§ 2. On the Prohibition and Abrogation of Custom

Custom can be prohibited for the future, or abrogated in the present, as follows.

266. I. Custom can be PROHIBITED through a clause expressed in some law. And this in two ways:

1. Through a prohibiting clause, for example, through these words: "we do not will any custom against this law to have force." Through a clause of this kind, every custom to be introduced in the future is prohibited, which nevertheless is not therefore declared evil or irrational, and therefore, notwithstanding such prohibition, a future custom can prevail.

St. Alphonsus (I, 108; H. Ap., II, 81) follows this opinion as probable with Suarez (l. 7, c. 19, n. 21), Bonacina (disp. I, de Leg., q. 1, punct. ult. § 3, n. 36), and others. The reason: such a custom can put on all the conditions numbered above. The prohibition annexed to the law indeed demonstrates that the custom to be begun here and now is judged to be irrational, and that the prince wills to consent only with difficulty. But circumstances can change, and the tacit consent of the prince, in most grave circumstances, is not excluded by the clause.

From these things you see what must be thought concerning the axiom: Against Trent there is no prescription. In reality, although Trent contradicts it, the usage of conferring parochial benefices without a concursus, or with it not carried out according to the clearly prescribed form, has prevailed almost everywhere. Cf. De Angelis, Prael. Jur. can., l. I, tit. 4, n. 12. As regards customs against the Rubrics, see the things which will be said n. 1638.

2. Through a reprobating clause, as when the law says: "altogether disapproving that custom, since it is deservedly to be judged not so much custom as corruption." By this formula indeed custom is declared evil and irrational, but from this it does not follow that such a one can never prevail.

Thus St. Alphonsus solves the question (l. c.): "But if it is reprobated as contrary to natural or divine law, then no custom can have force. But if it is reprobated as irrational for the time in which the law is made, then, from a new cause, it can be rendered reasonable and have force" (cf. n. 263).

267. II. A prevailing custom can be ABROGATED through a supervening law. But here a distinction must be made:

1. If the custom is universal, by the fact itself it is abrogated through a subsequent contrary law, without a derogatory clause being necessary; for otherwise the new law would become useless.

2. But if it is particular, or local, it is by no means abrogated through a general law, unless mention is made of the custom, or unless the clause is added: notwithstanding any custom whatever; because the legislator must be judged to be ignorant of the custom.

And hence it is why Bishops, through the laws which they establish, abrogate all and singular particular customs, because they themselves are presumed to have knowledge of all customs which are in force in their dioceses (I, 109).

3. Finally, if the custom is immemorial, or at least if it numbers one hundred years, it is regularly not abolished except through special mention; for such custom is privileged, insofar as for it there is presumed a title than which no better can be alleged in the whole world, as Fagnanus says.

We have said regularly; for even an immemorial custom itself is abolished in certain cases, namely: 1. if a new law declares contrary customs irrational; 2. if the reason of the law operates equally against immemorial customs and against others; 3. if the legislator abrogates all contrary things, one case being excepted; for the exception of one is the exclusion of all the rest (cf. Craisson, Man. Jur. can., n. 142; Bargilliat, Prael. Jur. can., tr. I, c. 5, a. 4).

268. III. Custom can also BE TAKEN AWAY or ABROGATED through another contrary custom. But the new custom ought to be directly contrary to the preceding; namely universal, which takes away a universal; particular, which takes away a particular; and it ought likewise, by repeated acts, in the manner explained above (n. 262), to prescribe (Bouix, de Princip., p. 381).

Note. If some custom is against faith and good morals, one must indeed labor that it be uprooted as soon as possible, since no legitimate prescription can be had in this matter. The same must be said concerning a custom which would be opposed to Christian piety. It belongs to the Superior to strive to take a custom of this kind out of the midst; because, from office, it is incumbent on him to care for the spiritual good of subjects.

But as regards the MODE which must be used in this matter, let obedience be given to the most wise admonition of St. Augustine (Ep. 22, to Bishop Aurelius, n. 5), who, treating of the license of feasts shamefully occupying almost the whole of Africa everywhere, under the empty pretext of honoring the feasts of martyrs, urged the best manner of acting, writing gravely: "Not harshly, as much as I judge, not severely, not in an imperious manner, are those things taken away; more by teaching than by commanding, more by admonishing than by threatening. For thus one must act with a multitude; but severity is to be exercised upon the sins of the few. And if we threaten anything, let it be done with sorrow, by threatening from the Scriptures future vengeance, lest not we ourselves in our power, but God in our speech, be feared."

Cf. the things which Ami du Cl. wisely advises, 1906, p. 42, 361; 1907, p. 249, in relation to customs which are in force among unbelievers; likewise the things which it writes concerning customs of the faithful and the silence of competent authority (1900, p. 1027 ff.).