Additum (6 apr 2013): Grüße zu deutschen Lesern! Tut mir leid. Ich kann nicht gutes Deutsch schreiben, aber ich habe auf diesen Artikel auf Englisch hier geantwortet. Herzlich! Dr. Peters.

It’s a very big Church and there are many issues competing for the pope’s attention. Let me address just that issue I know something about, namely, ecclesiastical law, and try to talk sensibly about it. I’ll leave to finer minds the task of situating legal concerns in the wider ecclesial context.

For starters, perhaps Fr. Lombardi was misquoted or taken out of context when he apparently said, “the pope’s decision [to wash the feet of women on Holy Thursday] was ‘absolutely licit’ for a rite that is not a church sacrament.” That remark is confusing because it implies that liceity is a concept that applies only to sacraments; but of course, liceity is an assessment of any action’s consistency with applicable law (canon, liturgical, sacramental, etc). One would never limit questions of Mass liceity to, say, the matter used for the Eucharist or the words of institution (that is, the sacrament at Mass) as if all other rubrics were merely optional. No one understands liceity so narrowly, and so, as I say, we are probably dealing with an incomplete answer.

In any case, I think some conclusions can be drawn about the foot-washing incident already.

1. If liturgical law permitted the washing of women’s feet at the Mass of the Lord’s Supper, no one would have noticed the pope’s doing it. What was newsworthy (apparently, massively newsworthy) is that, precisely because liturgical law does not authorize it, the pope’s performance of the action was huge news.

2. I and many others have long been open to revising the Mandatum rite so as to permit the washing of women’s feet although I understand that strong symbolic elements are in play and I might be under-appreciating arguments for the retention of the rite as promulgated by Rome. I take no position on that larger issue, it being ultimately a question for experts in other disciplines. My focus is on the law as issued by Rome (c. 838).



3. Few people seem able to articulate when a pope is bound by canon law (e.g., when canon law legislates matters of divine or natural law) and when he may ignore it (e.g., c. 378 § 1 on determining the suitability of candidates for the episcopate or appointing an excessive number of papal electors contrary to UDG 33). Those are not hard cases. Most Church laws, however, fall between these two poles and require careful thinking lest confusion for—nay, dissension among—the faithful arise. Exactly as happened here. Now, even in that discussion, the question is not usually whether the pope is bound to comply with the law (he probably is not so bound), but rather, how he can act contrary to the law without implying, especially for others who remain bound by the law but who might well find it equally inconvenient, that inconvenient laws may simply be ignored because, well, because the pope did it.

4. A pope’s ignoring of a law is not an abrogation of the law but, especially where his action reverberated around the world, it seems to render the law moot. For the sake of good order, then, the Mandatum rubrics should be modified to permit the washing of women’s feet or, perhaps upon the advice of Scriptural and theological experts, the symbolism of apostolic ministry asserted by some to be contained in the rite should be articulated and the rule reiterated. What is not good is to leave a crystal clear law on the books but show no intention of expecting anyone to follow it. That damages the effectiveness of law across the board.

Update: This post now available in French, here.

+++

Additum 1: There’s a good article on this matter over at the AP, but I must comment on one point.

NW quotes me: “If someone is washing the feet of any females … he is in violation of the Holy Thursday rubrics,” Peters wrote in a 2006 article that he reposted earlier this month on his blog. In the face of the pope doing that very thing, Peters and many conservative and traditionalist commentators have found themselves trying to put the best face on a situation they clearly don’t like yet can’t do much about lest they be openly voicing dissent with the pope. By Thursday evening, Peters was saying that Francis had merely “disregarded” the law – not violated it.

Distinguo. I stand by my 2006 assertion, but the context then did not remotely embrace popes (or Jesus Christ, for the matter). Now, if a pope acts contrary to certain canons he might well “violate” them, or he might “disregard” them, depending on which ones they are. I am trying for a distinction that preserves the unique status of popes in canon law, but not one readily expound-able in a blog. So I used both words carefully, but not in any way ‘back-tracking’ from my objections to this action.

Additum 2: Dr. Peters: What about the idea that the washing of the feet is permitted by custom?

Good question. Custom is, per the great canonist Alphonsus Van Hove (Belgian priest, 1872-1947) one of the most complex topics in canon law. If you’d like to see what goes into a canonical argument from custom, click here. Now, among many other things, to be effective custom must be observed for 30 continuous years (c. 26) while a reiteration of the law in question sets the custom clock back again (Huels, CLSA NEW COMM. at 92). Because this law has been repeated in successive editions of the liturgical books, 30 continuous years have not yet run (even assuming the other elements of custom can be proven). So much for that argument.

But I’ll go you one step further: might Francis have given tacit approval to this custom contra legem. Again, possible, and if so that would obviate the need for the 30 years to run (see Abbo-Hannan I: 55-56) but, one must be sure that that is what happened (namely, that the Legislator intended to abrogate the norm in question, and did not simply disregard it). Fatal for that argument, however, seems to be Fr. Lombardi’s comment that “the ritual of the washing of the feet on Holy Thursday evening in the Juvenile Detention Centre in Rome took place in a particular, small community” hardly language suggestive of a papal intent to revoke universal law.