ROME, February 14, 2019 (LifeSiteNews) — Archbishop Georg Gänswein has reaffirmed the validity of Benedict’s resignation, insisting that he did resign the Petrine office.

“There is only one legitimately elected and incumbent [gewählten und amtierenden] Pope, and that is Francis,” Benedict’s longtime private secretary said, adding simply: “Amen.”

His definitive affirmation, communicated to LifeSiteNews on Feb. 11, 2019 — the six-year anniversary of Pope Benedict’s abdication — comes at a time when increasing numbers of bishops, canonists, theologians and lay faithful are questioning its juridical validity.

Clergy and laity alike are concerned that Benedict’s remarks about the “forever” of the papacy — and those of Archbishop Gänswein about an “expanded petrine ministry” — indicate that Benedict intended to bifurcate the papacy, as if he intended only to resign the ministerium (active ministry) of the papacy and not the munus (office) itself. If this were the case, the argument goes, his resignation would be invalid, for Christ intended for there to be only one successor to Peter, one Vicar of Christ on earth.

Presenting these concerns to Archbishop Gänswein, we asked him: “Did Pope Benedict intend to resign the Petrine munus as named in canon law (canon 332.2), or just the public actions that pertain to that munus?”

“I have already cleared up the ‘misunderstanding’ several times,” he responded. “It makes no sense at all, no, even more, it is counterproductive to insist on this ‘misunderstanding’ and to quote me again and again. This is absurd and leads to self-harm [Selbstzerfleischung]. I have clearly said that there is only one Pope, one legitimately elected and incumbent Pope, and that is Francis. Amen.”

LifeSite investigated the arguments and claims surrounding this aspect of the debate over the validity of Benedict’s resignation. We then sat down with Cardinals Burke and Brandmüller to hear their views.

Questioning the juridical validity of Benedict’s resignation

Concern over the juridical validity of Benedict’s resignation has exercised many theologians and has increased in recent months and years.

Last October, Monsignor Nicola Bux, a respected theologian and former consultor to the Congregation for the Doctrine of the Faith during Benedict XVI’s pontificate, called for an investigation into this resignation.

In a forceful interview with Italian Vaticanist Aldo Maria Valli on the doctrinal and moral crisis in the Church, Msgr. Bux, now a theological consultor for the Congregation for the Causes of Saints, said it would be “easier” to examine the question of the “juridical validity of Pope Benedict XVI’s resignation” than to face head-on the “practical, theological and juridical difficulties to the question of judging a heretical pope.”

“The idea of a sort of collegial papacy seems to me decidedly against the Gospel dictate,” he said. “Jesus did not say, in fact, ‘tibi dabo claves...’ addressing Peter and Andrew but only said it to Peter!”

Msgr. Bux’s reference to a “collegial” papacy was an allusion to a concern over the background to Benedict’s resignation that has been circulating in curial and theological circles for some time.

The scruple was triggered by a discourse Archbishop Gänswein delivered on May 20, 2016, during a book launch at the Pontifical Gregorian University. Benedict’s personal secretary said of him:

He has left the papal throne and yet, with the step made on February 11, 2013, he has not at all abandoned this ministry. Instead, he has complemented the personal office with a collegial and synodal dimension, as a quasi-shared ministry (als einen quasi gemeinsamen Dienst).

Archbishop Gänswein continued:

Since the election of his successor Francis, on March 13, 2013, there are not therefore two popes, but de facto an expanded ministry — with an active member and a contemplative member. This is why Benedict XVI has not given up either his name, or the white cassock. This is why the correct name by which to address him even today is “Your Holiness.” […]

“He has not abandoned the Office of Peter — something which would have been entirely impossible for him after his irrevocable acceptance of the office in April 2005,” he said.

Archbishop Gänswein’s “expanded papacy” speech provoked deep concern, and appeared to shed new light on Pope Benedict’s own remarks during his last Wednesday general audience on Feb. 27, 2013, one day before leaving the Vatican by helicopter for Castel Gandolfo.

Reflecting on his acceptance of the papacy on April 19, 2005, Pope Benedict said: “The real gravity of the decision [to resign] was also due to the fact that from that moment on I was engaged always and forever by the Lord. Always – anyone who accepts the Petrine ministry no longer has any privacy.”

He continued:

The “always” is also a “forever” – there can no longer be a return to the private sphere. My decision to resign the active exercise of the ministry does not revoke this [emphasis added] ... I am not abandoning the cross but remaining in a new way at the side of the crucified Lord. I no longer bear the power of office for the governance of the Church, but in the service of prayer I remain, so to say, in the enclosure of Saint Peter.

Then, some four years later, reflecting on his abdication in a book-interview with Peter Seewald titled Last Testament, Benedict XVI said: “My step was not one of taking flight but was precisely another way of remaining faithful to my ministry.”

The nature of the doubt

The concern to which Monsignor Bux alluded in his Oct. 13 interview arises from the fact that the papacy is by divine law monarchical and cannot be held by more than one person at any time.

An error popular among Protestants and liberal Catholic theologians after Vatican II held that there was no monarchical papacy in the first or early second century but that monarchical episcopacy was introduced there some time after St Ignatius of Antioch (d.108) and before St Irenaeus of Lyons (fl.180).

Moderately liberal Catholics who hold to the above error but still feel the need to uphold the divine origin of the papacy try to claim its monarchical character has been and could be changed from aristocratic to monarchical and vice versa. That is, they imagine a council of presbyters ruled the Roman Church rather than a bishop after the death of St. Peter until sometime in the second century, when this council was replaced by a Bishop of Rome, or Pope. As this happened in the past (they imagine), they see no reason why it could not happen in the future and two or three or a dozen or more collectively might exercise the papal primacy.

It is alleged that in some writings in the 1970s onward Joseph Ratzinger at least gave consideration to these ideas without clearly rejecting them.

When he resigned the papacy, Benedict XVI spoke (in the Latin text) of the burden of the papal munus and of abdicating the papal ministerium. Given that in his final Wednesday audience, Benedict XVI spoke of somehow “always” and “forever” being the Pope, and Archbishop Georg Gänswein spoke of the new situation having arisen since the abdication, whereby there are now not “two popes, but de facto an expanded ministry — with an active member and a contemplative member,” whispers have spread that Pope Benedict attempted partial resignation on the basis of a false understanding of his own office and therefore, perhaps, he resigned invalidly.

Benedict XVI has, since his resignation, increased these doubts by retaining his papal name and dress and form of address.

Some have inferred from this that Benedict XVI distinguished between a papal munus of divine origin and a papal ministerium of human origin which may be split or bifurcated and otherwise altered by ecclesiastical authority — and intended in his abdication to retain the munus while sharing it with his successor to whom the bulk or all of the ministerium would have passed.

This is not possible as the monarchical nature of the papacy is of divine law. But if it was the basis of Benedict XVI’s abdication then he acted out of substantial error, and thus Benedict XVI remains the Pope. According to Can. 188 of the Code of Canon Law: “A resignation made out of grave fear that is inflicted unjustly or out of malice, substantial error, or simony is invalid by the law itself.” That is, Benedict XVI attempted to resign an aspect of the papacy he falsely supposed to be separable from the office itself and did not intend to resign the office as such (but asked the cardinals to give him a colleague in the office) and thus his resignation is invalid.

This, the argument goes, accounts for the many errors taught by Pope Francis. Not actually being the Pope (it is said), he does not enjoy the graces of state of a Pope.

Doubting the doubts

While the thesis has aroused interest in many quarters, even theologians who find the arguments worthy of consideration are often unconvinced.

A theologian who spoke to LifeSite on condition of anonymity argued that supporters of this opinion need to show that Pope Benedict understood the munus and the ministerium as referring to two different realities. “If you think that ministerium means only acts of teaching and governance, then it would indeed seem to be different from the munus, which normally designates an office, that is, a kind of state,” he said.

“But ‘ministerium’ doesn’t have to mean acts,” he explained. “The first meaning given to it in the Latin dictionary (Lewis and Short) is ‘office.’ I would say that its basic meaning is ‘an office by reason of which one must perform acts to help others.’”

The theologian noted further that ‘munus’ doesn’t only mean a state. “According to the Latin dictionary, it can also refer to the performance of a duty,” he said. “It was used in this sense by Cicero and there is no more authoritative writer of Latin prose than him.”

He said the main difference between the words appears to be simply that ‘munus’ connotes more “the burden which the office puts on its bearer,” and ‘ministerium’ connotes more “the reference to other people which the office establishes.”

“But that doesn’t prevent them from referring to one and the same office or state,” he added.

Why then did Pope Benedict say munus at the start of his Latin declaration and ministerium at the end, if he understood them to refer to the same reality? The theologian suggested two possibilities.

“One is simply that people who want to write elegant prose often avoid frequent repetitions of the same word,” he said. “Another is that the word ‘ministerium’ has perhaps a more humble sound to it, since it refers more directly to the papacy in its relation to other people, than as a charge placed on oneself. So having begun by using the official word, ‘munus,’ Benedict moved on to the more humble sounding word.”

The theologian went on to note that while Benedict was aware of theological writings from the 1970’s onward that proposed the Petrine munus could be divided, he is “not aware of any place where Joseph Ratzinger endorses this thesis.”

He said the lack of clarity about Ratzinger’s position is aggravated by the fact that translators have mistranslated Ratzinger and presented him as endorsing heterodox ideas when in fact he was reporting someone else’s thought rather than expressing his own.

The theologian acknowledged that it is possible that Pope Benedict thought there might be a real distinction between munus and ministerium but was unsure. In that case, he said, Benedict’s abdication would be invalid only if he had in his mind the thought: “I only want to resign the ministerium if it is in fact distinct from the munus.”

But he said it would be equally possible that, being unsure whether there was a distinction, Benedict could have had in mind the thought: “I want to resign the ministerium whether or not it is distinct from the munus.” In that case, the theologian said he believes the resignation would have been valid.

“In any case,” he said, “I don’t think there is convincing evidence that Benedict thought there was a real distinction between the two things.”

“Again,” the theologian continued, “since according to Canon 15.2, error is not presumed about a law, the presumption must be that he validly renounced the papacy.”

He said that people who insist Benedict’s resignation was invalid “therefore seem to be in a position similar to that of a Catholic spouse who is personally convinced that his or her Church marriage was invalid.”

“However convinced the person is of this, he or she is not free to marry again until an ecclesiastical court has declared that there was never a marriage,” he said. “So even if someone is convinced that Benedict XVI is still Pope, he or she should wait for the judgement of the Church before acting on this belief, e.g. a priest in that position should continue to mention Francis in the canon of the Mass.”

As for the argument that Pope Francis can’t be Pope because he clearly has no graces of state, the theologian said this forgets that “grace is normally offered in such a way that it can be refused.”

“You might as well say that a man who beats his wife obviously can’t be validly married to her,” he said.

Other theologians see Benedict’s use of the title “Pope emeritus” as a point in favor of the resignation.

Can. 185 of the Code of Canon Law (on the loss of ecclesiastical office) says: “The title of emeritus can be conferred upon a person who loses an office by reason of age or of resignation which has been accepted.”

As one theologian explained, every bishop when he retires becomes bishop emeritus. He is the emeritus bishop of the last diocese of which he presided. By creating the “pope emeritus” title (it is argued), Benedict is saying “what every bishop does, I’m doing too.”

LifeSite also asked noted Catholic historian Roberto de Mattei for his thoughts on arguments invoking “substantial error.” Seconding the first theologian’s line of thought, Professor de Mattei noted that: “The Church is a visible society, and canon law does not evaluate intentions, but concerns the external behavior of the baptized. Canon 124, §2 of the Code states that: ‘A juridic act placed correctly with respect to its external elements is presumed valid.’”

“Did Benedict XVI intend to resign only partially, by renouncing the ministerium, but keeping the munus for himself? It’s possible,” he said, “but no evidence, at least to date, makes it evident.”

“We are in the realm of intentions,” he added. “Canon 1526, § 1 states: “Onus probandi incumbit ei qui asserit” (The burden of proof rests upon the person who makes the allegation.) To prove means to demonstrate the certainty of a fact or the truth of the statement. Moreover, the papacy is in itself indivisible.”

Bringing Msgr. Bux’s argument in favor of examining the juridical validity of the abdication full circle, de Mattei said: “If it were proven that Benedict XVI had the intention of dividing it, of modifying the constitution of the Church willed by Our Lord, he would have fallen into heresy, with all the problems that would ensue. Isn’t the current situation of the Church already serious enough without complicating it further?”

Certainty from Cardinal Brandmüller

In comments to LifeSite, Cardinal Walter Brandmüller, former president the Pontifical Committee for Historical Sciences, insisted: “The resignation was valid, and the election was valid.”

“Enough,” he added.

A respected Church historian, Brandmüller was one of the four cardinals who signed five dubia which sought clarification from Pope Francis on the moral teachings contained in the Pope’s 2016 apostolic exhortation, Amoris Laetitia.

In our conversation with the German Cardinal, he cited two Roman legal dictums which he said are important to keep in mind: de internis non iudicat praetor (a judge does not judge internal things) and quod non est in actis, non est in mundo (what is not in the acts [of the process], is not in the world).

In judging the validity of any juridical act, Cardinal Brandmüller said we need to consider the “facts and documents” and “not what the people in question might have been thinking.”

“You always have to keep in mind that the law speaks of verifiable facts, not of thoughts,” he said.

What sort of substantial error could invalidate a papal resignation, we asked Cardinal Brandmüller?

“If a Pope decided to resign because he thought Islamic troops were invading the Vatican, the resignation would be invalid if the Islamic troops weren’t in fact invading,” he said in a modern-day version of Venerable Pope Pius XII’s contingency plan to step down in 1944 to avoid being arrested by the Nazis.

Cardinal Brandmüller has been a critic of Benedict’s resignation, as well as his decision to keep the white cassock and his papal name.

In 2016, he wrote an article calling for a law to define the status of the ex-pope and concluding that the resignation of the Pope “is possible, and it has been done, but it is to be hoped that it may never happen again.” (An extended version of the article appeared in the periodical, The Jurist. )

Then, in a 2017 interview critical of Benedict’s resignation, the German Cardinal told Frankfurter Allgemeine Zeitung that the “Pope Emeritus” title never existed “in all of Church history” and that Benedict’s resignation had “knocked us cardinals sideways, and not only us.”

Soon after, the German newspaper Bild published two letters from the Pope Emeritus to Cardinal Brandmüller, in which the Pope Emeritus defended his decision to resign but also revealed his awareness of the pain it had caused.

In the first letter, dated Nov. 9, 2017, Benedict writes: “With ‘Pope Emeritus,’ I tried to create a situation in which I am absolutely not accessible to the media and in which it is completely clear that there is only one Pope. If you know of a better way and believe that you can judge the one I chose, please tell me.”

Despite his criticism of Benedict’s abdication, his creation of the title “pope emeritus,” and his keeping the white cassock and papal name, Cardinal Brandmüller unwaveringly maintains the validity of the resignation.

“There’s no doubt that Francis is the legitimate Pope,” he said.

Cardinal Burke weighs in

LifeSite also sat down with US Cardinal Raymond Burke, former Prefect of the Holy See’s Apostolic Signatura (the Vatican equivalent of the Supreme Court), to discuss his views on the juridical validity of Pope Benedict’s resignation in light of the aforementioned concerns and Cardinal Brandmüller’s remarks.

Having considered various aspects of the issue, including the relevant canons, the Latin text of Benedict’s resignation and his final general audience, Cardinal Burke said: “I believe it would be difficult to say it’s not valid.”

Regarding Benedict’s Latin declaration, Cardinal Burke said “it seems clear he uses interchangeably ‘munus’ and ‘ministerium.’ It doesn’t seem that he’s making a distinction between the two.”

Concerning Benedict’s final Wednesday general audience, he said while he finds it “disturbing,” he doesn’t believe Benedict’s “always and forever” comments constitute substantial error (according to can. 188 and can. 126) with regard to his abdication “because it’s clear from the declaration that he was renouncing the munus.”

“We can say that these are mistaken notions,” he said, “but I don’t think you can say that they redound to a non-abdication of the Petrine office.”

“That’s where the dictum ‘de internis non iudicat praetor’ comes in,” he explained, echoing Cardinal Brandmüller. “The Church would become completely destabilized if we couldn’t depend upon certain juridical acts which carry effects.”

“Whatever he may have theoretically thought about the papacy, the reality is what is expressed in the Church’s discipline. He withdrew his will to be the Vicar of Christ on earth, and therefore he ceased to be the Vicar of Christ on earth,” the former head of the Vatican’s highest court explained.

“He abdicated all the responsibilities that define the papacy (cf. Pastor Aeternus) and therefore he abdicated the papacy.”

Cardinal Burke called the notion that the papacy could be bifurcated or expanded “fantasy.”

“The office has to inhere in one physical person,” he said.

“The munus and the ministerium are inseparable,” he also explained. “The munus is a grace that’s conferred, and only in virtue of that grace can one carry out the ministry.” Therefore, “if one no longer has that grace because he has withdrawn his will to be the Vicar of Christ on earth, then he can’t be exercising the Petrine ministry.”

The Cardinal went on to note that “the papacy is not a sacrament in the sense that there’s an indelible character.”

“If you said you can no longer carry out the ministry of the priesthood, you could still be a priest offering your life in a priestly way. With the episcopal consecration, there is also an indelible mark imprinted upon the soul by which a man becomes the true shepherd of the flock, exercising the priesthood in its fullness.”

“The inauguration ceremony of the Petrine ministry is a symbolic rite but it does not confer anything new upon the person,” he explained. And so “with the papacy, when you renounce the office, you simply cease to be Pope.”

Cardinal Burke is convinced that the use of papal titles and of papal dress after a Pope has resigned is juridically and theologically problematic and does not help the faithful to understand the true sense what has happened — something he raised in the General Congregations just before the last Conclave. “Once you renounce the will to be the Vicar of Christ on earth, then you return to what you were before,” he said.

But regarding the abdication itself, His Eminence said: “It seems clear to me that Benedict had his full mind and that he intended to resign the Petrine office.”