Why the original SSPX excommunications were valid
In the meantime, for the benefit of those who would like to see some responses to the canonical arguments by which the SSPX claims that the 1988 excommunications were never incurred in first place, let me very briefly note the following:
SSPX Arg. 1. A person who violates a law out of necessity is not subject to a penalty (Canon 1323.4). Correct, but in asserting what amounts to an affirmative defense, the burden is on the SSPX to prove that it was objectively necessary for them to ordain four bishops in violation of universal canon law and the specific prohibitions of the Holy See. Of course, most people who break the law think they are justified in breaking it. But it's not the offender's opinion of "necessity" that counts, it's lawful authority's determination of "necessity" that matters. And Rome is the lawful authority here, not the SSPX.
SSPX Arg. 2. Even if no state of necessity existed, if one inculpably thought there was, he would not incur the penalty (Canon 1323.7). Correct, but the burden is, as above, on the SSPX to prove that they were "without fault" in thinking that it was necessary for them to ordain four bishops against universal canon law and the specific prohibitions of the Holy See. Now, if the SSPX bishops could show that, by late June of 1988, after all that had transpired to that point, they were "without fault" in still thinking it was necessary for them to violate canon law and papal prohibitions, then I don't know who could not show themselves to be "without fault" for breaking just about any law and disregarding just about any papal directive.
SSPX Arg. 3. If one culpably thought there was [necessity], he would still incur no automatic penalties (Canon 1324.3; [other citations garbled]). Correct, but this argument avoids the crucial point that the excommunications which were lifted last week were not automatic excommunications, they were imposed excommunications (see c. 1331), that is, ones formally declared, by the Holy See no less. Whatever was the canonical status of the SSPX bishops on June 30, 1988, by July 1 they labored under declared excommunications, not automatic ones.
SSPX Arg. 4. No penalty is ever incurred without committing a subjective mortal sin (Canons 1321.1, 1323.7). Incorrect. Canon law does not attempt to read the souls of Catholics and does not require proof of them having committed "subjective mortal sin" before visiting penalties on offenders among them. Canon law does require that the underlying act be one that is objectively gravely sinful, but who doubts that ordaining Catholic priests to the episcopate against the norm of canon law and the express prohibition of the pope is objectively sinful? The "culpa" mentioned in these two norms refers to legal responsibility in the external forum, not to moral responsibility in the internal forum. The Holy See reasonably concluded that the external, observable actions of the SSPX bishops were in violation of canon law. That's all that was necessary.
In sum, while I think that Canon 124 suffices to put the burden on the SSPX bishops to prove the alleged invalidity of the excommunciaitons they incurred in 1988, to the degree they think that their arguments above accomplish that goal, I disagree. I would only add that, if anyone still wants to claim that the SSPX excommunications were invalid, please read John Paul II's m. p. Ecclesia Dei adflicta (2 July 1988), esp. para. 1-3, and show us where the pope missed the point. PS: Good luck.
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Some other quick points, if only for the record:
The SSPX censures were incurred in the context of Canon 1382 (illicit episcopal ordinations). What various SSPXers said before and since about the Church, Vatican II, "Modernist Rome", the Holocaust, and so on, might well be offensive, but it must be distinguished from assessment of the canonical crimes they committed in June of 1988. The pope's action last week, however it will be explained, is focused, I expect, only on their illicit ordinations.
The age-old question "Are popes above canon law?" admits of no easy answer, but this much should be said: first, don't confuse actions which are only praeter legem (outside, or beyond the law) with actions that might seem to be contra legem (against the law); second, it is easier for popes to act praeter legem than it is for others to so act (c. 331).
I, in company with many others, hold that latae sentenitae penalties have outlived their usefulness in canon law and are today simply a source of neuralgic and distracting debates. They should be abandoned.
I, in company with many others, hold the Book VI of the 1983 Code needs to be revised to make it clearer how ecclesiastical leadership has the canonical authority to impose sanctions on offenders in accord with law (c. 221) but without becoming embroiled in an at-times hopeless tangle of affirmative defenses and "pastorally-inspired" mitigations and exceptions.
More good commentary from: Fr. John Zuhlsdorf, 25 ian. 2009, and 26 ian. 2009, and 27 ian. 2009; George Weigel, 26 ian. 2009; Amy Welborn, 26 ian. 2009; Damian Thompson, 24 ian. 2009; Jeffrey Mirus, 26 ian. 2009;