This two-part comprehensive study of "Operational Survival" undertaken by Archbishop Marcel Lefebvre and Bishop Antonio Castro de Mayer was originally published in the July and September 1999 issues of SiSiNoNo.
We present a series of two studies—one theological and one canonical—regarding the "state of necessity" invoked by Archbishop Lefebvre to justify his consecration of four bishops on June 30, 1988. These remarks are for those who admit the existence of an extraordinary crisis in the Church, but do not know how to justify the extraordinary action of Archbishop Lefebvre on June 30, 1988 when, lacking permission from Pope John Paul II, he transmitted the powers of episcopal orders to members of the Society founded by him.
Archbishop Lefebvre justified his act by appealing to the state of necessity. The force of this excusing cause was not undervalued by Vatican authorities, who did not contest it on the doctrinal level, but responded with an argument of fact, namely, that there was not a state of necessity, knowing full well that, if it had been, the action of Archbishop Lefebvre would have been fully justified, even as much as it concerns the "no" of the pope, according to Catholic doctrine on the state of necessity.
The strength of the justification adduced by Archbishop Lefebvre escapes, on the contrary, most people through the simple fact that Catholic doctrine on the state of necessity is little known. We will try to explain it. The principles we will use are found in any traditional treatises regarding moral law or canon law. It is an absurdity to admit an extraordinary crisis in the Church and, at the same time, to pretend to measure what has been done in such extraordinary circumstances with the rule of norms valid in ordinary circumstances. It is contrary to logic and to the doctrine of the Church Law, in fact:
...ought to be established on the more ordinary conditions of social life and, in consequence, necessarily leaves out of consideration those things which occur only rarely" [emphasis added].
St. Thomas Aquinas reinforces this principle:
Universal laws…are established for the good of the whole. Therefore, in establishing them the legislator bears in mind that which happens ordinarily and in the greater number of the cases (Summa Theologica, II-II, Q. 147, A. 4)" [emphasis added].
Therefore, in cases "that happen rarely" and in which "one happens to have to act outside the ordinary laws," "it is necessary to judge on the basis of principles higher than the ordinary laws" (ST, II-II, Q. 51, A. 4). These "higher principles" are the "general principles of divine and even human law" (Suarez, De Legibus 1. VI c. VI n. 5) which supply for the silence of positive law.
The Church is authorized to apply said principles when, because of cases not foreseen by the law, it defers to the general principles of law and to the common and constant judgment of the Doctors, which, precisely because common and constant, must be considered canonized by the Church.
That having been set forth, we offer for the convenience of readers a summary of the arguments that we will treat here in succession.
1 Motu proprio of July 2, 1988.
2 Brisbois Apropos des lois purement penales in Nouvelle revue theologique, 65 (1938), p.1072
3 V. can. 20 of the Pian-Benedictine Code ["The 1917 Code of Canon Law is also called the Pian-Benedictine Code because it was compiled through the initiative of Pope Pius X and promulgated under Pope Benedict XI (Sept. 15, 1917)". The 1917 Code of Canon Law is a known for its conceptual and systematic vision (excerpted from ff 10 of the online article, The 1988 Consecrations: A Canonical Study, Part II)] and F. M. Cappello, S.J., Ius suppletorium in Summa iuris canonici, vol. I (Roma, 1961), p.79.