempting to ban the classical texts of the Roman Rite by brute force, the texts, as Fr. John Hunwicke notes, have an auctoritas which stems from their theological value, and thus cannot be suddenly revoked at legislative fiat. The theology of St. Bernard of Clairvaux, the writings of St. John of the Cross or Ste. Thérèse de Lisieux, the art of the great cathedrals - all of these monuments of the Catholic heritage cannot be revoked at will - a fortiori by those who do not possess legislative powers. Sheer force of will cannot ban sacred texts and prayers which have formed minds and wills unto sanctity.
Bishops, per Christus Dominus 15, as the principal dispensers of the mysteries of God, are the governors, promoters, and guardians of that same liturgical life. These roles are to positively foster such an active life, certainly in light of Sacrosanctum Concilium 4 that all lawfully acknowledged rites are of equal dignity and to be preserved and fostered. This does not agree with the current movement within Rome to essentially abolish and consign to oblivion the entirety of the Western liturgical tradition prior to 28 November 1971, when the traditional rites were, in point of fact for most of Western Christendom, removed.
Therefore, some grave internal issues within this document must be discussed:
1) The canon law of the Church is clear in canon 902 that priests have a legal right to NOT concelebrate. To use concelebration as a litmus test of any sort, a practice merely permitted by Sacrosanctum Concilium, would be an infringement upon the priest's canonical rights, particularly to celebrate individually. The doctrine of the fruits of the individual Mass from scholastic theology remains intact, namely the reality that each and every Mass celebrated properly glorifies God and benefits souls.
2) The constant repetition of the statement that the traditional books of the Roman Rite have been "abrogated" represents nothing more than revisionist history on the part of those in current authority in the Church, promoted particularly by San'Anselmo's liturgists who are decided partisans of the most extreme aspects of the conciliar revisions. Pope Benedict XVI's statements on a community calling itself into question by outlawing its heretofore most prized possession are apposite.
3) By sleight of hand, the Congregation is attempting to promote the falsehood that the faithful do not have a right to the traditional liturgical books, by the restrictions that are attempted to be placed upon bination. The traditional rites will always remain the patrimony of the entire Church. The basic and essential right of the laity, namely to receive spiritual goods from the clergy, includes the euchological and liturgical traditions of the past 2,000 years as expressed in its centuries-old liturgical books.
The utter lack of clarity of Traditionis Custodes and the Responsa ad dubia remind us that other legal texts must be sought out to clarify matters, even those of Pope Benedict XVI which were attempted to be likewise "abrogated", such as Universae Ecclesiae. Even were the prohibition on the usage of the Pontificale Romanum valid, within the 1962 editio typica of the Missale Romanum, the Rite of Confirmation can be found therein, and thus there should be no impediment to the Sacrament of Confirmation being administered according to the traditional rite of the Roman Church. 
In the opinion of this canonist, the rights of the faithful - clergy and lay - to the Missale, the Pontificale, the Rituale and the Breviarium still stand, and must be defended per Sacrosanctum Concilium 4.

* Pseudonym for a Priest and Canon Lawyer in the Latin Church. [View Father's earlier Legal Considerations on Traditionis Custodes here.]