Section — Prümmer, Manuale Theologiae Moralis
§ 5. On the cessation of law through custom
On the Cessation of Law by Custom.126
Preliminary Note. For understanding more clearly the force of custom, we shall treat not only of abrogating custom, or custom causing the cessation of law, but also of obligating custom, or custom causing a new law. But we do not treat of merely material custom, which consists in the same acts repeated for a long time, for example, of the custom of committing the same sin.
126 Since modern civil legislators scarcely recognize the force of derogatory custom, here there is treated especially ecclesiastical customary law (cf. nevertheless Austrian Civil Code § 10; Spanish Civil Code a. 5; Swiss Civil Code a. 1).
272. Notion. Custom, as it is taken here, is a certain right or law introduced by the morals of the people with at least the tacit consent of the legislator; or, as is had in the Decree of Gratian:127 "Custom is a certain right established by morals, which is received as law when law is lacking." This definition indeed is excellent, if it is rightly understood. For law can be lacking as to clarity, and then custom supplies according to law; or as to universality or extension, and then custom supplies beyond law; or finally as to utility, and then custom supplies against law.128
127 c. 5, D. I.
128 Cf. Reiffenstuel, Ius can. l. 1, tit. 4, n. 6.
273. Note. Sometimes custom against law is confused with prescription against law, but not rightly. For good faith is required for legitimate prescription; but good faith is not always required for the value of custom. Conversely, for legitimate custom some consent of the legislator is required, as will be said below; on the contrary, for legitimate prescription no consent is required from him against whom prescription is made. There are also other differences between custom and prescription.129
129 Ibid. n. 235 sqq.
274. Divisions. Custom can be distinguished on the part of 1. end, 2. extension, 3. cause or mode, 4. duration.
1. On the part of the end, custom according to, beyond, and against law is distinguished. Custom according to law (consuetudo inhaesiva, or declarative custom) confirms and rightly explains an existing law. Concerning this, and concerning custom beyond law, that well-known adage holds, which is taken from Roman Law:130 "For custom is the best interpreter of laws." Hence this custom is also called usual interpretation of law. - Custom beyond law is that which, in cases not expressly contained in the law, constitutes a new law conformable to the spirit of the existing law. By such custom there seems to have been first introduced the obligation of privately reciting the Divine Office incumbent upon individual clerics in major orders and religious of either sex solemnly professed. To this custom above all is applied the Isidorian definition brought forward above: a certain right which is received as law when law is lacking. - Custom against law is that which either never receives by use a law that has been made, or removes by contrary morals a law already received, and by long-standing use abrogates it or at least derogates from it. By this custom the Tridentine law concerning the annual convocation of a diocesan synod seems to have been abrogated.
2. By reason of extension, there is distinguished most general, general, special, and most special custom. A most general or universal custom is that which has been received in the universal Church. A general custom is called that which flourishes in a whole certain province. A special custom is that which flourishes in some city. A most special custom is that which is observed by some private persons or by some community which does not constitute a perfect society. This most special custom can never have the force of true law,131 but after the likeness of some indult it perhaps confers certain subjective rights.
3. By reason of the cause or mode in which it was introduced, judicial and extrajudicial custom are distinguished. Judicial custom, which is also called forensic use, is that "which has obtained in judgment through several conformable sentences pronounced concerning the same kind of causes, i.e., when at least twice judgment has been given in like manner concerning similar causes in a contentious trial within ten years."132 This custom indeed, if it is referred to the form of proceeding in tribunals and other dicasteries, is called the "style of the Curia"; but if it concerns the very matter of judicial sentences, it is called "the authority of things similarly judged" or jurisprudence. - Extrajudicial custom is that which is introduced by the morals of the Christian people.
4. By reason of duration, custom is usually distinguished as ordinary (or long), centenary, and immemorial. The first requires an existence of at least 40 years; the second supposes a duration of 100 years; the third is that whose memory of beginning does not exist among living men.
130 L. 32 D. I De leg. 3.
131 Cod. iur. can. c. 26.
132 Reiffenstuel, Ius can. l. 1, tit. 4, n. 18.
275. Requirements for legitimate custom. In order that custom produce a full legal effect, three things are required: 1. suitable matter; 2. a capable subject; 3. the consent of the competent superior.
276. 1. The suitable matter of custom is a reasonable practice established by legitimate prescription. Hence it is customarily said briefly: Custom has the force of law if it is a) reasonable and b) legitimately prescribed.133
A custom is reasonable which truly promotes the common good. But a custom is judged unreasonable if it concerns something which cannot be introduced by written human law, namely: a) if it is contrary to natural or positive divine right.134 Hence Gregory IX135 said: "No one of sound mind understands that natural right ... by any custom whatsoever (which in this part is more truly to be called a corruption) can in any way be derogated from." b) If it breaks the sinew of discipline.136 Hence, for example, all customs which weaken monastic discipline are invalid. c) If it provides license or occasion of sinning.137 Reiffenstuel138 deservedly observes: "Speaking in particular or in particular cases, whether this or that custom is reasonable or not, this is to be left to the judgment of a prudent judge.... But if, after all things have been weighed, doubt remains concerning the reasonableness of a custom, it will be presumed reasonable and expedient for the common good." It is self-evident that an already existing custom, which afterwards is expressly reprobated in law, is no longer reasonable and therefore loses every force.139 The Code of Canon Law has reprobated several customs of this kind (namely 21). But whether those customs now reprobated can afterwards (with circumstances changed) again become legitimate does not seem to be denied.
Custom ought to be legitimately prescribed. For this legitimate prescription no determinate time is required if the tacit or express consent of the legislator ratifies it; otherwise, for legitimating a custom both against and beyond law, prescription through 40 continuous and complete years is required; indeed, if the law contains a clause prohibiting future customs, only a reasonable centenary or immemorial custom can prescribe.140
133 c. 11, X, 1, 4. Under the name of prescription required for legitimate custom nothing else is understood except sufficient duration and due consent of the legislator. Therefore this prescription is to be distinguished from that concerning which there will be discussion in the treatise on justice.
134 Cod. iur. can. c. 27.
135 c. 11, X, 1, 4; cf. also S. theol. I, 2, q. 97, a. 3 ad 1.
136 c. 3 and 5, X, 1, 4.
137 c. 9 and 10, ibid.
138 L. c. n. 41 sqq.
139 Cod. iur. can. c. 27, § 2.
140 Ibid. c. 27, § 1 and c. 28.
277. 2. The capable subject of introducing custom is only a community upon which law properly so called can be imposed.141 Wherefore a diocese, a religious Order, etc., can introduce custom, but not private persons or families, since these are not capable of law properly so called, but of a simple precept. Moreover it is required that custom be introduced a) by the greater part of the community; b) by repeated and spontaneous acts; c) with the intention of obligating itself or of rejecting some obligation. - Authors dispute whether, for introducing custom against law, good faith is required in those acting against a clear written law. The truer opinion seems to be this: If the prince knows and tolerates such a custom, although he could easily oppose it, then he is judged to consent to the abrogation of the written law, and the custom becomes legitimate with the passage of time. But if the prince is ignorant of this custom, or if he cannot contradict it without notable inconvenience, then the first transgressors of the law sin more or less according to their bad faith. But it cannot happen that gradually a great part of the people, by acting against the law, does not become of good faith. For if some positive law is neglected with impunity by a great part of the people, soon a common opinion will arise that such a law no longer obliges in conscience.142
141 Ibid. c. 26.
142 Cf. Schmalzgrueber, Ius can. l. 2, tit. 26, n. 56 sqq. St. Alphonsus teaches absolutely that good faith is not required for custom, since custom can be made even by sinning (Theol. mor. l. 1, n. 107).
278. 3. Consent of the competent ecclesiastical superior is required in order that the morals of the community obtain the force of law. Thus all Catholics teach against the so-called "historical" school (Schulte, Sohm, Windscheid, etc.), which teaches that the efficient cause of customary law is the community alone, without any consent of the prince being required. Concerning the necessary consent of the prince, the Angelic Doctor teaches:143
"The multitude in which custom is introduced can be of a twofold condition. For if it is a free multitude which can make a law for itself, the consent of the whole multitude for observing something, which custom manifests, is more than the authority of the prince, who does not have the power of establishing law except insofar as he bears the person of the multitude; hence, although individual persons cannot establish law, nevertheless the whole people can establish law. - But if the multitude does not have the free power of establishing law for itself, or of removing a law placed by a higher power, nevertheless the custom itself prevailing in such a multitude obtains the force of law insofar as it is tolerated by those to whom it pertains to impose law upon the multitude: for by this very fact they seem to approve what custom has introduced."
From these words of St. Thomas it follows that in those kingdoms in which legislative power resides in assemblies elected by the people, custom (provided that it is reasonable) can arise without any consent of the prince. But since the Church is not such a kingdom, and ecclesiastical laws are established without the previous election or consent of the people, for every legitimate ecclesiastical custom the consent of the legislator or competent superior is required. Wherefore the Code of Canon Law c. 25 establishes: "Custom in the Church obtains the force of law uniquely from the consent of the competent ecclesiastical superior." This consent indeed is either express, namely if the competent superior approves the custom in explicit words; or legal or juridical, namely if it is given through the law itself permitting the rise of reasonable customs; or tacit, namely if the superior is silent, although he can easily protest against the arising custom. - Present-day authors very commonly teach that any one of these three consents, really existing, suffices for establishing a legitimate custom.
143 S. theol. I, 2, q. 97, a. 3 ad 3.
279. Effects of legitimate custom are three according to St. Thomas,144 who says: "Custom both has the force of law, and abolishes law, and is the interpreter of laws." Concerning custom insofar as it is the interpreter of laws, nothing remains to be said. For those things hold which above, n. 229, were said concerning usual interpretation. A few things are to be noted concerning custom establishing and abrogating law.
144 S. theol. I, 2, q. 97, a. 3 ad 3.
280. 1. Obligatory custom, or custom establishing a new law, today is rare. But in former times such customs produced new obligatory laws. Thus, for example, the law concerning the private recitation of the Divine Office and the matrimonial impediment of disparity of cult were introduced by customary law. - Custom, adorned with due qualities, can introduce any just law whatsoever, whether preceptive, penal, or invalidating. But the qualities required are: a) that the consent of the legislator be present; b) that the matter of the custom be agreeable to reason; c) that it be introduced by a perfect community; d) that the acts be exercised freely and not by coercion, and indeed with the intention of obligating oneself; e) that it proceed from due prescription, namely through 40 continuous and complete years.
281. 2. Abrogating custom (clothed with due conditions) can abolish an ecclesiastical law either totally or partially, as is manifestly taught in the Decretals of Gregory IX145 and in the Code of Canon Law c. 27, § 1. Nor is there any ecclesiastical law which cannot be abrogated by a contrary reasonable custom. For the text of the Decretals is entirely universal. Hence even the disciplinary decrees of the Council of Trent146 can be abrogated through reasonable custom, i.e., a custom clothed with the qualities enumerated above; indeed, some of those decrees truly seem to have been abrogated in some regions. But if some custom is expressly reprobated in law, it is not reasonable and therefore cannot abolish or establish law, unless, however, the conditions of things have been entirely changed. Hence, for example, a custom introducing a new matrimonial impediment or contrary to existing impediments is reprobated and is of no value.147
145 "No one of sound mind understands that natural right ... by any custom whatsoever (which in this part is to be called corruption) can in any way be derogated from. Although also the authority of long-standing custom is not cheap, nevertheless it is not going to have force to such a degree that it ought to generate prejudice even to positive right, unless it has been reasonable and has been legitimately prescribed" (c. 11, X, 1, 4).
146 Cf. Wernz, Ius Decret. I, 194.
147 Cod. iur. can. c. 27, § 2 and c. 1041.
282. Cessation of custom. Since custom clothed with due conditions is true law, accordingly it ceases in the same mode in which written law can cease, namely through internal causes (through cessation of the matter and total cessation of the end) or through external causes, i.e., through contrary custom (c. 30), and especially through revocation made by the competent superior. Concerning this revocation the following things are noted briefly:
1. Universal custom is abrogated by a later contrary law, although it makes no mention of this custom. Hence, for example, if a bishop makes a law for his whole diocese, a contrary custom existing hitherto in his whole diocese is by that very fact abrogated.
2. A special custom of some place or institute is not abrogated by a supervening contrary general law, unless, however, the legislator expressly wishes to remove also that custom. Wherefore Boniface VIII says:148 "Although the Roman Pontiff (who is judged to have all rights in the repository of his breast), by establishing a later constitution, is known to revoke an earlier one, even if he makes no mention of it; nevertheless, because he can probably be ignorant of the customs and statutes of special places and singular persons ... he is not understood to derogate in anything from them, provided that they are reasonable, through a constitution newly issued by him (unless this is expressly provided in it)." - Nevertheless a general derogatory clause, for example, "notwithstanding any custom whatsoever," or another similar clause, suffices for removing even special customs. Therefore the Code of Canon Law c. 5 establishes: "Customs presently in force against the statutes of these canons, whether universal or particular, if indeed they are expressly reprobated by the canons themselves, are to be corrected as corruptions of right, although they are immemorial, and they are not to be permitted to revive in the future."
3. An immemorial and centenary custom is not judged revoked unless the ecclesiastical legislator says in the derogatory formula: "notwithstanding any custom whatsoever to the contrary, even immemorial or centenary."149 Wherefore such customs can be tolerated if Ordinaries, according to the circumstances of places and persons, judge that they cannot prudently be removed.150 These things indeed hold especially in liturgical matters.
148 c. 1 in VI, 1, 2.
149 Cf. St. Alphonsus, Theol. mor. l. 1, n. 109.
150 Cod. iur. can. c. 5.
283. Scholion. On customary law in the practice of the confessor. For fuller doctrine concerning customary law, see the canonists. In the practice of the confessor, this matter concerning customary law, which is sufficiently intricate, ordinarily does not cause great difficulties. For since custom can obtain in ecclesiastical law alone (rarely in civil law), and no positive law obliges with grave inconvenience, the confessor can always direct himself and his penitents according to the practice of other men of timorous conscience, even if he himself cannot judge whether some custom in a particular case possesses all the conditions required for its legitimacy. For today it is impossible that a legislator should be ignorant for a longer time of the continual practice of timorous men against the law. But if nevertheless he does not protest, he is rightly presumed to approve such practice.