Forty Years in the Desert

When God saw the evil in men’s hearts, he cleansed the world with a deluge of Forty Days and Nights, destroying every living thing on earth, except, of course, those who were on board the Ark.

Following their captivity in Egypt, the Chosen Ones of God, the Hebrew People, wandered in the desert for Forty Years until their deliverance into the Holy Land.

Jesus, as he began his public ministry, set out into the desert for Forty Days and Forty Nights and was tempted by Satan.

There is, as any scripture enthusiast knows, a recurrence of the number “40” throughout both the Old and New Testaments, and it is usually connected somehow to a “tempering” or “cleansing” of those chosen by God. It is a little disconcerting then to find ourselves in our own “Liturgical Desert” for nearly 40 years, wondering if there is also something in store for us at the end of our journey.

In 2009, we will “celebrate” (bemoan perhaps?) 40 years of the Missal of Paul VI, and a little less enthusiastically, 40 years of some of the more obvious liturgical blunders that came about as a result, or at least began occurring at the same time. These include such widely discussed “reforms” as the almost exclusive use of versus populum, although it was presented as an option, and arguably not the primary option, the near elimination of the Latin language from the liturgy, although this too was not specified in any documents coming from either Vatican II or the new Missal, and the introduction of secular or heavily secular influenced music in to the liturgy, which had begun a few years before and only increased as any music in Latin became anathema. There are many other examples of “reforms” that were not really reforms at all, but merely changes put in place either through personal initiative arising from an agenda or through ignorance of actual regulations and reforms that were intended. These issues have plagued us for nearly 40 years now, and some have been addressed and debated from time to time, but yet they remain a part of the modern liturgy as well as the focal point of contention between the two identifiable views on the liturgy which we usually refer to as “Orthodox” and “Progressive”.

As of this time, it has been 37 years and 6 months since the Missal of Paul VI was promulgated in December of 1969. While this date is certainly not the date on which all of these “reforms” started, it is a date which can be pointed to as the turning point for the change over from “Old” to “New” liturgy, even though it is demonstrable that many elements of reform had begun some time before, or began at some time later. But a date is needed to point to as the date of the beginning. Because, while there is a scriptural significance to the number 40, there is also another more relevant significance when talking about liturgical reform.


Changes to the liturgy are, according to canon law, specifically the jurisdiction of the local Ordinary (Bishop) in accordance with the Holy See. As such, only those changes which are originally enacted by the Holy See can actually constitute legitimate law in the Church. (if I am technically misquoting something here, please let me know if you are knowledgeable in this area. I think I have it right from research I have done!). Actions outside of, or in addition to legitimate law in the Church are generally treated as custom as long as they do not violate Divine Law, in which case they are rejected as an abuse. Most of the “reforms” I referred to above would fall into the category of custom, since they cannot really be said to be morally repugnant or contrary to Divine Law, and it would follow that canon law would treat many such reforms as customs at this point. The following provisions of Canon Law are important and interesting to consider. I have highlighted specific points that I believe are important:

“The true efficient cause of an ecclesiastical custom, in as far as it constitutes law, is solely the consent of the competent legislating authority. All church laws imply spiritual jurisdiction, which resides in the hierarchy alone, and, consequently, the faithful have no legislative power, either by Divine right or canonical statute. Therefore, the express or tacit consent of the church authority is necessary to give a custom the force of an ecclesiastical law. This consent is denominated legal when, by general statute and antecedently, reasonable customs receive approbation. Ecclesiastical custom differs, therefore, radically from civil custom. For, though both arise from a certain conspiration and accord between the people and the lawgivers, yet in the Church the entire juridical force of the custom is to be obtained from the consent of the hierarchy while in the civil state, the people themselves are one of the real sources of the legal force of custom. Custom, as a fact, must proceed from the community, or at least from the action of the greater number constituting the community. These actions must be free, uniform, frequent, and public, and performed with the intention of imposing an obligation. The usage, of which there is question. must also be of a reasonable nature. Custom either introduces a new law or abrogates an old one. But a law, by its very concept, is an ordination of reason, and so no law can be constituted by an unreasonable custom. Moreover, as an existing statute cannot be revoked except for just cause, it follows that the custom which is to abrogate the old law must be reasonable, for otherwise the requisite justice would be wanting. A custom, considered as a fact, is unreasonable when it is contrary to Divine law, positive or natural; or when it is prohibited by proper ecclesiastical authority; or when it is the occasion of sin and opposed to the common good.

A custom must also have a legitimate prescription. Such prescription is obtained by a continuance of the act in question during a certain length of time. No canonical statute has positively defined what this length of time is, and so its determination is left to the wisdom of canonists. Authors generally hold that for the legalizing of a custom in accordance with or beside the law (juxta or prœter legem) a space of ten years is sufficient; while for a custom contrary (contra) to law many demand a lapse of forty years. The reason given for the necessity of so long a space as forty years is that the community will only slowly persuade itself of the opportuneness of abrogating the old and embracing the new law. The opinion, however, which holds that ten years suffices to establish a custom even contrary to the law may be safely followed. It is to be noted, however, that in practice the Roman Congregations scarcely tolerate or permit any custom, even an immemorial one, contrary to the sacred canons. (Cf. Gasparri, De Sacr. Ordin., n. 53, 69 sq.)

In the introduction of a law by prescription, it is assumed that the custom was introduced in good faith, or at least through ignorance of the opposite law. If, however, a custom be introduced through connivance (vi� conniventiœ), good faith is not required, for, as a matter of fact, bad faith must, at least in the beginning, be presupposed. As, however, when there is question of connivance, the proper legislator must know of the formation of the custom and yet does not oppose it when he could easily do so, the contrary law is then supposed to be abrogated directly by the tacit revocation of the legislator. A custom which is contrary to good morals or to the natural or Divine positive law is always to be rejected as an abuse, and it can never be legalized.”

(The Catholic Encyclopedia: Custom in Canon Law)

Certainly it can be argued from the definitions above that many of these “reforms” would actually be customs, and since they generally do not come from specific prescriptions of the local Ordinary in accordance with the Holy See, yet do not violate Divine Law, they would correctly be defined as contra legem customs. And how long does a contra legem custom have to receive the tacit consent of Church authorities before it receives the force of an ecclesiastical law?

“No canonical statute has positively defined what this length of time is, and so its determination is left to the wisdom of canonists… for a custom contrary (contra) to law many demand a lapse of forty years.”

And so here is the significance of the forty year mark. After 40 years of tacit consent from the authorities and consistent practice by the community, these customs would be given the force of an ecclesiastical law. This is not to say that such a custom couldn’t be changed after 40 years, but only that as a church law, it would require specific juridicial action to abrogate. If the promulgation of the New Missal in 1969 is considered the identifiable starting point of most of the customs in question, then there is 2 years and 6 months remaining before they become defendable as ecclesiastical laws.

It is not beyond the realm of real possibility that this issue would be brought out by those who wish to defend the progressive liturgical agenda in the event of the kinds of reforms that are currently underway. It is also not unrealistic to consider that Benedict XVI has foreseen this possibility, and is moving to head it off through frequent public statements on issues such as the versus populum posture, the need for restoration of Latin in the liturgy, the restoration of the Sacred Music tradition and a variety of other liturgy-related issues, making it clear that these particular customs do not have the tacit consent necessary to make them legitimate, and through his frequent quoting of documents on the liturgy from Paul VI and John Paul II, further demonstrates that such customs have not had consent at any point since their inception. This being the case, many of the above named “reforms” could even be considered as introduced through connivance (even if not maliciously) and would only require a tacit revocation of the legislator (Holy See) to be abrogated. In other words, the legislator, Benedict XVI, need only point out that there is legitimate law in force and insist upon its being followed, without specifically “banning” or “outlawing” any of the offending customs.

This makes total sense in light of the progress of reform during the past several years, and gives added meaning to a phrase that is often used of late by Pope Benedict when he refers to the “more correct implementation” of the documents of Vatican II. Following this line of reasoning, any reform would take the path of implementing correctly those provisions of the Second Vatican Council that have been replaced by customs which, since they do not have the requisite consent either tacit or otherwise by the local Ordinary in accord with the Holy See, are now abrogated de facto by the tacit revocation of the same local Ordinary in accord with the Holy See. And since the “true efficient cause of an ecclesiastical custom, in as far as it constitutes law, is solely the consent of the competent legislating authority”, and the competent legislating authority for all matters pertaining to the liturgy is, in fact, the Holy See, then all actions pertaining to these customs are ultimately decidable by the Holy See.

And so, if Pope Benedict truly feels as strongly about these issues as he has indicated in past writings and more recent statements, we may not have to wander for 40 Years in the Desert as our Hebrew Fathers did so long ago to reach the Promised Land. It might only be 38 ½ Years or so…