JURIST Guest Columnist Paul Goda S.J. of Santa Clara University School of Law says that the procedures adopted for the election of a pope are founded on the conviction that there is a higher good to be served beyond the simple transmission of institutional power …

In describing a dialog among the Apostles at the Last Supper, the Gospel writer Luke said that “A dispute arose among them about who should be regarded as the greatest.” In an analogical way, the words may be applied to any dispute among human beings who are involved in the process of the distribution of power. The dispute among the Apostles arose out of a misconstruction of the mission of Jesus. They wanted earthly power but that was not his mission. However, the dispute was also one whose solution had to be institutionalized if Jesus’ mission was to continue in history.

The institutionalization of the process of the transmission of power – such as that undertaken by the College of Cardinals, meeting in conclave in Rome beginning April 18 – is a political process, deep within the incarnate history of humankind. To be incarnate is to be invested with a bodily, human form.

Even on the assumption that the faith espoused by the Roman Catholic Church is true, that church could not escape institutionalization for two reasons. First, it is certainly an organization made up of human beings who live in history. It is subject to the same sociological, economic, political, and historical processes that touch every human institution. But more importantly, in the light of the religious tradition it claims, it is also the Body of Christ — Corpus Christi — an “incorporation,” if you will, primarily of believers. Further, if the claims of the Catholic Church were true, there is also an “incorporation” as well of every human being, since the underlying claim is that Jesus is Lord of all. He is claimed to be Lord not just because He is God but because He paid His dues in becoming incarnate, in having been invested with a bodily form. If His memory continues within history, that memory has to be institutionalized.

The Roman Catholic Church claims to be that institutionalized memory, living in history. The thrust of this essay is not to dissect other claims to be that institutionalized memory. It is to look at the electoral process that has become the mode of transmitting power within the Roman Catholic Church. That institutionalized memory was reconfirmed in 1996 by Pope John Paul II in his Apostolic Constitution Universi Dominici Gregis ([Shepherd] “of the Lord’s whole flock”).

The earliest modes of transmitting papal power are almost certainly lost to memory. It is most probably not true that St. Peter constituted a senate for the Roman Church to elect his successor. It is more probable that neighboring bishops made the choice and that sometime in the fourth century the people had some part in the elections.

After the incorporation of the Roman Catholic Christian Church into the structure of the Roman Empire by Constantine, there was some interference by the Emperors in the election of the Pope, especially when there were disputed elections. Barbarian kings took the place of Western Emperors in such interference. Indeed, upon the reassertion of the authority of the Eastern Roman Empire in the West, the Eastern Emperors actually had a right of confirmation over the choice of Pope.

On occasion in the first millennium, a reigning Pope nominated his successor, but apparently this practice never solidified into real control of the selection of the succeeding Pope. The Roman nobles also had some part in the selection of the Pope in the midst of what we call the Dark Ages. The Western Emperors tried to get the same right of confirmation, indeed of nomination, as the Eastern Emperors once had, but this never solidified into practice. It is hard for us who know modern Europe to imagine its misery during the Dark Ages of European history, approximately from the fall of the Roman Empire in 476 A.D. to the turn of the millennium in 1000 A. D. The corruption and poverty in Western Europe touched the heart of the Roman Catholic Church as well, affecting the selection of Popes around the turn of the first millennium. The struggle for independence of Papal elections was long and difficult.

A series of canons over those centuries established practices some of which remain today. That the cardinal bishops are the first to meet to elect a new Pope was established in 1059 by a decree of Nicholas II, although there was some kind of assent of lower clergy and laity that was interwoven into the process. Imperial rights were not spelled out but apparently the result of the choice was supposed to be forwarded to the Emperor for confirmation. The Popes after Gregory VII in 1073 ended that practice by no longer asking for confirmation.

In 1139, the Tenth Ecumenical Synod, a Lateran Council, decreed that the choice was left to the cardinals alone, and in 1179, another Lateran Council decreed that the pope was to be chosen by a two-thirds majority. That, of course, led to a problem not unknown to modern legislators. Look to the tax problems of California. Be that as it may, the years 1268-1271 saw a deadlock at Viterbo over the election of the next Pope. Incipient European nationalism fractured those entrusted with choice. The good citizens of Viterbo finally locked up the Cardinals “with a key,” cum clave, until they elected a Pope. They got tired of having undecided Cardinals wandering around.

The practice of the conclave was institutionalized in 1274 at the Second Council of Lyons in the Apostolic Constitution, Ubi Periculum (Where danger…). The provisions were stringent and after five days, only bread, wine, and water would be the food for recalcitrant Cardinals. The principle of the conclave worked and after some years, finally grew to be the common practice, both to protect the independence of the electors and to speed up the electoral process.

At the same time, a kind of right of exclusion grew up as nationalism solidified its hold on Europe in the last 500 years of the second millennium. The major Catholic powers, Austria, France and Spain, claimed a right to tell those at the conclave which individuals were personae minus gratae (less pleasing candidates). Such rights are almost certainly not traceable to the medieval right of confirmation. Such rights apparently were exercised on occasion and certainly were combated and condemned by Popes and canonists for 400 years. The last such interference was in 1903 when Austria exercised the right. Pope Pius X effectively and finally repudiated such a right of exclusion in 1904.

Pope John Paul II built on the structure of the preceding centuries in the Apostolic Constitution Universi Dominici Gregis that I mentioned earlier. Probably his greatest change, which actually is not a new idea, is to allow the electors the right to change the mandate from a two-thirds majority to a majority of electors after four rounds of ballots, the first round apparently of 12 or 13 ballots, the last three rounds of 7 ballots each. Otherwise, the method of election is spelled out in great and mostly traditional detail.

But it is neither on those details nor on my words that I wish to focus at the end of this essay. Rather, I'd like to give my readers a chance to peruse a few paragraphs of Universi Dominici Gregis directly, to get a feel of past centuries which still touch the present. The first paragraph I quote summarizes the issue of independen
ce of the electors:

…in order that the Cardinal electors may be protected from the indiscretion of others and from possible threats to their independence of judgment and freedom of decision, I absolutely forbid the introduction into the place of the election, under whatsoever pretext, or the use, should they have been introduced, of technical instruments of any kind for the recording, reproducing or transmitting of sound, visual images or writing.

Indeed, as I write, experts in communications technology are sweeping the Vatican! The second set of paragraphs relates to claimed jurisdiction and the source of a set of procedures:

The Shepherd of the Lord's whole flock is the Bishop of the Church of Rome, where the Blessed Apostle Peter, by sovereign disposition of divine Providence, offered to Christ the supreme witness of martyrdom by the shedding of his blood. It is therefore understandable that the lawful apostolic succession in this See, with which "because of its great pre-eminence every Church must agree" [St. Ireneus], has always been the object of particular attention.

Precisely for this reason, down the centuries the Supreme Pontiffs have deemed it their special duty, as well as their specific right, to establish fitting norms to regulate the orderly election of their Successor. Thus, also in more recent times, my predecessors Saint Pius X, Pius XI, Pius XII, John XXIII and lastly Paul VI, each with the intention of responding to the needs of the particular historical moment, issued wise and appropriate regulations in order to ensure the suitable preparation and orderly gathering of the electors charged, at the vacancy of the Apostolic See, with the important and weighty duty of electing the Roman Pontiff.

Clearly, we are all set into history; we do have the power to make our own procedures. The faith behind these particular Roman Catholic procedures is a faith in incarnate history. It is a conviction that the Lord walks with us in history, indeed, with all of us. It is a conviction that our procedures should aim at a higher good than simply the organized use of power.

Father Paul Goda is a law professor at Santa Clara University School of Law, where he teaches community property, wills and trusts and jurisprudence. He is a member of the Jesuit order and was ordained in 1966.
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