What a good defense attorney could argue in favor of the SSPX
In my previous article I employed a provocative principle I learned while studying Canon Law: “Even the devil deserves a defense.” It is, certainly, a metaphorical way of enshrining the right to defense. The judgments of the Lord need no lawyer: iudicia Domini vera, iustificata in semetipsa (Ps 18:10). The devil, moreover, has already been judged and sentenced.
I then tried to show that the complexity of the case of the Priestly Fraternity of Saint Pius X leads to a genuine objective perplexity: there are serious reasons on both sides. And it is precisely that perplexity that makes it possible to defend its fundamental positions.
Surprisingly, some understood that I was comparing the SSPX to the devil. The question is irrelevant. A good lawyer does not care whether his client is the devil incarnate or chaste Susanna. His task is to determine whether there are grounds for an acquittal, to exclude a charge, to reduce a penalty, or to prevent the accused from being convicted of crimes other than those he has actually committed. In this sense, we need not worry about resembling the devil’s advocate if by doing so we can acquit Saint Susanna or, at least, an innocent person or, in the worst case, adjust the penalties to the particular circumstances.
That is the reason for this article: it is a matter of asking what a good defense attorney could allege after seriously studying the case file. For not a few Catholics seem to consider that the Fraternity has no right to defend itself or that, even if that right is theoretically granted, its arguments do not merit serious examination. It has been assigned, in the media, the role of the bogeyman: rebellious, schismatic, heretical, sectarian. Frequently, moreover, propositions are condemned that the SSPX does not hold or that appear only in unfortunate expressions of some of its members.
The principal accusation
The gravest accusation holds that consecrating bishops against the express will of the Pope constitutes not merely a disciplinary infraction, but an attack on the divine constitution of the Church. Among the principal defenders of this thesis are Fr. Louis-Marie de Blignières, the collective study directed by Fr. Josef Bisig, the Theologus group, and Fr. Hilaire Vernier.
The defense would begin by acknowledging what is indisputable. The primacy of jurisdiction of the Roman Pontiff is of divine law. No bishop may claim for himself, on his own initiative, a diocese, a canonical mission, subjects, or ordinary jurisdiction. Episcopal consecration does not confer the right to govern a portion of the Church apart from the Pope. In ordinary circumstances, consecrating against his express prohibition constitutes a most grave disobedience.
But the accusation needs to prove something more to sustain its thesis: that an episcopal consecration against the pontifical will is, by its very object, intrinsically evil in every conceivable circumstance.
That step has not been definitively established.
Let us grant that the power of order, the canonical mission, and the actual exercise of jurisdiction are intimately related, but that does not imply that they are identical realities. Indeed, a bishop receives in consecration the fullness of the sacrament of order; the disputed question is precisely whether he receives jurisdiction by that very act and, therefore, whether every consecration performed without a pontifical mandate necessarily entails a usurpation of the power proper to the Pope.
The SSPX can allege that its bishops were consecrated to ordain priests, confirm the faithful, and ensure the continuity of a priestly work, without territories, dioceses, or any declared intention of replacing the Roman Pontiff. One may debate whether this limitation has been maintained coherently in all its actions. What cannot be done is simply to identify the transmission of the episcopal order with the formal constitution of a parallel Church.
An extreme hypothesis suffices to show the difficulty. If only one Catholic bishop remained, gravely ill, and a wicked Pope forbade him to consecrate successors with the intention of extinguishing the episcopate, that bishop would clearly have to consecrate bishops. He would not thereby deny the primacy nor arrogate to himself pontifical power: he would prevent an evil mandate from destroying the good for whose service authority exists.
This hypothesis does not prove that Archbishop Lefebvre found himself in an equivalent situation. It demonstrates that it is not established that every consecration against a pontifical mandate is intrinsically evil in any imaginable circumstance.
If, after all, doubts remain on this point, it would be desirable for the Church to pronounce clearly on the question, either in one sense or the other. The faithful need clarity. As long as the Church does not pronounce definitively to the contrary, the SSPX has at its disposal, on this point, a strong theological defense against the accusation of schism.
If the Church were to define that such an act is intrinsically evil, that definition would resolve the question, but it would not permit attributing bad faith retrospectively to those who acted when the matter remained open and who believed they could distinguish between the transmission of the episcopal order and the attribution of jurisdiction. It could be affirmed that they were objectively mistaken; not that they necessarily acted with schismatic malice by relying on a distinction that had not yet been definitively excluded.
The possibility of a state of necessity
The state of necessity is a category recognized in moral theology and expressly relevant in canonical penal law. It does not mean that authority disappears, that the subject acquires his own sovereignty, or that any danger permits the use of any remedy. It means that extraordinary circumstances may arise in which the material application of a norm harms the very good for whose protection it was established.
In moral theology we also speak of epikeia, which attends to the intention of the legislator when an extraordinary case escapes the common foresight of the law. Moreover, in morals we can speak of gnome, which permits judging according to higher principles when ordinary rules are insufficient to resolve prudently an exceptional situation. Neither of these virtues grants a general license to disobey, but both prevent reducing obedience to the mechanical application of a disposition, prescinding from its purpose and from the consequences of the concrete case.
It is generally understood that, for true necessity to exist, there must concur a grave and present danger, the affecting of essential goods, the insufficiency of ordinary means, and the proportionality of the remedy. Such a situation could, in fact, arise without compromising the indefectibility of the Church, even on a general and deeply rooted plane, as may seem currently to upright persons.
Furthermore, Canon Law contemplates not only objective necessity, but also the penal relevance of putative necessity. One who in good faith believed himself to be in an extraordinary situation may not have the same imputability as one who acted out of contempt for authority. This is not a sentimental excuse or a concession to subjectivism: it leads, in accordance with canons 1323 and 1324, to a different consideration of the penalty.
The necessity in 1988
In 1988 what was at stake was not only the juridical survival of a congregation founded by Archbishop Lefebvre. The practical preservation of a liturgy, a priestly discipline, a doctrinal formation, and a spirituality that had nourished the Latin Church for centuries was threatened. This alone could be considered sufficient to demonstrate the affecting of essential goods.
The near disappearance of the traditional Roman rite was not a fantasy. For years it was persecuted or practically prohibited in numerous dioceses. Added to this were the crisis of the priesthood and of religious life, liturgical abuses, the destruction of altars, the generalized contempt for preceding tradition, and a doctrinal confusion reaching matters of enormous importance. It is not necessary to share all of Archbishop Lefebvre’s judgments on the Council to recognize that he contemplated a true, grave, and extraordinary crisis.
He could also reasonably doubt the guarantees offered. His seminary had been suppressed by a questionable procedure; he had suffered sanctions, failed negotiations, and changes of position; he was eighty-two years old and did not know how much time he had left to live. The protocol of May 5, 1988 seemed to offer a way out, but the date and the concrete conditions of the future episcopal consecration remained without satisfactory assurance.
The accusation may respond that Rome had admitted the principle of granting a bishop and that Archbishop Lefebvre should have waited. It may also ask why he consecrated four and whether there existed less injurious measures for ecclesial order. These are objections that must be judged, not magic phrases that close the process.
The decisive question is whether the crisis concretely justified the measure adopted. The answer is not evident. But there are sufficient elements to maintain that a prudent person could consider the Roman promises insecure and fear that, after the death of Archbishop Lefebvre, the real possibility of guaranteeing bishops for the traditional work would disappear.
Therefore, objective necessity is defensible, even if it may be debatable. Putative necessity is still more difficult to deny. Archbishop Lefebvre may have been mistaken about the proportionality of the remedy; it cannot be seriously affirmed that he invented the danger or that he necessarily acted with the intention of founding a separate Church.
The current situation
The new consecrations cannot be defended by an automatic repetition of the arguments of 1988. The situation has changed, but not to the point that a state of necessity has become impossible.
There exist canonically recognized traditional institutes and the physical survival of the Roman rite no longer depends exclusively on the SSPX. It is also true that the continuity of a particular institution cannot be identified without more with the preservation of the Church. A community does not acquire the right to consecrate bishops merely because it needs to ensure its own functioning.
But it would be equally superficial to conclude that the problem has disappeared. Fidelity to Tradition cannot be understood as a privilege granted to a few, but as a principle of ecclesial healing that affects the common good of the entire Church. Precisely for this reason, any solution that limits itself to tolerating isolated spaces of fidelity without addressing the general causes of the crisis is insufficient. As long as doctrinal, liturgical, and pastoral damages are not effectively addressed, the essential goods of ecclesial life remain objectively compromised, even if communities exist that attempt to preserve them. This does not imply affirming that the SSPX is the sole depository of sound doctrine, nor that the Church has failed in its mission, nor that outside her there exists no true faith; it means only that the global situation of the Church may continue to generate, in conscience, the perception of a necessity not fully resolved.
Moreover, it is not enough to respond that other communities exist if these are not present in their regions, lack sufficient priests, or cannot freely develop their apostolate. The possible abandonment of those faithful constitutes a real pastoral good, not a mere corporate interest of the Fraternity.
To this is added the prolonged failure of negotiations. The SSPX can allege that Rome has repeatedly conditioned regularization on the acceptance of conciliar formulations, interpretations, or prudential decisions that do not possess a dogmatic character. If unity is made to depend on unconditional adherence to everything that can legitimately be discussed, the obstacle does not proceed solely from Menzingen. There may also exist a Roman entrenchment that confuses the necessary profession of faith with the acceptance of debatable theological and pastoral positions.
None of this automatically proves the necessity of new consecrations. It does suffice to make their defense possible.
Disobedience, schism, and sanctions
Not every disobedience constitutes schism. Schism requires the rejection of subjection to the Roman Pontiff or of communion with those who are subject to him. One may disobey a concrete mandate—whether justly or unjustly—without denying the authority of the one who issues it.
The SSPX recognizes the Pope, publicly prays for him, has recourse to the Holy See, participates in doctrinal negotiations, does not elect an alternative pontiff, and declares that it does not confer ordinary jurisdiction on its bishops. These facts do not resolve all objections, but they prevent treating it simply as a formally separated Church. At the very least, they should oblige those concerned to give the matter a few more turns.
Naturally, recognition of the Pope cannot be reduced to a nominal formula. An unlimited and permanent resistance would end by emptying it of content. But neither can every disobedience be transformed into a rejection of the primacy without examining its object and its motivation.
The disciplinary sanctions imposed on the SSPX have been openly discussed by canonists and theologians and have weakened the prestige of the Dicastery for the Doctrine of the Faith. The excommunications did not by themselves resolve the doctrinal, moral, and juridical questions that were under discussion. Nor did they dispense from studying necessity, putative necessity, and personal imputability.
The manner in which the new excommunications have been declared, ambiguously extending their consequences to priests and faithful who did not participate in the consecrations, has increased the confusion. If one intends to punish a crime, the act, its author, the norm infringed, personal imputability, and the juridical effects must be identified with rigor. A disciplinary declaration cannot replace this analysis by means of generalizations.
A good lawyer would recall that, even supposing the consecrations objectively illicit, bad faith cannot be presumed in those who were convinced they were acting to preserve essential goods of the Church. And that leads to a different consideration of the penalty according to the Code of Canon Law itself.
Much less can guilt be extended indiscriminately. A priest who did not participate in the consecrations, who sincerely recognizes the primacy, and who remains in the Fraternity for reasons of conscience cannot be judged the same as one who expressly denies all effective authority to the Pope. Neither can formal adherence to schism be presumed in any faithful person who attends a chapel seeking the traditional Mass and sacramental assistance that he does not find elsewhere.
Supplied jurisdiction
The general principle is simple: in certain circumstances the Church supplies the power that is lacking in order to protect the good of the faithful and the validity of certain acts. That supply does not automatically grant an ordinary canonical mission nor convert the SSPX into a parallel hierarchy. But neither can its application to the acts of its priests be discarded in principle.
The difficulty consists in determining whether there can exist a prolonged situation of necessity that repeatedly produces concrete cases in which the Church supplies. The SSPX does not need to maintain that it possesses a universal and permanent jurisdiction. It suffices for it to defend that, before determined faithful and in determined circumstances, the juridical conditions may concur that make the supply necessary or probable.
Common error, positive and probable doubt, the concrete situation of the faithful, and the faculties granted by authority itself must be examined in each matter. In confessions, the pontifical concessions have notably strengthened the position of the Fraternity. In marriages, delegation, possible supply, or the extraordinary form will have to be considered. Their validity cannot be proclaimed universally without examination; neither can their nullity be presumed universally.
The tribunals of the SSPX present a greater difficulty, because stable judicial power is not easily identified with supply for a particular act. Nevertheless, the action of those tribunals must be situated in their context: many faithful consider that they cannot obtain a judgment according to law in the ordinary structures, which becomes evident when those same structures have difficulties recognizing as valid the acts of the SSPX.
The defense can then allege that it is not a matter of erecting an ordinary and sovereign judicial power, but of providing an extraordinary response to faithful who find themselves without an instance that judges their situation from the presuppositions they consider in conformity with tradition. The concrete application of the supply will continue to be debatable; but the mere absence of an ordinary jurisdiction does not suffice to demonstrate that all those acts are necessarily invalid usurpations.
The current disorder is aggravated by Roman praxis. Sacramental faculties are granted to priests who are simultaneously described by ambiguous canonical categories; certain effects of their acts are recognized while their status is doubted; and excommunications are declared without sufficiently explaining their incidence on faculties previously granted. This praxis leaves priests and faithful in a shameful canonical insecurity.
A good lawyer would therefore insist that the accusation cannot refute supply in the abstract and declare all the acts of the SSPX invalid in a block.
An inadmissible summary condemnation
After examining the principal charges, the panorama is far from the summary condemnation usually presented.
It has not been definitively demonstrated that every episcopal consecration against a pontifical mandate is intrinsically evil in any circumstance. The theological and canonical possibility of a state of necessity is indisputable. In 1988 there were facts sufficiently grave to sustain a debatable objective necessity and, with even greater force, a putative necessity prudently appreciated. In the current situation serious reasons persist: the assistance of numerous faithful, the precariousness of regular solutions, the persistence of the crisis, and the impossibility of reaching agreements while Rome intends to impose as a condition what belongs to the realm of legitimate discussion.
Neither has a formal will of schism been demonstrated simply from disobedience. The sanctions do not eliminate the need to study personal imputability and, by the manner in which they have been declared, raise new juridical difficulties. Supplied jurisdiction does not justify indiscriminately all the actions of the SSPX, but it can operate with probability in numerous concrete cases; the accusation cannot discard it globally without responding to the invoked foundations.
The conclusion must be clear: the SSPX possesses a strong theological, moral, and canonical defense. Not all its arguments attain the same degree of certainty, but they are more than sufficient to demand a true judgment and not an accumulation of disciplinary decrees. Where objective necessity can be debated, putative necessity remains; where full licitness is not proved, bad faith can still be excluded; where an infraction exists, intention and imputability must be determined personally in accordance with Canon Law itself.
A complete examination of the case should culminate in a clear pronouncement on the questions that remain open: the relationship between episcopal consecration and jurisdiction, the concrete possibility of a state of necessity, the relevance of putative necessity, the scope of supply, and the personal responsibility of those who did not participate in the sanctioned acts. The faithful need clarity on that which is precisely under discussion.
If the Church subjected the case of the SSPX to a truly just judgment, it could correct it on some points. But it would also have to recognize the force of several of its defenses and acquit it of accusations that have not been sufficiently demonstrated, especially those that present it as a formally schismatic sect or as a practical denial of the Church.
Until then, a good lawyer would ask that the arguments of the SSPX be heard with the same seriousness as those of the accusation, that there be a public response to each of them, and that, where the proof does not attain certainty, that principle be applied without which justice runs the risk of becoming propaganda:
In dubio, pro reo.
Note: Articles published as Tribuna express the opinion of their authors and do not necessarily represent the editorial line of Infovaticana, which offers this space as a forum for reflection and dialogue.