Epikeia Can’t Undo Schism
This article, making the rounds again related to the latest expression of schism on the part of the SSPX, is kind of a canonical example of textbook pseudo-trad misunderstandings and errors.
It contrasts violations of canon law committed by Cd. Karol Wojtyła and Cd. Josef Slipyj with the (graver) violations committed by former Archbishop Marcel Lefebvre, suggesting some equivocation that should regard us to conclude that if one of these things is acceptable, or laudable, so should be the other.
This analysis ignores the critical differences between the cases cited and that of the Society of St. Pius Xth (SSPX), but, more importantly, ignores the single most pertinent fact regarding juridical punishment and schism: The supreme pontiff has “full and supreme power of jurisdiction over the universal Church.”
The second great class of errors underlying the paper is the collective notion that the Church can fail, (is in the process of failing - “her survival is at stake”), that it is “under attack” (by the papacy itself), that the Church Herself, the very guardian and arbiter of Tradition “cares nothing” for it, and that the 1969 Roman Missal is “severely defective, unfitting and inauthentic in liturgical terms.” Each of these positions is de-facto heretical, and/or specifically anathematized, as we will see below.
Finally, the treatise goes on to laud ecclesiastical disobedience as, if the personal judgement of the committer warrants it, something good and holy.
[The case of Pope St. John Paul II, as Cd. Wojtyła, performing priestly ordinations is actually barely related, since priestly ordinations and episcopal consecrations are not at all analogous. Cd. Wojtyła ordained priests, which requires episcopal authority, but does not inherently create new hierarchical structures. This, of course, is the difference between the priesthood and the episcopate. Under the 1917 Code of Canon Law, illicit priestly ordinations were violations but did not carry automatic excommunication or schism. They could result in suspensions or other penalties, but these were not enforced in this case due to the circumstances - again, this is entirely the purview of the Supreme Pontiff.]
The Nature of Papal Primacy
A bit of background is necessary to establish a context in which to examine the arguments put forth in the article.
For the moment we will bypass that other ecumenical council that certain elements have come to deride or despise - Vatican Council I - and travel all the way back to the Council of Florence (1439):
“We define that the holy Apostolic See and the Roman Pontiff holds the primacy over the whole world, and that the Roman Pontiff himself is the successor of blessed Peter, the prince of the apostles, and true vicar of Christ, head of the whole Church, father and teacher of all Christians…” (Denzinger (DS) 1307)
This is, in fact, the primary dogmatic definition. This Primacy of Peter is not an ecclesiastical custom, nor something delegated by the Church, but, divine law, because the institution comes from Christ Himself.
This is made more explicit by the citations from Pastor Aeternus (a Dogmatic Constitution) below, but, it’s good to realize that - as must be the case - there is nothing here novel in the slightest.
[The divine nature of papal authority was expressed also by Pope Leo XIII in Satis Cognitum (1896) : “The primacy of Peter and his successors was established by Christ Himself, and therefore rests on divine right.”]
Moving on to Pastor Aeternus:
“If anyone thus speaks, that the Roman Pontiff has only the office of inspection or direction, but not the full and supreme power of jurisdiction over the universal Church, not only in things which pertain to faith and morals, but also in those which pertain to the discipline and government of the Church… let him be anathema.” - Vatican Council I, Dogmatic Constitution Pastor Aeternus, July 18, 1870 (Denzinger 3064).
“This power of the Supreme Pontiff is truly episcopal, ordinary, and immediate… over all churches and over all pastors and faithful.” (Denzinger 3060)
The Supreme Pontiff is the highest earthly authority that exists. His juridical authority over the Universal Church is complete, immediate, and intrinsic to the divinely-established office.
Finally, Lumen Gentium, Vatican Council II, reiterates the dogma:
“The Roman Pontiff, by reason of his office as Vicar of Christ and pastor of the whole Church, has full, supreme and universal power over the Church, which he is always free to exercise.”
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Next, a quick look at the definitive, crystal-clear doctrine that the supreme pontiffs (alone) also possess full power over sacramental forms, something else contradicted in the implicit thesis of the piece in question:
The Council of Trent
"The Power of the Church touching the Dispensation of the Sacrament of the Eucharist
"It furthermore declares, that this power has ever been in the Church, that, in the dispensation of the sacraments, their substance remaining untouched, it might ordain, or change, what things soever it might judge most expedient for the profit of those who receive, or for the veneration of the said sacraments, according to the variety of circumstances, times, and places.” (Denzinger 1728)
Mediator Dei (Pius XII)
"58. It follows from this that the Sovereign Pontiff alone enjoys the right to recognize and establish any practice touching the worship of God, to introduce and approve new rites, as also to modify those he judges to require modification.”
The Nature of the Church
The assertions (evidentially to be taken prima facie) made in the article to justify the disobedience and schism of the SSPX are directly contrary to some of the most core Catholic dogmas.
“When the Church is under attack and her survival is at stake, or when her common good is gravely threatened, flagrant “disobedience” to papal commands or laws can be justified—indeed, not only justified, but right, meritorious, the stuff of sanctity.”
The Catholic Church’s survival is not at stake. The promise of Christ Himself, that the Gates of Hell shall never prevail against Her, is the basis of the dogma of Indefectibility, which contradicts directly and completely this sad suggestion.
Pastor Aeternus again:
“That which our Lord Jesus Christ, the Prince of shepherds and great Shepherd of the sheep, established in the blessed Apostle Peter must remain perpetually by divine institution in the Church…” (Denzinger 3056)
The papacy is also perpetual:
“If anyone says that it is not by the institution of Christ the Lord himself, or by divine right, that blessed Peter has perpetual successors in the primacy over the universal Church… let him be anathema.” (Denzinger 3058)
Indefectibility is explicitly tied to the Roman See:
“This See of St. Peter always remains untainted by any error, according to the divine promise of the Lord our Savior…” (Denzinger 3070)
As with all defined dogma, the doctrine of Indefectibility was present at the very beginning, in the Deposit of Faith, even if it was not formalized for many centuries. It is implicit in essentially every teaching having to do with the nature of the Church - the presupposition that Christ’s promise that “the gates of Hell shall not prevail” over Her is constantly evident.
Fourth Lateran Council (1215): “There is indeed one universal Church of the faithful, outside of which nobody at all is saved…” (Denzinger 802)
Even the dogma of extra ecclesiam nulla salus is nonsensical if the Church’s very survival could be at stake.
I would refer the reader also to the dogma of Peter’s never-failing faith, also defined at Vatican I, but will omit citations here for the sake of brevity.
Do note that the Indefectibility of the Catholic Church is a dogma, requiring absolute assent under pain of heresy (de fide divina et catholica), formally taught by an ecumenical council, ratified by the Pope (which is necessary for the teachings of ecumenical councils to become binding).
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Next, as supposed support for the notion that lone bishops ought to be able to disobey the Supreme Pontiff at will, with no consequence, as long as it fits their own judgement, is this pronouncement regarding the 1969 Roman Missal:
“Even if the new rite of ordination is valid (as is the new rite of Mass), it is severely defective, unfitting and inauthentic in liturgical terms.”
Unfortunately, one who asserts that the 1969 Latin Missal is objectively deficient in any way finds oneself under an anathema of the Council of Trent, which declared that the Church cannot promulgate sacramental rites harmful to piety:
Council of Trent, Session XXII (17 Sept 1562), Canon 7 on the Sacrifice of the Mass:
"If any one saith, that the ceremonies, vestments, and outward signs, which the Catholic Church makes use of in the celebration of masses, are incentives to impiety, rather than offices of piety; LET HIM BE ANATHEMA.” (Denzinger 1752)
So, to refuse to accept that the 1969 Latin Missal is, intrinsically, which is what was stated, a valid expression of the Holy Sacrifice of the Mass makes one a non-traditional Catholic. It represents an attitude towards obedience and humility that are not Traditional. Would it be wise to trust such individuals with the governance of the Church?
Epikeia and Latae Sententiae Punishments
Kwasniewski, playing the tune the SSPX has been using for decades, seeks to muddy the waters in this piece with the notion that, because sometimes penalties are imposed by the lawgiver for a violation of the law and sometimes they are not, such violations are of no real concern, or something like that.
“A legal positivist would say that the suspension he incurred would have had to be expressly removed later on. Yet the fact that the suspension was never lifted is an eloquent testimony to the role of epikeia in interpreting and applying law. In short: a situation existed in which the canon simply did not take effect. This ought to give us pause about the limits of legal positivism.”
A primer on Catholic legal theory is necessary here. None of the below is controversial or in any serious dispute. And Catholic legal theory is not positivist at the foundational level (this is a straw man).
Catholic teaching insists on a hierarchy of law:
- Divine Law
- Natural Law (participation of rational creatures in divine law)
- Divine Positive Law (Revelation)
- Human Positive Law (civil law, canon law)
(Human law is real law, but only derivatively so. As Aquinas puts it, “Lex iniusta non est lex simpliciter” - an unjust law is not law in the full sense.)
This is not legal positivism, which is the Hobbesian notion that law is in its essence simply the command of the lawgiver. It is morally relativistic at root.
Canon law is “positive law without being positivist.” Canon law is human law enacted by legitimate authority but its legitimacy is not self-grounding - it is constrained by divine law and the constitution of the Church. Popes have supreme, full, immediate, universal jurisdiction, but not, obviously, absolute power in the metaphysical sense.
Regarding the fact that Cd. Slipyj was not punished for a violation that was analogous to the actions of former Ap. Lefebvre, who was, such non-punishment proves only one thing: The pope chose not to punish. The pope’s non-punishment of Cd. Slipyj does not, by itself, establish the liceity of the consecrations. It only shows that the Holy See chose not to enforce the restriction, for prudential or pastoral reasons that are glaring and obvious when the two cases are compared.
The pope, as Supreme Legislator (and Judge), has the authority to decide whether to impose, remit, or forgo a penalty in any particular case. Catholics are indeed obliged to accept the pope’s juridical judgment in a concrete case, the penalty as imposed (or not imposed), and the binding legal effect of that judgment.
The argument is that Wojtyła or Slipyj not being punished for what Lefebvre was punished for is unfair, inconsistent, etc. But, actually, the Pope, as Supreme Legislator, is entirely within his purview to choose to punish in one case but not in another, and Catholics have to accept his judgement either way.
Justice in penalties is not mechanical equality; supreme authority may weigh context, intention, ecclesial impact, scandal, and obedience; similar external acts can differ radically in culpability and consequences. Canon law has always allowed for this. The pro-SSPX arguments are nothing but special pleading that, once again, cast aside the intrinsic nature of canon law and the papacy also.
4. What “Ipso Jure/By Virtue of the Law Itself” Actually Means
(Note: I consulted a subject matter expert on this subtopic.)
In the 1917 Code, ipso iure refers to how the penalty is incurred, not who has ultimate control over its effects. So when a canon says a subject is “ipso iure” suspensus it means:
- No declaration is required
- No trial is required
- *No sentence is required*
- The penalty is incurred at the moment of the act - automatically, as a consequence of the “law itself”
It does not mean:
- The penalty is immune from papal control
- The Pope must acknowledge or publish it
- The Pope cannot neutralize it silently
- The Pope becomes bound by the law he promulgated
Claim: “If a penalty is incurred automatically, then it must continue unless formally lifted.” That’s false in Catholic law, because:
- The Pope is the supreme legislator
- The Pope is the supreme judge
- The Pope is the supreme *dispenser* (of punishment)
Even for latae sententiae penalties, the Pope can:
- Dispense before a penalty applies
- Dispense as it applies
- Dispense after it applies
- Dispense without formal process
- Dispense without public record
All without contradicting the words ipso iure.
These cases that SSPX supporters find so vexing are entirely congruent with the actual model of the papacy and canon law: The Pope judged that a law applied but chose not to enforce or publicize it.
Slipyj consecrates without mandate
canon 2370 attaches suspension ipso iure
The Apostolic See is aware of the facts
The Pope, exercising supreme authority, does not insist on the juridical effects of the suspension
That can happen by tacit dispensation, toleration, sanation (healing, curing), authoritative non-enforcement, etc. None of these require a public decree.
This isn’t positivism because we’re not saying “The law only exists if enforced,” but, rather, “The law exists, but the supreme legislator can suspend its effects.”
“The actions of Wojtyła and Slipyj place Écône in a new light.”
Perhaps they do for some. But unless we ignore the will of the Pope, the Supreme Legislator and Judge, along with the chasm lying between the case of the faithful prelates who were not punished because they were, actually, acting in service to the Church, rather than scorning and deriding Her as did the other, there is nothing to vex us.
Disobedience as a Virtue
“As the years pass and I watch the Catholic Church descend ever further into doctrinal, moral, and liturgical chaos, I can no longer accept the opinion that Archbishop Marcel Lefebvre was guilty of ‘wrongful disobedience.’”
Should we rely on this man’s judgement to determine what actions Peter should take regarding disobedience so severe that it caused episcopal consecrations not just without Papal approval, but in direct contradiction of a Papal command, repeated with the threat of excommunication? From where does such authority arise?
Kwasniewski finds disobedience “the stuff of sanctity,” as we saw earlier. But is teaching is more the stuff of satan. And so I will offer a small collection of favorite quotes regarding the virtue of obedience.
All emphases are mine.
From the Catholic Encyclopedia:
"Among the virtues obedience holds an exalted place but not the highest. The distinction belongs to the virtues of faith, hope and charity which unite us immediately with Almighty God. Amongst the moral virtues obedience enjoys a primacy of honour. The reason is that the greater or lesser excellence of a moral virtue is determined by the greater or lesser value of the object which it qualifies one to put aside in order to give oneself to God. Now amongst our various possessions, whether goods of the body or goods of the soul, it is clear that the human will is the most intimately personal and most cherished of all. So it happens that ***obedience, which makes a man yield up the most dearly prized stronghold of the individual soul in order to do the good pleasure of his Creator, is accounted the greatest of the moral virtues***.
https://www.newadvent.org/summa/3104.htm
The quotes below are taken from “The 12 Steps To Holiness And Salvation” by St. Alphonsus Liguori, Doctor of the Church (TAN Books, 1986).
Not only is St. Liguori a Doctor himself, but he references other saints and doctors extensively in this chapter on obedience (and the rest of his work).
"Perfection consists in the conformity of our will to the will of God. Now what is the surest means of knowing God's will, and of regulating our lives according to it? It is obedience towards our lawful superiors. 'Never is the will of God more perfectly fulfilled,' says St. Vincent de Paul, 'than when we obey our superiors.' [Obedience is] the greatest sacrifice that a soul can make to God… for as, in the opinion of St. Thomas, 'nothing is dearer to us than the liberty of our will,' we can offer to God no more acceptable gift than this very liberty....God prefers obedience to all other sacrifices…. He who offers God his will, by subjecting it to obedience, gives Him all he has, and can truly say, 'My Lord, after I have given Thee my will, I have nothing more to give.' As St. Gregory says: 'By the other virtues we give to God what belongs to us; by obedience we give Him ourselves.' " (107)
"According to the Venerable Sertorius Caputo, the reward of obedience is similar to that of martyrdom. In martyrdom we offer to God the head of our body; by obedience we offer Him our will, which is the head of the soul... St. Augustine says that while Adam through disobedience brought destruction upon himself and all his posterity, the Son of God became man to redeem us and to teach us true wisdom by His life of obedience. For this reason He began as a child to practice obedience when He was subject to Mary and Joseph… When Jesus appeared to St. Paul and converted him on the road to Damascus, the future Apostle said: 'Lord, what wilt Thou have me to do?' The Lord could easily have instructed him then and there, but He merely said: “Arise and go into the city and there it shall be told thee what thou must do…” Accordingly, St. Giles maintains that we gain more merit by obeying man for the love of God than by obeying God Himself....
It is a delusion, therefore, to imagine that we can do anything better than that which is prescribed by obedience…” (108-109)
“St. Mary Magdalen of Pazzi: When I am acting out of obedience,' she said, 'I am certain that I am doing the will of God, but at other times this is not the case.'” (109)
Yes, even blind obedience is exalted, because that is when the virtue is most perfectly expressed - one’s will is surrendered most completely in such a case.
"The great St. Bernard said: 'If, instead of obeying blindly, we wish to know why the superior has ordered this or that, we show that our obedience is very imperfect.' It was in this way that the devil tempted Eve and brought about her fall. 'Why,' said he, 'has God forbidden you to eat of all the trees in the garden?' Eve would not have fallen into sin had she answered: 'It is not for us to inquire into the reason of this prohibition; we have only to obey.' But unfortunately, she began to wonder why it was that such a command had been given, and replied, 'Lest perhaps we should die.' From that one word 'perhaps' the devil perceived that she had begun to waver, and at once he said: 'Do not fear; you will not die.' And Eve fell, and misfortune came upon the whole human race." (120)
St. Padre Pio has long been dear to me. I once spoke with the priest who tended his wounds daily late in life. I’ve visited his home and his tomb. And he gave a perfect example of the virtue of obedience when he was ordered to cease all public ministry: He obeyed. (And he *knew* that his ministry was providing great good to the faithful.)
Sts. Pio, Liguori, and their countless like examples throughout the (often messy) history of the Church are the true “stuff of sanctity.”
“The actions of Wojtyła and Slipyj place Écône in a new light.”
Apparently they did, for some. But that is not relevant to the question of the schism of the SSPX, the gravity of the grave sin of schism (always considered among the worst possible sins - see the extensive CE article on the topic), nor the fact that the illicit episcopal consecrations performed by former Archbishop Lefebvre resulted in the punishment of excommunication by the will of the Pope.
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Cd. Slipyj was an eminent figure who had suffered decades of severe Soviet persecution (18 years in the gulag). His actions took place in the context of an Eastern Catholic Church under duress, where localized hierarchical continuity (not the survival of the Church) seemed at risk.
Eastern canon law and ecclesiastical tradition historically gave Eastern Churches greater autonomy in episcopal matters though of course they are entirely in communion with the Pope. The Holy See treated Slipyj’s situation pastorally rather than juridically, choosing not to publicly enforce penalties for the sake of Church unity and respect for the highly unusual (geographic, political) circumstances.
On the other hand, Pope John Paul II publicly declared former Ap. Lefebvre’s consecrations to be illicit and schismatic, stating that by proceeding against the explicit will of the Pope, Lefebvre and those bishops had effectively rejected papal primacy. The Vatican declared that, by virtue of Canon 1382 (and related norms), Lefebvre and the four newly consecrated bishops incurred automatic excommunication reserved to the Holy See.
Neither of these actions is difficult to understand. Neither is contradictory to the other in any way.
The article’s real basis is, as with all things pseudo-trad, the notion that the so-called “new Mass” is unacceptable and that (due mostly to that) the Church Herself needs “saving,” contrary to Christ’s promise, from individuals. That basis is not Catholic.