ANALYSIS OF THE DECREE OF DISCIPLINARY ACTION AGAINST
THE FRANCISCANS OF THE IMMACULATE
by Roberto de Mattei, Mario
Palmaro, Andrea Sandri, Giovanni Turco
The decree of
the congregation for institutes of consecrated life and societies of
apostolic life of July 11, 2013 (prot. 52741/2012)  is an act of such
gravity as not to be capable of being considered of mere internal
relevance for the intended recipients alone. 
imposes upon the Franciscan Friars of the Immaculate - contrary to what
is established by the bull "Quo Primum" of Saint Pius V and by the motu
proprio "Summorum Pontificum" of Benedict XVI - a ban on celebrating the
In doing so, it deprives of a good of
incommensurable value - the Mass (celebrated in the ancient Roman rite) -
both the friars and the faithful who through the ministry of the friars
have been able to participate in the Tridentine Mass, as well as all of
those who in the future could eventually have participated in it.
decree therefore does not concern only a good - and with this, "the"
good - of which the friars are deprived (save express authorization),
but also a good - and with this, "the" spiritual good - of the faithful,
who through the ministry of the friars desired and still desire to
access the traditional Mass.
These find themselves subject - in
spite of themselves and apart from any offense, and therefore without
reason - to a sanction in clear contrast with the spirit and the letter
both of the indult "Quattuor Abhinc Annos" and of the apostolic letter
"Ecclesia Dei" of John Paul II, and of the motu proprio "Summorum
Pontificum" of Benedict XVI.
These documents, in fact, are
clearly motivated by the intention of satisfying the need for
participation in the Mass according to the classic Roman rite, on the
part of all the faithful who have the desire for this.
decree bears an objective relevance for all those who - for the most
diverse reasons - treasure and love the Latin-Gregorian Mass. These
faithful currently constitute a conspicuous part, and certainly not a
negligible one, of Catholics, scattered all over the world. Potentially
they could coincide even with the totality of the members of the Church.
The decree objectively impacts them as well.
It likewise impacts
all those who, even if they are non-Catholic - for different reasons,
as historically emerged on the occasion of the appeal presented to Paul
VI in 1971 - should have at heart the continuation of the traditional
Mass. The decree (well beyond, therefore, the incident relative to one
religious institute) bears a universal relevance under this profile as
As for the prohibition of the celebration of
the Mass in the ancient Roman rite (also called the extraordinary
form), many grave problems are posed by the decree that objectively
highlight logical and juridical anomalies that are equally manifest.
of all, with regard to this prohibition imposed on the Franciscan
Friars of the Immaculate, deriving from the imposition on them of the
sole faculty of celebrating in an exclusive way according to the new
missal (also called the ordinary form) save express authorization, one
cannot help but point out that this is clearly in contrast with what is
established for the universal Church as much by the bull "Quo Primum"
of St. Pius V (1570) as by the motu proprio "Summorum Pontificum" of
Benedict XVI (2007).
The bull of St. Pius V, in fact, establishes
universally and in perpetuity: by virtue of the apostolic authority we
grant, to all priests, by these presents, the perpetual indult of being
able to follow, in a general way, in any church, without any scruples
of conscience or danger of incurring any penalty, judgment, or censure,
this same missal, which they will have the full faculty to use freely
and licitly, so that prelates, administrators, canons, chaplains, and
all other secular priests, whatever may be their degree, or regular, to
whatever order they may belong, may not be bound to celebrate the Mass
in a manner different from that which we have prescribed nor be forced
and driven by anyone to change this missal."
In its turn, the
motu proprio of Benedict XVI establishes that "it is therefore permitted
to celebrate the Sacrifice of the Mass following the typical edition of
the Roman Missal, which was promulgated by Blessed John XXIII in 1962
and never abrogated." And it specifies that "for such a celebration with
either Missal, the priest needs no permission from the Apostolic See or
from his own Ordinary."
The motu proprio furthermore affirms
that "if communities of Institutes of Consecrated Life and Societies of
Apostolic Life, whether of pontifical or diocesan right, wish to
celebrate the conventual or community Mass in their own oratories
according to the 1962 edition of the Roman Missal, they are permitted to
do so." Analogously it declares that "ordained clerics may also use the
Roman Breviary promulgated in 1962 by Blessed John XXIII."
same motu proprio establishes unequivocally that "we order that all that
we have decreed in this Apostolic Letter given Motu Proprio take effect
and be observed from the fourteenth day of September, the Feast of the
Exaltation of the Holy Cross, in the present year , all things to
the contrary notwithstanding."
As is clear from the two
aforementioned texts and from their essential connotations, the freedom
to celebrate the Tridentine Mass belongs to the universal legislation of
the Church and establishes a right for every priest.
there is derived from this a right for the faithful adhering to this
liturgical tradition. As for them, in fact, the Code of Canon Law
recognizes: The Christian faithful have the right to worship God
according to the prescripts of their own rite approved by the legitimate
pastors of the Church" (can. 214).
Thus the prohibition, save
authorization, established by the decree objectively fails to take into
account this universal legislation of the Church, deliberating - through
an act evidently to be subordinated to it (in terms of both matter and
form) - in a way that contrasts with the universal and permanent
discipline. Which, by reason of its apostolic origins, enjoys - as
illustrious scholars argue - the character of irreformability.
prohibition of the celebration of the Tridentine Mass on the part of
the decree is unjustly discriminatory toward the Latin-Gregorian rite,
which not only dates back from the Council of Trent to St. Gregory the
Great, and from these to the apostolic tradition, but according to the
unequivocal appreciation of the motu proprio Summorum Pontificum" of
Benedict XVI must be "duly honoured for its venerable and ancient
usage." It, in fact, is an expression of the lex orandi" of the Church.
It is therefore a good to be protected. Not an evil to be shunned.
the imposition on the friars of the celebration of the new missal alone
supposes a regulation of special authorization with regard to the
Latin-Gregorian missal, which is objectively nonexistent. Or otherwise
it introduces its application, in the face of legislation of clearly
different and opposing content.
It is clear, in fact, that the
regime of authorization of a particular act or activity presupposes an
ordinary prohibition, to which an exemption may be given in
extraordinary cases (particular and determined). But this (or ordinary
interdiction) is explicitly excluded by the law of the Church, which
declares as a faculty of the priest, to be exercised freely and without
any authorization, that of celebrating the Tridentine Mass.
must also be pointed out that the interdiction (save express
authorization) of such a celebration brings out three further objective
anomalies of the decree.
This, in fact, establishes a regime of
authorization for the traditional Mass, indicating generically as holder
of the power of authorization the competent authorities. But with the
regulation established by the indult "Quattuor Abhinc Annos" and by the
apostolic letter "Ecclesia Dei" having been abrogated, it is not clear
what is precisely the competent authority to release authorization in
words. All the more so in that the competency in this matter certainly
surpasses the congregation of institutes of consecrated life, and if
anything should be referred to the pontifical commission "Ecclesia Dei."
is singular, moreover, that the authorization according to the decree
is to be granted "to every religious and/or community," almost as if the
Mass were celebrated not by the individual priest, but even by a whole
community, in its entirety (potentially including the friars who are not
priests). Almost as if the authorized community could authorize in its
turn, transmitting (how?) the authorization (on the part of whom?),
procedurally (on what conditions?) to the individual celebrant.
further anomaly of the decree is marked by the fact that this regime of
authorization is temporally undetermined. That is, no terms of
applicability are indicated for the regime of authorization imposed only
on the Franciscan Friars of the Immaculate. How long will the request
for authorization be imposed? Until a certain date? Until the attainment
of a certain objective? In perpetuity?
The text of the decree
says nothing in this regard. Contrary to the need for specificity - or
rather for rationality and justice - of any provision (in fact, even a
penalty that would coincide with an entire lifespan or be perpetual has
its specificity). This is a demand of natural law and canon law (cf.
can. 1319). Having ignored which manifests an evident detriment both of
the punitive character and of the remedial character of any restrictive
provision (in this case, of a faculty proper to each priest).
the other hand, the prohibition of the celebration of the
Latin-Gregorian Mass - although referred to by the decree as having been
decided by the pope - remains objectively circumscribed within the
domain of a decree of a Roman congregation.
It follows that - at
least in terms of its form and the obligation arising from it - it
cannot help but share the limitations of the decree itself and its
necessary submission to the universal legislation of the Church. In
fact, unlike any pontifical disciplinary deliberation whatsoever - "ex
professo," if carried out within the domain of his power of
jurisdiction, or indeed of the "munus gubernandi," and as such
legitimately possible in conformity with positive divine law and the
solemn definitions relative to it - the measure in question cannot help
but remain circumscribed to the decree itself, within the limits of the
faculties of one of the Roman congregations.
In any case, the
imposition derived from the decree like any sort of disciplinary
deliberation by anyone cannot help but be measured objectively by
natural law - or indeed by justice - and by positive divine law, to
which canon law, discipline, and ecclesiastical jurisprudence must
In fact, as Benedict XVI recalled in the
speech on the occasion of the inauguration of the judicial year of the
tribunal of the Roman Rota of January 21, 2012, "the 'lex agendi' cannot
but mirror the 'lex credendi.'"