Tag Archives: Code of Canon Law

Canon Law

What does Pope Francis have to do, to validly Abdicate?

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A Canonical Commentary by Br. Alexis Bugnolo

Having written more about the Renunciation of Pope Benedict XVI than perhaps any other author in any language, and having spent 6 years in its study, having spoken with some of the top legal experts at Rome, I will here lay out what is required to validly renounce the papacy, and what are the problems Pope Francis has to avoid, to do this without creating a new controversy over who is really the pope and who is not.

Canon 332 §2

Si contingat ut Romanus Pontifex muneri suo renuntiet, ad validitatem requiritur ut renuntiatio libere fiat et rite manifestatur, non vero ut a quopiam acceptetur.

IF IT HAPPEN THAT THE ROMAN PONTIFEX RENOUNCE HIS MUNUS, FOR VALIDITY THERE IS REQUIRED THAT THE RENUNCIATION BE MADE FREELY AND THAT IT BE MANIFESTED RIGHTLY, BUT NOT THAT IT BE ACCEPTED BY ANYONE.

REQUIREMENTS OF THE LAW

Canon 332, section 2, in the Code of Canon Law, promulgated by Pope John Paul II on January 25, 1983, is the only law of the Roman Church which governs the abdication of the Pope. While it is brief in its verbal formulations, its signification is profound, and great attention must be placed upon the rules it lays down for a valid renunciation.

TERMS

To understand this, it is first necessary to understand that in the Roman Church, the supreme earthly hierarch, is called in law, the Roman Pontiff, according to the dignity of the office. That is, the man who is the pope is called “Roman Pontiff”, as his official title. This title pertains according to ecclesiastical tradition to the Bishop of Rome. Consequent to this title are his other titles such as “Vicar of Christ” and “the Pope”. These latter titles are theological and popular, respectively speaking. “Pope” can be used also in regard to other Patriarchs, such as the Coptic Patriarch of Alexandria, Egypt. And “vicar of Christ” is a generic term for any bishop or priest acting in the name of Christ, though in English, as a proper title, “the Pope”, is used by Catholics to refer solely to the Bishop of Rome.

Secondly, the papal office (officium papalis) is signified in Canon Law by one term only, the petrine munus (munus petrinum: cf. Canons 331-334), with “petrine” (petrinum) being only an adjective of clarification in theological discourse or popular writing. That is, to say “the Pope’s munus”, simply speaking, using the definitive article in English to name the singular special attribution signified by the expression which follows, refers to the petrine munus, to the munus of the Roman Pontiff, the reception or renunciation of which either makes a man the pope or causes him to abdicate, respectively speaking. “Munus” is used in the New Code of Canon Law because it correctly and precisely signifies as a term, a gift of grace received (munus) from Christ Jesus Our Lord, when the one who accepts his election to be the Roman Pontiff, receives this grace from Christ in that very same moment, if he already be a Bishop, or in the moment of his episcopal consecration, if he not already be a bishop. No other term completely and entirely signifies this grace immediately and directly. However, other terms can cosignify this by completely and entirely signifying the canonical or legal effects of receiving such a grace: these are officium, onus, and dignitas, each of which would require an adjective or phrase to precisely signify solely and only that of the Roman Pontiff, such as papalis, petrinus -a -um, or episcopi Romae (“of the Bishop of Rome”). “Ministerium” cannot do this, since “ministerium” in Latin implies its co-relative, “magisterium”, both of which would have to be mentioned along with one of the other three, since they are juridical consequences of holding the petrine munus, they do not co-signify that munus in its entirety. “Onus” in Latin means “the burden”, that is the full weight of the duty, and “dignitas” refers to the full importance or dignity or preeminence obtained by accepting that duty. The use of these latter two terms is sanctioned in the act of renunciation of Pope Saint Celestine V (see below). “Officium” means office, and thus completely signifies the juridical authority and title obtained in receiving this duty.

This, the abdication of the Roman Pontiff in canonical tradition is called a “renunciation”. This term is a highly technical one and has a precise meaning. “To renounce” (renuntiare) means ‘to announce backwards’, that is, to withdraw completely the act of acceptance posited when the duty was accepted, after a juridically valid election. ‘To renounce’, therefore, logically, etymologically and juridically, as well as legally, requires a verbal statement personally made by the one who claims the munus received and names the munus received.

Thus, according to Canon 332 section 2, the entire juridical fact and notion of a papal abdication is signified by the terms “renounce” and “munus”. In Latin the verb “to renounce” (renuntiare) takes an indirect object, unlike in English, where it takes a direct object. Thus “to renounce an office” in Latin requires one to say “renuntiare officio”. “Muneri” is the dative in Latin for this construction of “munus”.

REQUIREMENTS FOR AN ACT OF THE RENUNCIATION BY A ROMAN PONTIFF

Thus, Canon 332, section 2, requires that the man who claims the office, dignity, ministry of or the grace to be the Roman Pontiff renounce his munus. This is the person who alone can make the renunciation. If he be in a coma or impeded, he cannot make this renunciation through legal representative. He is the juridical subject of the act.

This renunciation is the renunciation which is spoken of immediately afterwards in the second clause of the Canon. Canon 332 section 2 only becomes operative when it happens that the Roman Pontiff renounce his munus. If he renounce anything that does not signify or co-signify completely or simply that munus, Canon 332 section 2 does not apply, and the juridical act has only an administrative and temporary value, if any at all. Thus, the Roman Pontiff must verbally say that he renounces his munus or use a completely equivalent expression which signifies the totality of what munus signifies. This is the juridical form (renunciation) and matter (petrine munus) of the act of the juridical act of renunciation.

Next, for the validity of such a renunciation, besides the words needed to be said, “I renounce my munus”, or the equivalent, this renunciation of munus must be made freely. This first condition is that the Roman Pontiff speak only out of a deliberate personal act not under the duress or violent coercion of anyone else. By duress, there is meant a constraint against his own will. By violent coercion, an urging which contains threats to be imposed, not simply warnings of future evils. — Thus, if the Pope’s confessor urge him to renounce because he, the confessor, judges that there is no other way the man who is the Pope can observe the moral law necessary for the salvation of the man who is the pope, such a counsel is not a violent coercion. But if the counsel be given with a person accompanied by weapons or threats of physical violence, for example, whether to himself or others, the liberty of the act can be doubted.

For more on what the text of a valid abdication looks like, see the Renunciation by Pope Saint Celestine V, in Latin and English, here.

This verbal announcement of a renunciation of the petrine munus must be made in the presence of at least 2 other Catholic Bishops, who are not under ecclesiastical penalties of any kind. This is what the Canon means by “rightly” (rite), that is, according to the ritual requirements. It cannot be made electronically or telematically, via television, without such qualified witnesses present. These witnesses should be the 2 or 3 officers of the College of Cardinals, at the very least, who know the Pope personally and can certify that it is truly him, and by conversing with him BEFORE the act can ascertain that he is acting without duress or violent coercion. At least one Apostolic Notary should also be present to witness the signing of a document containing a valid text of renunciation, since if the verbal expression spoken is in any way faulty, the signed and witnessed document containing a valid formula for resignation would suffice to make the act juridically valid.*

Finally, if all such conditions are met, the act must be considered valid in law by all Catholics, and no amount of persons of whatsoever dignity who refuse it causes it to be doubtful or invalid. Contrariwise, if any one of these conditions are not met, no amount of persons of whatsoever dignity who accept it, cause it to be made valid or certain.

However, in accord with the norms of Canon Law, every Catholic is obliged not to accept the renunciation until he sees the act or knows by certain communications that it has been accomplished. Thus, a Catholic who neglects this, and years later comes to know that it was not done correctly, can licitly and lawfully hold that it is doubtful or invalid, and cannot be sanctioned for speaking about it.

Thus, in summary, if Pope Francis renounces, he must say so; in the presence of at least the officers of the College of Cardinals or two Catholic Bishops, and he must document the act with a signed document, witnessed by the same witnesses. He can televise his renunciation.

OTHER CONDITIONS OF JURISPRUDENCE

The renunciation must be made in simple syntax, it cannot be made in indirect discourse, such as when one says, “I declare that I renounce”. Also, it must be made without any sort of delimiting or limiting factors such as time or place or condition, such as would happen if a pope verbally said that he would renounce in the future, or at a certain place other than he is, or on the condition of any future event or fact. Nor can he renounce on the condition that he receive any benefit, such as would appear to be a sale of the office. Nor can he renounce by expressing a motivation for his action which objectively speaking appears to be irrational, untrue, unfounded, fictional, such as if he were to say, “I renounce the petrine munus, because an alien abducted me last night”.

Also, he ought NOT put any subordinate clauses in his act of renunciation, by which the terms he uses might be understood to be constrained in their signification, as would happen if he said, “I renounce the munus which the Cardinals gave me” etc.., or “I renounce the office which is” of a kind not precisely that of the petrine munus, such as if the Pope said, “I renounce the office which is the most important in the eyes of all Christians and world leaders etc..”.

RULE FOR DETERMINING VALIDITY

According to the ancient dictum, “Papa dubius, papa nullius” which is often written as “Papa dubius, papa nullus”, a doubtfully elected pope is the pope of no one, or, rather, a doubtfully elected pope is no pope, respectively. But as the acceptance of an election is the contrary of the renunciation of one’s election, the act of renunciation follows the contrary dictum: Papa dubie renuntiatus, iam papa omnium, that is, “A pope who has doubtfully renounced, is still the Pope of everyone.”

Therefore, if a Roman Pontiff in renouncing transgress any of the conditions or restrictions of Canon 332 section two, such that a reasonable doubt as to the signification of the act, or of its conformity to the requirements of that Canon arise, the act must be considered doubtful and thus the renunciation must be considered invalid, and it would be morally right and even a duty for Catholics to say so and demand that it be redone, if the Roman Pontiff actually and freely want to renounce. — If he fail to do either of these things, rightly, it must be assumed that he never had the intention or liberty to renounce and that he remains the Pope, regardless of whether the Cardinals think it is valid and regardless if he acts as if it is valid, or even assert that it is valid, in a non canonical way. Finally, he cannot after such an act attempt to repair it by any annexed document or verbal statement: he must redo it properly in its correct entire form and matter.

** A renunciation, being like jumping off a cliff, once it is done, it cannot be undone: a renunciation is valid whether it be by spoken word or written word: thus which ever of the two is valid, the renunciation is valid. This is because if the spoken renunciation is valid, the man who was the pope is no longer the pope and cannot take his renunciation back. And if the spoken renunciation is not valid, signing a written document which contains a valid formula, becomes of itself the act of a valid renunciation.

Canon Law, News

Investigating the causes of Pope Benedict’s invalid Abdication

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By Br. Alexis Bugnolo

As is now notorious, Pope Benedict’s act of resignation of February 11, 2013 was invalid on account of not being in conformity with Canon 332 §2. Here at, the From Rome Blog, I have written about this extensively and subjected the text to a Scholastic analysis, demonstrating, I believe, conclusively, that the signification of the text can not be rationally said to conform to the norm of the law.

As a Latin translator of Ecclesiastical texts, I have wondered daily for six months how a mind such as that of our Holy Father, Pope Benedict, could fall into such a grievous substantial error of mistaking the very object (cf. 126) of the act of a papal resignation, which is a renunciation of the Petrine Munus, to be rather a renunciation of the Petrine Ministry.

Ann Barnhardt sees malice in this, in an attempt to bifurcate the papacy. Her collaborators in Germany have found much evidence to this effect.  But as a Franciscan, who is obligated by the Rule of Saint Francis to recognize the canonically elected popes and show them respect, I consider it my duty to investigate other causes which involve less or no culpability. I take the position of the international Association, Veri Catholici, that we need not presume malice, ignorance suffices, if ignorance can be demonstrated.

In my recent article, the other day, on the Falsification of the Vernacular translations of the text of Renunciation, I showed conclusively that the Vatican has misrepresented the signification of the Latin Text of the act, which is the only official canonical text.

In that study, however, it was evident that the German translation was anomalous, that is, that it had entirely different errors than the other translations. These anomalies led me to today’s investigation.

Archbishop Gänswein and the German Translation of the Code of Canon Law

In the German translation of the Act of Renunciation, the anomalies are as follows:

  1. The Latin word, munus, is translated as Dienst.
  2. The Latin word, ministerium, is translated  sometimes as Amt, sometimes as Dienst.
  3. The syntactical association of the act of renunciation is followed by the correct translation of ita ut.

Following the forensic principle of Aristotle, that where there are 2 differing consequences there are 2 different causes, but when there is the same consequence, there is a unity among causes, I am led by comparison to conjecture why this may be the case.

Recall, if you may, the speech given by Archbishop Georg Ganswein at the Pontifical University of St Gregory the Great, in 2016, which sparked so much amazement, because in it, he said that Pope Benedict still shared in the Petrine Ministry and held the Papal Office.

Recently, however, Archbishop Gänswein, to both a German journalist and a journalist working for Life Site News, withdrew his assertions, claiming that he had misused the words for office and munus, in his German text.

Now, supposing that the Act of Renunciation, in the German translation, was overseen by Archbishop Gänswein, we might conclude that he has something to do with the anomalies it contains

This consideration alone, however, did not satisfy me, so I examined the causes for the Archbishop’s errors in German. Naturally, therefore, I went back to the Code of Canon Law in the Latin (the official text) and to the Vatican’s German translation (unofficial, but in practice used by German Speakers).

At the Vatican Website, you notice immediately that the German translation of Pope John Paul II’s Code of Canon Law is better linked than the English. In the German, the index contains links from each line of text, but in the English, the index contains links only in the titles to the books. This gives one to think that some German speaker was using the German translation of the Code quite frequently and has the authority to get the Vatican webmaster to add all the referential URLs, to make that edition more facile in its use.

This argues that Archbishop Gänswein, if not Benedict himself, frequently used the German translation.

O.K., that appears to be an obvious assumption, but there is a problem.  THE GERMAN TEXT IS ERRONEOUS. And not in a small way! In a very crucial manner: it gets the translation of Munus  WRONG! And that in a way that anyone using it, as a guide on how to Renounce the Papal Office, would write an invalid formula of resignation!

Let me explain, therefore, Why and How, Perhaps, Pope Benedict got his Act of Renunciation wrong in the Latin, and thus never in fact or before God resigned.

The key Canons which one must consult regarding how to write a valid act of renunciation of the papal office are canon 332 §2 and canon 145 §1. This is because in the former, the conditions for a valid resignation are stated, and in the latter, the nature of every ecclesiastical office are defined.

Let’s look at each in the German:

Can. 332 — 2. Falls der Papst auf sein Amt verzichten sollte, ist zur Gültigkeit verlangt, daß der Verzicht frei geschieht und hinreichend kundgemacht, nicht jedoch, daß er von irgendwem angenommen wird.

The error in this German translation is minor: it renders the Latin, Pontifex Romanus (Roman Pontiff) with the German, Papst, (Pope).  However, it correctly translates the sense of the Latin, munus, as Amt.  Because, in this canon, the Latin, Munus, has the sense of office, which is what the German, Amt, means.

It must be noted, here, that in the German translation of the Act of Renunciation, the author of that text in the crucial act of renunciation uses the correct German word for a VALID renunciation, Amt! — The only problem is, Pope Benedict XVI did NOT resign in German, he resigned in Latin!

But this anomaly of the German translation of the Act of renunciation does reveal, that at least ONE German speaker, the author of the translation, THOUGHT the act was a renunciation of the Papal MUNUS.

Now, let’s look at the other canon:

Can. 145 — § 1. Kirchenamt ist jedweder Dienst, der durch göttliche oder kirchliche Anordnung auf Dauer eingerichtet ist und der Wahrnehmung eines geistlichen Zweckes dient.

The importance of canon 145 §1 in the Code of Canon Law is this, that it DEFINES the nature of an ecclesiastical office (officium) as a munus.  As I have discussed in my commentary on Boniface VIII’s Quoniam, the Latin word, munus, is the perfect word for an ecclesiastical office, since it signifies both that the office is a dignity, a charge or burden, and a gift, which upbuilds the one who receives it with grace. There is no 1 word in any modern language, to my knowledge, which has all the senses of the Latin word, munus.

For this reason, its difficult to translate munus properly, which is why I use the Latin word even in English prose. (The German Translation of the Code, which appears on the Vatican Website, seems to be that by Father Winfried Aymans, JCD, an eminent doctor of Canon Law from the Diocese of Bonn, Germany. Who however, does not seem to be a Latinist per se, though, to his merit, he be a signer of the Correctio Filialis)

So in this German translation, we see the TERRIBLE error:  Every ecclesiastical office (Kirchenamt) is defined as a Dienst!  But Dienst as every German speaker knows, means what we in English mean by service, and what every Latin speaker means by ministerium.  So the German translation of canon 145 says:  Every ecclesiastical office is a ministry! When the Code of Canon Law in Latin actually says: Every ecclesiastical office is a munus!

In fact, in the code of Canon Law, in the Latin, Pope John Paul II never speaks of any ecclesiastical office as a ministry (ministerium), but always as an office (officium) or munus.

This means, that if any German speaker read canon 145 §1 in the German, as found on the Vatican Website, and probably in most German translations of the Code of Canon Law, he would be mislead into thinking that to resign an ecclesiastical office its sufficient to renounce the ministry of that office! — But this is precisely the error in the Papal Resignation!

If we go back to the other vernacular translations of the Act of Renunciation, which I analyzed in my previous post, we see that all of them follow the erroneous German translation of munus in the German Translation of the Code of Canon Law! But, illogically and inconsistently, also follow the erroneous Latin text of Pope Benedict when he says ministerium in the Act of resignation.  Thus the vernacular translations (excepting the German) are reading in some places the Latin original of the renunciation, in other places, the German translation of the Code and Act of resignation!  This is the scientific reason why the vernacular translations are worthless if not maliciously contrived.

The error in canon 145 §1 might also explain why Pope Benedict thought that in writing ministerio in the Latin text of his renunciation, he thought he was writing munus, because the erroneous translation makes it appear that the German for munus is the same as the Latin, ministerium. For the German of Canon 145 §1 says that every Amt is a Dienst (which in Latin is a ministerium, but in canon 145 §1 is the German translation for munus), and the German of Canon 332 §2, says a Pope resigns when he renounces his Amt. So it appears that Benedict was mislead into thinking that in Latin, if he renounced his Amt, he could sufficient signify that by renouncing his ministerium!

I pray to God, therefore, that SOMEONE in the Church, who can speak with Pope Benedict XVI in person, makes this known to him!

 

Canon Law, Debates

Whether, with all Cardinal electors defecting, the Roman Church has the right to elect the Pope?

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A Scholastic Question by Br. Alexis Bugnolo

In High Scholasticism, the Catholic Theologians, Saints and Doctors of the Church often considered many questions which were speculative, either in regard to what was true but unknowable by man (being hid in the mystery of God) or what could be in a special circumstance which may or may not ever come to be. As founder of The Scholasticum, an Italian non profit dedicated to the revival of the Scholastic Method, I believe that the Scholastic Method can greatly assist the Church even in Her most pressing needs and extraordinary crises. For that reason, I present here a Disputed Question, the import of which may arise, if His Holiness Benedict XVI pass to the Lord before Jorge Mario Bergoglio, and then only if, at such a time, the Cardinals holding fast to the faulty notion that Benedict’s resignation was valid, fail to convene within 20 days to elect his successor. For in accord with the current law on Papal Elections, Universi Dominici Gregis, n.37  Cardinals who do not attend a Conclave with that period no longer have their votes counted. (All references are to the new Code of Canon Law, Latin text; and the papal law on electing the Pope, Latin text.)

Whether, with all Cardinal electors defecting, the Roman Church has the right to elect the Pope?

And it seems that she does not:

1. For only the Cardinals of the Roman Church have the right to elect the Roman Pontiff, according to what is stated in Canon 349, where it says cui competit ut electioni Romani Pontificis provideat ad normam iuris peculiaris.  Therefore, since the Roman Church includes those Cardinals, Bishops and Clergy who are not Cardinal Electors, they have no such right. Therefore, the Church of Rome has no right to elect a Pope, even if all the Cardinal Electors fail to elect one.

2. Likewise, since the College of Cardinals has no authority during a Sede Vacante to act other than what is provided for in special law, namely, in the Law for Papal Elections, Universi Dominici Gregis, and this according to Canon 359, which reads: Sede Apostolica vacante, Cardinalium Collegium ea tantum in Ecclesia gaudet potestate, quae in peculiari lege eidem tribuitur; It follows that neither does the Roman Church, because what is denied a superior, is denied also to the inferior. But the College of Cardinals is denied license to act in any other way that what is proscribed in law, therefore also the entire Church of Rome which is inferior to the College.

3. Likewise, since the papal law, Universi Dominici Gregis, n.4, expressly forbids any variation or alteration in law during a Sede Vacante, when it says: Sede Apostolica vacante, leges a Romanis Pontificibus latas non licet ullo modo corrigi vel immutari, neque quidquam detrahi iis sive addi vel dispensari circa partes earum, maxime eas, quae ad ordinandum negotium electionis Summi Pontificis pertinent. Si quid contra hoc praescriptum fieri vel attentari contigerit, id suprema Nostra auctoritate nullum et irritum declaramus; there is nothing which the Roman Church can do, even if all the Cardinals defect, since there is no provision in Canon Law for such action.

4. Likewise, the ancient right of the Roman Church to elect the Roman Pontiff was abrogated when that right was restricted to the Roman Clergy, and again, when that right was further restricted to the Cardinals of the Roman Church. Therefore, no such right exists.

5. Likewise, the ancient right of the Roman Church to elect the Pope was no more than a custom of the Roman Church. But laws of custom have no force if they have not been observed for 1300 years (cf. Canon 26). Therefore, the Roman Church has no such right.

ON THE CONTRARY:

It seems that she does:

1. By Apostolic Institution of the Apostle Saint Peter, the Roman Church undubitably enjoyed the right to elect the Roman Pontiff.  This right was restricted by special degree in the 7th century to the Roman Clergy, and in 11th century to the Cardinals of the Roman Church. Yet such a restriction which was prudential and a benefice cannot extinguish the apostolic right, in accord with the principle of law, which states that general prescriptions take precedence to special benefices: Generale praescriptum beneficio speciali anteferendum est (Theodosian Code: DEM AAA. VICTORIO P(RO)C(ONSULI) ASIAE). Therefore, in the case that there are no Cardinal Electors, whether in fact or by defection to an Anti-Pope, or to a Heretical or Schismatic Church, the apostolic right of the Roman Church revives. Therefore, the Roman Church has such a right in their absence.

2. Likewise, by the Code of Canon Law, which declares that all rights which have never been revoked remain in force, according to canon 4, which reads: Iura quaesita, itemque privilegia quae, ab Apostolica Sede ad haec usque tempora personis sive physicis sive iuridicis concessa, in usu sunt nec revocata, integra manent, nisi huius Codicis canonibus expresse revocentur; but the right to elect the Roman Pontiff was indubitably granted by the Apostle Saint Peter to the Roman Church, and that right has never been revoked. Nay, it is the very justification and inherent principle maintained when the Roman Synod in the 7th century restricted the exercise of that right to the Clergy, and when the Pope in the 11th century restricted it further to the College of Cardinals. This is confirmed by canon 6 §4, which restricts the abrogation of previous laws and rights to those things which are integrally expressed in the New Code. But such case, of having no Cardinal Electors, is not provided for. Therefore, it is not integrally included. Therefore, the rights to be referred to in such a case are NOT obrogated. Therefore, that right remains in force always to be revived.

3. Likewise, the ancient right of the Roman Church to elect the Roman Pontiff was ever held to have the force of law. This is self evident from history. But as canon 25, teaches: Nulla consuetudo vim legis obtinet, nisi a communitate legis saltem recipiendae capaci cum animo iuris inducendi servata fuerit. But, such is the case with the ancient right of the Roman Church, especially since when this right was restricted, the ancient reason for it was never denied or explicitly abrogated. This is proven by the fact that the Cardinals are still called Cardinals of the Holy Roman Church. Therefore, in the absence of all Cardinals, whether by bad will or substantial error, the right returns to the Roman Church.

4. Likewise, custom is the best interpreter of law (Canon 27). But, when Pope John Paul II was near death, the Cardinals and Bishops in his presence presumed his consent to use his signet ring to appoint Bishops which he had already considered for nomination. And no one in the Church objected to this. Therefore, it is right to presume the consent of a lawgiver, in cases in which he never foresaw. But such is the case of a substantial error in a papal resignation, when all the Cardinals fail to notice that substantial error and are consequently led not to convene in Conclave to elect a successor, but cleave instead to an Anti-Pope which they elected uncanonically during the lifetime of the Pope. Therefore, in such an unforseen and extraordinary case, the Roman Church has a right to have recourse to the ancient law.

5. Likewise, from the principle of subsidiarity, that, namely, when a higher or more dignified part of the body politic fail, the right to act passes to the subordinate authority. This is based on the teaching of Pope Pius XI in Quadragesimo Anno: Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them. It is also supported by Pope John Paul II’s Papal Law on Elections, Universi Domini Gregis, where in the Prologue, the Holy Father says expressly that the College of Cardinals is “not necessary” as an institution “for a valid papal election”. — Thus, with all the Cardinals failing, it would be wrong to deny what the lesser and subordinate organization, the Roman Church, can do. Therefore, if all the Cardinal Electors fail to act on account of an obstruction which they themselves cannot or fail to remove, the Roman Church, as the entity to which they belong by incardination, receives license to resort to the Apostolic right which it has ever enjoyed, in part or whole, of electing the Roman Pontiff.

6. Likewise, from the Code of Canon Law itself, in canon 28: nisi expressam de iis mentionem faciat, lex non revocat consuetudines centenarias aut immemorabiles; hence, since the Apostolic right of the Roman Church is of time immemorial, and since that right is not expressly revoked in the present Code, it remains in force, in due circumstances. But the absence of all Cardinals Electors is not only a due circumstance, but one which puts the very constitution of the Church in the gravest danger, since the Office of Saint Peter is not only useful but necessary for the salvation of souls. Therefore, such a right cannot be considered abrogated by the new Code nor by the papal law on the Election of the Roman Pontiff, even if it seems to be expressly abrogated. Therefore, the Roman Church has such a right, in such circumstances.

RESPONDEO:

I RESPOND:  It must be said, that whether by good will or bad, the act of electing a Roman Pontiff during the life time of a validly elected Roman Pontiff is both a crime against God and against the unity of the Church. It is a crime against God, since Christ has ordained only one man to be pope at any given time. Its a crime against the unity of the Church, since it causes a de facto schism between those who adhere to the true Pope and those who adhere to usurper and false pretender.  Now, even if the Cardinals who do this, do so without malice, but operate under substantial error, nevertheless before the law they must be held to be guilty of the sin and crime of schism, whereby they lose every office and privilege in the Church.

Now the Roman Church, which has ever held the right by apostolic privilege of electing the Roman Pontiff, enjoys in a special way the promise and right granted by Our Lord when He declares that “the Gates of Hell shall never prevail against My Church.” But the Gates of Hell would prevail against the Roman Church if she were deprived of a validly elected Pope and forced to submit to a pertinacious public heretic, apostate or Freemason.  Therefore, the Church of Rome has the right to elect the Roman Pontiff, in the special case wherein all the Cardinal Electors fail to exercise their right to do so. But in accord with the papal law, Universi Dominici Gregis, this right must be exercised within 20 days after the death of the Roman Pontiff.

Therefore, if Pope Benedict XVI dies before Jorge Mario Bergoglio, and after 20 days no Cardinal Elector convenes in Conclave to elect his successor, the Roman Church, composed of all the Cardinals, Bishops and Clergy, incardinated in the Diocese of Rome, excluding those who adhere to the de facto schism, have the right to elect the Roman Pontiff.

For this reason, the arguments to the contrary are to be accepted, which sufficiently refute the arguments which contradict them.

UPDATE – January 28, 2024: The above Scholastic Question was published on January 19, 2019. It is republished here for record, against those critics who said that Br. Bugnolo changed his opinions after he came to Rome.

But since those who malign the holy and righteous work of January 30, 2023, use arguments from this Question without informing their readers of their rebuttal, and since they refuse or cannot understand an argument from principles, as is had above, Br. Bugnolo adds here a direct refutation of the arguments for the negative from first side of the Question,

Ad. 1. That one group has a right, according to a papal law, does not mean that another group does not have a right from some other font of law. Furthermore, the Roman Church has the right to elect the Roman Pontiff by Apostolic Law which is superior to Papal Law, for Apostolic Law is part of Divine Law and Sacred Tradition, which the Roman Pontiff can never abrogate.

Ad. 2. While it is true that all orders of clergy in the Roman Church are inferior to the College of Cardinals, it is not true that that College is superior to the Roman Church. Therefore, what is denied to an inferior, is not necessarily denied to a superior. Nay, the Papal power has denied the right of elections to inferiors, but has not denied the right to elect to the superior. Thus, ex silentio no argument can be made.

Ad. 3. While it is true that the Papal Law Universi Dominici Gregis denies to anyone but Cardinals to elect the Pope, it conditions this and all its provisions to elections during Conclaves. It says nothing about how to conduct an election by Apostolic right, though it does refer to such an election as valid in its introduction, as is clear.

Ad. 4. Right in one order of law is not abrogated when that right is applied by a lesser law in application. Thus when the circumstances of the application no longer hold, then that right revives. And such is the case when all the members of the College of Cardinals defect, or fail to convene within the time specified by the Papal Law.

Ad. 5. The ancient right of the Roman Church is no mere law of custom, since all Catholic theologians hold that it is of Apostolic ordinance. Thus when the custom of positive law could abolish customary law, it cannot abolish this right, which is no mere custom of men.