CAN A POPE BE EXCOMMUNICATED?

My niece has recently developed an intellectual itch of going through the drafts of some of my future posts (without approval). This has made her develop a habit of asking questions concerning Canon Law. Her question last night was "Can Pope Francis be excommunicated"?

As always, I thought we should reason together since this is an important issue true to our time.

As we may be aware, there are certain enumerated acts which trigger automatic, latae sententiae excommunication. Some of these acts could conceivably be performed by a Pope; for instance, it seems a Pope could help procure an abortion or grant absolution to an accomplice in sin. The question then becomes; is it, then, theoretically possible for a Pope to be excommunicated?

When I asked my niece what she thought the answer was, her response was something like; God forbid that a Pope would do such a thing! I agreed with her sentiment, of course but I also told her that she was dodging the question. At this time, she said were a Pope to abuse his free will in this way, God would short-circuit the dilemma by "striking him dead" before the theoretical problem became a real dilemma!

Well, the Code of Canon Law contains no direct, specific answer to the question of whether a Pope could fall into heresy. Still, we can be rest assured Christ will never abandon the Church to error, as He said to Peter in Matthew 16:18-19. Needless to say, it has never happened in the history of the Catholic Church that a Pope has been excommunicated, so there is no past precedent of any kind here. And as my niece observed, many of us would simply say—and with good reason—that God would never allow such a thing. We can cite this very biblical passage in support of our position.

But at the same time, humanly speaking, there is nothing physically stopping a Pope from committing an excommunicable offense, like embracing heresy (c. 1364.1) or being directly involved in procuring an abortion (cc. 1398 and 1329.2). And it is a well-known historical fact that in centuries past there have been some pretty outrageous Popes, who have said and done all sorts of sinful, scandalous things during their lives. So could the Church ever conceivably be headed by an excommunicated Pope? And if so, what would happen, and how would it work? Let’s walk our way through this complicated issue step by step.

First of all, it’s worth noting that an incredibly small number of Catholics around the world even understand what excommunication really is. In a nutshell, excommunication is categorized as a medicinal penalty in the Code of Canon Law (c. 1312.1 n. 1). The whole purpose of medicine is to make a sick person get better; and similarly, the whole purpose of medicinal penalties like excommunication is to prompt the
return of a Catholic who has done something to cut himself off from the Church. Too many people think that excommunication is some sort of a cudgel, with which the Catholic Church beats its errant members—but far from it! Excommunication is meant to send an urgent message to a Catholic that by his actions, he has taken himself outside the fold of the Church, and needs to cease those actions and come back. Thus excommunication is meant to be helpful—just like medicine. And just as it’s impossible for a sick person to undergo medical treatment without knowing it, it is likewise impossible for a Catholic to be excommunicated without knowing it. If we understand the whole point of excommunicating somebody, we can appreciate that the notion of getting excommunicated “by accident” is perfectly ridiculous, as it makes no theological or canonical sense at all. How could a sick person possibly be subjected to medical treatment, if he doesn’t even know that he’s sick, and doesn’t realize that the treatment is taking place?

Nobody can be excommunicated unless all the conditions of canon 1323 have been met. This canon provides a whole list of situations, any one of which will render a person not liable to a penalty. Briefly, no Catholic is subject to any penalty if he is under the age of 16; was ignorant that his action was a violation of the law; was forced to commit the crime, or committed it under fear; acted in self-defense or in the defense of another; or lacked the use of reason (as is the case with mentally ill, mentally handicapped, and senile persons). If even one of these conditions applies to a Catholic (including a Pope!) who committed an excommunicable offense, he is not subject to the penalty, and cannot be excommunicated. Period.

Secondly, we may know that certain crimes are punishable by "latae sententiae" excommunication. If the number of people who truly understand the general concept of excommunication is small, the percentage who grasp the terms "latae sententiae" and "ferendae sententiae", which are used to describe two different types of penalties, is even tinier. Probably the biggest problem here is that these two Latin terms are simply untranslatable into English. In short, a latae sententiae penalty is incurred ipso facto, by virtue of the law itself—without any person in authority in the Church actually imposing it. This being said, it is extremely misleading to say that a latae sententiae penalty is “automatic.” That is because, as we have just seen, all the conditions outlined in canon 1323 must first be in place for the penalty to be effected. And there is nothing automatic about that—on the contrary, it’s a safe bet that most Catholics who commit crimes punishable by latae sententiae excommunication are not actually excommunicated as a result. To cite only one of the necessary conditions, a Catholic is not liable to a penalty if he didn’t know that a penalty was attached to the action he committed (c. 1323 n. 2). That is why, church officials will in many cases officially warn a Catholic who is engaging in some excommunicable activity that his conduct constitutes an excommunicable offense. The Church is charitably assuming that the person doesn’t know that what he is doing/saying is punishable by excommunication—and so it wants to explain to him that he is playing with fire, so as to convince him to stop. If the person persists anyway, he obviously will not be able to claim ignorance of the law later on.

What about ferendae sententiae penalties? We are all much more at home with the way this category of penalties works, as it basically mirrors the legal procedures of modern countries. A ferendae sententiae excommunication is not incurred ipso facto, by virtue of the law itself; rather, it is imposed by church authorities, much like a judge in a civil court imposing a sentence on someone convicted of a crime (c. 1314). In cases involving punishments of this type, there is necessarily a lot of back-and-forth between the accused person and the official who imposes the penalty, so the accused is certainly well aware of what is happening to him, and why. The take-away from all of this is that it is very difficult to get excommunicated from the Catholic Church. But so few people actually understand this! Armed with all this information, let us now apply it to a hypothetical situation involving a Pope, and see what conclusions we can reach.

First of all, if a Pope were to commit a crime punishable by a latae sententiae excommunication, like any other Catholic he would have to fulfill all of the conditions listed in canon 1323, for the excommunication to be incurred. So (for example) if this imaginary Pope was being threatened, and committed the offense under duress, then no sanction would be incurred. Likewise, if he honestly didn’t know that a certain action technically constituted an excommunicable offense, he would not incur the sanction. Incidentally, don’t assume that every Pope has got the Code of Canon Law committed to memory! Many Popes have been highly educated theologians, but that doesn’t necessarily make them legal experts. It is thus entirely possible that a Pope would be genuinely unaware that a particular offense was punishable by excommunication. He is infallible, not omniscient.

But for the sake of argument, let’s say that a Pope commits some crime punishable by latae sententiae excommunication, and he fulfills all the conditions of canon 1323. He acts freely and with full knowledge, without fear or coercion; he is well aware that he will be excommunicated as a result and he does it anyway. Now what? Well, there would be an immediate procedural roadblock in such a case, because unlike every other Catholic on the planet, a Pope has no hierarchical superior on earth (c. 331). Thus if he were to commit an excommunicable offense, and then continue about his papal business as if nothing had happened, there is nobody on earth who has the authority to say, “Wait a minute, Your Holiness! You can’t act as Pope any more, because you’re under excommunication!” That’s because, as canon 1404 tells us tersely, the First See is judged by no one. Popes are subject to God alone (a fact which has rightly awed so many of them)—so unless God were to choose to intervene in the situation somehow, the Catholic Church would be stuck.

In general, when someone has been excommunicated latae sententiae, it often happens that church authorities will officially make a public declaration to that effect. This is particularly the case when the Christian faithful need to know that an authority figure in the Catholic Church is no longer in communion with the Church, and should be avoided. A good example of this was the Vatican’s 1988 declaration of the excommunication of Archbishop Marcel Lefebvre. Archbishop Lefebvre "consecrated" new "bishops" without the mandate of the Holy Father, in violation of canon 1382, and was well aware that his action was punishable by excommunication latae sententiae —yet he did it anyway. His excommunication thus occurred ipso facto, without the Vatican doing a thing; but because many Catholic clergy and lay people were involved in various ways with Lefebvre and his Society of St. Pius X, and because there was a lot of confusion about the legality of what he was doing, the Vatican wisely made a formal pronouncement on the matter, so as to clarify Lefebvre’s status as a Catholic bishop in a public, official way. But as we have just seen, if a Pope were to be excommunicated latae sententiae, nobody in the Vatican has the authority to make a declaration like this. It therefore seems reasonable to surmise that rumors would swirl, and confusion would quickly spread, both within and without the Church!

Unfortunately, there is more. Canon 1331 lays out the practical ramifications of excommunication, noting among other things that an excommunicated Catholic is forbidden to exercise any ecclesiastical offices, ministries, functions or acts of governance (c. 1331.1 n. 3). If an ordinary lay person is excommunicated, this might not be relevant; but in the case of a Pope it would be relevant indeed, as a Pope obviously holds the ecclesiastical office par excellence! Imagine a Pope who had been excommunicated latae sententiae, but was blithely ignoring that fact, continuing to select new diocesan bishops, accept episcopal resignations, create new dioceses, remove high-ranking officials from office, canonize saints, etc. How could a Pope do any of these things within the Church, if he himself had been removed from communion with that Church? For very technical reasons which are outside the scope of this piece, theologians and canonists generally hold that such acts by a Pope in this situation would be illicit, yet valid; but all the uncertainty and chaos that this would cause in any event is painfully obvious.

Now try to reconcile this hypothetical chaotic situation within the Church, with Our Lord’s words to Peter in Matthew 16. It would seem that this kind of ecclesiastical mayhem is the very sort of thing that Christ assures us He will prevent from happening. This is why some scholars have hypothesized over the centuries that if a Pope were about to commit an act that would excommunicate him, God might perhaps prevent this by striking him dead! There is no denying that logically, it would be a neat solution to the problem; but it should be stressed that this is nothing but an abstract theory, suggested by theologians and other experts who have wrestled with this problem as an academic exercise.
The fact is, we don’t know what God would do. We only know that He has promised that the forces of evil will not prevail over His Church; how He wishes to go about protecting the Church is of course entirely up to Him. And so we can only leave this theoretical problem in His Hands. Thus any discussion of such an extreme scenario provides us with a good reminder that ultimately, when push comes to shove, we Catholics should place all our trust not in the Code of Canon Law…but in God Himself.