by Br. Alexis Bugnolo
AN EXPLANATION OF RECOURSE TO APOSTOLIC RIGHT TO ELECT THE ROMAN PONTIFF
WITH AN HISTORICAL EXAMPLE
When a law fails, one has recourse to the principles of right which are derived by greater authority. This is a general principle of jurisprudence, which alas, many moderns no longer understand.
This is because in modern times, we are afflicted with a theory of right which is called juridical positivism. This error was condemned by Pope Benedict XVI in his speech to the German Parliament in September 22, 2011 (News report here, full text here). The error of positivism consists in holding that there is no authority until authority acts, and that there is no authority among men, unless men put laws into writing. And that subsequently they can change moral principles and rights by making written or verbal declarations.
Juridical positivism is, as you can see, the atheist’s notion of jurisprudence.
But the Catholic notion of jurisprudence holds that there is a God, and that He is the supreme authority in all matters of jurisprudence not only in virtue of His teaching or pronouncements, recorded in Scripture, but also inasmuch as He is and acts, and in particular, in His act of creating and forming this world.
Thus in the Catholic Church law is not derived from Popes or Bishops first of all, but from Christ Jesus, the Living God, to whom all authority in Heaven and Earth has been given by the Eternal Father. Secondarily from the ordinances of the Apostles. And only after that from Popes and Bishops, individually or in Councils and Synods.
Now as regards the laws of the Roman Church, the Popes individually and often in Synods and even Councils have determined and legislated various things.
One of these regards the election of the Roman Pontiff.
Who holds the right to elect the Roman Pontiff?
But while the Popes have authority to determine this election by special or general laws, they are NOT the source of the right. That right comes to the Pope via Saint Peter whom the Pope succeeds. But the ability of the Pope by legislation to determine the exercise of that right, is limited by the ordinance of Peter to leave this right to the Roman Church.
In fact, the Pope himself does not have the right to elect his successor. Only the Church of Rome has that right. This is undisputed in the Catholic Church. And anyone who says otherwise, is simply totally ignorant of Church history and the jurisprudence of the Roman Church. Nor can the Pope make someone who is not a member of the Roman Church an elector for the Pope. This is why he incardinates all Cardinals, who are not Romans, into the Roman Church and gives them a parish to be their titular church. These parishes are found in the Dioceses of Roma, Ostia, Albano, Velletri-Seigni, Palestrina, Frascati, Sabina – Poggio Mirteto, and Porto Santa Rufina, because in St. Peter’s day the Church of Rome comprised all these territories, and these 7 Suburbican Dioceses were never detached from the Roman Church, as their name indicates (Suburbican = suburban, round about, near by).
Throughout 20 centuries the Roman Church has vindicated this right in various ways, but always in every election. At times this was done by all the Faithful of the Roman Church, such as it was in the first 7 centuries. At times, this was done under certain modalities, of having the clergy first discuss candidates and then in assembly with the faithful deciding.
By Roman Church, here, I mean all the faithful in these dioceses, whether clergy, religious, or lay, whether men or women, married or not, saints or sinners or mediocre, nobility and plebs, rich and poor. All these have the right to vote in a papal election by apostolic right.
Papal Laws for Papal Elections
However, with the passing of time, by certain papal laws, the Electorate was restricted.
That the Pope can restrict the electorate is undisputed. Because, though he is not the source of this right, he can determine its exercise, and part of that determination is delimiting who can vote. This does not damage the validity of the election, so long as who can vote is a member of the Roman Church.
The first such papal law was promulgated by Pope Stephen II in the Roman Synod of 769, when candidates for election were restricted to those men who were Cardinal priests and deacons, and when the electorate was restricted to “cunctis sacerdotibus atque proceribus Ecclesiae et cuncto clero”, that is, “to all the priests and mighty ones of the Church and the entire clergy”, that is, to the Bishops, priests, deacons, and those in minor orders.
Then, the next major Papal law came on April 13, 1059 A. D., with Pope Nicolas II’s In Nomine Domini, the Latin and English translation of which I have published here (2021 edition, 2020 edition here), which restricted the electorate to only the Bishops of the Roman Church.
In addition, those these previous laws did not contain them, in later centuries such papa laws contained specifications as to when the law went into effect and when those who exercise the rights it determines can exercise them.
The Strictures of John Paul II’s Papal Constitution, Universi Dominici Gregis
The current Papal Law, Universi Dominici Gregis, was promulgated by Pope John Paul II, in 1996 on Feb. 22, the Feast of the Chair of St. Peter. — Only the Latin version is binding. (Translations should be used with caution therefore, only as an aid to understanding roughly what is being said).
That law specifies that it regards what is to be done after the death of a Roman Pontiff, or his valid renunciation, that is, when the Apostolic See is juridically vacant of a legitimate claimant to the supreme office.
The Cardinals are forbidden in n. 1 of exercising any power of the Roman Pontiff, when he is alive, and after his death, of doing anything not authorized by this law.
And here, in n. 1, the law expressly declares NULL AND VOID the exercise of any power not specified in this Constitution.
Thus if the Cardinals fail to observe its terms, they HAVE NO RIGHT to do otherwise.
And this is why, when the Cardinals fail to meet by the 20th day, as is specified in n. 37, or when they change the modality of the preparation of the Conclave in any matter, John Paul II in nn. 76 and 77 declares ANY ELECTION WHATSOEVER that they undertake to be NULL AND VOID. Here is the Vatican English translation of those passages, for your better information:
37. I furthermore decree that, from the moment when the Apostolic See is lawfully vacant, the Cardinal electors who are present must wait fifteen 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 twenty days have elapsed from the beginning of the vacancy of the See, all the Cardinal electors present are obliged to proceed to the election.
76. 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.
77. I decree that the dispositions concerning everything that precedes the election of the Roman Pontiff and the carrying out of the election itself must be observed in full, even if the vacancy of the Apostolic See should occur as a result of the resignation of the Supreme Pontiff, in accordance with the provisions of Canon 333 § 2 of the Code of Canon Law and Canon 44 § 2 of the Code of Canons of the Eastern Churches.***
As of the hour of the death of Pope Benedict XVI, this morning, January 21, 2023 A. D., the Cardinal Deacon has not convened a conclave, the Cardinals have not begun a conclave, and no Cardinal anywhere in the world has announced that he is proceeding to elect the successor of Pope Benedict XVI.
Regarding the Claim that the Cardinals still can elect a Pope in Conclave, after January 21, 2023
Therefore, anyone who claims that the Cardinals can still proceed to validly elect the Roman Pontiff are simply uttering a massive falsehood, because there is no rational way to infer, that from a College which has DONE NOTHING, but is obliged TO DO EVERYTHING according to the law, that they retain any right to elect a Pope in a Conclave according to the terms of the law.
They have violated it completely.
Hence, they cannot claim to interpret it in any manner by which they could convene at a later time in conclave to elect the Pope.
HOW THE COLLEGE MIGHT COUNTER-CLAIM
Obviously their argument will be that Benedict XVI validly abdicated in accord with Canon 332 §2, and that with Bergoglio being elected, the papal law for electing Benedict XVI’s successor went into effect, in March 2013.
But as numerous studies have shown, Benedict XVI never abdicated in accord with Canon 332 §2. The text itself is only conform with a declaration of a decision to apply Canon 333 §2, by withdrawing into a life of prayer for the Church and laying down the active ministry.
Thus, Catholics rightly regard the death of Pope Benedict XVI as triggering the observance of the Papal Law Universi Domini Gregis. And since Canon Law in canon 15 affirms that laws which declare some act invalid, make these acts invalid, even in the case in which those acting are ignorant of facts or laws, the Cardinals cannot claim to have anymore, the right to elect a Roman Pontiff in Conclave.
THE CURRENT PAPAL LAW NO LONGER ALLOWS A CONCLAVE
This means that the Papal Law can no longer be observed. And since in Canon Law they do not have a habitual right to elect the Pope per se, but only those rights specified in special law (cf. canons 349 & 359), and since there is no other special law but the above cited Papal Law, Universi Dominic Gregis, at the promulgation of which Pope John Paul II expressly abrogated all customs and laws previously in force, as he states in its final promulgation, at the end of the Constitution:
As determined above, I hereby declare abrogated all Constitutions and Orders issued in this regard by the Roman Pontiffs, and at the same time I declare completely null and void anything done by any person, whatever his authority, knowingly or unknowingly, in any way contrary to this Constitution.
Then, IF there were no other source of right, then the Catholic Church would never again have a legitimate Roman Pontiff, who holds the petrine munus via a legitimate and juridically valid election, in a Conclave.
That there must be another way to elect the Pope
But as Vatican I infallibly teaches, the Roman Church shall have in perpetuity, successors of Saint Peter as her bishops, (Fourth Session, Pastor Aeternus, Chapter 2, n. 5),
Therefore, if anyone says that it is not by the institution of Christ the Lord Himself (that is to say, by divine law) that blessed Peter should have perpetual successors in the primacy over the whole church; or that the Roman pontiff is not the successor of blessed Peter in this primacy: let him be anathema.
there must be another perpetual source of right by which there can be a juridically valid election of Benedict XVI’s successor. And since Pope John Paul II, in his prefatory letter in the Papal Law, above mentioned, says expressly that a Conclave is not necessary for the valid election of the Pope:
It has been my wish to give particular attention to the age-old institution of the Conclave, the rules and procedures of which have been established and defined by the solemn ordinances of a number of my Predecessors. A careful historical examination confirms both the appropriateness of this institution, given the circumstances in which it originated and gradually took definitive shape, and its continued usefulness for the orderly, expeditious and proper functioning of the election itself, especially in times of tension and upheaval.
Precisely for this reason, while recognizing that theologians and canonists of all times agree that this institution is not of its nature necessary for the valid election of the Roman Pontiff, I confirm by this Constitution that the Conclave is to continue in its essential structure; at the same time, I have made some modifications in order to adapt its procedures to present-day circumstances.
Then, there must be another valid way to elect him.
But there is none, but that established by the Apostolic Ordinance, by which Saint Peter gave this right to the entire Church, meeting in public assembly. And this alters the electorate from the small group with the exclusive right which can only be used in a specific time, to the entire group, without any restriction.
Confirmation of this by general principles of jurisprudence
And this is confirmed by the general principle of law, that when a specific law, which applies to specific circumstances only, can not be put into effect, because those conditions have been violated, or no longer exist, and it declares no action taken in accord with the special law can anymore be valid, then one has recourse to the general or higher source of right, which has not been abrogated by the human legislator, since one cannot assume that the human legislator no longer wants a juridically valid act to be posited.
Thus, one must conclude that John Paul II intended to forbid the Cardinals from electing the Pope in a Conclave, if they failed to elect one in a Conclave in the specified time, knowing, as he stated in his prefatory letter, that electing a pope outside of a Conclave has never been per se an invalid method.
This conclusion is especially true since the failure here is not in the text of the law, but in those to whom the law has granted special rights. Thus the law is not defective, but rightly punishes the Cardinals for not acting, with a deprivation of their exclusive right.
And this can be seen from an example. If you have rights to do something within a specified time, then if you do not do that within that specified time, you cannot claim that the one who wrote the law, would want you to have those rights still.
And thus, the only sane conclusion is that the legislator, knows that someone else has those rights in an undisputed manner, outside of that specified time, if the thing to be done MUST BE DONE. But the election of a new pope, must be done. Ergo, someone else has those rights and the Legislator knows it. And when those rights belong by Apostolic Ordinance to all the faithful in assembly — a fact attested to by the first 1000 years of the Papacy — then there the election must be had. And this is clear, that the exclusive rights of the Cardinals of the Roman Church, are only a specification of the rights of the entire Roman Church for a purpose, they do not deny the rights of the Church.
But only those with a thoroughly Catholic mind can see this, because they alone know AND accept the history of Papal Elections, and at the same time reject the concept of juridical positivism, and they too alone BELIEVE that there is a living God, that Jesus Christ is HIM, and that the Gates of Hell shall never prevail over His Church.
So let lawyers, nuns, and engineers, whether in Colombia, Brazil or Italy, who have never studied theology nor canon law, nor the philosophy of law, rail in the night. We Catholics of Rome know our rights and we will now use them to save the Papacy and the Church.
Finally, Pope Benedict XVI incited the entire Church to think about these things on Feb. 11, 2013, when he declared that his successor should be elected by those who are competent. To be competent in Latin means, in this context, to be capable of exercising a right.
ADDENDUM: the events of 964 A. D., at Rome prove the above interpretation of right
There is an historical example of the juridical principles I have explained above, in the election of Pope Benedict V in 964. In 963, the German Emperor deposed the true pope in an uncanonical action, and named Leo VIII as antipope. The emperor regarded Leo as the pope, because the Popes had granted him the right to nominate the candidate to be the pope. His election by the assembly of the Clergy would follow after that.
But as the deposition of pope John XII was uncanonical, the Roman Faithful regarded Pope John XII as the true pope until his death on May 14, 964. So on May 22, the Roman Faithful came together and elected Benedict V. They did this because clearly the German Emperor had no intention of getting Leo VIII re-elected, because by that act he would admit to having supported a usurper. That means there was no legal way to elect the Pope anymore, since you cannot elect a pope after the death of an antipope, only after the death of a true pope. — That is why the Pope is called the successor of St. Peter, because he succeeds in a juridically valid manner the previous successor who held that right. — So the Roman Faithful had recourse to the Apostolic Ordinance, and by apostolic right elected Benedict V, whom the Church has always recognized as the true pope.*
There are other cases in which the Apostolic Right of the Faithful was revived, as can be seen in the election of Pope John V, July 23, 685, as even Wikipedia admits:
John V was the first Pope of the Byzantine Papacy consecrated without the direct imperial approval. Emperor Constantine IV had done away with the requirement during the pontificate of Benedict II, John V’s predecessor, providing that “the one elected to the Apostolic See may be ordained pontiff from that moment and without delay”. In a return to the “ancient practice“, John V was elected in July 685 “by the general population” of Rome.
A case to compare, as a proof in reverse, occurred in 1058, where an papal enthronement took place without a free election by the Faithful. That enthronement created the antipope Benedict X, who was immediately opposed by St. Peter Damian and St. Hildebrand. Later that year Pope Nicholas II was elected, and he restricted the electorate to the Cardinals, by a papal law, In Nomine Domini, which however was abolished by subsequent popes, such as John Paul II, when they promulgated their own laws.
The Cardinals have not lost their right to vote, they have only lost their exclusive right to vote in a Conclave. They can also vote by apostolic right, but they have no more vote than any other Catholic in the Roman Church. Finally, the College of Cardinals can meet in conclave in the future and confirm the election of the man whom the Roman Faithful elect. That conclave would not be canonical, nor legal, nor legitimate, nor confer any right, but it would be a public and sane way to bring themselves and entire Church back into agreement as to who is the pope.
** The end of Pope Benedict V was a tragic one, because the German Emperor in vengeance sent an army to Rome, captured the pope and demanded his renunciation on the condition that he would not put him to death. After Benedict V renounced, out of human weakness, the German Emperor had Leo VIII affirmed as pope by the Roman people, and with Benedict’s agreement. Benedict was then taken prisoner to Germany and starved to death on bread and water. His remains have been lost to history. Leo VIII in his second election is considered to be a true pope by the Church, since there was no pope at the time still reigning, Benedict V having validly abdicated by agreement.
*** The universal prohibition of n. 76 applies even to n. 37 and 77, as can be seen from the clause, “in a way other than this Constitution prescribes”. Those who say otherwise, read “Chapter” in place of “Constitution” and in addition do this in an exclusive way. This simply violates the rules of grammar and syntax in addition to imposing an illicit interpretation the text reserved to the Legislator alone. “Celebrata fuerit” also is a verb referring to an entire event, not any one action. Even the Latin “electio” does not mean only casting a ballot, but refers to the intention to select one rather than a multitude, and as such has a broad signification. Those who allege that a strict reading applies, but then want a strict reading to read the text in an inauthentic manner of referring only to balloting, are really saying, that everything in the Constitution could be violated, except chapter 5, and the election still would be valid. — I say, try that and see what happens in the Church. — Moreover, even if for the sake of argument, it was held that n. 76 does not make any other violations of UDG cause the election to be invalid, other than those in the chapter in which n. 76 is found, nevertheless, since Pope John Paul II has clearly in many other places commanded the Cardinals to do this or that, (e.g. in nns. 1 and 35 and 77) the election would be illicit, and hence illegal, if they violated any other part of the papal law during the Conclave. And hence the election would be without effect, because an illegal action is never held to have a canonical effect in law (canon 38). And to argue otherwise, is simply absurd, because it would be equivalent to saying that even without force majeur, the Cardinals could intentionally violate everything else in the law, and thus, that the law was no law at all. — Finally, since the Legislator never intended that the College obstruct the Apostolic Succession, by electing antipopes and refusing to elect legitimate popes, the same conclusion as I present here returns by referring to higher principles, because the Cardinals have failed entirely to elect a successor to the true Pope. And the law does not allow them to elect successors to false popes. In fact, never in the history of the Church, has the Apostolic See regarded the successor of an antipope to be the true pope. All true popes succeed immediately another true pope. That insurmountable fact of history makes their reading impossible, as it would imply the Legislator himself intended a notion of succession which was both a-historical and implicitly heretical.