Legal Underpinnings for a Papal Resignation

The New York Times published an interesting article by Daniel Wakin titled, “Do Popes Quit?” on the issue of whether a Roman Catholic Pope can resign, which is different from whether a Pope should resign. The issue has arisen in recent weeks as mounting evidence suggests Pope Benedict XVI (a.k.a. former Archbishop Joseph Ratzinger of Munich) improperly handled sexual abuse allegations against priests under his jurisdiction in Munich for many years.

At least two previous Popes have resigned, but the most recent was in the early 15th century, when the position was as much a secular European monarch as spiritual leader of the Catholic Church. In fact (I went and looked this up), Gregory XII’s resignation in 1415 was arguably done entirely for the sake of political consolidation of the Church at the end of the Great Schism, during a period of great systematic upheaval in Europe as the concept of sovereign states was emerging in parallel to the existing Church geo-political structure. However, even though he “resigned” and left office, Gregory was not replaced until after his death in 1417, probably to ensure that there was absolutely no question of who was Pope, since he had resigned to conclude a dispute between several factions of “rival Popes.”

As the Times points out, especially with Popes living to be older and older these days, there would be serious questions as to the legitimacy of a new Pope if the previous one had resigned but was not deceased yet. The problem from 1415 would be repeated and potentially worse now for the Church. An ex-Pope would still have a very large following, especially among many of the Cardinals who elected him, and unless he went off into solitude like Gregory XII, an ex-Pope’s public statements would be taken as the word of God and official Church doctrine by his remaining adherents, even if it contradicted or undermined the positions of the sitting replacement Pope. It’s like a former US President openly criticizing the new administration endlessly because he’s around and available for comment, except about a hundred times worse, since devout followers believe the Pope is speaking as God’s own corporeal representative on Earth.

But what about the legal doctrine and precedent? Can a Pope really just resign? Here is what Wakin found:

While it does not apply to Benedict, another reason for papal resignation was widely discussed in the Vatican in the years before John Paul II’s death in 2005. Several cardinals openly raised the possibility in the event John Paul became too ill to govern.

One of those cardinals was Joseph Ratzinger. If John Paul “sees that he absolutely cannot do it anymore, then certainly he will resign,” the cardinal was quoted as saying in the weekly publication of his old archdiocese, back in 2002.

 
That would be ironic if he helped set up the justification for his own resignation, but Wakin notes that he walked that back later…

Two years later, he gave some insight into his conception of the papacy in an interview with the Italian Catholic weekly Famiglia Cristiana. “The pope is chosen for life because he is a father, and his paternity goes beyond his function,” he said, paraphrasing Pope Paul VI.

John Paul himself entertained thoughts about resigning. In his last will and testament, he wrote, “Providence has seen fit for me to live in the difficult century that is departing into the past, and now in the year in which I reach my 80s, one needs to ask oneself if it is not the time to repeat with the biblical Simeon, ‘Nunc dimittis.’ ” The Latin was a reference to a Gospel passage in which Simeon says, “Lord, now lettest thou thy servant depart in peace.”

John Paul was responsible for two recent but fleeting references to papal resignation in official church policy. A revision of the code of canon law issued under him, in 1983, says, “If it happens that the Roman pontiff resigns his office, it is required for validity that the resignation is made freely and properly manifested but not that it is accepted by anyone.”

In John Paul’s 1996 constitution on papal succession, “Universi Dominici Gregis,” he made a reference to “the death or valid resignation of the pope” as he set limits on the College of Cardinals’ actions after either event. In any case, it might be no surprise that the leader of a worldwide church of one billion people would at least think about throwing in the towel. Pius XII reportedly planned to resign if the Nazis invaded the Vatican, and some believed that Paul VI, weighed down by the office, contemplated the idea, according to “101 Questions and Answers on Popes and the Papacy,” by Christopher M. Bellitto, a church historian at Kean University in Union, N.J.

 
So it sounds like John Paul II clearly laid forth the legal possibility for a Pope to resign and even established some procedure for that. But other than defining “valid resignation” as legally equivalent to death, he didn’t explain any circumstances, I guess. And functionally, of course, as I explained above, resignation is very different from death, in that the person is still around even if no longer legally in the position. One wonders if Benedict would have to go back to being Ratzinger or if he’d be like an ex-President who gets many of the trappings of the office and an elevated “former” status.

The issue of what constitutes a “valid resignation” that is “made freely” is also a big legal problem. In politics and business, often “resignation” is code for being forced out, and it is made under duress. Basically, the person is asked to take the fall and told there is no other option. It appears as if they have left under their own power and legally that is the case, but usually it is obvious that is not what really happened. For a Pope, this would definitely increase the chances of many people refusing to accept the resignation as valid (and consequently the election of a replacement). That’s an especially likely scenario in the present situation, if Benedict were to resign, since he appears extremely unwilling to do so, and would probably only resign if forced.

And what if a Pope became incapacitated from a stroke and ensuing coma and was no longer able to freely hand in a resignation? There’s no acting Pope (usually that would be the Camerlengo) unless the Pope is actually dead, as far as I know. And even the Camerlengo can’t make big decisions or appointments. Bureaucratically in that scenario, the Vatican generally continues to function on a daily basis, but some things can’t be carried out without the Pope’s approval, so replacement would be preferable and would clarify who’s in charge, but that’s impossible without death or resignation (and that needs the Pope to be capable of signing it “freely”). This period of legal limbo could last for a long time. Considering that former Israeli Prime Minister Ariel Sharon has been in a coma since 2005, which began when he was in office, this seems a very plausible papal scenario in the future and could have occurred with John Paul II. Israel had a system in place for an Acting Prime Minister to serve for some predetermined length before officially assuming the title of Prime Minister, at which time Sharon cease to be Prime Minister, and since elections are required every five years anyway (unlike with the Papacy, which has no set elections except upon death of the incumbent), there was a finite limit to how long there could be an incapacitated leader in office. The Papacy thus faces a big risk here without such a system.

So, it would appear that a Pope can resign, but there is great need for legal clarification of what that would entail or require, and it might not be a good idea, especially without clarification. It would also seem that there is a compelling interest in the modern age for fixing such a system in place, mostly for the possibility of long-term incapacitation.

I won’t get into my personal opinions on the present situation on whether or not Benedict should resign, but I found the legal/historical precedent questions to be quite interesting.

This post originally appeared on Starboard Broadside.

Bill Humphrey

About Bill Humphrey

Bill Humphrey is the primary host of WVUD's Arsenal For Democracy talk radio show and is a Senior Editor for The Globalist. Follow him @BillHumphreyMA on twitter.
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