​INTRODUCTION AND SCOPE

 

This Conclave document does not argue for the nullity of any prior papal election. That analysis is established elsewhere.

The sole purpose of this document is juridical and limited: to demonstrate that the Church’s positive law already provides a lawful, non-paradoxical path to succession once conclave competence exists, even under conditions of refusal, division, or institutional disruption.

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Accordingly, this document does not:

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• appeal to necessity, equity, or providence,

• propose extraordinary authority,

• relax invalidating norms,

• or justify action without competence.

 

It shows only that custodial status is not an indefinite condition and that the legislator did not create a juridical dead end.

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As Benedict XVI himself stated in the act of resignation:

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“For this reason, and well aware of the seriousness of this act, with full freedom I declare that I renounce the ministry of Bishop of Rome…in such a way that…a Conclave to elect the new Supreme Pontiff will have to be convoked by those whose competence it is.”  Declaratio, 11 February 2013​

 

 

I. THE ACTING SUBJECT: THE COLLEGE OF CARDINALS

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1. Corporate competence does not require unanimity

 

Canon law vests the power of electing the Roman Pontiff in the College of Cardinals, not in each Cardinal individually (c. 359). The College is a juridical body, not a numerical aggregate whose capacity depends upon universal participation or consensus.

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No norm of canon law—general or special—requires unanimity of electors for:

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• recognition of a vacancy,

• convocation of a conclave,

• or the validity of an election.

 

Refusal, dissent, or non-attendance by some members does not dissolve the College as a juridical subject (c. 115 §2).

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2. Refusal is not a veto

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Universi Dominici Gregis explicitly addresses refusal:

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If any Cardinal elector refuses to enter the conclave or to remain therein, without manifest reason of illness, the others shall proceed freely with the election without waiting for him or readmitting him. (UDG 40)

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This provision is dispositive. The legislator expressly contemplated refusal and forbade paralysis as a result of it. Non-participation excludes the refuser from the act; it does not invalidate the act (c. 119 §2).

 

II. CONVOCATION AND PRE-CONCLAVE AUTHORITY

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3. Convocation does not require unanimity or papal authorization

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Once conclave competence exists, the College possesses authority to manage ordinary and urgent matters, and to prepare everything necessary for the election (UDG 1–2).

 

Convocation is an administrative act, not a constitutive one. It does not create competence; it presupposes it.

 

Hence, a subset of lawful Cardinal electors may issue a convocation notice, provided that:

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• all lawful electors are notified (c. 166 §1),

• no elector is excluded or impeded,

• and the notice invokes the obligations already imposed by law.

 

4. Presiding authority when offices are vacant

 

Universi Dominici Gregis provides a complete fallback structure for leadership. General Congregations are presided over by the Dean, the Subdean, or, if neither is available, the senior Cardinal elector by order of precedence (UDG 7). If the office of Camerlengo is vacant at the vacancy of the Apostolic See, the College must elect one as soon as possible; until then, the relevant functions are exercised by the presiding Cardinal (UDG 15).

 

Thus, absence or vacancy of offices does not paralyze the process. The law itself supplies continuity without inventing authority.

 

III. TIMING, DELAY, AND BOYCOTT

 

5. Delay does not extinguish competence

 

The election law establishes:

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• a minimum waiting period to allow absent electors to arrive,

• and a maximum period after which the electors present are obliged to proceed (UDG 37–38).

 

The law does not recognize indefinite delay. Once the maximum period has passed, the direction of the law is to act, not to wait.

 

Therefore, where recognition of competence occurs after a prolonged period of misrecognition, the waiting periods are already satisfied, and the law provides no basis for further delay once the maximum period has been exceeded or when refusal, rather than impossibility, is the cause of non-attendance.

 

6. Boycott has no juridical effect

 

Where electors refuse to attend because they dispute the legitimacy of the process, their absence constitutes refusal, not impossibility.

 

Under UDG 40, such refusal does not suspend the election, does not alter voting thresholds, and does not affect validity.

 

IV. VALIDITY CONDITIONS OF THE ELECTION

 

7. The only numerical requirement that matters

 

For validity, Universi Dominici Gregis requires:

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• election by secret ballot (per scrutinium),

• and a majority of two-thirds of the votes of those present and voting (UDG 62–63).

 

The denominator is not:

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• all living Cardinals,

• all lawful electors,

• or all those summoned.

 

It is those present and voting (c. 119 §2).

 

Thus, an election may be valid even if a majority of lawful electors refuse to attend, provided those who do attend act lawfully and reach the required majority.

 

8. Minimum sufficiency

 

Canon law does not specify a numeric minimum for the College to act, but it presupposes a plural acting subject capable of deliberation and voting.

 

Thus, a single Cardinal cannot elect a Pope. But a small number of lawful electors acting together may do so, provided the election retains the juridical form of a collegiate act.

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For the College of Cardinals to act as a collegiate subject in a papal election, there must be at least three lawful Cardinal electors (c. 115 §2). Fewer than three cannot constitute the College in juridical form, because deliberation and a two-thirds majority are then impossible.

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V. ANSWERS TO COMMON OBJECTIONS

 

Objection 1: “This creates paralysis if most Cardinals refuse.”

 

False. The legislator explicitly rejected that outcome by commanding that refusal does not halt the election (UDG 40). Paralysis is excluded by positive law.

 

Objection 2: “This is bending the law when convenient.”

 

False. This procedure:

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• obeys invalidating norms strictly,

• applies procedural norms according to their juridical weight,

• and declines to supply authority where the law has not conferred it.

 

It does not relax the law; it applies it (c. 10).

 

Objection 3: “This is a faction acting as the Church.”

 

False. A faction excludes others. Here:

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• all lawful electors are notified,

• none are excluded,

• refusal is self-exclusion contemplated by law.

 

Those who act do so as the College, not as a substitute for it. Canon 166 §2 makes this distinction explicit. Where an elector is passed over (i.e., not notified) the election is subject to rescission. But where an elector is notified and refuses, the law provides no remedy, because no wrong has occurred. Refusal after notification is self-exclusion, not exclusion. Those who act after notifying all do not act as a faction; they act as the College, diminished only by the voluntary withdrawal of those who chose not to participate.

 

CONCLUSION

 

The custodial status of the Apostolic See is a juridical state of restraint, not a state of permanent paralysis.

 

The Church’s election law​ anticipates refusal, vacancy of offices, and delay, while it explicitly commands that the election proceed despite them.

 

Accordingly, custodial status has a lawful terminus.

 

It ends when lawful Cardinal electors, acting as the College and in obedience to the special law, proceed to the election once competence exists.​ No miracle is required. No exception is invoked. No authority is fabricated. The law already provides the path.