Canon Law and the Upcoming Conclave

Q1: Can you please explain for us how the papal conclave will work? And are there any major aspects of it that will be different this time, because Pope Benedict is still living? –Leah

The Catholic world is still reeling from Pope Benedict’s astounding announcement last week, but the secular media has already been busily declaiming about the possible reasons for the decision, Pope Benedict’s legacy, possible contenders for the job, etc. etc. ad infinitum. In the process, the amount of misinformation that is being disseminated is staggering! It is shameful to find so many authoritative-sounding statements in the secular press—statements which obviously were made without any fact-checking whatsoever, since in many cases they constitute nothing more than gibberish.

While (as everybody knows) the election of our next Pope will be conducted in secret, the law explaining the procedure is anything but! Let’s take a look at what the special law governing the election of a Pope is all about, thereby cutting through all the nonsense out there that is confusing so many Catholics and non-Catholics alike. And as we go, we will see whether the fact that this conclave is the result of Pope Benedict’s resignation, rather than his death, will make any procedural difference. Along the way, we’ll also have a look at who exactly is eligible for election as our next Pope.

First of all, though, a brief word about Pope Benedict XVI’s decision itself. Ironically, the announcement that has already generated millions of words of commentary is actually quite brief and extremely precise. Observing that “I have come to the certainty that my strengths, due to an advanced age, are no longer suited to an adequate exercise of the Petrine ministry,” the Pope told the assembled cardinals that

[S]trength of mind and body… in the last few months, has deteriorated in me to the extent that I have to recognize my incapacity to adequately fulfill the ministry entrusted to me. 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… in such a way that as from 28 February 2013, at 20:00 hours, the See of Rome, the See of Saint Peter, will be vacant and a Conclave to elect the new Supreme Pontiff will have to be convoked by those whose competence it is.

Note the exactitude with which the Pope made this statement. First of all, he provides an explanation for his decision, by observing that in his own personal opinion, he is becoming incapable of carrying out his ministry. Immediately after that, he asserts that he understands what he is doing by resigning, and that he does so in total freedom.

Readers of the recent article, “Can a Pope Ever Resign?” will recognize that Pope Benedict has carefully made it clear that his decision fulfills all the legal criteria necessary for a valid resignation. Canon 187 tells us that anybody—including the Pope!—can resign from office if he is sui compos (a Latin phrase explained in detail in the abovementioned article), and has a just reason. In addition, as canon 188 notes, one who resigns must do so freely, because a resignation made under fear or trickery is invalid—but the Pope has pointedly asserted that his resignation is being made freely. In short, he has a good reason, he knows what he is doing, and nobody is forcing him to do it.

It’s important to observe that the Pope makes reference to his deteriorating “strength of mind,” but this does not imply that he has already reached a point where he is non sui compos! If that were the case (as was discussed in detail in “Can a Pope be Removed From Office?”), he would lack the rational ability to make this decision to resign in the first place. Yet he states emphatically that he is “well aware of the seriousness of this act”—thereby making it clear to all that, although he personally may feel his mental capacity is starting to fail him, he nevertheless still knows full well what he is doing and why. And in any case, it is easy for anyone who listens to Pope Benedict speaking today to realize that he is unquestionably tired, but his mental acumen is still amazing! (Read his remarks to the clergy of Rome last Thursday, which he made entirely without notes, if further evidence is necessary.)

Put briefly, the Pope’s announcement obviously fulfills all the conditions necessary for its validity. Had he waited longer, until his rational abilities really had failed, the Church could perhaps have found itself in a very different situation—the one addressed in “Can a Pope be Removed From Office?”—in which the Pope would be incapable of carrying out his ministry, and yet mentally unable to make the decision to resign. We’ll never know, of course; but it’s possible that Pope Benedict has, by deciding to resign now instead of later, obviated a disastrous situation in the Church.

Once we get past our own personal shock and sorrow, therefore, the legal situation is actually quite clear. As grim as it may sound, imagine if you can that on February 28, 2013, at 8 PM, Pope Benedict were to pass away. The status of the Catholic Church’s governance at that moment will be, canonically, exactly the same. The See of Peter will be vacant, and the laws governing the Church during a vacancy will take effect.

As we all know, the Church has experienced numerous occasions when the Pope has died and it was therefore necessary to choose a new one. We’ve done this before, and we know how it works! The process has certainly been successful countless times in the past; why should anyone be fretting that the situation now will be any different?

Let’s now look at what the law says about the period of time in which the Church is without a Pope, and the way a conclave works. Although the law regarding papal conclaves is truly law, it is not found in the Code of Canon Law, which makes only a brief mention of the process: canon 335 states that when the Roman See is vacant or completely impeded, no innovation is to be made in church governance—and the special laws enacted for this situation are to be followed. The current “special laws” were promulgated by Pope John Paul II in 1996, in his Apostolic Constitution Universi Dominici Gregis (hereafter UDG). In 2007, Pope Benedict changed a single aspect of the conclave procedure, in a document titled, “Concerning Some Changes in the Norms Concerning the Election of the Roman Pontiff,” (De aliquibus mutationibus in normis de electione romani pontificis), often referred to simply as Constitutione apostolica. Apart from Benedict’s one change (which we’ll look at later), the law promulgated by John Paul II remains in force.

Note that between now and 8 PM (Rome time) on February 28, 2013, Pope Benedict is still the Supreme Legislator and therefore retains the power to amend this law if he wishes. So far, however, he has not done so.

The very first paragraph of UDG expands on the general statement found in canon 335, that no innovations are to be made in the Church while the See of Peter is vacant. Pope John Paul stated bluntly,

I therefore declare null and void any act of power or jurisdiction pertaining to the Roman Pontiff during his lifetime or in the exercise of his office which the College of Cardinals might see fit to exercise, beyond the limits expressly permitted in this Constitution” (UDG 1).

In other words, if, during the period when the Roman See is vacant, an issue arises that only the Pope has the authority to handle, it will simply have to wait! The College of Cardinals does not have authority to make decisions which are the prerogative of the Pope, period. The fact that work which can only be done by a Pope will understandably start to pile up during the vacancy should, if anything, spur the College of Cardinals on, to choose the new Pope as speedily as reasonably possible.

While we’re on the subject, what is the College of Cardinals, anyway? Canon 349 tells us that the cardinals, acting together as a body, have the prerogative of choosing a new Pope, and also of assisting the Pope when he summons them to discuss issues of importance. In fact, the Pope’s resignation announcement was made at just such a meeting—called a consistory—on February 11, which Benedict had originally called to discuss the canonization of several new saints.

As noted back in “Bishops, Archbishops, and Cardinals,” nowadays those men who are selected by the Pope to become cardinals are supposed to be bishops (c. 351.1), although the Pope can always dispense from this law if he wishes. Historically, however, this was not always the case. In the early centuries of the Church, an orderly system of choosing cardinals developed here in Rome, that included “Cardinal Deacons,” “Cardinal Priests,” and “Cardinal Bishops.” These titles are still used in the Church today, even though all cardinals are normally bishops! On an everyday basis, it doesn’t make much practical difference which of these three categories each individual cardinal falls into; but when it comes to a conclave—the process for which is grounded in centuries of accumulated tradition—certain cardinals from the various categories have different responsibilities, as we’ll see shortly.

Once the papal see becomes vacant on February 28, we’ll be hearing a lot of references to individual cardinals who’ll play specific roles in the period leading up to the start of the conclave, and during the conclave itself. Let’s look at who these cardinals are, and what they will be tasked with doing.

The College of Cardinals has a Dean, as well as a sub-Dean (in English sometimes called the Vice-Dean), who are elected by the cardinals whenever there is a vacancy. The last time it was necessary to elect a new Dean of the College of Cardinals was in 2005, because the Dean was Cardinal Ratzinger—and once he became Pope, the College of Cardinals had to choose another cardinal to take his place. The current Dean is Angelo Sodano, an Italian who also served as Secretary of State until his retirement in 2006. The sub-Dean is Roger Etchegaray, formerly the Archbishop of Marseille, France, and now a retired Vatican official.

There is also a cardinal called the Camerlengo (the Italian word for “chamberlain”). This is a position rich in historical tradition; but these days it’s hardly a full-time job, as the main duties of the Camerlengo pertain to the preparatory meetings held by the cardinals in the days before a conclave begins. Today the Camerlengo is Tarcisio Bertone, an Italian who is also the current Secretary of State.

Speaking of prepatory meetings, once the papal see is vacant—and not before then!— there is a period of preparation before the conclave actually begins, during which time the three cardinals mentioned above have certain assigned roles (UDG 7-13). Meetings are held in Rome daily, attended by all those cardinals who are physically able to be there, headed by the Dean (or the sub-Dean, if the Dean for some reason cannot be there). Naturally, the cardinals who live in other countries may still be making their travel preparations and thus will in many cases be absent, at least in the beginning; and those cardinals who are too ill/infirm to attend are excused. If the papal see is vacant because the Pope has died, one of the big topics addressed at these meetings involves the preparations for the papal funeral—an aspect which obviously does not apply in the current situation! Other issues to be addressed will include scheduling the exact date when the conclave will begin; arranging for the necessary staff to be present to cook and otherwise care for the cardinals during the conclave; and/or various financial matters (UDG 13). The discussions at these meetings are kept secret—which simply means they will be private, and not that they will be doing anything mysterious in there!

With regard to the exact date when the conclave will begin, the law is quite clear and will probably surprise many readers, who may be assuming that it will start as soon as Pope Benedict’s resignation has taken effect. On the contrary, UDG states unambiguously that

…from the moment when the Apostolic See is lawfully vacant, the Cardinal electors who are present must wait 15 full days for those who are absent; the College of Cardinals is also granted the faculty to defer, for serious reasons, the beginning of the election for a few days more. But when a maximum of 20 days have elapsed from the beginning of the vacancy of the See, all the Cardinal electors present are obliged to proceed to the election (37).

Note that the law permits the cardinals to set the start-date a few days later, but it does not permit them to set it earlier. At the moment, therefore, since Pope Benedict’s resignation is effective the evening of February 28, the conclave by law cannot start any sooner than March 16. The cardinals do not have the authority to change this date: only the current Pope does, and thus far he has not done so.

On the surface, it may seem like a waste of time, to wait so long when we know in this case that the See will become vacant on February 28! But part of the reason why it’s imprudent to rush things is contained in UDG 79. While the Pope is still in office, it is forbidden for cardinals to make plans regarding the election of his successor. So long as Pope Benedict is still the Supreme Pontiff, cardinals may not meet to discuss—even informally—possible contenders for the position of his successor. Doing so would not merely be disrespectful and offensive to the current Pope; it could conceivably undercut his current authority. That’s why before February 28, cardinals are not supposed to be talking among themselves about the upcoming conclave. The 15-day waiting period, therefore, will give them the opportunity to assess possible candidates, and/or to discuss their voting strategies, before the voting actually begins. There will be plenty for them to do!

And those cardinals who work in the Vatican will have more free time on their hands to begin such private discussions after the Pope’s resignation takes effect. That’s because UDG 14-23 declares that when the See of Peter becomes vacant, certain (though not all!) Vatican officials—including those with the rank of cardinal—instantly lose their jobs. All the Prefects of the various Congregations, the Secretary of State, and the Presidents of Pontifical Councils, cease to exercise their office. Since these persons have been functioning in their respective roles on the Pope’s behalf, it’s only logical that they can no longer do so when there is no Pope. Decisions regarding their positions will fall to the new Pope after his election.

If the see is vacant because the Pope has died, the Church not only celebrates his funeral, but it must also observe nine days of mourning (UDG 27-32). These nine days are included in the 15-day waiting-period before the conclave can actually start. Naturally, the provisions of this chapter of UDG will not apply in the current situation—with the exception of paragraph 31, which states that during the election of the new Pope, no part of the private apartment of the Supreme Pontiff is to be lived in. As we already know, Pope Benedict, once his resignation has taken effect, will be going to live at Castel Gandolfo (the Pope’s summer residence, about an hour away from Rome). His secretary, butler, and other personal staff will go with him, thus vacating their rooms in the Vatican Palace as well.

Can every member of the College of Cardinals attend the conclave and vote for the next Pope? Ever since 1975, when Pope Paul VI made his own changes to the previous conclave law, the answer is no. Only those cardinals who have not yet reached their 80^th birthday before the day when the See of Peter becomes vacant are eligible to participate in the conclave (UDG 33). There are many cardinals, therefore, who can—and will—be involved in the pre-conclave meetings mentioned above, but will not be permitted to attend the conclave itself. This time around, their number will include the Dean and sub-Dean, Cardinals Sodano and Etchegaray, who are 85 and 90 years old respectively.

Cardinal Husar, from Ukraine, will turn 80 on February 26. He thus will be ineligible to participate in the conclave too, missing the age-cutoff by only a couple of days!

This leads us naturally to Joseph’s question: Whom can the cardinal-electors elect? Are they in any way limited in their choice of a new Pope? Can they only choose from among themselves? or what?

This is one of those questions which is the subject of so much disinformation in the secular press these days. It is answered, indirectly, by canon 332.1, which states that the Roman Pontiff acquires full and supreme power in the Church when, together with episcopal consecration, he has been lawfully elected and has accepted the election. The canon adds that if the electee is already a bishop, well and good; if not, he is to be consecrated a bishop immediately.

The clear implication of this canon is that the person who is elected Pope must either be a bishop, or he must become one. He therefore does not have to be present at the conclave—he doesn’t even have to be a cardinal. He doesn’t need to be able to speak Italian (although it certainly would be helpful), or to have any previous experience working in the Vatican, or to have any particular theological experience. There also is no age limit, so the cardinal-electors can choose someone who is already over the age of 80 if they wish! We can thus see that there are greater restrictions on the eligibility of the cardinal-electors themselves, than there are on the pool of candidates from whom they can select the next Pope. While we all know that in the modern era, Popes have been selected from among the conclave attendees themselves, this is not a requirement.

Once the conclave actually begins, absolute secrecy must be maintained at all costs. This is not because the Church has anything to hide; rather, this rule is designed to ensure that the cardinal-electors have absolute freedom to choose anyone they wish, without being pressured or influenced by outsiders in any way. That’s why the electors are not permitted to communicate, by writing, by phone, or by any other means, with anybody whatsoever outside the conclave. At the same time, once the conclave has begun, nobody is permitted to speak to, or even to approach, the cardinal-electors while they are en route to the Sistine Chapel from their rooms (UDG 43-46). Technicians will ensure that within the areas where the cardinals will be living and working, no recording or bugging devices have been installed (USG 51 and 55). The electors truly are locked away (the literal meaning of the word “conclave” is “with a key”) until the new Pope has been selected.

The voting will take place, as in the past, in the Sistine Chapel. Ordinarily the Dean leads the electors in first taking an oath of secrecy—but the current Dean, Cardinal Sodano, is over 80 years old and thus won’t be participating. His role should then fall to the sub-Dean, Cardinal Etchegaray; but since he is 90, the same problem exists. In accord with the law (UDG 9), the role will be filled by the Senior Cardinal Bishop, the Italian Giovanni Battista Re.

The cardinal electors aren’t the only ones obliged to swear that they’ll keep matters secret. Although the cardinals will naturally be the ones getting all our attention, the law allows for quite a number of other people to remain in the vicinity to assist them in various ways: several clerics, including priests who will be available to hear the cardinals’ confessions if they wish; two doctors, in case any medical emergency arises; and lay persons to take care of housekeeping and meal service for the cardinals (UDG 46). It is quite conceivable that any of these non-cardinals might, in the course of their duties, accidentally overhear the cardinals discussing among themselves their preferences or commenting on the voting that had already taken place! That’s why they too are obliged to swear an oath of secrecy—and if these non-cardinals break it, the punishment is excommunication latae sententiae. (See “Have Pro-Abortion Politicians Excommunicated Themselves?” for a discussion of how latae sententiae penalties work.) Note, however, that this penalty does not apply to the cardinals themselves. The oath of secrecy extends even after the conclave is finished, unless the new Pope himself grants permission to reveal some aspect of it—which normally does not occur.

To be elected, two-thirds of the votes are required. Under the law promulgated by John Paul II, however, this rule could be changed by the cardinals themselves if they had still not reached a decision after three days of voting. USG 75 allowed a majority of the electors to agree, if they wished, that henceforth an absolute majority of votes (i.e., 50% plus one) would suffice. But it is this provision that Pope Benedict, with his 2007 document cited earlier, has abolished. At this conclave, therefore, no matter how long it takes, a two-thirds majority will be necessary for a valid election.

The cardinals submit their votes in writing, and are encouraged to try to disguise their handwriting. There are strict rules in place to ensure that once cast, a ballot never leaves the cardinals’ sight (UDG 65-70). Every precaution is taken to make certain that no sleight-of-hand tricks can possibly occur!

When one candidate has received two-thirds of the votes, Cardinal Re (who will be taking the place of the Dean and sub-Dean, remember?) will ask him if he accepts his election. If he consents, the new Pope will then be asked what name he wishes to take.

Assuming that the new Pope is already a bishop (which certainly is the most likely scenario!), he becomes Pope the instant he accepts his election. If he isn’t a bishop yet, he must be consecrated immediately. The senior Cardinal Deacon—who currently is Jean-Louis Tauran, a Vatican official from France—will step out on the loggia of St. Peter’s Basilica, and announce to the anxious crowd in St. Peter’s Square, “Habemus Papam!” (Hint: if Cardinal Tauran is the one who is elected Pope, another cardinal will of course come out to make the announcement. If someone other than Cardinal Tauran appears on the loggia, we’ll all know immediately, before he says a word, that Tauran must be the new Pope. This is always the case with the senior Cardinal Deacon during a conclave.)

Leah’s question has been answered along the way, but in a nutshell, the main difference that we will see between a conclave held due to the Pope’s resignation, rather than his death, will be the absence of the elaborate funeral ceremonies and the nine days of mourning. Pope Benedict—who after February 28 will no longer be called “Pope Benedict”—will be residing quietly outside of Rome, completely out of the public eye, while all this is taking place. He will have no say whatsoever in the proceedings before or during the conclave. He’s making it pretty clear, both from the wording of his resignation announcement, and from carefully refraining thus far from commenting on the process, that this is exactly what he wants!

In fact, the closest that Pope Benedict has come to even mentioning the upcoming conclave may have been a simple statement he made at last week’s papal audience, his first public appearance since the resignation announcement. The Pope told the assembled faithful, “continue to pray for me, for the Church, for the future Pope. The Lord will guide us.” Perhaps the best parting-gift that we Catholics can give him is to do just that.

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