The interpretive theory of jurisdiction held by Traditionalists
© Copyright 2013, T. Stanfill Benns (This text may be downloaded or printed out for private reading, but it may not be uploaded to another Internet site or published, electronically or otherwise, without express written permission from the author. All emphasis within quotes is the author’s unless indicated otherwise.)
Introduction
It has not been explained in detail, either on this site or anywhere else, (to the best of this author’s knowledge), that the position Traditionalists espouse concerning supplied jurisdiction was already known and held by more liberal-minded theologians prior to the crisis in the Church. This was briefly referenced in the article “Consecrating Bishops During an Interregnum, Pt. I.” Rev. Francis Miaskiewicz, in his Canon Law thesis “Supplied Jurisdiction According to Canon 209,”(1940), goes into the problems surrounding the interpretive and ignorance theories and explains why they were not tenable, even then. And in doing so he reminds us that even before the death of Pope Pius XII, there were those at work undermining the very foundations on which the Church was built, forerunners of those who later acquiesced so readily to the changes mandated by the Vatican Council and the introduction of the Novus Ordo Missae. It shows us that the infiltration of the Church began much sooner than most realize, on many levels, and that the errors we see today really were at work long before we became aware of them.
Traditionalists have made hay with such errors, claiming they are opinions advanced by certain theologians which they are free to embrace. But as explained in other articles here, the opinions of the theologians are not to be consulted until all other avenues are exhausted and the rules laid down in Canon Law itself for resolving doubtful cases has been followed. It is not difficult to determine the mind of the lawgiver in the case for supplied jurisdiction once Pope Paul IV’s Bull Cum ex Apostolatus Officio, used as the basis for most of the canons on heresy, apostasy and schism also Pope Pius XII’s infallible constitution, Vacantis Apostolica Sedis have been considered. For as Rev. Miaskiewicz points out and Pope Pius XII clearly teaches, without the Roman Pontiff, there is no one whomsoever to supply such jurisdiction, (per Vacantis Apostolica Sedis). So any arguments these theologians may have made in the past for supplied jurisdiction (occurring only during the reign of a legitimately elected pontiff) cannot possibly apply during an extended vacancy of the Roman See.
In examining the interpretive theory, Rev. Miaskiewicz refers to another Canon Law dissertation, “The Jurisdiction of the Simple Confessor,” written by a proponent of this theory, Rev. James Kelly, in 1927. He points out that Kelly mistakenly equates common error with common ignorance, even though common ignorance as a supplying factor for jurisdictional purposes appears nowhere in Can. 209. Miaskiewicz twits Kelly and others for confusing negative ignorance, which cannot influence a cause or act because the necessary basis for an informed decision does not exist, with ignorance as it affects human acts. This is “ignorance to which a judgment can be added,” (p. 154), and is not the same as ignorance which does not advert to the necessary information at all. He explains that the authors Kelly cites to support his theory believe error is convertible with this last type of ignorance only, not the negative ignorance to which Kelly refers. He bases this on Can. 207 §2, which separately allows for inadvertence outside any of the provisions of Can. 209, noting that Can. 2202 §3 states that what holds true for inadvertence also applies to error and ignorance. Why, he ably argues, would Can. 207 §2 make a separate provision if ignorance is included in the phrase errore communi in Can. 209?
Kelly’s work runs to 202 pages and treats the far broader subject of all aspects of the confessor’s jurisdiction. Miaskiewicz’s work of 312 pages concentrates solely on Can. 209, giving a complete history and a thorough evaluation of all the arguments pro and con concerning the application of this canon. For this reason it is the primary source referenced on this site in regards to any questions on the application of Can. 209.
Common error
It is obvious that the doubt of law under consideration here specifically involves Canons 209 and 2261 §2 and what constitutes common error and ignorance, so it is not a moral issue on which theological opinions may be considered as such. Even if this was the case, it is the unanimous opinion of theologians (hence infallible), as stated many times over in the proofs offered on this site, that a probable opinion — which the interpretive theory of jurisdiction offers concerning the definition of common error and ignorance — cannot be used to justify the reception of the Sacraments. Common error is a belief by a large number of people that they hold as true, but which is, in act erroneous. Common error as taught by the interpretive school would admit the existence of supplied jurisdiction even though the many that were in error had no basis for their false supposition that a priest possessed jurisdiction, but this is not how the Church has always understood common error. Were there a true pontiff the Church in certain cases could even supply if a putative title existed, but we have no pope. And in cases presented by Miaskiewicz that were decided by the Roman Rota, the Church was not interested in whether the priest was convinced he possessed jurisdiction, but only in whether the facts proved he actually did possess it; that the Church could have and in fact did supply, (pgs. 213-14 of Miaskiewicz work).
Common error must be about the existence of a certain office (which Traditionalists don’t possess) or the validity of jurisdiction already possessed, even if it was issued for only one act. Rev. Miaskiewicz limits the application of Can. 209 on the basis of common error as follows: “The Church does not supply in common error about a clear and certain law. By way of illustration one may note the fact that the law clearly demands that a priest be duly authorized to hear confessions. Since this law is so clear, one could not term any common error concerning its existence as probable. Therefore the Church in all probability does not supply in cases of such common error. The Church supplies only in common error of fact, that is, in common error about the existence or the valid possession of a certain office or jurisdiction.”In other words there must be some “objective evidence to support and to justify the objective belief in the existence of the jurisdictional power about which there is question,” (p. 312). This evidence should be sufficient to convince a “prudent man,” although one wonders if a prudent man could even be found among Traditionalists today.
Common ignorance
But those of the interpretive persuasion do not believe that such evidence is necessary to absolutely prove that jurisdiction is supplied. They would pass as enough that a priest entertained only subjective certainty, not real objective reasons for believing the Church would supply. And where ignorance is concerned they would equate common error (mistaken knowledge about a certain fact) with negative ignorance, which is an actual absence of any knowledge concerning the situation. As Miaskiewicz points out, “Even if the parties involved in a certain transaction knew that they were acting against the law, the general ignorance of the people [those holding this opinion teach] would render their acts valid, according to the ignorance theory,” (p. 155). He then challenges those adhering to this theory to prove, under Can. 6 nn. 2 and 4, that indeed common ignorance suffices to actuate the suppletory principle. The method for resolving these doubts of law is clearly outlined in the canons themselves, as described in “Consecrating Bishops During an Interregnum,” (Pts. I and II). Rev. Miaskiewicz makes this clear in his work on supplied jurisdiction and demands that this method of resolution be used to uphold “the unanimous teaching of the pre-code jurists” concerning the interpretation of common error and ignorance, (p. 132).
Papal teaching manipulated by Traditionalists
It has been the habit of Traditionalists to pit the decisions of the Roman Pontiffs one against the other, and to interpret them privately in order to justify their invocation of the suppletory principles in Canons 209 and 2261§2. They do this by claiming that (especially the later) decisions of the popes on such matters are not infallible. Rev. J. C. Fenton’s “The Doctrinal Authority of Papal Encyclicals,” Pt, condemns this private interpretation. II, (American Ecclesiastical Review, September, 1949). Fenton spends some time in this article admonishing certain theologians who have failed to grasp the true import of the Vatican Council teachings. He writes: “A great deal of the confusion and the minimism with reference to the doctrinal authority of papal encyclicals would seem to proceed from a misunderstanding of the Holy Father’s ordinary and universal magisterium…” Fenton accuses certain theologians of holding “an attitude toward papal encyclicals [and papal teaching in general] which can be productive of doctrinal evil and which can lead to a practical abandonment of their teaching. According to this attitude it is the business of the theologian to distinguish two elements in the content of the papal encyclicals.”
“One element would be the deposit of genuine Catholic teaching, which, of course, all Catholics are bound to accept at all times. The other element would be a collection of notions current at the time the encyclicals were written. These notions, which would enter into the practical application of the Catholic teaching, are represented as ideas which Catholics can afford to overlook…This attitude can be radically destructive of a true Catholic mentality. The men who have adopted this mentality imagine that they can analyze the content of an individual encyclical or a group of encyclicals in such a way that they can separate the pronouncements which Catholics are bound to accept from those which would have merely an ephemeral value. They, as theologians, would then tell the Catholic people to receive the Catholic principles and do as they like about the other elements…It is very difficult to see where such a process would stop.”
The scope of the Pope’s infallibility far exceeds its limited application as taught by most Traditionalists. In misapplying and misunderstanding the term ex cathedra, some even go so far as to deny the Pope’s infallible teaching authority in his ordinary magisterium, a heresy condemned by the Vatican Council. But Rev. Fenton, an approved theologian well-versed in sacred theology, teaches that the manifest nature of any statement later judged heretical as contrary to an infallible statement would not need to be opposed to an ex cathedra pronouncement but could be opposed simply to a statement of the ordinary magisterium. This Rev. Fenton makes clear in his above-mentioned article. He also states that not only can the Holy Father teach infallibly in his ordinary magisterium as defined by the Vatican Council, but he also is “capable of issuing infallible definitions on matters included in what sacred theology knows as the secondary object of the Church’s magisterium [i.e.,] … theological conclusions… dogmatic facts, approval of religious orders, canonization of saints,” and certain philosophical matters. Now the Catholic Encyclopedia and other works identify the Canon Law as negatively (indirectly) infallible and it would seem that it would qualify under this category as a secondary object of infallibility, especially if the pope had ruled specifically on a given canon. Certainly Pope Pius XII indicted in Vacantis Apostolica Sedis that no one can touch papal laws or Church law during an interregnum and that if they attempt to change it or attenuate it in any way, their acts are null and void.
It is interesting to note that by implication, at least, one Traditionalist seems to hold that the secondary object of the Church’s infallibility is NOT subject matter for infallible decisions. This can be concluded from St. Pius V Society advocate John Daly’s distribution of Rev. Frederick Faber’s book on canonization, without any editorial note advising the faithful that Faber wrote before the matter of the secondary object of infallibility had been fully decided. This coincides with the application of the interpretive theory, as seen below.
Interpretive theory in practice
So it is interesting to note that Rev. Francis Miaskiewicz, in his “Jurisdiction According to Can. 209” takes to task, among others, Jesuit canonists Wernz-Vidal, favored by Daly, for their erroneous views on common error re the “interpretative theory” as regards supplied jurisdiction. Wernz-Vidal held that “Once there was a public fact that could lead others into error, common error is already present …[This] reflects an attempt on their part to close a gap in logic without the aid of a logical connecting link,” (pg. 139). This public fact can be translated in these times to mean that those held as Traditionalist “priests,” who those wishing to be true Catholics see parading around in their cassocks and collars, are imbued with jurisdiction outside the normal channels. These people think these men are real priests and know nothing about the need for a true pope to exist in order to supply them with jurisdiction. They are entirely ignorant concerning the fact that the Church has condemned the creation of such clerics by schismatic bishops not in communion with the Apostolic See and that She holds any of their actions null and void, per Pope Pius VI’s Constitution Charitas and Pius XII’s Vacantis Apostolica Sedis. So the faithful believe these men to be priests possessing jurisdiction and Traditional clergy defend the interpretive theory — that this very ignorance of the faithful, then, establishes common error and activates the suppletory principle. The fatal flaw common to both those who would minimize papal authority and who support the interpretive theory, then, is the denial of the Roman Pontiff’s supreme apostolic authority and universal jurisdiction as defined by the Vatican Council. This was the heresy of the Anglicans, the Gallicanists and the Old Catholics, and today these are the very heresies embraced by Traditionalists.
As Miaskiewicz points out: “If any and all jurisdictional activity is to be considered as valid because of the verification of common ignorance, what jurisdictional act could ever be considered as invalid? The difficulties of the interpretive theory are difficulties resulting from an attempt to break away from a traditionally accepted doctrine. They are difficulties which border closer and closer upon pure absurdity according as the individual authors venture to reduce common error to greater and greater insignificance. And it must be said that for such veering away from the traditional concept no limit can properly be set, precisely because it seems that the interpretive school has substituted its personal feeling of how they would want the law to be interpreted for the ordinary legal and objective norms which the law maintains must be followed…” For as Miaskiewicz notes, the system of supplied jurisdiction is intended to help the Church fulfill Her mission: “the spiritual good of ALL the faithful…” (p. 143). Yet all the faithful CANNOT benefit from those lacking such jurisdiction who, by pretending to absolve them then administering Holy Communion during Mass, assist them in committing sacrilege, even possibly idolatry. As Miaskiewicz concludes in his final comments on the interpretive theory, this purported doubt of law could be easily solved if the rules governing the interpretation of Canon Law itself — the first 24 canons under General Rules and Ecclesiastical Law — were simply consulted and obeyed.
Canon Laws on interpretation quash the interpretive theory
He writes: “From the foregoing evaluations and criticisms of the interpretive and of the ignorance theory, it is quite apparent that the traditional concept of common error must be retained,” (but those claiming to be “Traditionalists” certainly do not retain it.) “Indeed, even though one were to grant that the innovators’ theories enjoy some degree of probability and of consequent feasibility, Can. 6, n. 4 must be remembered. Thus in reality there is no dubium juris [doubt of law] which could be solved in favor of the other theories, [concerning positive error and common and probable doubt] by the use of the second phase of Can. 209,” (p. 156). “Canon 209 is admittedly a new law only insofar as it represents the first statutory formulation of the suppletory principle. The doctrine, the jurisprudence of this principle, however, antedates Can. 209. Since the Code verbatim received the errore communi [common error] and supplet ecclesia the Church supplies], the presumption is that the legislator intended no substantial changes in the interpretation of the errore communi. And to all who would attempt to justify any deviation from the traditional concept it may be remarked that the burden of proof lies upon them. They will have to establishbeyond a prudent doubt [emph. Miaskiewicz’s] that the legislator wished to treat errore communi in a new sense. Until they furnish such proof, their claim must be rejected in view of Canons 6 nn. 2 and 4,” (pgs. 160-61).
Canons 6 n. 2 and 6 n. 4
Can. 6 n. 2 states that Canons restating the former law in its entirety must be interpreted in accordance with the old law. Canon 6 n. 4 instructs that in a case of doubt whether some provision of the Canons differ from the old law, one must adhere to the old law. So it is clear that the old ideas of common error and ignorance must be retained if we are to follow the introductory Canons of the Code that instruct those who consult it how to understand the Law. If we use the old law in place of the new law, it not only returns to the traditional idea of common error, but reactivates the need for a colored title in order for priests to claim supplied jurisdiction.
Canons 11, 15 and 20 — invalidating laws and epikeia
Rev. Miaskiewicz’s next topic is epikeia and Can. 209, which is treated under Can. 20. It is not surprising to note that he immediately reminds his readers that “jurisdictional laws are at least equivalently invalidating or incapacitating laws, [treated under Canons 11 and 15],” (p. 161). He then goes on to compare jurisdictional laws to a diriment impediment, requiring dispensation, which prevents partners from marrying validly if it is not dispensed. He comments: “In the same manner that a dispensation is necessary for a person to marry validly…so too the requisite faculty, the required power or jurisdiction, is necessary to posit validly a jurisdictional act. Those who have not that power, even should they possess all other qualifications, simply cannot act validly,” (ibid. p. 161). Miaskiewicz then explains that epikeia, “in almost every interpretation,” applies only when “some moral inability intervenes,” (p. 162). He distinguishes however, between merely prohibitive laws and invalidating laws, and cites Suarez who says there is no “identity” between the two. Invalidating laws produce “a certain inability or even incapacity” to act, which has nothing to do with some difficulty presented by the “obligation” to observe a prohibitive law. “In laws that are merely prohibitive or preceptive, there is not the necessity for the common good that some uniformity in the law be observed.”
This is precisely what Rev. Lawrence Joseph Riley, A.B., S.T.L., teaches on this same subject in his dissertation “The History, Nature and Use of EPIKEIA in Moral Theology,” (Catholic University of America, 1948): epikeia applies only to the internal forum concerning moral matters, for the sake of the common good, and cannot be used in the case of invalidating and incapacitating laws. Rev. Riley observes: “There are extremely few theologians who admit the lawfulness of applying epikeia strictly so-called to invalidating laws…Human invalidating laws sometimes cease to bind but epikeia may not be applied to human invalidating laws.” As Miaskiewicz emphasizes: “In jurisdictional laws it favors the common good more to preserve the law absolutely inviolable than to avoid some personal inconvenience in any one case, [emph. his],” (p. 162). Likewise canonists Woywod-Smith comment under Can. 16: “Ignorance and good faith are immaterial as far as the effect of invalidating and inhabilitating laws is concerned. The common welfare demands that these laws have absolute effect.” So much for the ignorance theory.
Canon 20 — the Roman Curia
The text of Canon 20 tells those who are seeking to construct a new law for a situation (where no law seems to exist) that to do this they must consult the decisions of the Roman Curia in formulating such a law. Since Traditionalists are famous for inventing their own laws, the least they could do is make some pretense of following the laws provided in the Code, but of course this is not what they have done. However in the course of his work, especially concerning doubts of fact, Miaskiewicz cites several decisions of the Roman Rota proving that not only does the Church not supply as readily and as lavishly as some theologians might wish, She does not consider invalidating marriages, confessions and other acts, when no facts exist to prove their validity, as a negative thing. Rather these decisions demonstrate that the Church feels that “ignorance, confusion and false certitude were not considered enough,” (p. 214), to validate such acts. “In the instances that the Roman Rota agreed that a true probability of fact was verified, there are found real arguments, objective reasons leading a prudent man to believe that the priests possessed jurisdiction and there the requisite jurisdictional competence,” (ibid). In other words the Church believes “It is what it is,” and acts accordingly.
Traditionalist motivation for claiming a doubt of law
The reason that Traditionalists wish to say there is a doubt of law concerning how jurisdiction is to be applied is that 1) If the old law is not invoked, they can wiggle out of the necessity to produce a colored title, which they cannot do; and 2) If the old law is not invoked, they can claim that common error is not to be interpreted traditionally and that ignorance is the equivalent of such error. Miaskiewicz proves it is impossible for them to claim a doubt of law because one must adhere to the old law, but for Traditionalists it is paramount that they be able to claim this doubt. The reason is found in the wording of Can. 15, which states that in a doubt of law or fact, invalidating and incapacitating laws cease to apply, and they seize on this to justify their actions. But jurisdiction is based on Divine law, which can never be abrogated or cease to exist. Without jurisdiction the entire fabric of the Church disintegrates. And there IS no doubt of law, as Miaskiewicz has proven, because we must return to the old law under Can. 6 §4. Revs. Woywod –Smith explain that a doubt of fact concerns some circumstances or facts in the case that are doubtful. Certainly that could apply to us but the law says that these can be dispensed by the Ordinary as long as it is something from which the Roman Pontiff is wont to dispense. Clearly we have no ordinary and therefore the point is moot. Here Woywod-Smith mention the teaching of moralists, stating that Can. 15 applies in a doubt of fact only if the liciety and not the validity of an act is in question, meaning it cannot apply in the case of jurisdiction since the very misuse of the suppletory principle could result in invalidity of the Sacraments. As Miaskiewicz comments, the burden of proof rests with Traditionalists and they cannot demonstrate those proofs necessary to establish their case. They must concede defeat, but their pride and fear of losing their social status and incomes will not allow.
Conclusion
Adhering to the interpretive theory only indicts Traditionalists as liberals and innovators. They simply cannot claim jurisdiction in any form without a true Roman Pontiff, regardless of what “opinions” they pretend to advance in order to bolster their irrational arguments. Even if granted their “doubt of fact” under Can. 15, they have no valid or licit bishop to decide the case and the practice of the Roman Pontiffs would not support a decision in their favor anyway. The decision in their case can be found in Vacantis Apostolica Sedis, where Pope Pius XII made it clear that NO ONE may presume to usurp pontifical jurisdiction during an interregnum or dispense or modify Church law. Without a clear decision on the “interpretive” and ignorance theories from the lawgiver, Traditionalists are stuck with the old law. They are bound to return to the pre-Code teaching on Can. 209, which ran as follows:
• Public utility and the general good required the relaxation of the ordinary rules of jurisdiction, (this was true both then and now).
• The teaching then current on the suppletory principle would apply only to acts performed in virtue of a public office, (Traditionalists readily admit they possess no offices, so cannot invoke it).
• At least a colored title would still be required, one conferred by “an authorized or proper superior,” but which labors under some occult defect which renders it invalid. (Traditionalists did not even appear to or claim to receive any titles and the superiors who ordained them — schismatic bishops — could not confer such titles validly or licitly anyway. This is well known, so cannot be an occult situation.)
• The suppletory principle applies to the external forum and also to the ordinary power.
• There must be common error, but what constituted it could not be agreed upon. (No decision in this regard can be made, either, without referring it to a true pope.)
• A positive probability must be present in cases of doubt, as decisions of the Roman Rota prove. (Miaskiewicz quotes the theologian Creusen to the effect that priests are to seek out the necessary information in doubts of law and not trust their own judgment.)
• Jurisdiction could be supplied to excommunicates, who may be outside of the Church for a variety of reasons, (but not notorious heretics, apostates and schismatics, as proven elsewhere. This excludes Traditionalists.)
Traditionalists cannot satisfy the requirements of pre-Code law any more than they can satisfy the post-Code requirements. Regardless of the many arguments made for the case of supplied jurisdiction for Traditionalists, the one determining factor for providing it — a valid Roman Pontiff — is lacking. No one can usurp his jurisdiction during an interregnum Pope Pius XII’s Vacantis Apostolica Sedis teaches, so no other “supplier” exists. No one, either, can provide the Church with a pope, unless and until unquestionably valid and licit bishops are found who could hold a papal election. Traditionalists claim their jurisdiction comes directly from God, but this would place them in the same class as Christ’s Apostles, which is not only an absurdity, but a Protestant heresy, (see site article on Can. 209 and extraordinary mission). While the interpretive theory enticed and emboldened them to take their liberal stand, it could not possibly overcome almost 55 years without a true pope, try as they might to get around this salient fact. This is not even considering their obligation, as Rev. Miaskiewicz notes, that they must return to the old law and follow the rules laid down for resolving doubt. This was recently documented in the article on this site, “Consecrating Bishops During an Interregnum, Pt. I.” It is required long in advance of any consideration of Can. 20, where epikeia is allowed as one of several steps to construct a “new” law in the event that no law exists that covers the situation. Since following the old law (Can. 6 nn. 2 and 4) would eliminate any doubts about how to interpret common error and would require them to demand at least a colored title, which they do not possess, there is no justification for invoking Can. 20, since no new law is needed.
Traditionalists simply cannot and do not possess jurisdiction of any kind. As Rev. Miaskiewicz aptly observes in his work: “Dealing with men, with all their foibles and weaknesses, with their need of strict sanctions to help them along the path of probity and justice, the Church has found it necessary to be very careful in allowing others to share in Her power. To protect the faithful against deception and to assure them of competent and worthy ministers, the Church has ever insisted, and still does insist, that those who are to minister unto the faithful in the name of Christ and of the Church, must first receive the approval and authorization necessary for the valid and licit performance of jurisdictional acts,” (p. 21). “The matter of jurisdiction, then, is very important. First, the necessity for it supplies the Church with strict sanctions against usurpers and incompetents. The possession of it is important also for the priest who, in acting without it, would not only posit invalid acts, but would run afoul of the rigid sanctions of the Church and of God. Finally, it is especially clear how important the use of it is to the faithful and what a great loss it would be for them to approach a priest adjudged to have faculties to absolve, confess and then upon their confession depart not knowing that they were still unabsolved. …Upon the presence or absence of jurisdiction, the very validity or the invalidity of the acts will depend,” (p. 22).
And following this, no further comment is necessary.
