Canon law relating to papal resignation and its associated academic consideration is necessarily sparse on account of infrequency of the event, and the belief that this was not an option that the Pontiff should take – recently described by Cardinal André Vingt-Trois, Archbishop of Paris as “a 600 year old taboo”. Nevertheless, the canon law that addresses this possibility gives an insight to the timing and manner in which this was taken by Benedict XVI, although a number of lacunae remain.
Within the 1983 Code of Canon Law, Papal resignation is dealt with explicitly in Canon 332 §2 which states
“If it happens that the Roman Pontiff resigns his office, it is required for validity that the resignation is made freely and properly manifested but not that it is accepted by anyone”.
Consequently, in announcing his resignation, Benedict XVI stated formally
“ . . . . . .For this reason, and well aware of the seriousness of this act, with full freedom I declare that I renounce the ministry of Bishop of Rome, Successor of Saint Peter . . . . . “
This also explains references to Pope Celestine who voluntarily resigned in 1294 whereas Gregory XII agreed to relinquish the papacy in 1415 at the request of the Council of Constance to end a dispute with a rival claimant to the Holy See. In 2010, the book “Light of the World: The Pope, the Church, and the Sign of the Times” contained an interview with Benedict XVI in which he said
“”Yes, if a pope clearly realizes that he is no longer physically, psychologically and spiritually capable of handling the duties of his office, then he has a right and, under some circumstances, also an obligation, to resign.”
More general aspects of resignation from any ecclesiastical office are contained in Canons 187 to 189 of which Canon 187 is most relevant to the present situation, viz.
“Anyone responsible for oneself (sui compos) can resign from an ecclesiastical office for a just cause.”
The sui compos provision of Canon 187 is important, for whilst the physical incapacity to undertake an ecclesiastical office would be regarded as a “just cause”, anyone suffering a mental incapacity would not be deemed capable of resigning. In the New Commentary on the Code of Canon Law (Paulist Press, New York 2000), J H Provost states
“someone suffering from severe mental illness, a mentally disabling stroke, a coma, or otherwise lacking the use of reason, (Canon 99), is not capable of resigning an office”.
Acknowledging the “strength of mind and body” necessary to undertake the obligations of the pontificate, Benedict XVI resigned at a time when he was permitted to do so by canon law. A major problem would have arisen were he to be temporarily or permanently incapacitated, since there are no adequate provision addressing these possibilities. Although Canon 335 states
“When the Roman See is vacant or entirely impeded, nothing is to be altered in the governance of the universal Church; the special laws issued for these circumstances, however, are to be observed”,
Universi Dominici Gregis and Constitutione apostolica are concerned with the situation following the death of a pope, rather than one resulting from his incapacity. No “special laws” have been enacted to cover this situation, and as Cathy Caridi observes, since under Canon 331, the Pope alone has supreme, full, immediate and universal ordinary power in the Church.
“there is nobody on earth who has the authority to make an official determination that the Pope is incapacitated and must be removed, or that somebody else should henceforth govern in his place.”
Of other issues which are to be addressed, Msgr. David-Maria Jaeger, OFM, a professor of canon law at Rome’s Pontifical University Antonianum is reported as saying
“We lack a law, so far, on the status of a former pope, of someone who resigned the papacy”
“It is possible either Benedict XVI in the next few days, or his successor, will make such a law, because many questions must be asked: What is the proper title by which to address a former pope? What are his immunities and prerogatives? There is a question of his international standing. All of this has to be settled…There was never any need to deal with it.”
Whilst the Church of England is accustomed to the existence of former archbishops, of which there are now three, the position in the Roman Catholic Church is more uncertain. Nevertheless under his present papal authority, Benedict XVI has the power to remove some of these lacunae.
On the election process, however, there is more certainty. This was addressed by John Paul II in Universi Dominici Gregis, On the Vacancy of the Apostolic See and the Election of the Roman Pontiff and modified by Benedict XVI in Constitutione apostolica. Although under the former, John Paul II changed the legislation to permit election by an absolute majority if successive votes fail to give the 2/3 majority, Benedict XVI abolished this, returning to the 2/3 majority irrespective of the number of ballots necessary.
Since he is now over 80, Pope Benedict would be disbarred from participating in the election of his successor on account of his age, Canon 349, and although there is a theoretical possibility that he might participate in the preparations for the conclave, the Vatican has indicated that this will not occur. However, it is perhaps significant that over half of the 118 cardinals that are eligible to vote were appointed by Pope Benedict.
Updated 13 February 2013
Pingback: Age-related milestones in the church | Law & Religion UK
Pingback: Law and religion round-up – 4th June | Law & Religion UK