On the drive home from work, I tuned in to KEXS on Catholic Answers (yes, the Jimmy Akin crowd makes me mad, but I listen anyways sometimes. I should rather have been saying a Rosary I know). Anyways, the guest was Ed Peters, the canon lawyer who teaches at Cardinal Maida's and ;-) Bp. Gumbleton's seminary in Detroit. I heard some well-meaning clown call in (from Kansas City, no less) and try to discuss how the dispensation from or lessening of penalties in Canons 1323 and 1324 applied to the "Situation" with the SSPX bishops.
I found this rather interesting, because I've tried to engage Dr. Peters myself on this topic through one of his old blog posts, and I thought (perhaps vainly) that maybe my post a few weeks ago had given the local clown the idea of calling him. Anyways, all the local guy managed to do was give Peters an opportunity to spread more erroneous and incomplete information. Doesn't the caller know that you can never make your own point on a talk show—you can only be the foil so the host can make his?
The question was how to deal with, and validate or reject, the argument that the SSPX bishops weren't really excommunicated by their unauthorized consecrations via to the mitigation of Canon 1323 or 1324, and whether the foregoing Canons were a basis for invalidating the excommunications. The caller seemed to know what he was talking about and asked the question in the right way. He was just naïve to have tried to ask the question at all.
To begin with, after acknowledging that the caller was on track—at least in citing the right canons—Peters pointed out that the excommunications applied only to those who were in Orders in the SSPX, not the lay adherents. This is a misleading statement by Peters to begin with: only the bishops, not the priests, were declared to have excommunicated themselves. The priests are presumptively suspended because they are not incardinated into a diocese or a canonically regular institute. Suspension is bad, but it's not as bad as excommunication (there's a longer, much harder issue as to whether Abp. LeFebvre was validly suspended earlier for ordaining priests without due authority, and whether the SSPX had been properly suppressed, which I'm not getting into, because it's not one of the preliminary issues that the SSPX wants to have addressed).
Peters then attacked the SSPX's necessity argument by saying that John Paul II was personally involved in negotiations, and if JP-II was involved, well, there couldn't have been "necessity" (I know, it doesn't follow, but that was his position). In saying that (which has no foundation in Canon law) Peters completely glossed over the best argument put forth by the SSPX sympathizers rather than tackling it head-on: the argument that even if the bishops were in "culpable error" about the state of necessity, a penalty to be imposed is thereby lessened, and a latae sententiae penalty does not apply (Canon 1324). Instead Peters set the letter of the law aside and played the JP-II card as noted above—you can't claim necessity against a Pope's wishes (or, I guess, be culpably in error about necessity), and the Pope is always right.
Um, not necessarily, Dr. Peters. First of all, the Pope didn't excommunicate them—he didn't make a formal judgment himself; he observed that they excommunicated themselves. A Pope's pronouncements on faith and morals, under the proper conditions, are of course an infallible and irreformable exercise of the extraordinary magisterium (i.e., the teaching office of the church), but a Pope's observations of an event and the effects thereof (or even a Pope's exercise of his governing office of supreme judge or legislator, had he decreed an excommunication ferendae sententiae) is not graced by the guaranty of infallibility and is not irreformable. Such a Papal observation (or even such a Papal decree) can be revisited by the proper authorities (i.e., the next Pope) in light of a review of the facts. What Peters also seems to be suggesting is that whenever the Pope is involved, as opposed to a Bishop or a Bishop's conference (the latter doesn't have jurisdiction anyways) the one can disregard the Canon Law he promulgated—the Pope's words supercede. That's a rather tyrannical view of the Papacy. Indeed, a Pope is the supreme legislator in the Church and can change the law, or perhaps make a decree expressly notwithstanding the law, but barring those scenarios, the Pope would seem to have to operate within his own laws, particularly in penal matters such as this.
And also, Dr. Peters, we're dealing with penal, i.e., criminal matters here. Aren't criminal canons penalties in the church (much as, I'm told, criminal statutes and penalties in civil government) strictly construed in favor of the accused? If so, one can't simply gloss over, for instance, whether there was "culpable error" regarding the state of necessity or other parts of the letter of the law and focus on the "spirit of the law," as Peters seemed to do.
Of course, none of this came out in the call, because after Peters said his piece, and launched into a monologue about how the SSPX bishops would have to come, birettas-in-hand, and apologize and say they dun wrong, and validate the initial sentence, in order to have the excommunications lifted. The caller, if he had been so inclined to call Peters on his gloss over the "necessity" argument and his ignoring the "culpable error" argument, didn't have an opportunity to follow up; they were on to the next call.
And the moral of the story is, which many of you know, NEVER call a talk radio program, Catholic, secular, sports or whatever, and ever expect to make a meaningful point (unless it's the same point the host just made).
And as for the Catholic Answers crowd, well, once again we see them more interested in being vindicated (and perhaps protecting their own position on the right flank) than in contributing to the discussion of the SSPX situation in a way that might bring about the much-prayed for reconciliation.