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Francis was never pope? Call me unpersuaded.

September 28, 2017

(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. See 1983 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.

nb: a bad link above was fixed, same evening.

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