In What Sense is the Pope Above Canon Law?

A common refrain when from hyperpapalists when the pope disregards canon law by his actions is, "So what? He can do that. The pope is not bound by canon law." 

It is, of course, true that the pope is not bound by any human law, including ecclesiastical law. Not only is this due to the pope's status as the supreme juridical authority within the Church, but also because the pope himself is a source of canon law. Since canon law is subject to the authority of the Supreme Pontiff, it is clear that is cannot be bound by it in any coercive sense.

Does this literally mean, however, that the pope can break canon law at will as a normal exercise of his authority? When the pope violates canon law, is this to be understood as a legitimate exercise of his juridical authority?

Cicognani's Five Powers of the Pope vis-a-vis Canon Law

To answer this question, let us turn to the commentary of Amleto Cardinal Cicognani (1883-1973), Professor of Canon Law in the Pontifical Institute of Canon and Civil Law at St. Apollinare, in Rome and one of the mid-20th century's most noted canonical jurists. Cicognani's career began under St. Pius X and culminated in becoming Cardinal Secretary of State under John XXIII (1961-1969) and Dean of the College of Cardinals under Paul VI from 1972 until his death. 

In 1934, Cicognani published an exhaustive commentary on the 1917 code, simply called Canon Law. I will be working from the 2nd edition, translated by Rev. Joseph M. O'Hara & Rev. Francis Bennan (Dolphin Press: Philadelphia, 1935).

Cicognani addresses the pope's relation to canon law in his section on the sources of human ecclesiastical law, where he lists the Supreme Pontiff as one of four sources of such laws (the other three being Purely Apostolic Law, the Apostolic See, and the Councils, both ecumenical and particular). He begins by summarizing the traditional formulation of the pope's jurisdiction over the Church and his exemption from all human restraint:

The Roman Pontiff is, by the will of Christ, the Vicar of Christ on earth, the foundation, the head of the entire Church, and is endowed with primarcy of jurisdiction, which from the very institution of the Church was established and determined by the Divine Founder Himself as supreme and universal power to rule others...

The Pope's plenary, absolute, and strictly monarchical jursidiction, manifesting itself in the exercise pf judicial, administrative, and especially legislative power, is restricted by no human authority. Accordingly, the Pope's primacy of jurisdiction over the Church of Christ is not circumscribed by General Councils, by the College of Cardinals, by any group of bishops, nor, for stronger reason, by the faithful, or by civil rulers, or by any human power whatsoever. (pg. 71)

Well and good, but what does this imply vis-a-vis canon law? Cardinal Cicognani says that the pope's universal jurisdiction is exercised through five specific powers. This enumeration can be found on pages 72-73 of Cicognani's Canon Law. According to Cicognani, the pope's supreme jurisdiction over canon law gives him the authority to:

1. Make New Laws, Both Universal and Particular

The pope's jurisdiction implies legislative power, which means the pope can make new laws, binding upon the universal Church or particular churches or institutes. "Hence," says Cicognani, "the fact that a pope enacts new laws, according to the circumstances and necessities of the times, should not be regarded as something strange." And hence we see popes regularly exercising this authority by making amendments to the Code of Canon Law. 

Does the pope's legislative authortiy extend to the content of tradition? Yes and no. Cicognani of course exempts divine traditions (whether dominical or apostolic) from the purview of the pope's powers. Regarding other traditions, however, he says "purely apostolic and ecclesiastical traditions, since they form part of human law, may indeed be changed, but since they have some relation to divine law, they are not easily subject to change; in point of fact, they have always been held in great esteem" (p. 103). He then cites St. Paul and Chrysostom on the value of preserving tradition  intact (cf. 2 Thess 2:15, Hom. in 2 Thess, IV, n. 2; PG, XLII, 488).

Essentially, Cicognani says the pope is the supreme lawgiver in the Church and can alter law as he pleases, although he should do so with extreme reticence in the case of laws hallowed by tradition because "they have some relation to divine law." In other words, he rightfully recognizes that the separation between so-called "big T" and "small t" tradition is not as cut and try as popularly believed. Even "small t" traditions are interwoven within the larger branches of divine law and should not be recklessly changed (see also: "The Church as a Baracle Encrusted Ship"). For this reason there is a strong institutional resistance to their alteration, which is fitting.

2. To Interpret the Laws, Both Ecclesiastical and Divine

As the supreme juridical authority in the Church, the pope enjoys the prerogative of interpreting the sense and meaning of the Church's law, "for he is the Universal Doctor and Supreme Teacher." The pope may do this directly, or through the various dicasteries and congregations of the Holy See, such as the Roman Rota.

3. To Safeguard Laws and to Enforce Them

For the Church's canonical legislation to have integrity, its supreme lawgiver must insist on observance of the Church's laws, "for he must be their defender against attacks." In western democracies where we have divided branches of government, we are not accustomed to thinking of the legislative authority as being tasked with enforcing and defending law, but such has always been the case in every monarchical system. In fact, one of the most frequent gripes against poor monarchs of the past (such as King John) was that they failed to defend the laws; royal coronation liturgies frequently included promises to defend the laws. Papal coronation oaths, too, contained promises to defend the Church's customary laws and usages (see Dr. Kwasniewski's talk "The Pope's Boundedness to Tradition" for excerpts from these oaths).

4. To Abrogate, Derogate, and Change Human Ecclesiastical Laws

While the first point pertains to the pope's ability to create new law, this point concerns his relation to preexisting laws. Cardinal Cicognani specifies that the pope is not bound to the prior legilsation, "whether they be the laws of his predecessors (since 'an equal has no dominion over an equal') or the laws of ecumenical or particular Councils, or even those of the apostles." The pope can abolish previous legislation (indeed, almost all papal legislation contains explicit clauses repealing prior decrees); he can modify the procedural methods by which legislation is understood or enforced, and he can make alterations to the legislation of his predecessors. 

5. To Grants Dispensations, Privileges, and Indults

This flows from the third point concerning the pope's role as enforcer of ecclesiastical law. It is within his purview to issue relaxations of law to persons or entities in view of special circumstances. Here Cicognani quotes an interesting passage from Boniface VIII, that "the Roman Pontiff has all laws in the archives of his heart" (in scrinio sui pectoris; c. 1, "De Const.", in VI).

The Pope Ought Not Violate Canon Law (Gratian, Aquinas, Cajetan)

Thus are the five powers of the pope which flow from his status as the Church's supreme lawgiver. The discerning reader will note something conspicuously absent from Cicognani's list, however: the ability to break canon law. Cicognani acsribes to the pope the powers of creating laws, interpreting laws, altering laws, enforcing laws, abrogating laws, or dispensing from them, but not breaking them. This is because it would be ridiculous to assert that one of the prerogatives the pope enjoys as supreme lawgiver is the power to break the law. Rather, when we speak of the Supreme Pontiff as "above the law" or "not bound by the law," it simply means that the pope has the authority to change the law if he wishes. As St. Thomas Aquinas says, "the sovereign is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place" (I-II, Q. 96, Art. 5, ad 3). If the pope is unhappy with some aspect of canon law, he should amend the code; but changing the law is fundamentally different from breaking it. 

From the perspective of simple logic, it is a contradiction to assert that the breaking of law is an exercise of judicial authority. It would be akin to saying that adultery is an exercise of marital fidelity, or embezzlement is an aspect of fiscal responsibility. Simply considered terminologically, the phrases "breaking the law" and "judicial authority" cannot be deduced from one another. This is not to say someone in judicial authority can't break the law; we see that all the time, just like people who pledge marital fidelity still commit adultery and people in positions of fiscal responsibility still embezzle. We may certainly say that people do things contradictory to the spirit and demands of their state; but we cannot say that law breaking is derived from judicial authority, that it flows from juridical authority as a consequent. In other words, if the pope breaks canon law, we cannot appeal to his supreme jurdical authority as the justification for his violation. He violates canon law despite his juridical authority, not by virtue of it.

Furthermore, to assert that one of the pope's powers is breaking the Church's law would undermine the integrity of canon law itself. If the pope can simply violate canon law whenever he wishes, we are justified in asking what is the point of having canon law at all? The rules only exist until the rule-giver gets tired of them and sweeps them away by sheer force of will. The whole concept of law becomes a charade, a facade of legitimacy erected to mask what is ultimately an exercise of raw, aribtrary power. We know that papal authority was never meant to be wielded arbitrarily, but this is the reality we are left with if we grant that the pope is justified in violating canon law on a whim. The integrity of any law suffers when the law giver breaks his own laws. 

Let us recall, as well, that one of Cicognani's five juridical prerogatives of the Supreme Pontiff is the obligation to defend and enforce law. If the pope does not uphold the law by his actions, he undermines not only the law but his own role as its defender and enforcer. This would result in a nonsensical situation where two different exercises of the pope's juridical power undermined each other (i.e., if the pope is obligated to uphold the law, then he undermines law by acting against it; but if the pope can act against law as he pleases, then he cannot effectively uphold it). In that case, in what sense could the pope's power be "plenary and absolute" if it could not even be exercized in totu without undermining its own legitimacy?

That the pope should obey canon law is a principle well enshrined in the Church's canonical tradition. We can find this in the Decretum of Gratian. Gratian's Decretum was the supreme authority for legal opinions in the Church throughout the Middle Ages, much of it surviving into the modern codes. It is the most authoritative canonical text in the Church other than the official codes promulgated by the pontiffs. In the Decretum, we find the maxim of Pope Gelasius that, "It befits no see more than the first to carry out an enactment of the universal Church" (Causa 25, q. I, c. I). The import of the passage is that the dignity befitting the Apostolic See demands that the pope and his church should be the first in obeying the laws of the universal Church, by way of modeling obedience to Christians everywhere and honoring the special dignity of the Roman see. 

St. Thomas Aquinas says the same. Aquinas's Summa considers the assertion that rulers are free from the law under the statement, "The sovereign is exempt from the laws. But he that is exempt from the law is not bound thereby. Therefore all are not subject to law." Aquinas finds this line of reasoning deficient, and replies on the contrary:

The sovereign is said to be "exempt from the law," as to its coercive power; since, properly speaking, no man is coerced by himself, and law has no coercive power save from the authority of the sovereign. Thus then is the sovereign said to be exempt from the law, because none is competent to pass sentence on him, if he acts against the law...But as to the directive force of law, the sovereign is subject to the law by his own will, according to the statement that "whatever law a man makes for another, he should keep himself. And a wise authority [Dionysius Cato, Dist. de Moribus] says: 'Obey the law that thou makest thyself.'" Moreover the Lord reproaches those who "say and do not"; and who "bind heavy burdens and lay them on men's shoulders, but with a finger of their own they will not move them" (Matthew 23:3-4). Hence, in the judgment of God, the sovereign is not exempt from the law, as to its directive force; but he should fulfil it to his own free-will and not of constraint. Again the sovereign is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place. (STh, I-II, Q. 96, Art. 5, ad 3).

In other words, while canon law cannot bind the pope in a coercive manner, he is not exempt from its directive force, that is, as a guiding principle dictating how the pope should act. He who does otherwise risks the reproach of Lord levelled against those who "say and do not" (cf. Matt. 23:3-4).

The same principle is cited by the great Thomas Cajetan in his 1514 anti-conciliar tract De comparatione auctoritatis papae et concilii ("The Authority of the Pope and Council Compared"). Cajetan appeals to the responsibility of the pope to obey the laws of the universal Church specificaly as a response to the Conciliarist assertion that the pope's power is arbitrary and unchecked (De comparatione, Cap. VIII). The rhetorical use of Cajetan's argument is important—the Conciliarists claimed that an Ecumenical Council must be above the pope, otherwise the pope's power is unchecked and he will have license to ruin the Church. Citing Gratian, Cajetan responds by noting that the pope's freedom from coercion does not mean the pope disregards law, for it is fitting that the Holy See be the first and most exemplary model of canonical observance.

Cajetan reinforces this argument in another work, the Apologia, in which he takes up the same theme against the Conciliarist Jacques Almain of Paris. Here again he says that the pope's superiority from the coercive power of eccesiastical law does not mean he is free to discard it. Even if they don't bind the pope legislatively, they bind him on pain of mortal sin. Therefore, given his exalted station, it is especially fitting for the Roman Pontiff to observe the laws of the Church:

It is obvious that it is improper [for a pope] to annul the decisions of a council, even a provincial one: how much more those of a general council, whose decrees bind even the pope in the forum of conscience no less than his own do. Therefore, according to the sacred canons, it behooves the Roman pontiff especially to observe the statutes of the fathers (Apologia, Cap.VI).

These two works of Cajetan are excellent references for this discussion. I am not aware of an unabridged English online version of De comparatione or Apologia, but I recommend the text Conciliarism and Papalism, edited by J.H. Burns and Thomas Izbicki, which also contains the responsa of Cajetan's adversaries, Jacques Almain and John Mair).

When the Pope Violates Canon Law

Neither Cajetan, Cicognani, nor any of the other authorities I am familiar with suggest that a pope's acts in violation of canon law lack juridical force or become ipso facto invalid. In a coercive sense, the pope is only bound by divine law in his government of the Church, and hence his actions—even outside of canonical norms—still possess binding power so long as they do not contravene divine law. But we need not argue such acts are invalid to rebut the hyperpapalist claim, for the original statement we set out to examine is that the pope can legitimately contravene canon law when he wishes by virtue of his supreme authority. This is manifestly false. The sources suggest that when a pope violates canon law, it is not an exercise of his authority but an abuse of it. When a police officer brutalizes an innocent civilian, we would never say he was acting by virtue of his law enforcement responsibilities, but in violation of them. Similarly, when a pope violates canon law, he is not acting by virtue of his supreme juridical authority, but in violation of it. He not only abuses his juridical authority, but undermines the integrity of canon law and degrades his own role as defensor legis. He fails to lead by example, brings the Holy See into disrepute, and (according to Aquinas) merits the reproach of our Lord.  The pope possesses all power necessary to revise canon law as he wishes; that he wields such a plentitude of power and would still choose to simply disregard the law makes it that much worse, like King David killing Uriah to take Bathsheba when he could have had any woman in Israel.

What is the proper response when the pope violates canon law? We should be gravely concerned. We should strongly but charitably remind any who would listen that ecclesiastical law exists for a reason and that breaking the law is not one of the prerogatives of papal authority. It certainly is not an exercise of his supreme juridical authority, but an abuse thereof, which the faithful should not only not defend, but should pray to be delivered from, as one prays to be delivered from a tyrant. And we should certainly not celebrate it, nor make apologies for it by arguing, "So what? The pope is not bound by canon law." The pope's exemption from the coercive power of canon law was never meant to imply that the pope can violate it at will, and those who argue otherwise are undermining the very foundations of ecclesiastical law by doing so.