Forty Years of Novus Dis-Ordo

(But what about the Code of Canon Law of 1917?)

Brian McCall

(Posted 1/15/10
Anniversaries are a time for reflection. 2009 Marked the 40th anniversary of the revolutionary introduction of the Novus Ordo Missae by the command of Pope Paul VI, an act which has inflicted much damage, pain, scandal and confusion on the Church.  As a reflection on this anniversary we will consider a topic which, to my knowledge, has rarely been considered as a contributing factor to this unprecedented liturgical novelty, the imposition on the Church of the Codex Juris Canonici of 1917. 

My topic may surprise Traditionalists who tend to look back at the 1917 Code as a bastion of traditional discipline compared to the Code of 1983 promulgated by John Paul II.  The project leading to the adoption of the 1917 Code was initiated by Pope Pius X and it was adopted by Benedict XV, two Popes whom Traditionalists generally look back on with admiration. 

The prime mover behind the code, however, (the Bugnini of that time, one might say) was Cardinal Gasparri, a protégé of the known freemason Cardinal Rompollo. If the Novus Ordo Missae was, as Bugnini gloated, a conquest of the liturgical life of the Church, the 1917 Code holds a similar position with respect to Canon Law.  It was a victory of the Enlightenment Liberal view of law over the ancient legal Tradition of the Church. 

In this two-part article we will explore this conclusion. In this first part we will explore the Traditional understanding of law that dominated the Church and Society from the beginning of recorded history until the nineteenth century and contrast the principles underlying this understanding with the principles underlying a modern Code of law.  In Part II we will explore how this revolution in law relates to the revolution in liturgy that occurred a half century later. 

The 1917 Code did contain substantive provisions which retained many traditional ideas and rules.  The issue we will consider is rather the idea of a Code of law itself. To understand the revolutionary nature of the imposition of the Codex Juris Cononici in lieu of the Corpus Juris Canonici, we need to go back and summarize the Traditional Catholic principles of law abandoned, or at least seriously compromised, by this novel act. 

Unlike modern liberal conceptions of law dominated by floods of detailed legislative and administrative texts, the Traditional understanding of law is much richer.  Gatian, the 12th century father of Canon Law, began his great textbook on Canon Law by defining law with the following general summary: “The human race is ruled by two things, namely, Natural Law and long-standing custom.”  Law is comprised of two pillars, the precepts established by God which can be known by the use of right reason (Natural Law) and time honored customary norms. Notice what is missing from this definition: statue, ordinances—the very life blood of modern Liberal legal code-based systems. 

The omission is not due to Gratian’s ignorance of such legal forms of rules.  Just a few pages later he lists statutes and ordinances within a more detailed list of specific types of laws or leges.  Yet, these ordinances are circumscribed and thus limited by the two opening categories of law, Natural Law and custom.  The Traditional understanding of the role of statutes was that they merely confirmed in writing what was already known either by the use of right reason or the observance of long standing customs.  Legislators did not see themselves as making laws de novo but rather of discovering, clarifying and recording with precision the contents of laws which pre-existed in the Natural Law or long standing custom.  The traditional role of a legislator was jus dicere or “to speak the law.”  Such a phrase implies the role is one of making known—or speaking—the law rather than creating it. 

Isidore explains in a passage quoted by Gratian: “It does not matter whether it [custom] is confirmed by writing [i.e., a statute] or by reason [i.e., Natural Law], since reason also supports ordinance.  Furthermore if ordinance is determined by reason, then ordinance will be all that reason has already confirmed.”  Statutes are a part of a system founded on Natural Law and customary norms. Its legitimacy is dependent upon them. Gratian comments after this passage that “in part, custom has been collected in writing and, in part, it has been preserved only in the usages of its followers. What is put in writing is called enactment or law, while what is not collected in writing is called by the general term custom.”

When the ancient Romans produced their first written laws in the mid fifth century B.C., the Law of the Twelve Tables, these statutes were not seen as newly created laws but merely a written record of the ancient Roman customs that had been in use for years.  It was written down so that it could be better known and so as to reduce disputes about its contents.  This characteristic was common to all the great written legal products up to the nineteenth century. 

The concept of a newly devised Code purporting to embody all of the law of a society being promulgated and imposed upon a society was unprecedented before the Enlightenment.  Although sometimes called “codes,” the Traditional projects are more accurately described as compilations.  Thus, the great Corpus Juris Civilis of the Emperor Justinian in the sixth Century A.D. was not a new Code of law (in the sense of the 1917 Code) written by politicians and bureaucrats  and imposed on the Christian Empire.  It was a collection of the Imperial and Senatorial enactments and the opinions and interpretations of well known Roman jurists compiled by scholars from the mass of these documents and collated into a single set of books.   The law books promulgated by Justinian did not “change” the law but merely presented the laws in an organized way – a record of the pre-existing longstanding and organically developed legal system. 

Gratian did the same thing for the law of the Church. His Decretum is a collection of constitutions of Ecumenical and local Councils and Synods, juridical decisions of Popes, commentaries by Father’s of the Church and writings of philosophers and theologians—all arranged topically and interspersed with introductions, interpretations and commentaries by Gratian. This monumental compilation, together with various supplements containing subsequent additional decisions and constitutions, was studied by jurists and used by canon lawyers as the living corpus of all of Ecclesiastical Law from the 12th century until 1917. 

Although I have provided only a limited description of the Civil Law of Justinian and the Canon Law of Gratian, we should be able to see that it is a much more flexible, living, organic, nuanced and varied form of legal system than a modern Code.  Gratian and the scholars working for Justinian did not create the law out of thin air based on pure disembodied reason.  They respected law as a living system developing through the application of right reason and customary norms to new situations and circumstances and through the slow, almost imperceptible, growth and development of customs.  They approached law with a humility unknown to modern Code drafters. Law was a treasure preserved yet perfected slightly by each generation.  Since law involved the working out in detail of such complex penumbras as equity, goodness, rightness and justice, no single person, or even group of persons, in a particular place and time should dare claim to compose the entire corpus of law.  To do so would seem the height of hubris to the classical and Traditional minded jurists for over two millennia. 

One way to see the stark difference in approach between Traditional legal systems and modern ones (such as the Code of Canon Law) is to look at the relationship between authority and time. In the modern liberal system, authority is linked to novelty.  The newer the law, the more authority it carries.  Thus, the 1983 Code of Canon Law has greater authority over provisions in the 1917 Code because it has been enacted more recently. 

The Traditional understanding of law was just the opposite.  The older a particular law or legal norm could be demonstrated to be, the greater authority attributed to it. Customs which existed “since the memory of man runneth not to the contrary” were seen as much more reliable, and thus authoritative, than newer and novel norms.  Opinions of ancient thinkers, jurists, philosophers, popes and saints that had stood the test of time were more authoritative than something dreamed up yesterday.  Again the ancient attitude is filled with humility and acceptance of human failing. 

Getting justice and equity right is difficult; it is worked out through painstaking analysis and trial and error.  It is thus arrogant to think that one can rewrite an entire legal system in one book.  If one were to have suggested to the great civil and church jurists of the past—Gratian, Accursius, Hostiensis or Bulgarus—that the great edifice of legal sources and customary laws organically built up over the centuries should be discarded and replaced with a newly drafted Code drawn up by committee, they would likely have burst into laughter at the preposterous nature of such an idea. 

The Traditional and modern understanding of law has important implications for the understanding of the exercise of authority.  Traditionally, those who govern a society (be it the Pope or Emperor) may have possessed plenary authority to make (or more accurately change) particular laws, yet their exercise of that authority was constrained.  Distinctions 11 and 12 of Gratian’s Decretum are filled with exhortations of Church Fathers and Popes that long standing customs which are not opposed to the Faith must be preserved and respected.  Representative is the statement of Pope Nicholas I included by Gratian in this section: “It is ridiculous and abominable disgrace that…we suffer the traditions we have received from the fathers of ancient times to be infringed at will.”  Gratian also includes a quotation from St. Jerome that ancient traditions and customs “which have been handed down from previous generations” “that do not offend the faith” “are to be observed.” 

The respect for ancient customs that restrained a ruler also required a respect for local variety.  In the same passage, St. Jerome confirms that customs (again that do not offend against the faith) are “not to be overturned” just because differing customs exist in different locations.  Thus, a lawmaker not only had to respect norms and customs existing over time but also varying across locations. 

Laws can be changed when existing customs are wicked.  Thus, Gratian quotes Isidore as saying “let ordinance and reason vanquish bad usages.”  Thus, although customs could be overturned by an act of a sovereign, this was only to be done when the custom was found to violate reason (Natural Law) or the Faith.  The plenary legislative power of a ruler (Pope or Prince) was in one sense unlimited.  It could be exercised to vanquish anything contrary to Natural Law or Faith.  “The will of the Prince [a term that would include the Pope] has the force of law” was a common legal aphorism loved by the Gregorian Reformers to demonstrate that the supreme legislative authority existed in the Papal office. 

Yet, this complete power was prevented from being used tyrannically.  The Prince was to use this power only within the framework of that which ruled the whole human race, Natural Law and custom.  To use the plenary power otherwise was immoral and unjust tyranny.  The following conclusion of Lucas of Penna is typical:  “It is obvious that when the will of the prince deviates from equity, justice or reason it is not law.”  The power to make laws was limited to equity, justice and reason – the key principles of Natural Law.  As we have seen, justice and reason also demanded respect for customary and local practices and norms.

Thus, law had been, from the time of the Law of the Twelve Tables until the modern era, a great, organic mosaic of authorities interrelated and entangled over time and space. 

In the official title of Gratian’s Decretum it was a Concordance of Discordant canons (or norms).  Law was Natural Law and custom, trimmed, supplemented and pruned by legislative acts that took their place in a living custom.  In the temporal sphere this idea of law was rejected by the liberal Enlightenment thinkers and forcibly overturned by the armies of the French Revolution (especially Napoleon).  Finally the modern positivist concept of law conquered the Church in 1917 and paved the way for the Novus Ordo Missae.  This part of the story, however, will be unfurled in part II.

Part II

In Part I of this article we sketched the Traditional Catholic understanding of law and authority.  All law has its origin either in Natural Law (which has been created by God) or longstanding Custom (which has been established by the usages of Men).  The end of law, or its purpose, is to bring about equity, justice and goodness. 

Authorities such as the Pope or a secular ruler have plenary authority to make statutes (particular laws) to clarify, sanction and make more particular the principles of Natural Law and Custom.  Yet, even if his will makes these laws, a ruler’s will must flow from these two fonts of law.  A prince who legislates outside of this legal hierarchy becomes a tyrant. Customs can be overturned by statute but such an extraordinary act is reserved for the suppression of bad customs, those contrary to the Natural or Divine Law.  Rulers and authorities are thus the guardians of a slowly and organically developing human law which has its origin in Natural Law and historical Customs. 

Cicero succinctly summarized this idea of law in this way:

Justice is a habit of the mind which attributes its proper dignity to everything, preserving a due regard to the general welfare. Its first principles proceed from nature. Subsequently some practices became established by universal custom, from a consideration of their utility; afterwards the fear of the laws and religion sanctioned proceedings which originated in nature, and had been approved of by custom.[1]

This ancient, traditional understanding of law began to be torn from its moorings in the Enlightenment. Two tendencies combined to undermine this noble concept of law. First, the rationalists of the Enlightenment, the sons of Descartes, viewed the system of law as irrational.  It developed gradually over time by the accretions and pruning of generations.  It paid great respect to local variety and custom which was consistent with the universal principles of Natural Law. 

The rationalists argued that the slate needed to be wiped clean like the tabula rosa they falsely claimed we were born bearing.  They detested the local, regional and provincial variety tolerated by customary law. Contravention of Natural Law, or being a bad custom, was too difficult a standard to justify the eradication of what they viewed to be a confusing web of laws.  They wanted to rationalize law as they did all disciplines of human thought.  They wanted it to become a purely speculative product of pure, unaided human reason (and by this they obviously meant their own reason). 

The second force was the rise of several monarchs and rulers who developed a very un-Catholic understanding of authority.  The so-called absolute monarchs, beginning with the Tudors of England, wanted to centralize all authority in a national government, or more precisely themselves.  “L’etat est moi” was the motto of Louis XIV of France. The absolutists wanted an unconstrained central power before whom all peoples and laws must bend.  Local customs and privileges which had emerged gradually like ivy climbing up the side of a house stood in their way.  Local and varied customs defied the all-encompassing power they desired.  The Natural Law stood in their way.  Natural Law stood as a limit on the will of the prince to become force of law. 

The absolutists saw in the dream of the rationalists to sweep the law clean and remake it an opportunity to remake law and the idea of authority to their liking.  The combination of these tendencies produced the legal positivism of John Austin and later Jeremy Bentham. Law was whatever the sovereign posited as law notwithstanding long standing customs or principles of natural justice.  The will of the prince, freed from its ancient constraints, was to be the whole law. 

The embodiment of this Frankenstein creation of ideas was the Code.  In the dream of the rationalists it was to be a comprehensive, rational creation embodying all the laws of the realm.  It would be enacted by the sovereign and would replace, repeal and supersede all prior laws, ordinances and customs. This revolutionary idea percolated throughout the seventeenth and eighteenth centuries but literally needed a revolution to project it from idea to reality.  That revolution came in the form of the French Revolution. 

When the French Revolution swept away the aspirants to absolute monarchy it merely replaced one power grab for another. The will of the monarch became the General Will of Jean-Jacques Rousseau and Robespierre.  Yet, the revolution needed force of arms to sweep the rationalist Code into reality.  Napoleon provided the gunpowder.

This megalomaniac saw the immense power of wiping clean the slate and remaking all law by his own authority.  A committee was formed to write the Napoleonic Code. The democratically elected dictator apparently took time out from his conquests to take an active part in their novel work of making law. Napoleon then imposed his Code on the continent as he conquered it. 

The defeat of Napoleon did not spell the defeat of the Code. At varying times throughout the nineteenth century, vast areas of continental Europe replaced the positivistic Napoleon Code with one of their own (often drawing heavily from the Napoleonic provisions).  France, Germany, Spain, Austria and several regions of Italy chose to adopt Codes of their own rather than restore the older legal order to its rightful place.  The largest exception throughout the nineteenth century was the Church.  (The second largest was England but this is another story).  The Church which had led the development of law and legal procedure for centuries retained her corpus juris canonici as a corpus, an intricate, nuanced, living body of law rooted in Natural and Divine Law and longstanding custom.

Yet, the Church who had been the model for virtuous jurisprudence for a millennia did an about-face as the twentieth century dawned.  Rather than the secular realm imitating the jurisprudence of the Church, the Church decided to imitate, or accommodate herself, to the secular world.  If Codes were the new thing, the Church needed to get with the times. 

Cardinal Gaspari was appointed head of a committee that was to study the history of the corpus juris canonici with the purpose of composing a codex juris canonici, a Code of Canon Law.  Written by committee it was imposed on the Church by the will of the prince, Pope Benedict XV.  With this single act the enormous, intricate tree of ecclesiastical jurisprudence that had been growing up over centuries, with Gratian at its roots, was cut down and replaced by a product of a single committee of a particular time and place. 

In fairness, the provisions of the Code of 1917 were fairly conservative and compromises were added that paid a nod to the validity of custom which to the extent not inconsistent with the Code was allowed to remain in force. Still the revolutionary axe had been laid to the root.  Custom, tradition, Natural Law were replaced by the work of a committee and imposed by the will of the Sovereign Pontiff. 

The utter futility of the project was evident, as with all Codes, to those with eyes to see.  Law is meant to be a living organism, developing, growing and being pruned over time in light of new climates and conditions.  As with all the European secular Codes, this rationalist work that was meant once and for all to definitively fix all the laws of the Church was revised and supplanted by yet a new definitive Code—the Code of Canon Law of 1983.  As could have easily been predicted, this later creation incorporated more liberal ideology and language than its ill-begotten parent. 

I would think by this point the parallels in this story to the revolution in the liturgy should be evident.  The liturgy, like law, had always been seen as something ancient, organic and developing over time.  It was a fusion of long standing customs and practices and perennial truths and principles.  It had its great heroes of the past, Leo the Great, Gregory the Great, Pius V. Yet, just as the corpus juris canonici could not be claimed as the work of one man or one committee or one age of history, so too the Liturgy had no single author or generation as its creator.  St. Pius V did not create a Liturgy but merely sanctioned and clarified what had developed thus far as the Roman Rite, leaving untouched all other Rites which could show a usage of at least two hundred years.   

Just as law was seen as disorderly, too varied, and overgrown by the Enlightenment Liberals, the same charges were leveled by the Liturgical Liberals against the Liturgy.  It needed to be purged, purified, rationalized and modernized.  It then needed to be imposed on the Church.  The liturgical slate had to be wiped clean.  A committee was formed; this time Bugnini was its protagonist, Gaspari having gone to his eternal judgment.  A committee presumed to do what had been considered presumptuous– compose the Liturgy. They had a precedent.  Gaspari had presumed to do the presumptuous– cast aside Custom and Natural Law and compose a code of law. 

Like the Code of 1917, the claimed definitive New Order of Mass produced by the Committee had to be revised and is still being revised with a more liberal version.  The 1965 Rite gave way to the 1969 which is still in the process of revision. This house made by Men of a particular time is without perennial foundations. The process of creating and imposing the Code of Canon Law was a trial run for the Liturgical Revolution.

Rather than calling Men back to ancient Custom and Eternal Principles, the Liturgical Revolutionaries accommodated the Liturgy of the Church to the world (as its Law had been accommodated to the Spirit of the Age).  Bugnini & Co. produced in the words of the Holy Father, as Cardinal Ratzinger, a “banal on the spot Liturgy”.  In 1917 the Church stopped being the model for the world as to Law and adopted the Code style of the world; in 1969 the Church surrendered her Liturgy to the same spirit. 

To achieve both revolutions, a new understanding of authority needed to be promoted.  It is one in which the Pope is unconstrained by Custom and eternal principles.  He is the master of the Church, the sovereign prince, and can impose a new Code of Law or a New Ordo of Mass at will.  Even Pope Paul VI exhibited discomfort with this novel autocratic accretion to the office of the Vicar of Christ on Earth.  He could not bring himself to clearly supplant the ancient customary Liturgy of the Church with the fabricated new one. 

In his Apostolic Constitution promulgating the New Mass he merely “wished” that it would be accepted, and, as Benedict XVI has now confirmed, never abrogated the ancient Liturgy.  Yet, like the nod to Custom in the 1917 Code, the bureaucrats acted like the organic Liturgy had been cut at the root and de facto suppressed the Liturgy claiming obedience to this novel form of unrestrained autocracy. De facto, the Mass was treated as abrogated just as Gratian de facto virtually disappeared from the study of canon law – out with the Traditional, in with the Novel. 

I am not arguing that the promulgation of the Code of 1917 was the sole cause of the Liturgical Revolution. There were many modernist and revolutionary tendencies circulating in the Church that contributed to this event.  These facts have been documented and analyzed elsewhere.  I do find the similarities in approach and philosophy between the two events strikingly similar.  If not a cause and effect, I believe both are arms of the same destructive hydra squeezing out much of the gains of history from the body of the Church. 

Understanding what once was and what happened to the grand and rich Catholic theory of Law will not only help us argue for the promotion of the Traditional and customary Roman Rite but help us to appreciate what makes that Rite so great.  It is drawn from the same wellspring of philosophy – it is a product of the same world view as fed and nourished Catholic legal thought for the entire life of the Church up until the last century.  Justice equity, goodness, perennial and universal principles, custom, variety, organic development, restrained authority – all of these once described, and hopefully once again will describe, Catholic Law and Catholic Liturgy. 

[1] Cicero De Inventione 2.53.160 etc.