With this article we conclude a triptych of reflections that, in essence, seek to resolve the question of whether, from some point of view, it is unfeasible –irrational, immoral, anti-Catholic, etc.– for the faithful to challenge the legitimacy of Francis’ pontificate. On this occasion we refer the question, specifically, to the order of the ecclesiastical authority: are the faithful obliged to accept Francis’ pontificate as legitimate, until an official pronouncement is issued in this regard by the competent ecclesiastical authorities? Is acting otherwise equivalent to usurping ecclesiastical authority?
As in previous articles, we answer with a resounding NO, and this time we offer three simple reasons:
(i) In no way can it be considered that “the official position of the Church” has leaned towards the legitimacy of Francis’ pontificate.
On the one hand, as we said in the previous article[i], the mere election in conclave is neither a guarantee nor a demonstration that the person elected is a true (valid, legitimate) Pope: the validity of the election depends strictly on the full compliance with the applicable canonical requirements (e.g., that at the time of the conclave the See is effectively vacant, that the person elected is a Catholic male, that the corresponding stages have been observed in the conclave, etc.), and as can be seen, this fulfillment goes far beyond the mere Habemus Papam pronounced by the cardinals.
And on the other hand, as we also demonstrated before, there has never been, in Francis’ case, a peaceful and universal acceptance of the validity of his pontificate by the Church –and remember, neither the College of Cardinals nor the Bishops as a whole, constitute per se the universality of the Church: priests, deacons, laity and religious are also part of the ecclesial body, and in all these categories of faithful there have been, even before the 2013 conclave, serious and well-founded doubts on Francis’ pontificate.
(ii) To date, a canonical forum has not been constituted, made up of the competent ecclesiastical authorities –whoever they may be–, destined to evaluate, in accordance with the facts and the law, the current crisis of the pontificate, and to issue an official pronouncement, juridically binding for the Universal Church, regarding who the true Pope is today: Benedict XVI or Francis. Therefore, there is no “final word” to which we must submit, as faithful, on this matter.
And of course, we do not intend to set ourselves up as this decision-making body. We do not attribute to ourselves a power of jurisdiction that we lack, a juridically binding power that we do not have, when we radically affirm that the Pope continues to be Benedict XVI. This is an affirmation that we make public in the exercise of our Christian (and human) right and duty to seek and defend the truth in everything that refers to God and His Church (cf. canon 748 § 1 of the Code of Canon Law). We are not judging the First See (cf. canon 1404 ibid.), we are not developing a canonical judgment.
We hope, yes, that our canonical demonstrations are a contribution so that this canonical forum is constituted, and the truth triumphs in it. Saints such as Bernard of Clairvaux, Catherine of Siena and Vicente Ferrer did so in the past: in situations of schism caused by anti-Popes, they did not hesitate to vehemently defend who, according to their discernment, they considered the legitimate Pope. Were they therefore rebels, schismatics or usurpers of ecclesiastical authority? Of course not, and neither are we. We speak with solid arguments and moral certainty, which is not limited to –but often precedes– the narrow limits of the judicial forum[ii].
(iii) At this point, someone would object: “in any case, H.H. Benedict XVI issued a juridical act of resignation from the pontificate, on the one hand, and on the other, the College of Cardinals and Cardinal Jorge Bergoglio issued the respective juridical acts of papal election and acceptance of the election. And since juridical acts are presumed to be valid (cf. canon 124 § 2 of the CCL), all the faithful must have Francis as the legitimate Pope as long as such presumption of validity is not destroyed, and the acts in question are not annulled, in the corresponding canonical forum”.
This objection contains some truth[iii], and applies a reasoning similar to that which operates in cases of marriage annulment: as long as the annulment is not declared by the competent judicial authority, the marriage must be considered valid and another cannot be contracted.
Now, the truth is that the presumption of validity operates only if, at a minimum, the structural, essential, defining, internal or constitutive requirements of the juridical act are fulfilled. What are these requirements? Canon 124 § 1 offers us the answer: that there is a subject, author of the act (or several subjects, depending on the case); that this subject grants his consent; that this consent is made socially recognizable through a form; and that there is a clearly determined object, that is, that both the content of the decision adopted and the objective reality on which this decision falls are specified. If any of these requirements is missing, the presumption of validity cannot operate.
And this is only logical. Consider, for example, the hypothesis that a man “marries” a horse. In such an event, the structural requirement of the subject will be missing (or of the subjects, since in the case of marriage the presence of two subjects, a man and a woman, is required). Would anyone think that the man in question must have his “equine union” annulled before truly marrying a woman? What if our man “married” another man? It is evident that, in the absence of a structural requirement regarding the subjects, in none of these cases would the presumption of validity operate, and neither would, therefore, the requirement of an official declaration of nullity prior to the moment in which our man decides to contract a true marriage with a woman.
Well, in Pope Benedict XVI's case, we also have that his supposed juridical act of “resignation from the pontificate” did not meet the structural requirements, since nothing less than the object was missing in it: the resignation did not have as its object, it did not fall on the pontificate, the Papacy, the ecclesiastical charge or office of the Roman Pontiff, but on the practical exercise of said charge (or on some of the functions associated with it). Therefore, in the face of a juridically non-existent act due to lack of object, the presumption of validity cannot be applied. And consequently, nothing prevents us from pronouncing radically in favor of the juridical continuity of his pontificate or from having him, for all purposes, as the only current legitimate Pope.
Notes
[ii] That moral certainty can be achieved prior to or independently of a judicial decision by the competent authority is a reality reinforced, for example, by the notion of notorious canonical crimes, with factual notoriety, contemplated in canon 2197.3 of the (now repealed) 1917 Code of Canon Law (CCL). Indeed, in contrast to the notoriety of law, which occurs “after the sentence of the competent judge has acquired the force of res judicata or after the confession of the offender, made in court […]” (num. 1 ibid.), factual notoriety occurs if the crime “is publicly known and is committed in such circumstances that it cannot be concealed by any artifice nor excused by any consideration".
[iii] The issue is complex, and we have dealt with it in depth here: https://www.declarationullarenuntiatio.com/en/post/benedict-xvi-s-declaratio-does-not-enjoy-a-juridical-presumption-of-validity.
