[This post has been extensively and repeatedly updated and revised. Prudential Disclosure to All: I am not a canon lawyer. I am a civil ("regular") lawyer, although I was trained in the Louisiana Civil Code whose Roman roots possibly give it some distant historic affinities to the mindset of canon law--for example, it seems that both the secular civilian law tradition in which I was trained and the canon law tradition have great regard for the writings of legal commentators which are quaintly referred to as "doctrine." In sum, I am a Catholic educated in non-canon, civil law rooted in Roman law, who has used over the years a study edition with commentary of the 1983 Code of Canon Law, a commentary which was commissioned by the Canon Law Society of America (CLSA) and published in 2000. I also hold an M.A. in Theology from a Catholic seminary. I highly recommend getting a copy of the Code of Canon Law with commentary so you can ask relevant questions and raise relevant issues concerning canon law matters, as I do below. I will sometimes refer to this edition of Code and commentary as "CLSA" in my remarks below. For a summary of all my writings on this topic, see this link.]
I noticed a little controversy on the internet today about Pope Francis' washing the feet of a group of young people in prison--a group that included two females.
Well, as an American, I dutifully went to the United States Conference of Catholic Bishops website before I burdened the world with my own contribution to the discussion. Here is what I found. As I read it (the entire statement is reproduced below at the end of this blog post), the U.S. bishops (through their authorized agent or delegate) have apparently endorsed the Pope's inclusion of females well before our new Pope arrived on the scene. In fact, the practice has been endorsed since 1987--over 25 years ago. By the way, another question that occurs to me as a civil lawyer (not a canon lawyer) is whether custom over many years can abrogate a liturgical law, as this 1908 Catholic Encyclopedia entry seems to say. Although the substance of this particular liturgical practice of foot-washing is not addressed in canon law (see Canon 2 of the 1983 Code of Canon Law), canon law does contain provisions ("canons") governing how custom can overturn even an explicit provision of ecclesiastical law under certain circumstances (see link).
As an aside, in 1988, the Vatican "congregation" (department) on liturgical questions issued a wide-ranging letter on all the ceremonies of Holy Week and Easter in which, among many other matters, it simply referenced the liturgical law quoted below for the washing of feet of chosen males. But the issue or controversy of whether women could or could not be included in the foot washing rite was not addressed. Some take that 1988 letter as rejecting the inclusion of women; I do not take it that way since the controversy was not specifically addressed at all. It's a judgment call, but I do not see the 1988 letter as adding anything significant to the discussion; in my view, the letter and subsequent editions of the liturgical books, over the years, have simply ignored the issue. Here is the link to the 1988 letter (go to paragraph 51). [Moreover, the 1988 letter does not say that "only" males can be chosen for the rite; in contrast, when affirming the teaching that the ordained priesthood must be reserved for males, John Paul II wisely applied the adjective "only" (tantum in Latin) to males in order to settle the matter conclusively (see link). The liturgical law on foot-washing also does not use the term "only" when referring to the males selected for participation in the foot-washing rite.]
My conclusion: a pastoral exception permitting women to participate in this rite has arisen as a customary liturgical practice over several decades with the toleration and even, at times, the explicit approval of the Vatican (some Catholic sources report that explicit permission to include women has been granted in the past to certain bishops, including the archbishop of Boston in 2004 when Benedict XVI was in charge). Note that I am not using the words "customary" or "custom" in the technical, canonical sense of a custom with the force of law, but rather in the sense of ordinary English usage. Whether this custom meets the technical requirements of canon law for a legally binding custom (see Canons 23-28 of the 1983 Code of Canon Law) depends on how you interpret the actions and inaction of the Vatican--and now, most recently, the dramatic, public, and videotaped action of Pope Francis--over the many years that this practice has endured in the U.S. and in other nations. (I am also assuming that the canon law requirements for a binding custom with force of law apply to liturgical practices not treated in the Code of Canon Law itself because liturgical rubrics are themselves considered ecclesiastical laws even if outside the Code, but this assumption was not obvious to me when I first read the Code. I mention this assumption because one European canonist whom I consulted informed me that the canon law provisions on custom do not apply to liturgical questions.)
In my view, this liturgical custom (in the ordinary sense of the term "custom") has in effect been fostered over the years by the Vatican itself by its inaction and by giving permission to some bishops to include women in the rite. So what Pope Francis did--which was appparently a continuation of his longtime practice in the Archdiocese of Buenos Aires--is not surprising at all.
Now, I respect the view of those who oppose this pastoral exception, although I do not share their opposition. Yet, it seems clear, regardless of one's personal view of the matter, that a pastoral exception has in fact existed "on the ground" for many, many years with great impunity and also, at times, with explicit approval from Rome. For those who like detailed analysis, my own interpretation of the relevant canon law follows in the addenda below.
Addendum on Practical and Prudential Flexibility for the Legislator: It may be that some commentators are at cross-purposes because the issue is conceived differently by different individuals. On the one hand, you can look at the matter as an either/or proposition: the norm in the Roman Missal is either true without exception (no women period) or not. I, on the other hand, view it more as a "both/and" proposition: the Roman Missal states the general, default rule (no women included), while practice encouraged by both Vatican action and inaction provides for a pastoral exception. Is such a "both/and" situation legally possible? Is the legislator free to make a pastoral exception without formally amending the Roman Missal? Would not a cautious, prudent, and conservative legislator prefer to proceed with an informal pastoral exception while waiting for the situation on the ground to develop further and organically through several decades before making a written amendment, as has happened in this situation? Is the legislator really lacking the freedom for such practical discretion and prudence? Or must the legislator rewrite the Roman Missal as soon as possible, even where the Roman Missal fails to use the word "only" in reference to the inclusion of selected males in the rite?
Addendum on the 30-year Period For a Factual Custom to Become a Legal Custom: The canon law argument is also made that a factual custom (say, the practice of including women in the rite of foot-washing) supposedly contrary to canon law can become a legal custom with force of law (assuming all other requirements for a legal custom are met) if it is in continuous operation for 30 years (Canon 26 of the 1983 Code of Canon Law). But the commentator in the study edition that I read (Huels) tells us that the 30-year period is interrupted by "the repetition of a norm in a new edition of a liturgical book" (p. 92). Thus, it seems, for example, that any revision of the Roman Missal would keep interrupting the time period required and thus a factual liturgical custom--especially in this day and age in which technology makes frequent revision very convenient--would seem to never be able to get anywhere. This result seems very odd to this civil, non-canon lawyer, especially if a long period of time is needed and desired so that a factual liturgical custom can prove itself. The commentator's view on continual interruption of the 30-year period by the issuing of new editions seems to me to be self-defeating if the goal is to give factual customs the opportunity to prove themselves over a long period of time. Maybe, Pope Francis should eventually turn to canonical reform given that "canon law, too, is permanently in need of review, ius canonicum semper revivendum" (p. 2; my translation: "canon law must always be refreshed"). It is always good to recall "that laws must be interpreted in such a way that they do not result in anything unjust or absurd" [p. 75, note 109, New Commentary on the Code of Canon Law (Canon Law Society of America: 2000)].
Addendum on a Pope's Approval of a Factual Liturgical Custom (see also last Addendum below): Canon law also states that the Pope's approval of a factual custom contrary to canon law (Canon 26) obviates the need to meet the required 30-year period discussed above. Well, when Pope Francis goes to a coed juvenile prison, washes the feet of two females, and has that event videotaped, broadcast by radio, and so published to the world with foreseeable media attention worldwide during Holy Week, I would argue that he is approving the inclusion of females in the foot-washing rite for pastoral reasons--a result which matches the factual custom that has taken root since the nineteen seventies, at least according to the U.S. Conference of Catholic Bishops (in 1987, the USCCB issued a statement--see below--saying that this factual custom was present during the previous 10 or more years; doing the math, then, we have a period from at least 1977 to 2013 or a total of about 36 years culminating with the highly publicized actions of the Pope on Holy Thursday, 2013). There is no doubt whatsoever in my mind that Pope Francis approves of bishops' allowing the inclusion of women for pastoral reasons in the rite of foot-washing. He himself did it as Archbishop of Buenos Aires and is also doing it now as Pope. As one American canonist told me via email, the Pope as Supreme Legislator can legally do as he judges best. Let's see what happens next year!
Addendum on the Precedential Value of Administrative Acts (Canon 16.3):
Another argument made is that, when Vatican administrative personnel tell a bishop that he has the discretion to include a woman in the foot-washing rite for pastoral reasons (as has indisputably occurred, at least in the U.S.), this administrative interpretation is "private" in nature and has no effect on others. My observation is that the interpretation, if it is "private" in nature, is so in a trivial or Pickwickian sense: it is not an interpretation to resolve a particular quarrel (ad litem) between particular individuals, but rather more in the nature of a declaratory judgment (I am using "declaratory" in the sense used in civil, not canon, law) intended to clarify the general powers of a bishop in a liturgical practice that affects everyone in the diocese now and in the future.
Nevertheless, even if the administrative interpretation does not create a binding legal precedent, the issue in the foot-washing controversy is not about creating a binding precedent, in the strong sense of the term, that can force other bishops to include women. Rather, the issue concerns the options available to a bishop, whether he is in Boston, Pittsburgh, or Baltimore. When administrative interpretations recognize and authorize the option for some bishops to include women, there are real and significant effects that establish precedent for other bishops. Thus, these administrative interpretations indeed have value in fostering the factual custom of including women and making the factual custom more widespread. Even the commentary on this canon states that "there is a kind of precedent in the administrative arena . . . . Lower level administrators and their advisors look to the practice of the Roman Curia for indications of how to settle similar cases" (p. 73, of the New Commentary on the Code of Canon Law published in 2000 by the Canon Law Society of America). And the term "administrators" includes all diocesan bishops (as the same commentary states at p. 72). When the Curia (the Vatican bureaucracy) repeatedly tells bishops that they have the power to include women for pastoral reasons, the practice creates a precedent for the Curia itself and, most importantly, for all bishops precisely because of its obvious general applicability to a public, liturgical issue affecting all Catholics in all dioceses in the Roman Rite as part of the perennial liturgical cycle. As the factual custom gains ground, encouraged by such administrative precedent, and as the Vatican takes no measures whatsoever to reject the custom, the cumulative result, in my opinion, is that the liturgical norm has indeed been changed to allow bishops to include women in the rite. Yes, it is a gradual, organic, slow, and inefficient way to go about it; but the slow route prudentially allows consensus to develop and allows the authorities to observe the ramifications of the custom on the life of the Church.
In addition, these administrative precedents are valuable evidence that the factual custom of including women for pastoral reasons is "reasonable" as required by Canon 24. "Reasonable," as a term of art in Canon 24, applies to factual customs that are not "against faith and morals," do not "occasion sin," are not "opposed to the constitution or liberty of the Church," do not "harm the common good, or disrupt the 'nerve of ecclesiastical discipline'" (see commentary at pp. 88-89, in CLSA). If the factual custom of including women did not meet this test of reasonableness, then the Curia would not have given bishops the option of including women for pastoral reasons. Thus, there is real value in these administrative precedents, just as a common sense observer would expect there to be. The administrative precedents cannot be dismissed out of hand.
Does this sort of amendment of liturgical law discourage respect for the law? Not at all, because the authorities have been duly consulted by conscientious bishops of unquestioned orthodoxy; and these consultations are common knowledge. People know that Rome knows, and Rome approves. Otherwise, Rome would not grant permission and would take corrective measures. No one is under the illusion that the Vatican fears to take corrective measures which it deems necessary and urgent. And, certainly, when the Pope himself exercises his pastoral discretion to include women, no one is under the illusion that rogue bishops are flouting Rome by including women. In sum, you look at the text of the liturgical rubric (which does not say "only" men can participate). Then, you look at the Vatican's application of the rule. The end result is that the liturgical norm grants discretion to bishops to include women or to exclude women from the rite. Textual rubric plus authorized practice (now affirmed by papal approval) yields norm. By the way, Canon 27 of the 1983 Code of Canon law states this ancient principle: "Custom is the best interpreter of laws," a principle which compels us to consider custom in addition to the written liturgical rubric. This principle originates in Roman law, which is also the source for the type of non-canon, civil law in which I was trained to analyze legal issues. Any consideration of this liturgical issue without considering the issue of custom is, at best, superficial and woefully incomplete. Ignoring the issue of custom would also be a misrepresentation of the elegance and beauty of the Code of Canon Law which generously provides a way by which a reasonable custom can change law.
Addendum on Specific Approval by the Pope of a Factual Custom (Canon 23 and commentary at pp. 87-88):
The Pope is the supreme legislator for the universal Church (see the commentary at p. 435, following Canon 331). As such, the Pope can specifically approve a custom so that the custom becomes binding in law immediately (see commentary at p. 87, following Canon 23). The Pope can approve a custom in two ways: expressly "by explicitly stating this fact in a public document" (p. 87); or 2.) tacitly (commentary at pp. 87-88).
On March 29, 2013, the Vatican Press Office issued a public statement from the papal spokesman that can be plausibly termed express approval by the Pope of the custom of including women in the foot-washing rite for pastoral reasons (see link).
In addition, it can be plausibly argued that the Pope tacitly approved the custom of including women in the foot-washing rite when he held the videotaped, highly publicized event (also broadcast on radio) at the juvenile prison in Rome on Holy Thursday, 2013. Why is that? Read the commentary at pp. 87-88: "He [the legislator] tacitly approves a custom when it is certain that he is aware of the custom's existence [undisputed] but does nothing to eliminate it [undisputed], for example, when he celebrates the Eucharist at which the custom is observed [exactly what the Pope did at the juvenile prison on Holy Thursday, 2013]. Specific approval may be given at any time within the thirty years it would have taken the custom to attain the force of law by legal approval."
This scenario of tacit approval (as also previously sketched in an earlier addendum) matches what happened in this foot-washing situation. In my opinion, the custom of including women for pastoral reasons has been approved by the legislator, the Pope. Yet, a bishop can choose not to follow the custom himself or not to have it followed by the priests in his diocese. In fact, a cleric can choose not to hold the foot-washing rite at all because it is optional according to the liturgical rubrics. Thus, the Pope as supreme legislator has acted in a way consistent with canon law without imposing any practice on a bishop or priest who wishes to do otherwise. There is no anti-nomianism present in the Pope's conduct. What the Code of Canon Law envisions is exactly what happened. Maybe, as time passes, this reality will be recognized, although sensational and misleading headlines have already been written and disseminated that paint a false picture of "disarray" in the Catholic Church.
I believe that some good may emerge from all of this rigamarole. My hope is that we will recognize that the law is not as "legalistic" and "rigoristic" as it is sometimes presented to us or as we may assume. There is no need for "anti-nomianism" because the law is not such a bad fellow after all, but is in fact our friend--although a friend that could probably use a good dose of simplification.
Addendum: What Practice Is At Issue Here?
I surmise that some confusion on the foot-washing issue arises because certain important things are being left undefined. It seems that at least some of those arguing against the propriety of the Pope's inclusion of females assume that the Vatican must now announce that the Pope requires that females must be included in the foot-washing rite in order for the rubric to be changed.
Well, that requirement of females has never been part of the factual custom or practice we see on the ground. What we see is that bishops have the discretion to include females for pastoral reasons. So, a Vatican statement that reaffirms that a bishop may include females for pastoral reasons, as the Bishop of Rome recently did, precisely approves what is really at issue here.
Thus, as in my analysis above, the Pope has expressly and/or tacitly approved the factual custom of recognizing the discretion of a bishop to include females. The alternative to including only men is not necessarily that you must include women. The alternative can be an exception to be exercised at the discretion of a bishop for pastoral reasons. In my opinion, that alternative is what we are seeing in these recent events; and that alternative is what the factual custom is, as approved administratively by the Vatican in some dioceses.
1. Rubric: Chosen males are to be included.
2. Factual custom with Vatican administrative approval: But a bishop may admit females for pastoral reasons.
3. Pope tacitly approves this factual custom by doing exactly that (admitting females for pastoral reasons).
4. The Pope's spokesman releases a public statement describing just that (the Pope admitted females for pastoral reasons related to the setting of the Mass in the juvenile jail). I view this statement as explicit approval in a public declaration.
5. Either form of approval (tacit or explicit) is sufficient to give the factual custom the force of law.
The alternative to the rubric need not be that females must be admitted.
Below is what I found at the USCCB website (at this link):