Is the Pope Really Above the 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?

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.

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