Benedict XVI’s startling decision to act under a canonical norm (c. 332 § 2) that has been invoked only twice in its 700+ year lifetime (once in 1296 by Celestine V who wrote the law, and apparently by Gregory XII in 1417 who was trapped in the worst schism to shake Roman Catholicism) has spurred a flurry of canonical questions. Let me try to sort through a few more of them here.
What the pope can and can’t do
It is often said—usually by people who know little about popes and even less about canon law—that “a pope can do whatever he wants” or, a bit less egregiously, that “popes are not bound by canon law.” Nonsense. Just see what would happen if a pope, allegedly unfettered by Canon 1024, tried to ordain a woman, or, in disregard of the canons on marriage, attempted to dissolve a ratified and consummated marriage. What such obvious limitations on papal power prove, I suggest, is that canon law often (not always, but often) rests on divine laws which even popes are not free to disregard.
That said, most modern canons are set down by human (albeit, divinely constituted, specifically papal) authority and, in that regard, a pope may be said to be above canon law. Canon 331 means exactly what is says. But even here popes are bound by, for example, natural law (such that a pope who, say, removes an official from ecclesiastical office because he cheered for the opposing sports team would act gravely illicitly) or, say, by contracts the pope duly entered. Regardless of what redress options are, or are not, available to those suffering from papal injustices, the fact that the pope acted illegally would be plain. In short, popes have very extensive authority in the Church, but they are not free, and do not act as though they were free, to disregard the good order of a Church that they are bound to nurture.
Okay, let’s see how these considerations impact some conclave questions.
What the pope might do
We know from many sources (e.g., Vatican I, const. Pastor Aeternus, chap 2), that Christ willed his Church to have an abiding papacy, but we also know that He dictated no specific mechanism for choosing popes. Human, albeit ecclesiastical, authority in the Church has set down the process for choosing a pope and all are bound to observe that process. But, precisely because the conclave process is of human (specifically papal) invention, the pope could change those rules without (in any way reasonably imaginable) violating divine law, certainly, and probably without violating natural law.
For example, the pope might, in view of the protracted period of ecclesiastical instability that his manner of resignation has occasioned, derogate from the current law on conclaves (UDG 37) and allow the concave to begin sooner than March 15.
What the pope won’t do
The pope unquestionably could, but almost certainly will not, name more cardinals to the college (he is not bound to observe the ‘maximum’ of 120 electors set out in UDG 33, a number John Paul II exceeded at various times). Benedict will do nothing, I think, to influence the outcome of the next election, and appointments now, no matter how deserving, would be seen as attempts to influence the outcome.
Likewise, Benedict will not, I think, disqualify Roger Cdl. Mahony as an elector. Granted, Mahony could resign from the college, himself, of course, but a “conservative” pope disqualifying a “liberal” elector? I doubt that will happen.