http://www.remnantnewspaper.com/Archives/2013-0531-c-jackson-sspx-confessions-part-2.htmAre the SSPX Confessions Valid?
A Response Father Z and Jeff Mirus Chris Jackson POSTED: 6/3/13
REMNANT COLUMNIST
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On May 16th Fr. John Zuhlsdorf (Fr. Z) wrote a commentary on his popular blog site, expressing objections to my previous article on the validity of SSPX confessions. Then, on May 27th, Dr. Jeff Mirus penned a rather authoritative and dire sounding pronouncement on the matter entitled, “Warning: An SSPX Priest Is Incapable of Absolving You from Sin.” Ironically, a news story appeared on Dr. Mirus’ website the same day with the following headline, “Don't set barriers to the sacraments, Pope warns faithful.” I believe careful readers will find that the objections raised by both Fr. Z and Dr. Mirus are actually already answered in my first article, albeit in a general manner. However, considering the complexity and popularity of this issue, I thought it would be useful to provide more detailed responses and explanations. I will also respond briefly to an additional objection I have seen posited since my first article was published.
First, let me start by reiterating that I do not attend an SSPX Chapel. However, after studying the issue at length, I am of the opinion that Society confessions are valid through supplied jurisdiction. This means that the Church provides the necessary power of governance for each individual absolution through canon law. I believe that every Catholic is free to hold this opinion since the Church has not made an official binding determination applying canon law to the specific circuмstances of the SSPX’s case. Until this occurs, it is beyond the authority of any individual Catholic to declare, through his or her own interpretation of canon law, that the Church has definitively settled the matter in favor of invalidity. In doing so, one would be attempting to bind the consciences of fellow Catholics to one’s own opinion. However convinced one is of an opinion, it is still a private opinion, and not the opinion of the Church. This remains true even if this opinion is pronounced repeatedly in dogmatic fashion on certain Catholic websites.
I will now attempt to address the previously mentioned objections. Out of convenience, I have chosen to paraphrase some of the arguments while quoting others directly. The quoted arguments will contain the requisite quotation marks.
ObjectionsObjection: Both Fr. Z and Dr. Mirus argue that, per canon 966, faculties to exercise the power of orders are necessary for the valid absolution of sins.
A priest can be given this faculty either by the law itself, or by a concession issued by competent authority, defined by canon 969 such as the local ordinary. To date, no competent authority has given SSPX priests faculties to hear confessions. Furthermore, the words “by the law itself” in canon 966 refer to a case of danger of death. In this case any priest can validly absolve sins. Therefore, since SSPX priests do not have faculties, these priests can only validly absolve sins in danger of death.
Response: As I pointed out in my first article, it is clear that validly ordained priests need jurisdiction, or faculties, in order to validly absolve sins. It is also clear that SSPX priests have not received faculties from their local ordinary. Therefore, the only means by which SSPX priests can receive faculties under canon law is, “by the law itself.” While it is true that “the law itself” grants faculties to a priest is when a penitent is in danger of death (canon 976), this is by no means the only situation. This is easily confirmed by consulting canon 144, which states:
Section 1: In factual or legal common error and in positive and probable doubt of law or of fact, the Church supplies executive power of governance for both the external and internal forum.
Section 2: The same norm is applied to the faculties mentioned in canons 882, 883, 966, and 1111, §1. [emphasis added]
Thus, the Church may supply the executive power of governance (jurisdiction) to make a confession valid, not only in danger of death, but also in cases of factual or legal common error and in positive or probable doubt of law or fact. This is made clear by section 2 of canon 144, which explicitly applies these conditions to canon 966; the canon that uses the phrase “by the law itself.”
Objection: Fr. Z states, “The article in The Remnant is mostly another “Ecclesia supplet” argument which Jimmy Akin, among others, has handily proven faulty in these circuмstances. HERE”
Response: Since SSPX priests have no ordinary jurisdiction; every canonical argument for the validity of their absolutions must necessarily be an “Ecclesia supplet” (supplied jurisdiction) argument. However, since supplied jurisdiction is a well-established law of the Church, no argument based on this law can be considered dubious for this reason alone.
As for Mr. James Akin’s analysis of common error, Catholic apologist Mr. John Salza has done a very good job of pointing out its problems in this 2009 article. Mr. Salza points out that Mr. Akin frames the question of common error too narrowly. The correct question is whether there are factual circuмstances present in a typical Society Chapel that could lead a community of Catholics to believe the priest validly absolves. Instead, Mr. Akin asks the very specific question of whether a community of Catholics would believe that the local bishop granted faculties to SSPX priests to hear confessions.
Mr. Akin’s framing of the question assumes that an average community of Catholics knows what jurisdiction is, knows the necessity of jurisdiction for confessional validity, knows what ordinary jurisdiction and faculties are, has heard of the SSPX, knows the precise canonical status of the SSPX, and knows which chapels are SSPX chapels. Mr. Akin then reasons that, since this highly educated community of Catholics would never think that a bishop has granted SSPX priests faculties, common error can never exist for SSPX priests. Mr. Akin then goes even further by saying there is not even the possibility of doubt in this situation. Therefore, he concludes that there is no supplied jurisdiction and no validity for SSPX confessions.
It is indeed questionable whether the narrow way Mr. Akin frames the question assumes a realistic understanding of a community of Catholics in 2013. Most Catholics today do not understand basic Church teaching, much less intricate canonical requirements for the validity of sacraments.[1] Also a large percentage of Catholics have little to no familiarity with the SSPX. Thus, Mr. Akin seems to assume an unreasonably high level of knowledge and canonical sophistication for his “community of Catholics” standard. Also, Mr. Akin’s analysis serves to invalidate confessions of Catholics made in genuine ignorance of the SSPX priest’s status; more on that later.
In contrast, Mr. Salza points out the more reasonably framed question in interpreting canon 144 below:
If a fact could induce Catholics to believe that a priest has faculties, the Church supplies jurisdiction under Canon 144 on the grounds of factual common error. Would a community of average Catholics be induced to believe that a priest has faculties if they saw that priest celebrating Mass and hearing confessions in a Catholic chapel? Particularly when the chapel is in the public square, advertises its Mass times, has hundreds of congregants and all the other indicia of a Catholic parish? (Remember, the community doesn’t have to actually believe it; only that they could be induced to believe it.) I believe the answer to this question is “Yes.”[2]
Objection: Fr. Z states, “The author of the Remnant piece decries that Rome has made no public official pronouncement on the matter. Therefore their confessions MUST be valid. On the other hand, Rome has made an official pronouncement on the matter – it’s called the Code of Canon Law and it was issued in 1983.”
Response: If it is true that Rome has made no public and binding decision on whether SSPX confessions are valid for forty years and counting, that fact would serve as circuмstantial evidence tending towards the validity of these confessions. Otherwise, if SSPX confessions are not valid, one would have to explain why the Church has failed to clearly warn the faithful of a real danger to their eternal salvation for over four decades in a public, binding, and definitive manner.
The Code of Canon Law, in and of itself, is not a clear, public, binding, and definitive decision of Rome on the validity of Society confessions. The Code of Canon Law is simply a book of laws. It decides no particular case or controversy by itself. In order for the Church to issue a binding decision on the validity of SSPX confessions, the competent Church authority would have to publicly issue a decision that applies canon law to the specific factual circuмstances surrounding the SSPX. Fr. Z and Mr. Akin have made their own analyses and decisions in this case that are in no way self-evident from the canons themselves.
Therefore, these decisions are not authoritative and are in no way binding on the faithful.
Objection: Fr. Z states, “The Remnant writer claims that canon 144 allows an SSPX priest to deem his own absolutions to be valid ‘due to legal common error’. However, canon 144 is not for the individual priest to interpret. The legal error must be on the part of the one confessing.”
Response: As I put forward in my last article, it is widely accepted today that an interpretive error suffices to meet the requirements of common error.[3][4][5] This means that the Church will supply jurisdiction when there are factual circuмstances surrounding the confession that would lead people to believe the priest had faculties to absolve in that particular case. Thus, the key question in these cases is not whether certain penitents actually are in error, but whether a factual situation exists where people could be induced to believe the priest can validly absolve.
If the priest can think of good reasons why people might believe he has authority to absolve (he is in a confessional in a Catholic chapel), but also sees good reasons why they might not, this is called a positive and probable doubt of law (a doubt of the application of canon 144, section 1, to his case) and thus canon 144, section 2, would supply jurisdiction for validity.
If the concept of “interpretive error” sounds suspect, this is a normal reaction. This method of legal interpretation can often seem counter-intuitive. However, rest assured that the concept of interpretive error has been an established and accepted school of canonical interpretation since at least the first half of the twentieth century. This is evidenced by the words of Fr. John C. Ford, S.J.
For those not familiar with Fr. Ford, he earned his Doctorate in Sacred Theology (S.T.D.) in 1937 at the age of 34 from the Pontifical Gregorian University in Rome where he later became a professor. However, he is best known for his key role in the encyclical Humanae Vitae. Mr. John MacGreevy, author of Catholicism and American Freedom: A History, explains Ford’s impact on this encyclical:
On the papal birth control commission...which overwhelmingly recommended a change in official church teaching, Ford’s voice became perhaps the most powerful dissenting voice. (The conservative moral theologian Father Francis Connell, worried about the makeup of the commission, lauded Ford as a “staunch defender of truth.”) Even after nine of the twelve bishops and fifteen of the nineteen theologians on the commission voted for a change in church teaching, Ford helped draft (and distribute) an unofficial minority report that challenged the majority recommendation for change. When another Jesuit, Richard McCormick, Ford’s successor as an editor at Theological Studies, expressed the view that Gaudium et Spes left open the possibility of a change in church teaching on contraception, Ford retorted, “I do not consider it theologically legitimate or even decent and honest, to contradict a doctrine and then disguise the contradiction under the rubric: growth and evolution.”[6]
In 1940, the same Fr. Ford reviewed a doctoral dissertation on supplied jurisdiction for the journal Theological Studies at Weston College. When the author of this dissertation attempted to argue that the concept of “interpretive error” was not credible enough to be used in the positive and probable doubt analysis of then canon 209 (canon 144 in the New Code), Fr. Ford responded:
...his conclusion that the interpretive theory lacks all probability and hence cannot even claim the benefit of the second half of the canon does not commend itself to the present writer. Apart from the argumentation which seems not to be flawless, it is a very bold assertion to say that an opinion which has been taught publicly in Rome for about thirty years, not in one university but in many, by some of the greatest modern canonists the Church has had, consultors to the Roman Congregations and of the Commission for Interpreting the Code, and which moreover has been taught by some of them not merely as a tenuously probable theory but as the only practical doctrine to follow,—it is a very bold thing to say that such an opinion is so devoid of probability that one is not justified in using the second part of canon 209 and putting it into practice.
Objection: Fr. Z states, “If I go to St. Ipsidipsy in Tall Tree Circle and confess my horrible black sins to a validly ordained priest in the confessional, but I am unaware that that priest’s faculties were suspended that very day, my sins would probably be forgiven. I would be in error about the facts through no fault of my own.”
Response: In this hypothetical, I would agree that the absolution would be valid both under interpretive common error (canon 144) and the right of the faithful to request sacraments from censured priests (canon 1335). However, it appears that if one were working under Fr. Z’s own previous canonical analysis, one has no apparent rationale under canon law on which to say this hypothetical person’s absolution was valid.
Recall that previously Fr. Z stated that, per canon 966, a priest must have faculties to absolve from a competent authority, such as his bishop. Fr. Z also stated that when this canon says a priest can be granted faculties “by the law itself” in is referring to a case of danger of death. Since this hypothetical priest has no faculties from a competent authority, and the penitent is not in danger of death, it is difficult to see how the absolution is valid under Fr. Z’s own interpretation of the canons. For Fr. Z to get to the conclusion of validity in this case, he must use an Ecclesia supplet (supplied jurisdiction) argument.
If Fr. Z admits that the Church supplies faculties to this suspended priest due to the right of the faithful to request the sacraments from him under canon 1335, he must also admit that Society priests validly absolve under this canon as well. On the other hand, if Fr. Z justifies validity in this hypothetical under common error of law or fact and adopts Mr. Akin’s view of common error, this creates another problem for him.
Suppose an ordinary Catholic, Mr. Smith, needs to go to confession while on a business trip and comes across “St. John Roman Catholic Church.” Unaware that this is an SSPX chapel, he enters and sees a line for confession in front of a confessional box. He goes to confession and receives absolution. Is his absolution valid? Under Mr. Akin’s analysis, common error apparently does not apply to Mr. Smith’s situation. As Mr. Akin tells us:
...it does not appear that a common error exists on this point since it is implausible on its face that a local ordinary in communion with the pope would grant faculties to an SSPX priest. This means that a reasonable and prudent person would not give his assent to the idea that the local ordinary has done so, and thus there does not appear to be a common error.[7]
One may object that, in this case, Mr. Smith didn’t know he was in an SSPX Chapel. The problem is that under Mr. Akin’s analysis, this fact doesn’t matter. The standard is not what Mr. Smith knows or believes, but what a hypothetical community of “reasonable and prudent” persons would be expected to know and believe. According to Mr. Akin, a reasonable and prudent person should both be able to recognize this as an SSPX Chapel and know that it is implausible to think a local bishop would have given this priest jurisdiction. Thus, poor Mr. Smith, unreasonable and imprudent fellow that he is, is out of luck under Mr. Akin’s analysis. Mr. Smith would also experience the same unfortunate result under this analysis if he did happen to see that the Chapel was run by priests of the SSPX before his confession, but was not familiar with the SSPX and assumed they were a canonically regular order of priests.
Thus, in order for Mr. Akin and Fr. Z to save Mr. Smith from being ignorantly bound in mortal sin, they would have to reduce their standard for what factual circuмstances are able to induce a hypothetical community of reasonable Catholics to believe SSPX priests can absolve. The problem is that if they do this, and agree that a priest sitting in a confessional in a Catholic church is enough to trigger common error, then the Church supplies jurisdiction for each confession heard at that church and not just for Mr. Smith. For there is no provision in canon law that I am aware of, that supplies jurisdiction for confession solely on the basis that an individual penitent was unaware that the priest he was confessing to did not have faculties. The only canon that comes close is the one we’ve discussed, canon 144 (common error and positive or probable doubt).
Objection: Fr. Z states, “The author of the Remnant piece makes a false distinction about the accommodation the Catholic Church grants to the Orthodox. He effectively argues ‘if THEIR absolutions are valid, then why aren’t OURS?!’ That does not hold water. If the SSPX are truly not schismatic, and if they are “merely” disobedient sons of Holy Church, then they should be held to a higher standard than the accommodation extended to the schismatic Orthodox.”
Response: As I stated in my original article, the SSPX never claims to use canon 844 to demonstrate the validity of its confessions. The validity of Society confessions relies on arguments primarily from canons 144 and 1335.[8]
What canon 844 does clearly demonstrate is the mind of the legislator in interpreting provisions of the 1983 Code. Clearly, by allowing Catholic faithful to receive absolution from non-Catholic ministers in circuмstances beyond “danger of death”, the Church is intending to broaden the access of sacraments to the faithful and attempting to limit the jurisdiction issue as an impediment to validity. Another example of this is the 1983 Code making “common error of law” an explicit part of canon 144, when it was previously only a theory of interpretation.
Even beyond the Code itself, we have a very recent admission from Bishop Juan Ignacio Arrieta, secretary of the Pontifical Council for Legislative Texts, as to the mind of the 1983 Code’s drafters. A May 17 news article from CNS states:
The current code was drafted in the 1970s, Bishop Arrieta said, "a period that was a bit naive" in regard to the need for a detailed description of offenses, procedures for investigating them and penalties to impose on the guilty. It reflected a feeling that "we are all good," he said, and that "penalties should be applied rarely."[9]
Considering this liberal spirit of the drafters, it stands to reason that the faithful should be able to ask absolution of SSPX priests, who are in a less severe canonical state than the Orthodox, under the same or more expansive circuмstances. In fact, canon 1335 does just this by allowing the faithful to ask certain censured Catholic priests for absolution “for any just reason.”
The argument that the SSPX, as Catholic priests who are canonically irregular, should be held to a higher standard for sacramental validity than the schismatic Orthodox misses the point of canon law. Again, the supreme law of the Church is the salvation of souls. It is the faithful who will be held to a higher standard under this argument. They are the ones who will have to bear the burden of unforgiven mortal sin resulting from invalid Society confessions.
As I’ve previously stated, the method the Church uses to discipline priests in these situations involve separate canons than those related to the validity of their absolutions. These separate canons deal with the licitness of SSPX priests hearing confessions without permission and unlawfully creating situations of common error.
Objection: Dr. Mirus refers to an apostolic letter, “Ecclesiaie Unitatem” which Pope Benedict wrote on July 2, 2009 to restructure the Commission “Ecclesia Dei.” In paragraph four, the Pope gives some background on recent developments regarding the SSPX. That paragraph states in relevant part, “...the doctrinal questions obviously remain and until they are clarified the Society has no canonical status in the Church and its ministers cannot legitimately exercise any ministry.”[10]
Dr. Mirus argues that this statement, “renders illicit all the ministries of SSPX bishops and priests, but it also renders some things, including absolution, invalid. When a sacrament is celebrated invalidly, it simply does not take effect. What this means is that SSPX bishops and priests lack the sheer ability to absolve from sin—except in danger of death...”
Response: It is interesting to note that this statement from Pope Benedict did not originate in “Ecclesiaie Unitatem.” It was first expressed four months earlier in a letter Pope Benedict wrote to the bishops of the Church concerning his remission of the excommunication of the four SSPX bishops.[11] In that letter the Pope stated:
In order to make this clear once again: until the doctrinal questions are clarified, the Society has no canonical status in the Church, and its ministers – even though they have been freed of the ecclesiastical penalty – do not legitimately exercise any ministry in the Church.
This letter from Pope Benedict was written, in large part, to clear up confusion as to the status of the SSPX in the Church after the remission of the excommunications of their four bishops. Many Catholics at the time started to come under the impression that the Society had been regularized by this act. In this letter, the Pope makes clear that although the four Society bishops are no longer excommunicated, SSPX priests still lack a canonical status in the Church. In other words they are canonically irregular, though inside the Church.
Unfortunately, these Papal statements have been taken out of context by many in the Catholic media. Certain apologists have used them to create the impression that the Pope was making a new punitive judgment against the Society. This impression is false. The most obvious reason it is false is that the proper channel for a Pope to make a new canonical judgment against the Society is not a letter to the bishops or a letter revising the structure of a commission. Those who believe that this letter imposed some new and harsher status on the Society should be asked what canonical status they believed the SSPX had before 2009. In reality, nothing has changed.
The fact that SSPX priests do not have a canonical status in the Church and therefore do not exercise a legitimate (licit) ministry in the Church simply means they do not have ordinary jurisdiction to absolve sins. This fact has already been recognized repeatedly by none other than the Society itself. Furthermore, all arguments I have seen in favor of the validity of Society confessions start by acknowledging this very fact. However, this lack of a canonical status does not mean that SSPX absolutions are per se invalid. This is obvious as both Orthodox priests and excommunicated clerics, neither of whom have a canonical status in the Church, can validly absolve in certain circuмstances under canon law.
Dr. Mirus erroneously assumes that if a priest or bishop does not have licit orders, then that priest or bishop can never receive jurisdiction from the law itself (supplied jurisdiction) except in danger of death. Thus, Dr. Mirus’ analysis works completely in the realm of ordinary jurisdiction, and he misses the point of all arguments in favor of validity. The pertinent issue is not whether Society priests have been granted jurisdiction from their local ordinary, but whether canon law directly provides Society priests jurisdiction in certain circuмstances. Dr. Mirus, like Fr. Z, actually concedes that the law provides jurisdiction to Society priests in one such circuмstance: danger of death. However, Dr. Mirus nowhere addresses the other similar canons which also provide such jurisdiction.
It is also interesting to note that under Dr. Mirus’ analysis if a penitent is unaware that he is confessing to a Society priest, or is unaware that Society priests do not have ordinary jurisdiction, that penitent’s sins are apparently still retained. As Dr. Mirus warns, if you confess your sins to an SSPX priest and you are not in danger of death:
...it will sound like you are being absolved, and you may think you are being absolved, but in fact the Sacrament of Penance will not “happen”. This invalidity is exactly like a layman donning vestments to say Mass. Things may look and sound the same, but the ritual will be empty of effect.[12]
Objection: The following objection was not made by Fr. Z or Dr. Mirus, but has been proposed by others in favor of the invalidity of Society confessions. It points out that the Council of Trent in Session XIV, Chapter VII states:
Wherefore, since the nature of a judgment requires that sentence be imposed only on subjects, the Church of God has always maintained and this council confirms it as most true, that the absolution which a priest pronounces upon one over whom he has neither ordinary nor delegated jurisdiction ought to be invalid.[13]
Doesn’t this mean that unless a priest has either ordinary jurisdiction or jurisdiction delegated directly from an ordinary, that priest cannot validly absolve sins?
Response: No. As we have seen, and as both the 1917 Code and the 1983 Code attest, jurisdiction can be delegated either by the ordinary or by the law itself. Clear evidence that the Council Fathers recognized this is located later in Chapter VII where it is stated that any priest whatsoever can absolve penitents from sins and censures normally reserved to the Holy See in danger of death. Obviously, jurisdiction in these cases was delegated by the law itself (the Council).
It is important to note that Chapter VII of Trent which contains this quote is not included under the doctrinal section of the session. This is because, although the Church has always held that a priest needs jurisdiction to validly absolve, by which means the Church delegates that jurisdiction is a matter of discipline, and thus subject to change. The Church currently delegates jurisdiction through Her canon law as expressed in Her most recent code of 1983. This code allows for the delegation of jurisdiction from the law itself under certain conditions (supplied jurisdiction).
Notes:
[1]
http://spectator.org/archives/2013/05/23/catholic-culture-in-america “...among the 19% of the 1,442 self-identified Catholics whom it surveyed, who regard themselves as ‘highly committed’ to the Church, strikingly high percentages believe it is possible to be a good Catholic without attending Mass every Sunday (49%); without following Church doctrine on birth control (60%), divorce and remarriage (46%), and abortion (31%); without being married in the Church (48%); and without giving time or money to help the poor (39%)”
[2]
http://scripturecatholic.xanga.com/703979099/10-do-sspx-priests-have-jurisdiction-to-hear-confessions/[3] Pugliese, in Palazzini’s Dictionary of Moral Theology, 1962, article Jurisdiction, Supplied: the Church supplies jurisdiction in a case of common error. Cited by Fr. Ramon Angles, SSPX in his canonical study, “The Validity of Confessions and Marriages
in the chapels of the Society of St. Pius X” found at
http://www.ireland.sspx.net/miscellaneous/validity%20confessions%20&%20marriages/code/2.htm. Fr. Angles also cites many more examples of Canon Law commentary confirming this concept in his study.
[4] Lombardía, Código de Derecho Canónico, 1983. Cited by Fr. Angles at
http://www.ireland.sspx.net/miscellaneous/validity%20confessions%20&%20marriages/code/2.htm[5] New Commentary on the Code of Canon Law, edited by John P. Beal, James A. Coriden and Thomas Joseph Green, Published 2000 by Paulist Press, p. 193.
[6] MacGreevy, John T., Catholicism and American freedom: a history, p. 245
[7]
http://jimmyakin.com/2005/02/sspx_confession.html[8] As an aside, it is interesting that I have not been able to find any counterarguments for the validity of SSPX confessions under canon 1335. This canon allows a censured priest to validly absolve when a Catholic asks him to hear his confession for “any just cause.”
[9]http://www.catholicnews.com/data/stories/cns/1302205.htm
[10]http://www.vatican.va/holy_father/benedict_xvi/apost_letters/docuмents/hf_ben-xvi_apl_20090702_ecclesiae-unitatem_en.html
[11]http://www.vatican.va/holy_father/benedict_xvi/letters/2009/docuмents/hf_ben-xvi_let_20090310_remissione-scomunica_en.html
[12]
https://www.catholicculture.org/commentary/otc.cfm?id=1080[13]
http://www.ewtn.com/library/COUNCILS/TRENT14.HTM#3
Topic: Remnant Responds to Fr. Z and Jeff Mirus on Validity of SSPX Confessions (Read 1524 times)