Custom and the 1962 Roman Missal

Peter Vere, JCL
Fr. Michael Brown, JCL

Fr. John Huels, a professor of canon law at Saint Paul University, recently published an advisory opinion (see TCR - Use of Tridentine Mass without Indult in the Navigation Bar on the left) with Canon Law Society of America in which he addresses various errors concerning the use of the 1962 Roman Missal. One of these errors is the claim that every priest has a right owing to immemorial custom to celebrate Mass according to the 1962 liturgical books. This erroneous view of custom concerning the celebration of Tridentine liturgy has unfortunately become more popular within certain Traditionalist circles as of late, and in response Fr. Huels correctly addresses this error as follows:

"3. It is correct that the general formula revoking the Tridentine Rite of Mass did not affect immemorial and centenary custom. However, the observance of the Rite of Mass of Pope Pius V was not a custom. It was imposed by law. A custom is introduced by the community (canon 23), whereas a law is introduced by the legislator. The use of the Roman Missal was decreed by universal law in 1570, and the Missal was revised in different ways by legislative acts of subsequent popes in 1604, 1634, 1888, 1920, 1955, 1960, 1961, 1964, 1965, and 1967. Although many of the ceremonies and details of the Mass of the Roman Rite largely developed through customs in the ancient and medieval Church, by 1570 the legal authority for the Rite of Mass was clearly that of papal law, not custom."

To understand why immemorial custom does not grant every priest the right to celebrate the 1962 Roman liturgy, one must first distinguish between custom and legislation. The difference between the two is found in how they come into force. In the case of legislation, canon 7 states that "A law comes into being when it is promulgated." In other words, legislation must be promulgated by an ecclesiastical authority who possesses legislative power. This ecclesiastical authority would be the Roman Pontiff, who as the Supreme Legislator possesses the authority to promulgate universal legislation binding the whole Church, as well as the Diocesan Bishop, who possesses the power to legislate within his diocese. In short, legislation is imposed from above.

Custom, on the other hand, arises from the people. Over time a custom may become legally binding if it is practiced in good faith for an uninterrupted period of thirty years. A custom may also become legally binding before thirty years if it receives approval from the competent ecclesiastical authority. When dealing with custom, one must distinguish between local custom, which applies to a local community, and universal custom that applies throughout the whole Church.

Now with regards to the Tridentine Missal, this usage of the Roman liturgy essentially arose as a compilation of local customs. However, because there were numerous local variations prior to the liturgical reform of Pope St. Pius V, this liturgy was never universal custom. Rather, its universal imposition upon the Church, with some exceptions, was as a result of Pope St. Pius V's papal legislation contained within Quo Primum Tempore. Therefore, while the contents of the Missal may have initially arisen through custom, the universal celebration of this missal was always a matter of papal legislation. Furthermore, one must remember that the Roman Pontiff has the right to suppress universal and/or immemorial customs, so even if the celebration of this missal were a matter of universal and immemorial custom, the Roman Pontiff still has the right to suppress it. For it is not the Roman Rite per se the Roman Pontiff suppresses, but rather a particular liturgical usage (or Missal) within the Roman Rite.

Furthermore, one needs to consider the majority opinion of canonical authors, namely, when a legislator revokes a previous law he also revokes any custom that this law governed. In a nutshell, when he promulgated the 1969 liturgical reform of the Roman Missal, Pope Paul VI automatically suppressed any customary right to celebrate Mass according to previous typical editions of the Roman Missal. Pope John Paul II later permitted a limited restoration of the right to celebrate Mass according to the 1962 liturgical Missal, provided one had an indult from the diocesan bishop.

Now some will argue that this was not the conclusion drawn by Cardinal Stickler and his commission of nine Cardinals, and thus no indult is needed because every priest has a customary right to celebrate Mass according to the 1962 Roman Missal. From the standpoint of canon law, however, the reported findings of the nine cardinals have no authority because these finding have never been published in the Acta Apostolicae Sedis, or in any other official Church publication. Until such a time, they have no legal value and one cannot presume their contents. This is simply the way canon law works.

Furthermore, one must also keep in the mind the findings of the Cardinal Stickler commission are those of an advisory body. As such, they have no legislative force. These findings also precede the promulgation of Ecclesia Dei adflicta, an act of legislation originating from Pope John Paul II who is the Supreme Legislator within the Church. Therefore, since Ecclesia Dei adflicta was promulgated at a date later than the findings of the Stickler commission, one must keep in mind canon 20 of Code of Canon Law which states: "A later law abrogates or derogates from an earlier law, if it expressly so states, or if it is directly contrary to that law, or if it integrally reorders the whole subject matter of the earlier law."

In short, in requiring the indult or permission from the diocesan Bishop, Ecclesia Dei adflicta would contradict or integrally reorder the findings of the Cardinal Stickler commission. Hence, in accordance with canon 20 the alleged customary right recognized by this commission would be abrogated or derogated when Pope John Paul II promulgated Ecclesia Dei adflicta. Therefore, one cannot invoke the disputed and unpublished findings of the Cardinal Stickler commission in order to avoid obtaining an indult from the Diocesan Bishop to celebrate the 1962 Roman Missal.

In conclusion, custom plays an important role in canon law. Nevertheless, in pursuing greater freedom to celebrate Mass according to the 1962 typical edition of the Roman Missal, one should not argue customary right as a way around obtaining an indult from the diocesan bishop. For such a right does not exist in canon law, and thus the appeal to such a non-existent right is unlikely to convince the Church's competent authorities or to further the availability of the licit celebration of the 1962 liturgical missal.