J. Salza: Again, we are not limited to Mr. Akin’s question of whether “the local ordinary has supplied faculties to an SSPX priest.” There are no reasonable arguments supporting that conclusion. The question, rather, is whether there is “positive and probable doubt of law,” namely, the application of the law recognizing factual common error, for ecclesia supplet to be triggered. As applied here, there are arguments supporting the idea that a community of reasonable persons (average Catholics) would believe an SSPX priest had faculties, leading to factual common error. There may also be arguments supporting the idea that a community of reasonable persons (well-informed Catholics?) would not believe an SSPX priest had faculties so that there is no factual common error (however, it seems that these arguments would not be as strong since it is not what the community actually believes, but only what a community of reasonable persons would be induced to believe).
Thus, there is “positive doubt” concerning whether the law of factual common error applies to SSPX priests (“doubt of law” can deal with the law’s meaning, application, existence, extension, force or cessation). The doubt also appears to be probable because there are strong arguments in favor of the conclusion that a community of reasonable persons (average Catholics) could be induced to believe a priest celebrating Mass in an SSPX chapel has faculties. Thus, it seems to me that there is “positive and probable doubt of law” which leads the Church to supply jurisdiction to SSPX priests to hear confessions. This is consistent with the Church’s supreme law: The salvation of souls.
In summary, if a fact could induce Catholics to believe that a priest has faculties, the Church supplies jurisdiction under Canon 144 on the grounds of factual common error (first prong). If a positive and probable doubt exists as to the application of this law (of factual common error), the Church still supplies jurisdiction under Canon 144 (second prong). In my opinion, SSPX priests meet both the first and second prong, or, at least the second prong of Canon 144. This is sufficient
for ecclesia supplet to apply.