A prerequisite for the request for the old Mass is the existence of a "fixed group of believers." The German Bishops are attempting to use this point against the Motu proprio 'Summorum Pontificum'.
The latest edition of the German theological journal 'Una Voce Correspondence' has published an article with the title "A Canonical Note on " Summorum Pontificum "and its practical implementation".
The author is the Right Revd. Father Wolfgang Rothe, Canon Lawyer and former Subregens of the Seminary of St. Pölten.
The paper deals with the question of how big a group of believers must be to request the old Mass, or whether such a group needs to be of a particular size.
Father Rothe also raises the problem, as to what is to be understood by the phrase "enduring existance" of this group.
Comparisons from the church law
The author notes that the term used "fixed group of believers" is vague. This finds expression in church law in different contexts:
• Canon 545, para 2 speaks of a " certain group of the Christian faithful of the parish [christifidelium coetu] ", for which given special pastoral concerns, a separate parochial vicar can be assigned.
• church rectors may according to Canon 560 of church law be instructed to open their churches to "certain groups of the Christian faithful [christifidelium coetibus], to conduct liturgical celebrations there."
• For a particular group of the Christian faithful [coetus christifidelium] a special chaplain may be appointed, in accordance with Canon 564,.
Father Rothe noted that in the canons cited, as in 'Summorum Pontificum', a group apparently is meant that exists within a parish without a fixed form - "this is neither legally laid down nor can be precisely delineated."
It is dealt with not as an association, but merely as a kind of group with common beliefs or in particular need:
"Their durability is not measured by the total number of their believers consciously belonging nor by the specific, actual composition dependant on the grounds for association, but simply on their actual existence" - says Father Rothe.
As to the size of this group, Father Rothe says:
"Neither in the Apostolic Letter" Summorum Pontificum "or even in the Codex Iuris Canonici is a minimum number indicated, as of a majority of believers, the group is a quality and the resultant rights take over, where it is pertinent to recur to the general legal principle, which reads: "Tres faciunt collegium" - German: A group consists of (at least) three (people). "
Because this group is neither an association nor any other legally ascertainable grouping, no other conditions can be made of the people involved, before permanent membership of this group is determined.
Of significance is merely that - at least permanently-three people together attend a celebration according to the old Rite.
If that is the case and the subsequent practice is not the opposite, the Papal condition for the use of the 62 Missal has been met:
"Whether it is always the same people or not, is irrelevant to the sustainability of the group."
Criticism of Augsburg implementation rules
Accordingly, Father Rothe criticised the implementing provisions of the Bishop of Augsburg. This demands a minimum number of 25 believers for a celebration of the old Mass.
This would have significantly reduced the opportunities provided by the Motu Proprio.
That is not only unacceptable, but it appears from an examination of Canon 33 para 1 also that the implementing rules-at least as far as the required minimum number is concerned, have no legal force.
They should therefore neither be followed nor should they be cited by any ecclesiastical authority.