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Francis was never pope? Call me unpersuaded.

While Universi Dominici Gregis is special law for a special event, it is not independent of the rest of canon law; it must be read in light of canon law generally and the 1983 Code specifically.

(Note: I am giving this one shot. If it sways some adherents of the ‘Francis-was-never-pope’ group, great; but if it only reassures observers who, regardless of what they think about how Francis is governing, are disquieted by the suggestion that his papacy itself is a chimera, that satisfies me as well.)

Two small but persistent arguments attack the very foundation of Francis’ papacy: first, Benedict XVI’s resignation was invalid (take your pick as to reasons why, but mostly because of pressure allegedly brought on Benedict, as supposedly evidenced by his resignation wording), so there was no vacant Holy See to fill, and so a conclave could not elect a pope; or, second, various irregularities were committed before or during the conclave itself, so the election of Francis was invalid.

Both sets of arguments are offered in inexcusable ignorance of Canon 10 (which sets a high standard indeed for declaring any kind of ecclesiastical acts invalid, etc.), but the arguments alleging the invalidity of Benedict’s resignation are so vacuous that no time will be spent refuting them here. On the other hand, some (okay, basically one) of the claims that irregularities allegedly committed in the conclave itself resulted in an invalid election do have a modicum of plausibility and deserve at least a brief hearing. So here goes.

These latter arguments seem to fall out along three lines, two of which are patently groundless:

Contrary to Universi Dominici Gregis 78, before or during the conclave some electors might have entered into simoniacal agreements to vote for Bergoglio subjecting themselves to latae sententiae excommunication and rendering, under older law, the election of the pope invalid. But, in that same ¶ 78, John Paul II (for the peace of the Church) expressly provided for the validity of a papal election achieved in simony—even if it involved the new pope himself. So much for that argument.

Contrary to Universi Dominici Gregis 79, 81, before or during the conclave some electors pretty clearly entered into gratuitous agreements to vote for Bergoglio subjecting themselves to latae sententiae excommunication and, in contrast to the simony provision, no rehabilitation clause is offered for electors so stained. But the reason a ¶ 78 type rehabilitation is not offered them is simple: no rehabilitation is needed. People who might labor under an undeclared latae sententiae excommunication place ecclesiastical acts (such as voting and/or accepting election) illicitly but validly. See1983 CIC 1331. So much for that argument. Et poenae latae sententiae delendae sunt!

Finally, some hold that other plausibly alleged conclave anomalies, especially in the balloting itself, resulted in an invalid election per Universi Dominici Gregis 76, which states: Should the election take place in a way other than that prescribed in the present Constitution, or should the conditions laid down here not be observed, the election is for this very reason null and void, without any need for a declaration on the matter; consequently, it confers no right on the one elected.

There is some initial plausibility to this argument.

As I understand things—and beyond that some voting pacts were illegally entered into—because, supposedly, a ballot that elected another candidate was vacated on an ambiguous technicality and/or the ballot that elected Bergoglio was an illegal fifth on a day limited to four, the election of Bergoglio “[took] place in a way other than that prescribed” by UDG and so is invalid. There are doubtless more theories of invalidity out there, but I can only address these two.

Now, as noted above, I can see why a few people would think that UDG 76 means that a papal election which takes place in ‘any other way’, as alleged here, is invalid, and I think such concerns for the good of the Church deserve a response. But in proposing a conclusion of “invalidity” one has already, wittingly or not, offered a canonical interpretation of what the phrase “[took] place in a way other than that prescribed” means and, if that interpretation is canonically disputable, so too is a conclusion that rests on it.

I think the conclusion of election invalidity as arising from either or both of these alleged balloting irregularities rests on a misreading of the special conclave law that UDG is and of the wider canon law of which UDG is a part—which brings me to the first point.

Notice that I have already cited two canons (cc. 10, 1331) from the 1983 Code in discussing a papal election. I do this because I know that all of canon law works together to direct Church affairs and, while UDG is special law for a special event, it is not independent of the rest of canon law. UDG must be read in light of canon law generally and the 1983 Code specifically.

For these alleged balloting anomalies (assuming they can be factually proven) to have any canonical consequences, they must fall within what UDG 76 means by an election “tak[ing] place in a way other than that prescribed in this constitution” and not just what common English parlance might mean by the phrase. Interpreting what the words in UDG 76 mean requires finding a meaning that canon law, and not simply conventional vernacular usage, would support.

That is not as easy as it might at first seem.

Consider: UDG requires (among many, many things) the use of paper ballots with the words “Eligo in Summum Pontificem” across the top. Now suppose some, but only some, ballots read “Eligo in Summum Pontficem”, but this mistake is not noticed until after a winner is announced in the Sistine Chapel. Has the election taken place “in a way other than that prescribed”? Yes. Suppose the electors run out of paper ballots and start using card stock. Has the election taken place “in a way other than that prescribed”? Sure. Suppose some electors cannot spell a candidate’s name correctly and so either badly guess at its spelling or identify him by his city or country? Has the election taken place “in a way other than that prescribed”? Indeed. Suppose Rome is hit with a heat wave and the Sistine Chapel AC breaks down, so, to save aging electors dangerous misery (such as actually happened during the election of Benedict XIV), the afternoon ballots are shifted to take place in the morning. Has the election taken place “in a way other than that prescribed”? Certainly. A thousand variations on the ‘prescribed way’ of electing seem possible, some trivial (like typos on a ballot), others gravely sinful (like simony), such that, in some cases at least, the words in UDG 76, “in a way other than that prescribed”, could not reasonably connote in Church law everything they could well connote in common parlance.

So, recognizing that a canonical understanding of this phrasing is needed, a canonist would likely turn to Canon 17 which states “if the meaning [of a law, and UDG is a law] remains doubtful and obscure, recourse must be made to parallel places” and so on. The pope certainly knew about Canon 17 when he wrote UDG and he expects people who claim to interpret UDG to know when Canon 17 should be applied.

I think, after looking at some “parallel places” (and what places can be more parallel here than other papal conclave provisions?), that what John Paul II meant when he scored as null any papal election that took place “in a way other than that prescribed” was basically this: if a papal election purported to take place other than by two-thirds majority of ballots directly cast by individual electors present in conclave—that is, if, say, any one attempted to revive older, long acceptable, but now discarded, means of papal election such as “acclamation”, or “compromise by committee”, or drawing lots, or leaning out a window and asking the crowd outside St. Peter’s who should be pope—that such an election would be invalid.

But almost all the other variations in conduct that invariably take place in human activity, and likely all the responses to procedural questions that cannot be guessed in advance but that really will happen (such as what to do upon finding a stray blank ballot in the stack only after they have been counted and the result announced!) are left by UDG 5 (whose very existence proves that the pope knew that ambiguities in and unforeseen questions about UDG could arise!) to the wisdom and authority of the College of Cardinals to decide. Deus eos adjuvet.

Would I have vacated a papal election just because one blank ballot (probably inadvertently included by some septuagenarian’s fumbling fingers) was found in the stack? No. But the College apparently thought otherwise and that question was theirs to decide. Having vacated the results of that ballot, would I have allowed another round of voting to take place that same day? Yes, and the College decided that way, too. But in neither case, and no matter which way the rulings went, would I have left the conclave worried that a pope had been invalidly elected simply because the way the election actually proceeded was “other than that prescribed” in UDG. I would have been canonically confident that those kinds of variations were not what John Paul II was worried about when he drafted UDG 76.

The broader point is this: No matter how many theories of canonical disaster are floating around these days, persons actually trained in canon law know that the answer to any canonical question (such as, what counts as “in a way other than that prescribed” so as to result in conclave invalidity?) will seldom be found in a single norm because canon law is a system in which many parts must work together in order to serve the common ecclesiastical order.

Thus, taking one canon of the Code or a paragraph of a law and trying to make everything turn on it, instead of reading that canon or passage as part of a wide and complex reality, is rarely (rarely, not never, but rarely) the right way to go.

(This essay originally appeared on the “In the Light of the Law” blog and is posted here by kind permission of Dr. Peters.)

About Edward N. Peters 81 Articles
Edward N. Peters, JD, JCD has doctoral degrees in canon and common law. Since 2005 he has held the Edmund Cardinal Szoka Chair at Sacred Heart Major Seminary in Detroit. His personal blog on canon law issues in the news may be accessed at the "In the Light of the Law" site.

13 Comments

  1. When reading the first edition of The Great Reformer in which Austen Ivereigh unwittingly revealed activities by Cardinals including his late patron Cormac Murphy O’Connor I have doubted the validity of Jorge Bergoglio’s election as Pope Francis. I’ve since read the canons and revisions to an election by John Paul II and Benedict XVI and couldn’t find anything conclusive in declaring Bergoglio’s election as invalid. That in conjuction to what Peters cites, “Contrary to Universi Dominici Gregis 79, 81, before or during the conclave some electors pretty clearly entered into gratuitous agreements to vote for Bergoglio subjecting themselves to latae sententiae excommunication. People who might labor under an undeclared latae sententiae excommunication place ecclesiastical acts (such as voting and/or accepting election) illicitly but validly. See1983 CIC 1331. So much for that argument. Et poenae latae sententiae delendae sunt!” Illicitly but validly. My opinion is Peters is correct. As he notes the entire body of canon law on a papal election doesn’t contain indisputable evidence both in language or interpretation to declare Bergoglio’s election is invalid. However I’m haunted by the alleged prophesy of St Francis of Assisi in which he states “A man will be raised to the Pontificate who is not canonically elected”. Despite Bergoglio’s election being a moot issue because of lack of evidence and the virtual impossibility of such evidence at this juncture coupled with canon law as argued by Peters it remains that canons were admittedly abrogated during the election despite the outcome being apparently valid. If so St Francis alleged prophesy is correct. Furthermore what we are facing is unprecedented in the history of the Catholic Church. A Pontiff responsible for a policy that has caused two sharply divided camps leaving the faithful to choose between the Pontiff’s non binding exhortation more suggestive in tone than Magisterial pronouncement and the Apostolic Tradition. St Francis says “The time is approaching in which there will be great trials and afflictions, perplexities and dissensions. At this time a man not canonically elected will be raised to the Pontificate who by his cunning will draw many into error and death. Some preachers will keep silence about the truth, others will deny it. Sanctity of life will be held in derision even by those who outwardly profess it. For in those days Our Lord Jesus Christ will send them not a true Pastor, but a destroyer”. We are all engaged in speculation, in tribulation, and in seeking the truth on the most divisive event ever in our Faith. The similarity to what the Catholic Catechism calls a “religious deception” is remarkable. That the sanctity of marriage, the natural order of human sexual relationship is subject to personal conscience and the value judgment of clerics rather than the Word of God.

  2. You have a bad link in the following “but mostly because of pressure allegedly brought on Benedict, as supposedly evidenced by his resignation wording)”

  3. “Inside Baseball” by Dr. Edward Peters

    In which is presented a froth of details whipped into the shape of an argument, but which just provides a pretty topping for his own opinion. He spatulas-up what he opines counts as worthy, and spreads his own sauce, so we won’t notice that it’s basically just *his* legal opinion.

    Other canonical scholars are less sanguine than he. So who do you think is correct? Others can play Inside Baseball too!

    Inside Baseball is always fascinating to observe. It usually displays itself when legerdemain is at work.

  4. Generally find Peters impressive, but don’t understand his, well, rather vacuous dismissal of the evidence that Pope Benedict’s abdication was invalid. Since Benedict’s closest confidant Archbishop Ganswein publicly proclaimed at no less than the Gregorian that his friend had ‘not abandoned the Petrine ministry’ but only its active aspect – a perspective upheld by Benedict’s own remarks – the question justly arises as to whether a Pope can only partially resign, whether there can be two or more living Popes at a time, an if not, whether this means via Canon 188 that His Holiness’s ‘substantial error’ invalidates the abdication; and thus means, though inactive, that Benedict remains the sole reigning Pontiff of the Catholic Church.
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    Here is a short but comprehensive analysis from a Catholic historian that presents the evidence:
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    https://lesfemmes-thetruth.blogspot.com/2017/05/guest-post-invalid-abdication.html
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    If it is mistaken, as well as where and how, Professor Peters should have the charity to explain why, especially as there is no marginal number of Catholics who accept or at least find plausible its evidence. There is in addition the impression that the reason these arguments aren’t addressed and refuted is that they can’t be: and thus to avoid the political and social repercussions of facing that, it becomes necessary to insist the evidence be ignored.
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    Again, if this analysis is wrong, then Professor Peters should not pretend it is without merit by refusing to address its evidence seriously, but instead- taking it seriously – explain where it errs.

    • The fact that someone who knows the Pope well made a statement that was mere theological speculation does not, and can never, invalidate the resignation of a Pope. If you read the actual resignation letter, it is clear that he resigns without qualifications.

      Benedicts’ made a subsequent statement – which the guy you link to badly misinterprets. He said that he was not going to “lay down his cross” and in retirement go off traveling, going to seminars, do whatever he wanted to do, but instead he would choose to spend his retirement by staying in service to the church by praying constantly, by staying secluded etc.

      Some have misinterpreted that as him saying he was not resigning the entire Papacy. That is just a silly interpretation. Benedict should be praised for continuing to be in service to the church rather than going off and having fun. But in no way was he saying that he was not resigning the whole papacy. People are just making that up so they can wallow in their conspiracy theories.

      The statement by Ganswein is simply some theological speculation. One could view the existence of a Pope Emeritus – who has zero powers of the papacy – who can exercise no influence whatsoever on the church – as exercising the only thing left to him, which is prayer and fasting. Because Ganswein made a mistake and spoke of this speculation as two parts of the papacy, this only gave the conspiracy theorists grist for their mill.

      • Mr.Samton: You are free to hold to your position of course and presumably are determined to do so, but your arguments follow the standard pattern of first avoiding the evidence, then making quite unsubstantiated assertions based on that avoidance. So for the record:
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        1) I have read the resignation letters and contrary to your assertions they are quite qualified, holding as they do to the Papal munus, or Office, while seeking to forfeit the papacy’s ministerium or active role.
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        2) It is alas too typically disingenuous to flee the import of Ganswein’s lecture by pretending he is but “someone who knows the Pope well,” when of course he is instead (and has been since before Benedict’s election to the papacy) the Holy Father’s personal secretary as well as close friend. While (rather desperately) we can to avoid its implications pretend otherwise, it is obvious Ganswein was revealing, as do the resignation statements themselves, what Benedict himself believes – as demonstrated not least in that, aware of the philosophical principle that silence equals consent, His Holiness has chosen neither to correct nor contradict his spokesman’s public revelations. To pretend this is “mere theological speculation” is but yet another way to elude facing the seriousness of the dual papacy Benedict has sought to establish.
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        3) Leaving aside the ad hominem in your final three paragraphs (too often employed when an argument itself is weak), each of your assertions there are contradicted by the careful distinction Benedict made between Munus – Office – and Ministerium – ministry – in both his resignation statements.
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        Thing is, folks squirm to avoid looking at the matter. Why not instead at least hypothetically accept the obvious: that Benedict really did intend only a partial resignation, holding to Peter’s Office, while relinquishing its active aspect.
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        What then? Can there be two or more living Popes at a time? If not, given the plenipotentiary authority of the Pope, would this not mean that, unable only partially to resign as he mistakenly thought, Benedict’s entire abdication was invalid? If not, why not – but I mean seriously why not, over against linguistic elusions meant solely to escape considering the implications of what it very much appears Benedict has done?
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        Really, it’s almost as if the only reason not to look at this, soberly and sans polemics, is that it can’t be done without concluding what many and a growing number have, that, however inactive, Benedict XVI remains the sole living Pontiff of the Catholic Church.

  5. Any argument to avoid a pope one doesn’t like (or who isn’t properly papal enough).

    The solution for Latins is to reconsider the extreme ultramontanist views of the papacy they may have.

      • Mr. Samton: Likely true that, tho irrelevant.
        ^
        Also fair to propose that following Ganswein’s lecture & in consequence reviewing Benedict’s resignation statements, a serious man who’d purportedly been elected to the papacy would promptly move to have the matter clarified.

  6. I don’t think either this article, or the comment by Fr. Peter Morello, serve to dismiss the invalidity of Pope Francis’ election. I say that for two reasons: First, granted that illicit votes in the conclave are valid votes…BUT…if those illicit but valid votes are determinative of the outcome THEN the outcome is INVALID because a Pope cannot be elected by a majority of illicit votes. An illicit vote here and there is one thing…but a plurality of illicit votes is unconscionable, making the election INVALID. (and you can read that in “light of the whole of canon law”!). The Second reason I offer in support of the invalidity of Francis’ Papacy is to look at the effects: discord, uncertainty, malaise, and apprehension. These are not the fruits of a valid Papacy. Certainly, Archbishop Bergoglio is a pastor by virtue of his valid episcopacy, and his talks, letters, etc clearly indicate as much. But Vicar of Christ, and possibly some of the other titles the Pope is graced with, don’t seem to fit the figure comfortably at all – as if this critically important charism were lacking! I might even offer a THIRD piece of evidence to the invalidity of Francis’ election: neither Francis nor his papacy seem to fit the cryptic “Peter The Roman” phrase used by St. Malachy to describe the Pope “after” the Pope called: “From the Branch of the Olive” – which fits Pope Benedict XVI quite aptly, and coincides with the number of Benedict’s papacy also. Let it be observed that as long as Benedict lives, Francis is not the “NEXT” Pope. To me, it’s like placing money bills on the table, one at a time, until the bill is filled. I am officially a doubter about Francis’ papacy, and seek confirmation of serious conclave improprieties that would make it a done deal, like Cardinal Muller, or other German cardinals, or some liberal cardinals spilling the beans on what they know….

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