Refutation of Cekada’s Canon Law and Common Sense

© Copyright 2023, T. Stanfill Benns (All emphasis within quotes is added by the author)

When those critical of the Traditional movement first began to point out its many flaws in the 1980s, including the failure of Trad pseudo-clergy to follow Canon Law, the answer to their objections came by way of  Anthony Cekada’s Canon Law and Common Sense. Rather than address the obligation to follow Canon Law and uphold Church teaching, Cekada instead denigrated the Sacred Canons and those who insisted they be obeyed. His work is still posted here: What follows below is no indictment of Cekada personally, which some may allege, but rather a refutation of what he taught, since this article or its link is still posted on several Traditionalist sites. And because those defending Traditionalism still consider this article as the basis for what they believe, it must be condemned for the false teaching it promotes.

“There have always been a few people in the Traditional movement who vehemently oppose the New Mass and Vatican II, but who nevertheless condemn all (or most) traditional Catholic priests or chapels as “illicit” or “against canon law.” Typically, some layman with an axe to grind will get hold of an English paraphrase of the Code of Canon Law (the official text exists only in Latin), and, like a Protestant handling scripture, will treat his discovery as a handy source for ‘proof-texts’ he can use to dismiss everyone else in the traditional movement as ‘non-Catholic.’ He has no idea that, as with scripture, there are authoritative principles and rules which must be followed for applying the particulars of the Code. And as the would-be lay canon lawyer circulates his articles condemning everyone else for not adhering literally to the canons, it never occurs to him that his own project is equally “illicit” — for his writings do not bear the official Imprimatur required by Canon 1385… Is what we do really against canon law…? Sacrilege and doctrinal error abound. It hardly seems reasonable that the thousands of rules intended for ordinary times in the Church would all still apply in face of such an extraordinary situation.”

Well Cekada’s writings could never bear that imprimatur either, but this has already been addressed in a previous blog here. And as far as the Code existing only officially in Latin goes, it would scarcely have been worth the time of canonists such as Augustine, Woywod-Smith, Bouscaren-Ellis and others to translate it into “substandard,” unofficial working texts for seminarians, which is what he is really implying here. It would definitely not be to the Church’s credit to provide those just learning canon law, so important to their future as pastors, with incomplete material for their studies. And regarding “proof-texts,” Cekada’s own works are woefully lacking in these. As if the greats such as St. Thomas Aquinas, St. Robert Bellarmine, St. Alphonsus Liguori and others could have conveyed their teachings sufficiently and succinctly without devoting volumes and entire sets of volumes to present and defend Catholic truth.

Cekada also erroneously states that those who insist on strict adherence to Canon Law would even deprive Catholics of Baptism, since Baptism must always be performed solemnly by a priest and lay persons cannot licitly baptize except in danger of death. The laws he refers to, however, presume what Traditionalists always presume — that they possess valid Orders. This has never been proven and cannot be proven since it is not the case as papal teaching itself proves. Rev. John Bancroft, writing under the supervision of Rev. Francis J. Connell and Msgr. Joseph C. Fenton, published a work in 1943 entitled Communication in Religious Worship with non-Catholics.  Bancroft notes in his work that a Catholic “…sins gravely who asks for or receives a Sacrament from a minister who will administer it invalidly or with doubtful validity” (p. 92). Concerning Baptism, he writes:

“Lemkuhl says …that any faithful member of the Church, whether a man or a woman, provided the manner of baptizing is known to the person, is to be preferred altogether to any heretic, schismatic, even a priest. Cappello is equally definite, for he says that Catholic laymen are certainly to be preferred to heretics and schismatics, even clerics. As a basis for this opinion he cites a response of the Holy Office wherein it was stated that schismatic priests were not to be permitted to administer the Sacrament of Baptism except in a case of necessity when no Catholic at all was present. Merkelbach states expressly that baptism may be received from a non-Catholic minister only in extreme necessity and in the absence of a Catholic layman… It would be a grave sin per se to prefer an infidel, a heretic, a schismatic or a vitandus to a Catholic layman. Lemkuhl makes a priest of a non-Catholic sect equal to a vitandus for practical purposes so there will be the same morality in preferring him to a Catholic layman.”

So Cekada fallaciously argues beside the point here, therefore his argument cannot be taken seriously. He also states: “Catholics have a right to the sacraments. The human law of the Church (canon law) protects that fundamental right…” But again, this statement presumes two things: 1) That such Catholics have not committed material heresy or schism by attending the Novus Ordo or Traditionalist services, and therefore, being outside the Church, no longer have a right to receive the Sacraments, and 2) that the Church has determined what they are receiving really are indeed valid Sacraments. Cekada quotes Abp. Amleto Cicognani in support of epikeia in his article but errs when he classifies jurisdiction and the constitution of the Church, the laws that he as only human law. Yet Cicognani states in another place that Canon Law is not comprised only of human law, but also Divine law.

Human law or Divine-positive law?

“The new law is contained in Sacred Scripture and Tradition. It is a constituent source of Canon law in the strict sense. With respect to the public law of the Church it supplies those principles which determine the nature and hierarchy of the Church, the power of Saint Peter and his successors, along with the power of bishops namely the power of inspection or supervision” (Canon Law, pg. 67, under the heading “The Divine New Law as a Source of Canon Law”). S.B. Smith writes also, in his Elements of Ecclesiastical Law, (1887): “In Canon law there are many laws which pertain to the jus divinum, both natural and positive. These laws were neither enacted nor properly speaking approved of by the Supreme Pontiff but merely promulgated by him in a special manner” (p. 9). “The New Testament is the first and chief source of ecclesiastical law, both public and private. In fact questions pertaining to the public law of the Church, those for instance which refer to the foundation of the Church are all clearly demonstrated from the New Testament” (p. 13).

So why is Cekada stating otherwise? Here we clearly see the chicanery that is Traditionalism neatly summarized. Cekada then proceeds to dive headlong into the “reasonableness” of epikeia. He even dares to quote Abp. Cicognani as saying: “[Epikeia is] the art of all that is good and equitable.” This art, he says, “ought to consist in a correction of the strict letter of law that works an injury, or when a positive human law is not in harmony with the principles of natural justice, or again when it is in itself so deficient that what is legally right becomes morally wrong… In such cases the law must be expounded not according to its wording but according to the intent of the lawgiver and according to the principles of natural justice” (pgs. 13, 15 But here he takes Cicognani completely out of context, because in commenting on Can. 16 governing invalidating and disqualifying laws the archbishop writes:

“Invalidating and disqualifying laws are enacted for the public good or as an essential requisite for the validity of certain acts independently therefore of the will of those subject to them. These are laws which render acts invalid and persons disqualified to act with a view to the public good. Hence the validity of such acts and the juridic capacity of these persons can be restored only by law in no respect by the will of the agent. Epikeia has no place in invalidating laws, for the common good demands certitude concerning the validity of acts. Excepted is the case in which observance of the law would do harm to the community… Wherefore an act performed even in ignorance or error contrary to the prescriptions of an invalidating or disqualifying law (unless it be given as a penalty for an offence) is invalid, just as if a person performed the act with full knowledge. Hence the legislator decreed no ignorance of invalidating or disqualifying laws excuses from their observance” (ibid, Can. 16).

It should be noted that Rev. Lawrence Riley, in his dissertation on epikeia, agrees with Cicognani that epikeia cannot be applied to invalidating and disqualifying laws. One of the prime invalidating and disqualifying laws violated consistently by Traditionalists — and this has been pointed out repeatedly on this site – is Can. 147. Cekada even went so far as to mistranslate the Council of Trent anathema regarding this Canon to justify his position. No one can validly possess an office and obtain jurisdiction necessary for the apostolic mission a lawful pastor must possess unless such an office is received from the competent ecclesiastical authority. The Holy Office authentically interpreted this law, leveling special excommunications for its violation. This decision was entered into the Acta Apostolica Sedis. Pope Pius XII’s Vacantis Apostolicae Sedis (VAS) is an infallible invalidating and incapacitating law, nullifying episcopal orders conferred without the papal mandate as well as priestly Orders received during an interregnum.

As explained here, epikeia cannot be invoked when the rules laid out by Canon Law are not followed and the intent of the lawgiver is not shown to be that the law should not bind. But this is the case only when it is applied to human ecclesiastical law. It is NOT the case when an infallible, invalidating and disqualifying law governing the situation and clearly expressing the mind of the lawgiver already exists, especially when that law has been written precisely for this particular situation (an interregnum). Cekada summarizes his position as follows:

“• The goal of all law is to promote the common good.

“• Canon law falls under the heading of human law.

“• The common good the Church intends for canon law is ‘the worship of God and the supernatural sanctification of men.

“• A specific human law may be just in general but taken literally in circumstances unforeseen by the lawgiver may in fact contravene either natural justice or what the lawgiver intended.”

“• In such a case one may apply equity… [epikeia].”

Can Traditonalists possibly be serving the common good?

We have already demonstrated above that what Cekada attempted to presume — that canonical mission jurisdiction can be supplied by epikeia and bishops can run the Church without the pope — is not a matter of human law but is actually divine-positive law. What now must be exposed as false teaching is the presumption that the common good consists in providing those presenting as Catholics with the Latin Mass and doubtfully valid Sacraments.

In 1944, Rev. Alan McCoy O.F.M., J.C.L. wrote a dissertation, Force and Fear in Relation to Delictual Imputability and Penal Responsibility, (Catholic University of America). We have quoted this work before but not at any great length. Because this work contains the missing links to understanding how Traditionalists claim to function under the rule of Canon Law “necessity knows no law,” the following must be explained.

McCoy’s work was written to prove that force and fear do not excuse from those acts the Code considers intrinsically evil. He writes on page 91: “Intrinsically evil acts are distinguished from those acts which are extrinsically or merely positively evil acts. Their immoral character is so indelibly proper to them by their very nature that they cannot be made objectively good, not even by divine power. And therefore those causes which are admitted as exempting from merely positive laws… namely abrogation, dispensation, contrary custom, epikeia can never take away the objective immorality of such intrinsically evil acts.” He goes on to state that in such cases contumacy can be diminished as far as penalties go, but not removed. This is contrary to what Traditionalists claim.

But then on page 50 McCoy writes: “All authors admitted an exception to the fact that contumacy as far as it postulated the freedom of the will was commonly regarded as a necessary condition for all grave ecclesiastical penalties. When the observance of a law, even of a merely human law, was necessary for protecting the public good or when it’s violation led to the contempt of the faith, or of the law or of the ecclesiastical authority in such an instance the one who violated the law, even through fear of death, was not excused from the punishment attached to the law.” And this he applies to force and fear as well as necessity. It should be noted before reading his definition of necessity below that the natural means for fulfilling the law are provided by lay Baptism, the Perfect Act of Contrition and Spiritual Communion when the Sacraments are not available. There is no serious harm to the soul when these means are employed. Deprivation of the Sacraments may prove highly stressful and inconvenient but are far preferable to excommunication incurred by seeking out doubtfully valid Sacraments.

What is necessity?

This is covered in the second part of the article here under this tile, but below we will provide McCoy’s take on it.

McCoy says that “Absolute spiritual necessity is present when a law cannot be observed without the commission of a material sin. This is verified in a case wherein there is a conflict between a duty imposed by penal law and the command enjoined by legitimate authority. Absolute physical necessity is present when one lacks absolutely the strength or the natural means for fulfilling the law. Moral spiritual necessity is present when a determined penal law cannot be observed without serious harm to the soul of the agent or of another. Moral physical necessity is present when there is made necessary a choice between the violation of the law and the suffering of some great physical hardship or serious damage to natural goods such as health or fortune. Extreme necessity is that which places one in danger of life or some equivalent good in such a way that this cannot be avoided without transgressing the penal law or perhaps by some other very extraordinary means.”

Necessity is an actual rule governing all Canon Law. It states: “Necessity renders licit what is not licit in the law” (Rule 4). But this does not provide the wide scope that Traditionalists pretend it provides. It does not state that necessity makes valid what is invalid because this would be absurd. And as noted above, we are not talking liceity or human law here, but validity and Divine positive law. And please tell me what material sin any Catholic would be committing by refraining from attending the services of Traditionalists? As explained at length before, impossibility excuses in such cases, and certainly no Catholic could justify avoiding a material sin by committing communicatio in sacris, a very grave mortal sin; or the sin of receiving what they believe is Holy Communion without having ever been absolved of their sins, since Traditionalists do not possess the necessary jurisdiction to absolve them.

Contempt of faith and detriment to souls

As for what is perceived as the common good, McCoy writes on page 97, under the heading “Acts that Work to the Detriment of Souls”: “These are all acts which draw people away from the faith or from the practice of Christian morals and thus expose them to the danger of eternal damnation…Those acts which, by their nature, work to the detriment of souls are listed particularly in Titles XVI and XVII of the fifth book of the Code…bearing the headings: ‘Offenses Committed in the Administration or Reception of Orders or the Other Sacraments’ and ‘Offenses Against the Obligations Proper to the Clerical and Religious State.’” Among the offenses McCoy lists that work to the detriment of souls are: “…the administration of Sacraments to those who are forbidden to receive them…the consecration of a bishop without a papal mandate…the reception of Orders from unworthy prelates…the negligence of a pastor in the care of souls.” We have mentioned this before in recent blog post but they bear repeating.

McCoy comments further: “Acts involving contempt of the faith or of ecclesiastical authority and acts which work to the detriment of souls may seem superfluous since they are already by their very notion intrinsically evil… The following crimes that seem necessarily to involve this special contempt in their very concept are the crimes of apostasy, heresy or schism; spontaneous assistance in the propagation of heresy and communication in sacred rites with heretics; celebration of mixed marriages before a non-Catholic ministerthe usurpation of priestly functions” and a few others which do not apply to the current situation. This is what McCoy defines as acts that are related to contempt of faith. This contempt, he adds, is found also in the crime of “conspiracy against the authority of the Roman Pontiff and an appeal from the decrees of the Roman Pontiff to a universal council” which could also be seen as an appeal from the decrees of the Roman Pontiff to pseudo-bishops claiming to rule in his stead. McCoy notes that “Almost any delict can tend to the contempt of faith or of ecclesiastical authority if it is committed in certain aggravating circumstances.”

What has all of this been on the part of Traditionalists but a conspiracy against the Roman Pontiff? How can Traditionalist pseudo-clergy possibly escape charges of contempt of faith and legitimate ecclesiastical authority? And how can any of the above possibly constitute the common good when such acts are intrinsically evil?! Souls cannot be sanctified by those who cannot and do not possess valid orders and jurisdiction to sanctify them. The common good extends to far more than simply the worship of God, which is of no value unless it is pleasing to Him and is actually worship, not sacrilege. It is dependent on the Catholicity of those engaging in that worship, which is why contempt of faith and ecclesiastical authority are acts that cannot be  qualified as “good,” only “intrinsically evil,” for they are acts that exclude Catholics from membership in the Church.

And while Traditionalists following Trad pseudo-clergy may be able to claim mitigation of their censures, having acted out of fear or spiritual necessity — also as victims of spiritual fraud — their leaders certainly cannot claim to have acted out of force, fear or necessity. They had access to Church teaching in their “seminaries”; they keep telling everyone they are well-versed in Canon Law. But their actions and their written works tell a different story. For Cekada in his article demonstrates his disregard for the law, shared by all Traditional pseudo-clergy when he states: “It hardly seems reasonable that the thousands of rules intended for ordinary times in the Church would all still apply in face of such an extraordinary situation.” Forget the fact that Pope Pius XII infallibly teaches in VAS that they do so apply during an interregnum, and that the acts of those daring to violate them are null and void.

Especially those laws that involve detriment to souls and contempt of faith still very much stand; they are the very warp and woof of the truly faithful Catholic. IF WE FOLLOW POPE PIUS XII’S COMMANDS IN VAS, WHICH WE ARE BOUND TO DO IF WE WISH TO SAVE OUR SOULS, ALL CANON LAW MUST STAND, and anyone who tries to make it appear it does not stand accomplishes nothing; they are not to be believed. Cekada and all Traditionalists have no authority; they never became clerics, and were never approved by the Church as theologians, so they cannot compel anyone to believe them. They possess only a false authority without any substance, an authority dependent on numbers of adherents to make it appear as legitimate. But Pope Pius IX condemned the proposition that “Authority is nothing more than numbers and the sum of material strengths” in his Syllabus of Errors.

Traditionalism is founded on sand, and those who fail to honestly examine their claims as legitimate have only themselves to blame if they lose their souls. Let him who reads, then, fully understand.

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