There is something of a legal vacuum in canon law ...
Since the Vatican is a monarchy governed by a sovereign elected for life, the matter of the sovereign’s health is particularly sensitive. Pope Francis is recovering serenely from a colon operation and is expected to resume his mission soon. While his life is not in danger, this episode brings up a question that has been recurring in recent years, and for the moment is still unresolved: Who governs the Holy See when the pope can no longer govern?
When a pope dies, things are very clear from a canonical point of view: power is entrusted, during the period of vacancy, to the camerlengo. This person, a cardinal chosen beforehand by the pontiff, then takes charge of ongoing affairs until the election of the new pope. Today, if Pope Francis were to die, it would be American Cardinal Kevin Farrell, the current camerlengo, who would hold the reins of the world’s smallest state for a few days.
But canon law does not provide for everything. There’s a grey area from the moment the pope checks into the hospital. In this case, the Pontiff has been fully aware and the question of governance doesn’t arise: nothing changes. “The pope remains the pope even in the hospital,” a canonist who has worked on the issue at the highest level and prefers to remain anonymous told I.MEDIA.
The impossible “impediment” of a pope
But what would happen if a pontiff were to end up in a coma, for example, or suffer from a chronic mental incapacity to govern? What if the pope became physically or mentally unable to govern, but also unable to renounce? The pope “is the only one who can freely renounce his power,” says the canonist.
As the Jesuit website America reminds us, canon law has provisions for when bishops are “impeded,” which allows them to be removed from responsibility for their diocese in the event of “captivity, banishment, exile or incapacity.” The auxiliary bishop or vicar general then takes over the diocese until a successor is appointed. If this canon were applied to the case of the pope, considering that he is bishop of Rome, it would mean that his vicar for the diocese, Cardinal Angelo De Donatis, would have to take over.
However, the Bishop of Rome is not a bishop like any other, as canon 335 indicates. It provides for the case when the Holy See is “vacant or entirely impeded.” However, in such a situation, “nothing can be altered in the governance of the Church” during such a period.
The question of a pope’s inability to govern is in fact a real “loophole” in canon law, the canonist acknowledges. “Theoretically, we do not have the criteria to impede a pope who is unable to govern.” As a result, if the situation arose, jurists would have to “interpret” the few existing elements to find a solution.
This conundrum has been a concern for many of Pope Francis’ predecessors, especially the popes who came after World War II—the main reason being the significant increase in their lifespan due to medical advances during those years. However, medical incapacity was not the only possibility considered by a pontiff.
Pius XII: “They will take Cardinal Pacelli, not the pope”
No doubt remembering the dramatic kidnappings of Popes Pius VI and Pius VII during the French Revolution, Pius XII considered the question of incapacity to govern. Locked in the Vatican during World War II, the pontiff had indeed taken very seriously the risk he would run in the face of the Nazi threat.
According to his Secretary of State, Cardinal Domenico Tardini, the pope had put in place precise countermeasures in the event that the Third Reich came to target him directly. In particular, he reportedly prepared a letter in which he declared his resignation, giving instructions for the cardinals to elect his successor. “If they kidnap me,” the pope is said to have declared, “they will take Cardinal Pacelli, but not the pope.”
The precautions of Pius XII were far from superfluous. Indeed, when Mussolini, under pressure from the Allies, was overthrown by the Italian population in 1943, the Germans for a time hatched a plan of reprisal to kidnap and assassinate the head of the Catholic Church.
The letter of Paul VI
Historian Roberto Rusconi reports that the question of incapacity was also considered by Pius XII’s successor, John XXIII. The “good pope” had wondered during his pontificate about the possibility of renouncing because of his precarious state of health, affected by the heavy task of the Second Vatican Council.
The next pope, Paul VI, had publicly ruled out the possibility of a renunciation. Nevertheless, in 1965 he wrote several letters to the dean of the College of Cardinals in which he raised the possibility that, if he were to fall into a coma or suffer from dementia, he could be prevented from resigning and replaced, after a new conclave, by another pope.
These letters have no legal value, although they are part of the “informal magisterium” of the former pontiff, explains the canonist interviewed by I.MEDIA. The correspondence was unearthed long after his death, but there is no reason to believe that it would have triggered a vacancy if the Italian pope had been incapacitated.
Benedict XVI’s canonical project
The pope who worked the most on this possibility was Benedict XVI. In 2005, the German pontiff was deeply affected by the long agony of John Paul II during the last years of his pontificate. Close to power, he witnessed this period of instability, especially from the point of view of Church governance, which led him to think of solutions.
He is said to have asked Cardinal Julian Herranz, then president of the Pontifical Council for Legislative Texts, to draft a canon to fill the legal void. A task that was completed, and provided that a state of impediment could be decided by the College of Cardinals, upon convocation of its dean. According to this project, after conducting an investigation and consulting medical experts, among others, the cardinals would have the right to solemnly end the pontificate and open the traditional period of vacancy of power for a conclave.
However, the canon, although presented to the head of the Catholic Church at the time, was never promulgated. Benedict XVI did not need it, in any case, because he found another solution to the problem he was considering.
Because he feared he would be unable to govern due to his frail health, the 265th pope finally decided, to everyone’s amazement, to preemptively renounce the Petrine ministry in 2013.
Still alive eight years later, the pontiff emeritus recently admitted that he did not expect to live this long at the time of his renunciation. In a recent interview with his biographer Peter Seewald, he confirmed that it was indeed the issue of his health—including his inability to make long trips, especially the World Youth Day planned for Brazil in the summer of 2013—that made him decide to end his pontificate.
Benedict XVI’s “preventive renunciation” is a roundabout way of responding to the legal dilemma that a situation of incapacity represents for a pontiff.
The “legal vacuum” remains unresolved, confirms the professor of canon law. “If such a situation were to occur, we would be in uncharted waters,” he concludes.