So, what you’re saying is that as long as a person thinks it’s necessary they cannot be excommunicated. Sorry. This is incorrect. Bishop Milingo thought he had necessity. I’m sure that Luther did too.
That said, a person cannot be excommunicated without certain canonical steps taken. There are certain steps that must be taken like the bishop must actually warn the person of their error, try to bring them back into the fold, tell them of the penalty, etc. This was done with Lefebvre which is why he can no longer claim necessity. He was told by the Supreme Judge that it was not necessity. The Vatican instructed him of his error, tried to work it out and he rejected the Pope’s authority on the matter. This didn’t happen in the case of the Hawaii six and their excommunications were overturned. This did happen in the case of the Lincoln excommunications and this is why they haven’t been overturned.
We aren’t talking about a third world country where the bishops can’t get ahold of Rome because they’re operating underground to avoid death. We’re talking about someone directly in contact with the Supreme Legislator. It might have even been a different situation if the Vatican hadn’t been in talks with him. Let’s say one day he woke up and decided to consecrate bishops without discussing it with the Vatican. Then he probably could have claimed necessity because he didn’t know the mind of the Supreme Legislator.
The second point raised by the SSPX in defense of their schism that initially convinced me of their position was based upon canons 1323:4° and 1324 §1:5° of the present Code of Canon Law —
Therefore, under the state of necessity canons mentioned above, the Church allows exceptions to many of her laws in certain unforeseen circumstances.
Archbishop Lefebvre insisted that his irregular consecration of bishops without Rome’s permission was carried out in a state of necessity. However, the Holy See foresaw the situation in which the archbishop found himself before he consecrated the bishops, yet still denied him permission to proceed with such an action. As Cardinal Gantin, on behalf of the Holy See, wrote in a letter to Lefebvre dated June 17, 1988: “Since . . . you stated that you intended to ordain four priests to the episcopate without having obtained the mandate of the Supreme Pontiff as required by canon 1013 of the Code of Canon Law, I myself convey to you this public canonical warning, confirming that if you should carry out your intention as stated above, you yourself and also the bishops ordained by you shall incur ipso facto [by that very fact] excommunication latae sententiae [imposed automatically] reserved to the Apostolic See in accordance with canon 1382.”
A mere discipline of the Faith, is a law, a custom or practice originating from the Church as a means of safeguarding the good order of the Church. To establish ecclesiastical discipline, the Church must ask herself: What is the most practical way of protecting the doctrine of the Church here and now?
In essence, the Holy See did not agree with Lefebvre’s analysis of the situation in the Catholic Church, namely that a sufficient emergency existed to warrant the consecration of bishops without Rome’s approval. This is an important point in resolving the dispute between Archbishop Lefebvre and Pope John Paul II, for where there exists a difference in interpreting the application of canon law, canon 16 states clearly: “Laws are authentically interpreted by the legislator and by that person to whom the legislator entrusts the power of authentic interpretation.”
In Lefebvre’s situation, he knew in advance that his interpretation of canon law in this case was not acceptable to the Roman Pontiff, who is the highest legislator. So even though Lefebvre disagreed with the Roman Pontiff’s interpretation of canon law, it nevertheless remained up to Pope John Paul II to interpret that law authoritatively. Therefore, because the idea of a state of necessity in Lefebvre’s circumstances was rejected by Pope John Paul II, I came to realize that I could not legitimately invoke the state of necessity canons in defense of Lefebvre’s consecration of bishops without Rome’s permission.