Custom

Custom.—In Canon Law custom can interpret, abrogate or introduce law, provided: (a) it has the qualities of legitimate custom, and (b) its existence is proved juridically, or is notorious.

According to their extension, customs are of various kinds. (a) Universal customs are those that prevail in the entire Church; (b) particular customs are those that are confined to a territorial portion of the Church (e.g., a province of the Church or of an Order); (c) special customs are those that are followed in societies that are smaller, but capable of having their own laws (e.g., independent monasteries); (d) most special customs are those observed by individuals, or by communities not capable of having their own legislation (e.g., parishes). At the most, customs of this last class have only the force of privilege (Canon 26).

Custom is formed as follows. (a) As to origin, it arises from the practice of the people, when this practice is followed with the purpose of making or unmaking a law. Hence, the habitual way of acting of an individual, even if he be the superior, does not give rise to a custom. By “people” here is meant a community capable of having its own law (Canon 26). (b) As to legal force, custom arises solely from the consent of the Pope or other prelate, when this consent is expressed by the law or lawgiver, or tacitly admitted by him. Hence, a custom not approved by the superior has no legal force (Canon 25).

A custom can introduce or abrogate any kind of ecclesiastical law or other custom—penal, prohibitive, irritant—if it is reasonable and has lasted the prescribed time (Canons 27, 28). Examples: A law that forbids contrary customs can be abrogated, according to the Code, by such customs when they are immemorial, or a century old (Canon 27, Sec. 1). The impediment of disparity of worship became diriment through custom; it was custom that introduced the obligation of the Divine Office, and that mitigated the early law of fast.

A custom expressly disapproved of in law is not reasonable or legitimate, and cannot derogate from an existing law, nor establish a new law (Canons 27, 28).

The time prescribed by the Code of Canon Law for the acquisition of legal force by customs that have not the personal consent of the lawgiver is as follows: (a) forty continuous and complete years are required to unmake an ordinary law; one hundred years to unmake a law that forbids future contrary custom (Canon 27, Sec. 1); (b) forty continuous and complete years are likewise required to make a new law (Canon 28).

The effect of the Code on customs previously existing was considered above under 421.

Like the written law, custom ceases: (a) from within, when its purpose has ceased entirely; (b) from without, when it is abrogated by desuetude, or by a contrary law or custom (Canon 30).