The Authority of Legislation
Before examining the post-conciliar liturgical legislation, we must note that in Church, as in State, not all legislation carries the same degree of authority. If, for example, in the U.S.A. a law passed by a state legislature conflicted with the Constitution of the United States, then that law would have to be interpreted in the light of the Constitution and, where necessary, reconciled with it. Where ecclesiastical law is concerned, a constitution of a General Council holds the highest rank in the hierarchy of canonical sources. Only a pope or another council can abrogate it, obrogate it, or derogate from it. 6 Conciliar constitutions receive the specific approval of the Roman Pontiff and hence are equivalent to a Pontifical Law. However, all legislation which emanates from Vatican Congregations is approved by the Pope, but-----and this is a crucially important point-----very little of this legislation possesses the status of Pontifical Law. In most cases this approval is a mere formality. The various Roman Congregations promulgate so much legislation that the Pope could not possibly find the time to read through it all, let alone study it carefully. For this reason, even though all legislation of the Roman Congregations is approved by the pope, it must be considered as an act of the Congregation which issued it unless the Pope has made it clear that he wishes to make it a specifically papal act.
How do we know when the pope has decided to transform an act of a Roman Congregation into a pontifical act? 7 There are certain forms of words which are normally employed, e.g., ex certa scientia, from certain knowledge; ex plenitudine potestatis apostolicae, from the fullness of Apostolic power; motu proprio, by a special motion. But the Pope is not limited to any specific form of words, what matters is that he clearly wishes to attach the full weight of his authority to the legislation, making it a pontifical act rather than that of a particular Congregation.
There are two forms of pontifical confirmation of acts emanating from inferior organs of government. They are confirmatio in forma communi and confirmatio in forma specifica. In the first case, forma communi, the papal approval is no more than legal formality; the legislation remains legislation of the Congregation concerned and is not a Pontifical Law. This is a fact which has considerable legal significance. Suppose a Congregation promulgated legislation, approved by the pope in forma communi, which conflicted with an existing papal or conciliar law, or sought to introduce principles conflicting with such laws, what would the legal position be? In such a case the Congregation would be acting ultra vires, beyond the scope of its authority, and the existing law would retain its force. However, if papal approval is given to the new legislation in forma specifica, it must be presumed that the Pope has taken cognizance of the conflict between this legislation and the existing law, and that by making the new legislation his own, the former law has ceased to apply (it has been obrogated or derogated).
An obvious application of this principle is the position of the tabernacle. All the legislation which will be considered in this study was promulgated under the old Code of Canon Law, the [new] Code not having been promulgated until 1983. The old Code stated that the tabernacle should be placed in the center of the high altar (in media parte altaris posito) except in cathedral or conventual churches where the office is chanted in the sanctuary, when it should be placed on a side altar (see Canons 1268 and 1269). In such cases, Canon Law prescribed "the altar at which the Most Blessed Sacrament is kept must be more beautifully adorned than any other, so that by its very appointments, it may the more effectively move the faithful to piety and devotion". The ruling given in the Canon Law of the Church was reinforced on 3 September 1965, when Pope Paul VI published his Encyclical Mysterium Fidei, which was a papal act, and hence of superior status to any of the post-conciliar legislation. Pope Paul felt it his duty to write this encyclical because, before the Council had even ended, dangerous views concerning the Holy Eucharist were circulating, doing "great harm to belief in the Divine Eucharist and its worship". Pope Paul reminded the faithful of the entire world that: "Liturgical laws prescribe that the Blessed Sacrament be kept in churches with the greatest honor and in the most distinguished position". 8 The dangerous views condemned by Pope Paul VI had been evident even before the Council. In 1956 Pope Pius XII commanded that the prescriptions of Canons 1268 and 1269 were to be "most faithfully observed". He did so in an address to the International Congress on Pastoral Liturgy, 22 September 1956. In the same address he warned of those wishing to lessen the esteem for the presence of Christ in the tabernacle, particularly through removing the tabernacle from the altar where Mass is celebrated: "To separate tabernacle from altar is to separate two things which by their origin and nature should remain united".
6. For the meaning of these terms, see "The Legal Status of the Tridentine Mass", available from the Angelus Press, $2.00 postpaid.
7. By a "congregation" is meant the equivalent of a ministry in the British government, e.g., the Ministry of Health, the Foreign Ministry, the Ministry of Education. In the Vatican, we have the Congregation for the Clergy, the Congregation for the Sacraments and Divine Worship, the Congregation for Religious, the Congregation for the Doctrine of the Faith.
8. Unfortunately, the New Code, published in 1983, is less specific and is clearly a case of the law being modified to conform to its non-observance. The tabernacle is now rarely located in the most distinguished place in the church, and so the law has been changed to specify only a distinguished place. Canon 938 (2) states: "The tabernacle in which the Blessed Eucharist is reserved should be sited in a distinguished place in the church or oratory, a place which is conspicuous, suitably adorned, and conducive to prayer." However, as the sanctuary changes to which we are referring were made before the promulgation of the New Code it is irrelevant to the discussion. But, if we take the New Code into account, in how many churches today is the tabernacle in a distinguished place, which is suitably adorned, and conducive to prayer?