The unexpected resignation of Benedict XVI on 11 February this year highlighted a number of lacunae within the 1983 Code of Canons and Universi Dominici Gregis. Although a quick “patch” was added through Pope Benedict’s motu proprio Normas Nonnullas, the majority of these provisions are still based upon the assumption that a pope dies in office, and clearly require further revision. However, a potentially more urgent situation is the lack of legislation to address the circumstances in which the papacy is impeded through the pontiff’s temporary or permanent incapacity.
Canon 187 provides a link between mental capacity and resignation in that
“[a]nyone responsible for oneself (sui compos) can resign from an ecclesiastical office for a just cause.”
This is further clarified through Canon 99
“[w]hoever habitually lacks the use of reason is considered not responsible for oneself (non sui compos) and is equated with infants.”
Thus, whilst the physical incapacity to undertake an ecclesiastical office would be regarded as a “just cause” in seeking approval to resign , 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”.
Benedict XVI was the first pope to resign since Gregory XII in 1415, but during the papacy of John Paul II, the issue of incapacity was raised as a significant issue, here. It has been reported that in 1989 and 1994, John Paul II secretly prepared letters offering the College of Cardinals his resignation in case of an incurable disease or other condition that would prevent him from fulfilling his ministry . Nevertheless, no provisions are currently in place to address this possibility, which is further compounded by Canon 335 which states
“[w]hen 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”.
However, no “special laws” have been enacted to cover this situation. Furthermore, there is no guidance on the meaning of “entirely”, which does not find an exact equivalence in the use of “habitually” in Canon 99.
The issue of whether a Pope should resign is beyond the scope of this blog, which focusses on the problems imposed by the canon law as it now stands. However, one cannot progress far into seeking solutions without a re-examination of the nature of the papacy, whether resignation should be possible, and the extent to which the associated duties may be delegated, if at all.
Some of these issues are discussed by Granfield  who considers: the possible precedents; the medieval arguments for and against resignation; the canonical norms; and “the current application”, which at the time of his writing concerned Pope Paul VI.
In his consideration of “What If the Pope Became Disabled?” Provost notes that where there are no rules covering a particular situation, the standard canon law procedure is for the officials to turn to parallel cases for direction. Given that any such interpretation must be subject to the canons relating to papal authority, Canons 331 to 335, some principles may be deduced from those relating to a vacant or impeded See, Canons 412 to 415. Importantly, Canon 412 is clear in its definition of an impeded See, which
“is understood to be impeded if by reason of captivity, banishment, exile, or incapacity a diocesan bishop is clearly prevented from fulfilling his pastoral function in the diocese, so that he is not able to communicate with those in his diocese even by letter”.
This definition is useful since it defines possible causes of an impeded See, as well as criteria by which this might be manifest. The first three possible causes – captivity, banishment, and exile – correspond to those envisaged in the (alleged) conditional resignations of Popes Pius VII and Pius XII . Although never enacted, these are examples of fact-dependent circumstances and as such not reliant upon the opinion of a third-party, as might occur in the assessment of a pope’s physical or mental capacity to fulfill his office, i.e. incapacity.
In view of the supreme authority of the pope, there are two possible situations that need to be addressed: i] a pope’s conditional resignation based upon pre-determined criteria which he formally promulgates whilst sui compos; and ii] where it is apparent to others that he is incapacitated, but has made no formal provisions to cover the eventuality. Both must be consistent with Canon 332 §2,
“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”.
In view of Canon 331 and the Pope’s “full, immediate, and universal ordinary power in the Church”, the latter circumstances are the more problematic. Furthermore, as Rees notes
“Nor is it clear who would be responsible for making medical decisions for a pope in a coma. Prior to the 19th century, this was less of a problem, because the role of the papacy was more limited and because doctors were more likely to kill a person with their primitive medical care than keep him alive—for example, by bleeding him. The ability of modern medicine to keep the body alive while the mind is deteriorating will eventually present the church with a constitutional crisis. And despite church teaching that extraordinary means need not be used to keep alive a dying patient, who will have the authority to disconnect the life-support system of a pope if that becomes necessary? More important, who will have the credibility within the church to do this without causing an ecclesial crisis?”
With regard to i], however, although some commentators suggest that this was considered by John Paul II, it is uncertain what standing such a conditional letter or statement would have had. Some report of the 1989 letter that
“[i]t was brief and to the point; it says that in the case of an incurable illness that prevents him from ‘sufficiently carrying out the functions of my apostolic ministry’ or because of some other serious and prolonged impediment, ‘I renounce my sacred and canonical office, both as bishop of Rome as well as head of the holy Catholic Church.’ “
Importantly, this includes a renouncement of the offices of both bishop of Rome and head of the Church, but it does not specify the criteria by which his condition are to be judged, or by whom. With regard to the latter, it is known that Benedict XVI announced his resignation at a consistory of cardinals, and this has parallels with when a pope is elected and urged to accept the election.
If John Paul II’s conditional resignation was made in secret, as some suggest, it is unlikely to be considered regarded as having been properly manifested. Nevertheless, Canon 412 is useful in providing a model  using both general and specific criteria, (i.e. a requirement to “fulfill his pastoral function” and the ability to communicate by letter), and would be applicable to the pope’s role as Bishop of Rome, a title for which Pope Francis is observed to have a marked preference.
Furthermore, this approach is useful in highlighting the different aspects of the Pope’s role, and those which may, and may not be, be undertaken by others in the case of incapacity. A number of special prerogatives are reserved to the papal office – the exercise of supreme jurisdiction or the gift of infallibility – and may not be delegated. As Provost notes,
“[t]his would hold up the appointment of bishops, action by the Roman Curia on issues of major importance that require the pope’s prior approval, the creation of new dioceses and the like.”
The underlying problem is therefore anyone taking over papal duties would not be pope, and therefore could not exercise these special prerogatives. Provost concludes
“. . . . . .there is a real need for the church to have the special laws for the impeded Apostolic See to which the current Code of Canon Law refers. These laws will not be easy to draft, or to administer, as is evident even from the limited experience we have had in the United States under the 25th Amendment to the Constitution . . . . [b]ut with a view to the long-term welfare of the church, it would be well worth the effort.
Such laws should at least specify who makes the determination that the pope is impeded from exercising his office and even the process to be followed in coming to this decision. They should also determine who will administer the church while the pope is impeded and the role of the College of Cardinals, the Roman Curia and other Vatican services during this time.”
Benedict XVI’s resignation has highlighted the possibility of papal resignation, and whether this continues to be an acceptable option or not, the current provisions in Canon 332 §2 and Universi Dominici Gregis, even as modified by Normas Nonnullas do not address all the issues, particularly those relating to a former Pope. These include: title, form of address, and retention of papal name; immunities and prerogatives; domicile; and vesture. Benedict XVI took decisions on these regarding his own status after resignation, and although it would be insensitive to change any of these within his lifetime, as from 13 March, these issues have been within the gift of Pope Francis who may at some time wish to see modifications more in line with his preference for a more collegiate approach as Bishop of Rome.
Again, guidance on some of these issues may be gained from the provisions relating to bishops, for which Canon 402 states
§1. A bishop whose resignation from office has been accepted retains the title of emeritus of his diocese and can retain a place of residence in that diocese if he so desires, unless in certain cases the Apostolic See provides otherwise because of special circumstances.
§2. The conference of bishops must take care that suitable and decent support is provided for a retired bishop, with attention given to the primary obligation which binds the diocese he has served.
These provisions apply in conjunction Canon 401, i.e. with whether the resignation is on account of illness or “some other grave reason,” see our earlier post.
A further issue to resolve within Universi Dominici Gregis is the funeral rites, Chapter V, which currently do not consider the circumstances in which a pontiff who has chosen to resign. Parallel modifications will also be necessary within the Ordo Exsequiarum Romani Pontificis and the Missal.
 Canon 332 §2 provides that no such third person approval is required for papal resignation.
 Not all commentators agree with this version of events.
 P Granfield, “Papal Resignation”, (1978) 38 Jurist 118.
 It is believed that before setting out for Paris to crown Napoleon in 1804, Pope Pius VII signed a document of resignation to take effect if he were imprisoned in France. Likewise, it is claimed that during World War II, Pius XII drew up a document with instructions that, if he were kidnapped by the Nazis, he was to be considered to have resigned his office, and that the College of Cardinals were to evacuate to neutral Portugal and elect a successor.
 A degree of updating may be necessary, such as a revision of the “even by letter” criterion.