Posted on 12/02/2024 3:26:16 PM PST by ebb tide
A recent contribution by Luisella Scrosati, published on the Italian Catholic outlet La Nuova Bussola Quotidiana on October 31, focuses on Pope Benedict XVI’s resignation, a topic that, over a decade since it happened, continues to spark debate—and likely will for years to come.
As canon law scholars know, if a resignation is dubious, as noted by Jesuit canonist Father Francisco Leytam in the late seventeenth century in his defense of the papacy (Impenetrabilis Pontificiae Dignitatis Clypeus, Romae, 1695, Disceptatio VIII, Sectio VI, § 59, p. 314): “Consequently, the second election will also be dubious, and the second elected pope will be doubtful; there will thus be two doubtful popes: some will adhere to the first, while others will follow the second, resulting in a schism in the Church.” This is precisely the scenario we are witnessing today.
In her article, Scrosati presents a study by two Italian canonists, Professors Geraldina Boni and Manuel Ganarin (see here), in which the scholars analyze the arguments put forth by Carmelite theologian Father Giorgio Maria Faré. On Sunday, October 13, during a lengthy homily, Father Faré explained why, in his view, Benedict XVI’s resignation was invalid, or even non-existent, and therefore Pope Francis would be an antipope.
It is not my intention to delve into the controversy or provide detailed reflections on the writings of the two eminent canonists. Instead, I will limit myself to discussing two points that particularly struck me.
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Setting aside the questions about munus/ministerium/officium—on which I agree with the observations of the two scholars—it seems to me that one weak point in their rebuttal of Father Faré’s theses relates to the notion of resignation as an actus legitimus or a purely juridical act. The canonists write: “He [Father Faré] considers that this would not be possible before a “‘pure juridical act’ […] which, because of [its] importance, and in order to avoid possible uncertainties and ambiguities, does not [admit] the presence of accidental elements, which are usually the condition and the term,” otherwise the act itself would also be “non-existent” (p. 5).
Premised on the fact that it seems difficult if not impossible, according to the principles of the general theory of law, that the presence of an accidental element can in itself determine the non-existence of a legal act, thus overwhelming its essential elements, the inapplicability of some codicil provisions to the pope’s acts, resulting from an interpretation of the normative dictate in accordance with the ius divinum, is again not taken into account. Only through a rough investigation, in fact, can it be inferred from the text of can. 189 § 3 CIC that the renunciation should produce an “immediate effect,” since “no provision is made for a possibility of deferment” (p. 5). But what is not explicitly stated in canon law does not mean that it is implicitly forbidden: efficacy, on the contrary, could legitimately be deferred in time, given that renunciation is an act of government by which one determines only the cessation of the ownership of the apex office of jurisdiction in the Church, not detecting in any way the divine investiture of the office and on the understanding that the papacy does not represent the fourth degree of the sacrament of order.”
On the issue of imposing a time limit, Professor Boni herself has previously addressed this matter in depth. In past years, she promoted a proposal for canon law reform aimed at filling a gap in the Church’s legal system in cases where the Apostolic See is impeded, whether temporarily or permanently and irreversibly (see here). Boni also advocated for regulating the temporal effects of a resignation, leaving open the possibility of deferring its effects; for clarifying the status of the resigning pope (including titles, retention or loss of cardinalatial dignity, prerogatives, functions, participation in future conclaves or ecumenical councils, attire, residence, etc.); and for avoiding confusion between munus and ministerium. She proposed a legal presumption that the resignation of the Roman Pontiff entails all powers, ministries, duties, rights, privileges, faculties, graces, titles, and insignia—both substantive and honorary—pertaining to the office.”
This proposal by the professor, supported by contributions from various canonists and sparking an interesting doctrinal debate, was dismissed by Pope Francis. He excluded the possibility of regulating the juridical status of a resigning pope during an interview with the Spanish newspaper ABC in December 2022. When asked if he intended to regulate the matter of the emeritus papacy, Francis (here) replied: “I have the feeling that the Holy Spirit has no interest in me dealing with these issues” (El Papa Francisco: «He firmado ya mi renuncia en caso de impedimento médico», December 18, 2022).
He reiterated this position during his apostolic journey to Congo and South Sudan: “It is true that I wrote my resignation letter two months after my election and handed it to Cardinal Bertone. I don’t know where that letter is now. I wrote it in case I ever face health issues preventing me from fully exercising my ministry. However, this does not mean that resigning popes should become a ‘trend.’ Benedict had the courage to do it because he felt unable to continue due to his health. As for me, for now, I have no such plans. I believe the papal ministry is ad vitam. I see no reason why it should not be so. The ministry of great patriarchs has always been lifelong. Historical tradition matters. If we listen to gossip, though, we’d be changing the pope every six months!” (A. Spadaro, La Chiesa non è una multinazionale della spiritualità. Francesco con i gesuiti del Congo e del Sud Sudan, La Civiltà Cattolica, 2023, I, quad. 4144, p. 322).
Returning to the arguments of the two canonists, they are indeed interesting, though not new, as similar points have been raised by various authors in recent years.
However, this argument misses the mark by failing to consider the sacred dimension of the Petrine office, which sets it apart from other ecclesiastical offices. In other words, it ignores that the papacy, unlike any other Church office, involves two subjects, one of whom—the one often overlooked—I refer to as “the silent guest.” Who is this guest? The Lord Jesus Christ, the subject systematically omitted from these analyses. Why does Christ matter, and to what extent?
In discussing the papacy, we must begin with the observation that God—or more specifically, Christ—is the efficient cause of the sacraments and of making someone pope. As Cardinal Cajetan wrote (De comparatione auctoritatis Papæ et Concilii cum apologia eiusdem tractatus, cap. XXI, nn. 305-306, in J.V.M. Pollet (a cura di), Scripta theologica, I, Roma 1936, pp. 135-136), the pope’s resignation (or acceptance of election) is not an efficient cause but only a dispositive cause, aligning with Hebrews 5:4: “No one takes this honor upon himself but only when called by God, just as Aaron was.”
In other words, the one who resigns would be disposed to lose the papal office (by presenting his resignation), while the Lord Jesus Himself would be the one who causes the separation of the man from the office. It is the Lord who is the efficient cause, not the act itself.
In other words, just as the elected individual, upon accepting the Supreme Office, would prepare to receive from Christ the universal, full, and immediate authority over the entire Church, similarly, through renunciation, the Pope would prepare for Christ to withdraw this authority from him. Both the conferral and the withdrawal occur immediately upon the respective acts (acceptance or renunciation) being performed, without any interruption or the possibility of postponing the effects to a future and uncertain event (conditions) or a later or final time (term).
This is analogous to what happens—according to a beautiful image cherished by ancient canon law—in the Eucharistic consecration: “A Pope, as long as assent and faith remain in him, is always Pope; but as soon as he renounces or becomes a heretic, he ceases *ipso facto* to be Pope; just as in the Sacrament, the Body of Christ is present as long as the species of bread remain; but once the species perish, the Body of Christ immediately ceases to be present” (A. Montanari, Dizionario istruttivo per la vita civile, t. I, lett. A, B e C, Verona, 1776, p. 370, nt. 55).
If, therefore, the effect is immediate, ipso facto, with respect to the act performed, it follows that by its very nature, it cannot tolerate the addition of terms, conditions, or modifications.
To see this clearly, one only needs to reflect on the absurdity of an acceptance of the papacy expressed in the following manner: “I accept the election, but this will take effect starting at 10:00 AM on such and such a day.” Similarly, consider the absurdity of a declaration of renunciation phrased as: “Dear Lord, I will remain Pope until 8:00 PM on a given date X; from 8:01 PM on that day, I will no longer be Pope, and You may withdraw the papal authority from me.”
One does not need to be a theologian or canonist to grasp the oddity of such a solution, as it is easy to understand that it would, in effect, subordinate the Lord Jesus to our will and to human conventions (such as time and date), turning Him into a kind of secretary or notary at the service of human whims and conventions. To borrow the words of Psalm 2: “The One enthroned in heaven laughs; the Lord scoffs at them.”
In short, although positive canon law does not explicitly forbid the addition of terms or conditions to either the acceptance of the papacy or its renunciation (the latter being the opposite of the former), it is equally true that the very nature of these acts does not permit the inclusion of such accidental elements.
To be precise, we can identify some indications within positive canon law. In the case of acceptance, these indications are more abundant.
Canon 332 §1 (similarly to Canon 44 of the CCEO) states: “[…] a person elected to the supreme pontificate who is marked with episcopal character obtains this power from the moment of acceptance. If the person elected lacks episcopal character, however, he is to be ordained a bishop immediately.”
Thus, both the Latin and Eastern canonical codifications link the conferral of authority to the moment of acceptance.
Canon 178 further adds: “The person elected who has accepted an election which does not need confirmation obtains the office in full right immediately; otherwise, the person acquires only the right to the office.”
General canon law, therefore, clearly shows that upon acceptance, the designated individual immediately obtains the office with full authority.
Particularly incisive and specific to the papacy is Article 88 of the Apostolic Constitution Universi Dominici Gregis: “After his acceptance, the person elected, if he has already received episcopal ordination, is immediately Bishop of the Church of Rome, true Pope and Head of the College of Bishops. He thus acquires and can exercise full and supreme power over the universal Church.”
I would like to emphasise the adverb used by the canon legislator: “immediately.” What does it mean? Is there room for the addition of terms or conditions? Would a conditional or time- limited acceptance validly confer the office?
In my humble opinion, no. The categorical nature of the term suggests that the declaration of acceptance cannot be subjected to the addition of incidental elements, since the effect should take place “immediately” and could not be delayed. This clear indication in canon law confirms that both acceptance and resignation fall under the category of actus legitimi.
In an analogous sense, we must think that the effect in the case of resignation is also immediate, as it is a contrarius actus of acceptance. If acceptance immediately grants the designated person the power, similarly, resignation would immediately deprive them of this charism. In other words, if the acceptance of the papacy cannot be conditional or time-limited, why should resignation be? The logic of canon law suggests that adding a condition to the resignation would undermine its juridical and spiritual nature. This direct connection between acceptance and resignation implies that both actions must respect the divine dimension of the papacy.
One confirmation of this is found in § 3 of canon 189, which generally governs acts of resignation from ecclesiastical offices. According to the canonical provision: “to be valid, a resignation, whether it requires acceptance or not, must be made to the authority to whom it pertains to make provision of the office in question.”
Here, too, we have a clear indication of the juridical nature of resignation as a pure act, with the effect being immediate and consequent upon communication made in accordance with the law.
It is significant that the same Professor Boni, in an essay dating back almost ten years, confirmed the inability to attach incidental elements to the act of resignation. Commenting on Pope Ratzinger’s farewell words at the audience on February 27, 2013, and his papal emeritation, she wrote: “We do not believe – we do not want to believe – that Benedict XVI, in his emotional farewell to the people of God, intended to somehow distort the papal institution and adopted a technical language meant to promote a transformation of such magnitude in the canonical order: a language, moreover, as it has been proven, that for this purpose would have been inappropriate, or at least cryptic and ambiguous, far from the certainty of law that such an important act would have required. Always assuming this is admissible, which we do not believe, as the majority of canonists have always held that a resignation of the pope under condition, for example in favour of another or reserving some competences, would not be valid” (Due Papi a Roma?, in Stato, Chiese e pluralismo confessionale, 2015, no. 33, p. 69).
Let us focus on that “would not be valid a resignation of the pope under condition, for example in favour of another or reserving some competences.”
In fact, there have been very important canon authors who admitted conditional resignation (although they never speak of adding a time limit). Among these, as far as I know, is the Servant of God Father Felice Maria Cappello, who, in his work De Curia Romana juxta Reformationem a Pio X sapientissime inductam, speaking about papal resignation, says: “There is nothing to prevent that the resignation may happen conditionally. In fact, neither divine nor natural law prohibits it. However, many inconveniences could easily arise from a conditional resignation; therefore, the good of the Church absolutely requires that the Pope should not make a conditional resignation to the papal dignity” (De Curia Romana etc., vol. II, De Curia Romana “Sede Vacante”, Romae, 1912, p. 7, Quaest. IV).
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Ping
I’m not Catholic, so I don’t follow all of these things roo closely. But I have to say Benedict XVI is a tremendous mystery to me. I don’t understand his actions at all.
Good question. One can only hope that the Heavenly Father makes it somehow known that Bergoglio’s occupation of the Throne of Peter is an abomination.
In my mind, Bergoglio is the False Pope that was prophesied. I can’t remember anymore who it was who mentioned the False Pope, but that’s how I view Bergoglio.
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