Friday in the Octave of Christmas

Last Christmas, there arose a question in my family as to whether the Friday in the Octave of Christmas is a day of penance. Apparently the question arises elsewhere also, and, as Fr. Zuhlsdorf demonstrated, the answer is not self-evident. My research last year, which I present here for the sake of reference, indicated that Friday in the Octave of Christmas is not a solemnity, and thus is a day of penance. To wit:

1. Christmas does have an Octave in the Ordinary Form calendar. See Gen. Norms for the Liturgical Year & the Calendar ¶ 35. 
2. The days in the Octave of Christmas, however, do not appear to be Solemnities. Compare id. with id. ¶ 24 (specifying that days within the Octave of Easter are Solemnities). 
3. For this reason, the Friday in the Octave of Christmas is a day of abstinence or the alternative penance stipulated by the episcopal conference, pursuant to Canon 1251, which excepts only solemnities.
4.  The traditional practice, which derived from the 1917 Code of Canon Law and not from the Missale Romanum or its affiliated liturgical norms (and thus is not resurrected by Summorum pontificum or Universae Ecclesiae), abrogated the obligation of abstinence on the basis of whether or not a Friday was a "day of precept," that is, of obligation. Since under the Extraordinary Form calendar and the 1917 Code of Canon Law the Friday in the Octave of Christmas is not a day of obligation, the traditional observance would make the Friday in the Octave of Christmas a day of abstinence. See 1917 CIC c. 1252 § 4. That day is not a day of obligation under the modern calendar either universally or in the United States, either. See Liturgical Calendar for the Dioceses of the United States of America 2011 at 42. Reference to the Extraordinary Form calendar shows that the Friday in the Octave of Christmas is, in fact, only a second-class feast, suggesting that the distinction between paragraphs 24 and 35 of the modern General Norms is not a scrivener's error. 
5. That is, Friday in the Octave was not a day of precept or a solemnity in 2011 in the United States. At the same time, none of the universal days of obligation established by the 1983 CIC fall during the Octave. I can't imagine how a day in the Octave could become one of obligation, but your local solemnity mileage may vary depending on what day of the week Christmas is. (Isn't, for instance, the feast of St. Thomas a Becket a solemnity in England or parts thereof?)
6. Thus, assuming that the English version of the General Norms is an accurate translation, Canon Law binds all persons to observe the Friday in the Octave of Christmas, as a day of penance (assuming that one does not live in a place where the day is made a solemnity by virtue of a local patronal feast, see #5). If one habitually practices that penance by abstaining from meat, one should abstain on that day. If one is accustomed to abstain pursuant to the norms associated with the usus antiquior, one should abstain.
7. I appear to have located the General Norms, as well as Paul VI's motu propio promulgating them (Approval of the General Norms for the Liturgical Year and the New General Roman Calendar) from the ICEL website.

Geddicks on HHS

A former visiting professor of mine, Fred Geddicks, has written some particularly inane things about the HHS mandate. His original bit, a response at MOJ, and Geddicks' making-it-worse response.

I left the comments below in the ACS comments box.

I find Prof. Geddicks' reference to Estate of Thornton v. Caldor decidedly unpersuasive. Thornton involved a state law that granted unique legal privilege to one class of religious believers, those who found it morally objectionable (or, given the actual facts of the case, perhaps simply inconvenient) to work on Sunday.

If giving a unique legal privilege to a distinct class of religious believers violates the establishment clause, then so be it. Mr. Justice Burger's statement about the burden that privilege places on other persons, while it may have helped rationalize the outcome, cannot logically necessitate it. It's the privilege, not the burden, that the law creates, and if the privilege be unconstitutional, it would be so even if it were socially cost free. (See, e.g., every Christmas-display case ever decided.) Burger's statement about burdens is a dictum.

But even if Mr. Justice Burger's odd statement about burdens were necessary for the outcome in Thornton, it bears no relationship to the HHS mandate at all. What Prof. Geddicks proposes is that the religiously motivated actions of a private individual can impose a constitutionally significant burden on the personal (not religious, perhaps commercial) conduct of another private individual.

This is horse feathers. I know Prof. Geddicks has expressed elsewhere dissatisfaction with Cruikshank, but the rule that non-government actions do not impose Constitutional burdens is not going away (and even if it were, Prof. Geddicks prefers that we discuss the issue under present doctrines). The idea that there is a Constitutionally protected liberty interest in being free from burdens imposed by the religiously motivated actions of other individuals, without the intervention of any privilege, compulsion, or intervention by the law on the part of the religiously motivated actor, is simply absurd. It might be the most absurd and barbaric assertion made by any defender of the Mandate to date.

Let us be clear about what Prof. Geddicks claims here. He cannot be claiming, as he might insist, that it is merely a Constitutional exemption that would be an imposition. That at least would have a flavor of legal compulsion. No, the Professor is saying that the religiously motivated actor's choice to do or not do a Thing (in this case, subsidize contraception) itself imposes a burden on third parties. This has to be the case, because Prof. Geddicks wants us to balance the burden against the claimed liberty interest of the religiously motivated actor in determining whether the Constitutional exemption should exist. Clearly, the Constitutional exemption cannot be used as a justification for its own existence.

In the end, Prof. Geddicks' argument in this regard is either a call for a shockingly tyrannical reduction in the meaning of religious liberty or a specious display of circular reasoning. In fact, it bears many indicia of being both. It is the sort of argument that makes one wish that Rule 11 applied to academic papers.

Public Riparian Easements in Tennessee

"While the beds of all streams not navigable in the legal sense belong to the riparian proprietors and are private property, yet if in its natural state the volume of a stream, whether ordinary or when swollen by rains at certain periods of the year occurring with reasonable certainty, is such that the stream can be used profitably for commercial purposes in the transportation of the products of the forest, mines, tillage of the soil, or other articles of commerce, the public has an easement of highway therein, and this easement cannot be unreasonably obstructed by the riparian proprietors."

Miller v. State, 137 S.W. 760, 762 (Tenn. 1911)

Vimpa

The humeral veil worn by an acolyte in a pontifical liturgy is called a vimpa.

The Inherent Dangers of Cows

In Mississippi, the presence of a cow upon a public highway creates a rebuttable presumption of negligence on the part of its owner. Miss. Code Ann. 69-13-111 (2001); Miss. Dep't of Transp. v. Johnson, 837 So. 2d 108 (Miss. 2004).

The Burden of Proof

Ei qui affirmat, non ei qui negat, incumbit probatio.

He who asserts must prove, not he who denies.

 - Julius Paulus Prudentissimus, 2d century A.D.

Thoughts on Duty

An individual owes a duty of care to another individual when it is reasonably foreseeable that the other individual lies within the zone of danger of the first individual's actions according to ordinary understanding.

Quaeritur: Does Wile E. Coyote owe a duty of care to the Roadrunner, given that the universal understanding of reasonable people is that no action undertaken by Wile E. Coyote is injurious to the Roadrunner?