With Pope Francis’s stay in a Roman hospital now approaching one month, and with little sign of him being able to return to the Vatican before Easter, speculation has grown among commentators about the possibility of an imminent conclave.
Public discussion of papabile candidates for a potential election has gathered pace, even if such discussion is for the moment premature. But alongside that, questions have started to be raised about who would do the electing, if-and-when the See of Peter would fall vacant.
In particular, discussion has begun around the number of cardinal electors, currently sitting at 137 — fully 17 above the nominal limit of 120 electors first set by St. Paul VI in 1970. That apparent discrepancy has left some asking if that means the law would require some of the current group of cardinals to be excluded from a conclave, and if so by what mechanism.
But the implications of canon law aren’t quite that straightforward — or at least it can appear that way to noncanonists.
St. John Paul II, Benedict XVI and Francis all moved at different times to exceed the 120 elector limit, and the universal and undisputed canonical understanding of the current legislation is that popes can act at will without regard to merely ecclesiastical regulations imposed by themselves or their predecessors.
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Some offices, like the papacy itself, and some bodies within the Church, like the global College of Bishops, are considered institutions of divine law, meaning that Christ himself instituted them and wills them as constituent parts of the Church, which no earthly power can eliminate.
Although the College of Cardinals has been around for nearly a millennium — first constituted in 1150 — it is worth remembering that it only exists as a matter of ecclesiastical law. It exists only because the Church, the person of the Roman Pontiff and as an exercise of his personal authority, has deemed it to be useful for the life of the Church.
So, while divine law mandates that the Church must always have a pope, the means by which those popes are chosen has changed, sometimes dramatically, over more than 2,000 years — and for much of that time it did not involve cardinals at all.
In virtue of the “supreme, full, immediate, universal” power which the pope “is always able to exercise freely,” it has been for the popes, over the millenia, to regulate how their successors will be chosen, with the current mechanism of cardinals gathering in a conclave being very much a creation of papal will, even if it is now vested in centuries of tradition and custom.
As such, popes have often tinkered with the norms of conclaves, the numbers of cardinal electors, and even the majority of votes necessary to elect a pope.
Perhaps the most dramatic reforms to the conclave of the modern era were made by Paul VI in 1970, when he issued the motu proprio Ingravescentem aetatem, five years after the conclusion of Vatican Council II. In that year, the pontiff instituted perhaps his most controversial reform — imposing the upper age limit of 80 on cardinals for participating in a conclave.
Five years later, Paul made more reforms to the conclave’s operation and composition, issuing Romano pontifici eligendo, in which he continued the trend begun under Pius XII to greatly expand the number of cardinals who would participate in a vote, which had long been set at 70.
The purpose of expanding the numbers, Pius said and Paul echoed, was to make the college more reflective of a growing and global Church no longer concentrated exclusively in Western Europe.
In all, Paul created 143 cardinals across six consistories during his 15 year reign. As he moved toward an expanded college of cardinals, he set the norm in Romano pontifici eligendo that “the maximum number of cardinal electors, however, may not exceed one hundred and twenty.”
The same upper limit was adopted by John Paul II in 1996, with the apostolic constitution Universi dominici gregis, which superseded Paul’s reforms as the operative law, while incorporating them into a new constitution on the conclave and the governance of the Church during a papal interregnum.
But what is the legal force of the 120-elector limit, exactly? And what happens when a pope — and they’ve all done it — chooses to appoint cardinals over that self-imposed maximum?
Well, that’s a question of who makes the law and to whom the law applies.
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While first Romano pontifici eligendo and now Universi dominici gregis set an upper limit on the number of cardinal electors, it’s helpful to remember that the limit is set by papal authority, not divine law, and that it only applies to the reigning pope, since it is he who appoints the cardinals.
Indeed, the Code of Canon Law provides that “the Roman Pontiff freely selects men to be promoted as cardinals,” free in the fullest sense of his legally defined scope to act — that of “supreme, full, immediate, universal” power in the Church.
Expressed in the most basic terms, any limit on the number of eligible cardinal electors is set by the pope and he can choose to abide by it or not in total freedom. No pope can bind either himself or his successors in matters of merely ecclesiastical law, since the fullness, supremacy, and total freedom to act is a constituent part of the Petrine office.
That having been said, some might wonder what force the limit on the number of cardinal electors in a conclave has when there is no pope, however — that’s where the confusion arises.
But in fact, the wording of both Romano pontifici eligendo and Universi dominici gregis answer this question within themselves — as does the Code of Canon Law.
As discussed above, the maximum limit to the number of cardinal electors who can be appointed applies, in a legal sense, to the pope himself — and in that sense does not bind him at all if he chooses to act contrary to it.
The question then becomes: does the law’s provision bind the College of Cardinals during a papal interregnum, and if so, how?
Looking at the law, the question becomes pretty straightforward.
The Code of Canon Law states that “cardinals are created by a decree of the Roman Pontiff which is made public in the presence of the college of cardinals. From the moment of the announcement they are bound by the duties and possess the rights defined by law,” the most important of those rights being the right to enter and vote in a conclave.
In other words, from the moment the pope issues a bull of appointment, a new cardinal possesses the full rights of his new status. That fact is underlined by Universi dominici gregis, which says that “a Cardinal of Holy Roman Church who has been created and published before the College of Cardinals thereby has the right to elect the Pope… even if he has not yet received the red hat or the ring, or sworn the oath.”
The only exceptions to the cardinals’ right of election are “those who have reached their eightieth birthday before the day of the Roman Pontiff's death or the day when the Apostolic See becomes vacant,” and “Cardinals who have been canonically deposed or who with the consent of the Roman Pontiff have renounced the cardinalate [and therefor] do not have this right.”
So every cardinal under the age of 80 who has not either been stripped of it by the pope or resigned it with his consent has the right to enter and vote in a conclave.
But is that right qualified by the 120 elector limit? And who would be excluded if the numbers are too high?
Well, again, both Romano pontifici eligendo and Universi dominici gregis are clear: no, and no one.
Both papal laws contain the express provision that “no Cardinal elector can be excluded from active or passive voice in the election of the Supreme Pontiff, for any reason or pretext,” — that includes the nominal limit on the total number of cardinal electors.
Simply put, the 120 elector limit is set by the pope, and meant to guide and express his own best judgement about the ideal number of cardinals in a conclave.
But once a pope has made the decision and acted to appoint any number of cardinals over that number, each one enjoys the right to enter and vote in a conclave, and no one has the power to exclude him from doing so.
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But if that is the case, why have the limit at all, and why do the popes seem to habitually ignore it?
Well, again, the context of the 120 limit was actually intended to stably raise the number of cardinal electors after the Second Vatican Council from its more traditional ceiling of only 70.
Since Paul VI’s time, his successors have shown themselves to be concerned to preserve that context, preferring to err on the side of too big a conclave, rather than risk the numbers dwindling down to an unhealthy level.
It makes sense, if you think about it. The number of cardinal electors is, as a matter of course, constantly falling. Since Pope Francis was taken into hospital in February, one cardinal has already aged out of his voting rights, and another 15 members of the college are set to turn 80 years old in the next 12 months.
Under John Paul II — who appointed cardinals in excess of the nominal limit four times across his nine consistories, twice bringing to total number of eligible electors up to 135 — Benedict XVI and Pope Francis, the pontiffs have made it clear that they prefer to stay above the law of demographic gravity, rather than under it, when making appointments the college of cardinals.
The result is that the 120 elector number has evolved to function as a notional floor, rather than hard ceiling, for eligible voters.
While some might prefer, or even expect that a pope would amend the laws of Universi dominici gregis to reflect that, the legal reality is that it is the popes’ law, and they can do what they like with it.
Including appointing more cardinals than the “limit” established.
