A glorious day: the tenth anniversary of Summorum Pontificum, when Pope Benedict XVI made clear that, juridically, the Missal of S Pius V was never lawfully abolished.
I do not dissent from that judgement ... far from it. But I think that, as well as giving the Latin Church that canonical clarification, Pope Benedict gave the Church Universal an even more important theological teaching. I tried to explain this in 2011, in a piece examining and rejecting the views of a canonist called Chad Gendinning. He, like some other canonists, had written critically about the assertion, in Summorum pontificum, that the Vetus Ordo had never been lawfully abolished.
My assertion is that Pope Benedict was arguing, as I would argue, that a pope ... any pope ... cannot abolish the classical Roman Rite. An attempt to do so, in other words, would be ultra vires just as it is beyond the competence of any pope to change the Canon of Scripture.
Here, slightly adjusted, is what I wrote.
RATZINGER AND LITURGICAL LAW (2011)
Chad Glendinning quotes A S Sanchez-Gil as feeling that the Roman Missal, along with other liturgical books, cannot be reduced to a collection of liturgical laws. This is along the right lines, but does not, I feel, go nearly far enough. The great Anglican liturgist Prebendary Michael Moreton saw the Canon Romanus - if I understood him aright in the six years during which we conversed - as being in a position not unlike that of the Canon of Scripture; a given in the Tradition which it is not for us to treat as disposable. He spoke of the Canon as having auctoritas given to it by tradition, which far surpasses the merely canonical, legalistic, authorisation, which fly-by-night 'Eucharistic Prayers' composed by the Top Experts of one single decade might have. I think it may be a coincidence that his term auctoritas occurs also in John Paul II's instruction Ecclesia Dei. It is a profound term with roots deep in the sense of the Orthodox as well as of Traditionalist Catholics that there are weightier imperatives than Canon Law. I remind you of the startling fact that the then Patriarch of Moskow welcomed Summorum pontificum as an ecumenically positive action.
Glendinning had informed us that Summorum pontificum, if it is not an "imprecise use of canonical terminology" was "a rather overt denunciation of the pope's predecessors and of the praxis curiae". In a funny sort of way, I think this last bit is right. Benedict XVI was superseding the assumptions underlying the enactments of his predecessor Paul VI, and, unobserved by Glendinning, he was doing so on grounds which he had previously, before his election to the See of Peter, explained thoroughly lucidly. Papa Ratzinger even restated those views of Cardinal Ratzinger, in the Letter to Bishops which accompanied Summorum pontificum: "What earlier generations held as sacred, remains sacred for us too, and it cannot be all of a sudden forbidden". Note Cannot! We are talking about non potests rather than non licets. We are talking about what it is not within the competence of a pope to do.
As for curial enactments, well, I think it has to be pointed out that the pope is not only, as Glendinning concedes, the Supreme Legislator, but, as Vatican I defined, also the Supreme Judge of the Church. If his statements in Summorum pontificum went contrary to what Roman dikasteries had prescribed or implied, this was surely analogous to a court of appeal overriding an earlier judgement by a legislator of inferior jurisdiction. J Baldovini, quoted by Glendinning, wrote that "even someone with supreme legislative authority cannot undo historic facts". But Benedict XVI was not misdescribing (or even describing) historical facts, I suggest, but defining what the deepest law of the Church is. He based himself upon a view of history, Theology, and law which was broader than the juridical bases of those previous enactments. That is in fact what makes his declaration so significant; so much more in line with a Catholic - and Orthodox - and Anglo-Catholic - concept of Liturgy.
Benedict XVI identified (not created) a Principle deeper than mere legislation; a Law even deeper than the law; to the effect that "what earlier generations held as sacred, remains sacred and great for us too". This is not so much a canonical principle as a statement of a theological truth ineradicably inscribed in the very nature itself of the Church Militant. It is what Moreton and I have called auctoritas. Papa Ratzinger concluded that "it cannot be all of a sudden entirely forbidden or even considered harmful".
It is worth remembering this in a post-Benedictine era. Subsequent legislators cannot legislate to abolish this datum because, established as it is in immutable historical facts, it is not accessible to the pen of a legislator. Summorum Pontificum, qua legislation, is itself no more immutable than other piece of legislation.
But the Principle underlying it is one of those principles which are integral to the life of the Church; unchangeably part of it for ever.