§ 2. On the Authority of the People and on the Secondary Forms of Human Law

Certain things remain to be said concerning the authority of the people and concerning the secondary forms of human law. We shall consider here two secondary forms of human law: one, which is secondary with attention to the mode of promulgation, and is unwritten law or custom; the other, which accedes as a complement of the principal law, and is instruction or decree.

— Principle. The people, at least that people which, in a perfect society, either by God Himself, as in the Church, or by another legitimate constitution ¹, is subject to the legislative power of those governing, as such, is not the legislator. Wherefore it must receive the law which has been made, nor does a law formally cease because it is not accepted. Wherefore also the people does not have the power to introduce a new law; nor is it the authentic interpreter of laws.

But from the reasonable or benign will of the legislator, it can do many things for the firmness and interpretation of constituted right, as also for the origin of new right.

¹ We say this because St. Thomas and the scholastics of themselves acknowledge political power in the multitude itself, as long as it has not been transmitted to the prince. Cf. St. Th. 1, 2, q. 97 art. 3 ad 3; 2, 2, q. 57 art. 2 c. and ad 2.

— I. The action of the people upon the firmness of law. The force of law does not depend on the acceptance of the people; and Alexander VIII reprobated this proposition 28: "The people does not sin, even if without any cause it does not receive a law promulgated by the Prince." Wherefore, when it is a question of a new pontifical law, bishops and inferior prelates ought to bring it into use. Nevertheless:

1. If they prudently judge that a pontifical law is less fitting for their dioceses, bishops are permitted reverently to open the matter to the Pontiff, and, while the response is awaited, meanwhile, by epikeia, to hold the law as suspended. We judge that this, because of parity of cause, also holds concerning an inferior prelate to whom the commands of a greater Superior are committed to be executed.

2. If a law is altogether harsh, which could not be observed without a great change and disturbance of things, the subjects themselves will be able either to appeal from an inferior to a superior power (yet not from the Pope to a Council, since a Council is not above the Pontiff), and meanwhile, from the prudently conjectured mind of the Prince or by epikeia, to hold the obligation as suspended. Cf. Ballerini-Palmieri, I, tr. 3, n. 293.

Yet of itself an appeal by which subjects appeal from the bishop to the Roman Pontiff does not suspend their obligation of obeying.

3. If it is sufficiently established that a law is neither actually observed by most nor will be observed, the Prince is not judged to wish to urge the obligation as regards the few of better will, so that they are excused from it. Besides, a legislator who knows that his law is not observed by the greater part of the people and is silent about the matter is himself judged to revoke the law. Hence that celebrated saying: "Laws are confirmed by the morals of the people." But acceptance of the law by the people is to be presumed in doubt; and a legislator urging his law is of himself to be obeyed, because subjects each ought to follow their head rather than the remaining members.

4. The prudent discretion which can accompany the observance of law, and not rarely ought to accompany it, also allows this to happen: that if certain things received in dioceses and confirmed by usage are to be changed, the mandate of the Ordinary be awaited (Maschiat, Prolegomena I. C., § IV, 22).

5. A law, from the will of the Prince itself, can formally be removed by desuetude or contrary custom. Concerning this matter, below.

— II. Concerning the power of the people in the interpretation of law. Although the people is not the authentic interpreter of the law to which it is subject, nevertheless the mode by which it observes the law is much more easily approved by the legislator, who, on account of the common good itself, is judged to accommodate his mind to that usage. Wherefore in c. 29 it is said: "Custom is the best interpreter of laws."

— III. Concerning the power of the people in the origin of a new law. The people cannot introduce a truly obliging law except through custom. We must now treat of this.

— I. Notion and conditions. Custom, as a thing of fact, is a frequent mode of acting and an inclination arising therefrom to act similarly. That fact sometimes brings forth custom as a thing of right, which is defined: right introduced by the long-standing morals of the people. For this to happen, various conditions are required, that is:

1. Some consent of the legislator, without which there is no law. The Code expressly establishes this concerning ecclesiastical custom: "Custom in the Church obtains the force of law solely from the consent of the competent ecclesiastical Superior" (c. 25). But that consent is not necessarily special, formally given to such or such a usage; general consent suffices, which is called legal, and is contained in a law by which customs furnished with certain endowments are generally held as ratified. Thus c. 27 acknowledges customs contrary to law, c. 28 customs beyond law; but canon 29 expressly commends customs which interpret law.

Nothing such occurs in modern civil right, by which customs contrary to law are of themselves rejected. Yet the civil legislator does not have the power to avoid every force of custom. And thus there are forensic customs which are a reason for magistrates to settle lawsuits outside all written right.

2. The people, as the subject of custom. When it is a question of a custom which has the force of law, there is required "a community which is capable at least of receiving ecclesiastical law" (c. 26), that is, a community for which a law is made. It is not enough that a law can be made concerning it. Cf. what was said above, n. 171. Such is the universal Church, a diocese, a religious Order, and its province; but not a parish or a religious house which is not a monastery of its own right. In the examples adduced, to every community capable of custom there is added a special legislative authority. Thus a bishop can establish diocesan laws, and a religious Order can establish constitutions or decrees for the Order. And there are provincial chapters, yet not of all or of most religious institutes, which establish proper ordinances of the province. But neither a cathedral chapter ¹ nor a pastor nor domestic authority establishes special right for a parish or house.

3. The morals of the people, that is, frequent, uniform, public, deliberate acts of the greater part of a community of this kind, so done that in the people there is a certain inclination toward them which the legislator would not oppose without some disturbance of the people. This inclination of itself will not be lacking where it is a question of abrogating a law; but where the question is of introducing an obligation, acts knowingly done (or without error of law), with the intention of obligating oneself, will very rarely be had; yet this, from c. 28 itself, is then required.

4. A long duration of time. Before the Code, a probable opinion was content with the space of ten uninterrupted years. Yet the Code, cc. 27 and 28, wills that a custom which introduces a new obligation or derogates from law be legitimately prescribed through forty continuous and complete years. But against a law which has prohibited future customs, only a centenary or immemorial custom can prescribe (c. 27). Cf. immediately below, n. 262, c.

Yet no time is required in a custom which the legislator tacitly approves and which is said to be by connivance. For then custom promulgates his own lawmaking will. Such is easily the usual interpretation of a law, from c. 29, which shows the favorable will of the legislator.

5. Reasonable morals, that is, such that although they are contrary to the present law, they can be sanctioned by the legislator as useful to the community. For since a community can often be led to its common good by two or more modes, it is not repugnant that a law and a contrary custom are both reasonable.

But usages cannot be reasonable which are repugnant to natural law or positive divine law (c. 27), or which break the nerve of ecclesiastical discipline, or provide license or occasion for sinning.

"A custom which is expressly reprobated in the law is not reasonable" (c. 27, § 2). Yet it can happen that, circumstances having changed, it afterward becomes reasonable.

¹ Capitular statutes are rather conventional. Cf. Wernz, Ius Decretalium, I, n. 94, against Bouix, De capitulis.

— Corollaries or scholia. 1. Custom differs formally from written law, not by the origin of obligation, not by efficacy, but by promulgation alone.

2. It differs from prescription properly so called, because prescription affects only private rights, but custom affects the very objective right of the community; because any private man prescribes unto his own private good against the private right of another, while the active subject of custom is the people; and custom is properly prescribed against no one, since it is valid from the will of the legislator; because prescription, but not custom, generally exacts good faith. Yet because of the continuous use and the space of time which custom requires, it becomes the object of prescription, and there is speech of a prescribed custom.

3. The nature of the thing is not changed when custom is reported in a written document, unless the writing itself is formally promulgated.

— II. Division. a) From efficacy or effect, custom is distinguished as according to law, beyond law, and contrary to law.

The first, which is also called inhesive, declarative, consists in the very common observance and therefore confirmation of the law.

Custom beyond law introduces an obliging norm which is opposed to no preceding one. Thus the obligation of the breviary, which now for the first time, by canon 135, has been promulgated in writing to all clerics of major orders. Thus many customs which explain the sense of an obscure law.

Custom contrary to law removes a preceding right in whole or in part. And observe that there is this difference between custom and the law of a particular legislator, that a special custom can derogate from a common law, while a particular legislator can do nothing against common right. For custom draws its force from the will of the universal legislator;

b) From extension, one custom is general, another special or particular. In ecclesiastical right, that which belongs to the whole Church is sometimes called most general; that which belongs to one ecclesiastical province or kingdom, general; that which belongs to a lesser community, special.

To special custom is referred the style of the curia, or the uniform mode either of deciding certain causes or of proceeding in the examination of a cause. It is said more strictly of a tribunal than of an administrative curia. A style of this kind, when it is used under the eyes of the Legislator, easily takes on the value of custom by connivance;

c) From duration, one custom is ordinary, or of long time; centenary, or of very long time; and immemorial, whose origin escapes at least common memory. For the proof of this, in canon law, it is required that witnesses by sight depose that they have seen the practice for forty years, and by hearing, that they have received from their elders that the same has always been observed.

Centenary and immemorial customs are privileged customs.

And although an immemorial custom surpasses a centenary one, in the Code they are practically equated. Cf. cc. 5 and 30, where both are excepted from the suppression made by the Code or by laws of contrary customs; c. 27, where both are said to be able to derogate from a law which prohibits customs; c. 63, where both are said to introduce the presumption of a conceded privilege. Therefore whatever can be obtained by privilege can be obtained by customs of this kind. Yet a clause which abolishes centenary customs does not yet touch immemorial customs.

N.B. Observe from St. Alphonsus himself, l. 3, n. 290, that "if it is probable that there is a custom," practically the obligation of the law to which that custom derogates ceases. Cf. Lehmkuhl, I, 189.

— III. Cessation. 1. Custom ceases intrinsically if it has become unreasonable. 2. Extrinsically, it ceases both by a contrary custom legitimately prescribed and by a law which suppresses it. Concerning that law these things must be held. A particular law abrogates particular contrary customs. And therefore, although customs are in force by the force of a general law permitting and sanctioning them, a bishop, in a matter where he is competent, can by diocesan law abolish diocesan customs ¹. A general law does not obrogate particular customs, unless it expressly provides this, as if it should say, "no contrary custom notwithstanding." For the clause "notwithstanding contrary custom," according to the interpretation received before the Code, is not yet judged to abrogate any custom other than a general one. But unless express mention has been made of them, a clause revoking any custom whatever does not suppress centenary or immemorial customs (c. 30). Nor is an immemorial custom removed by a clause which mentions centenary ones alone. Yet both are taken away by a clause which declares contrary customs to be corruptions.

In certain arguments, for example of rites, whose uniformity is greatly urged, the Holy See more difficulty admits that a custom which is opposed to liturgical law can be reasonable. Yet not every negative response to the question, "Can such a custom be tolerated?" demonstrates that the custom was previously unreasonable. For the Holy See could have used the occasion of the question to abrogate the custom positively.

Concerning previously existing customs which are contrary to the statutes of the Code, this particular thing is decreed by c. 5: all are abolished, unless the Code expressly provides otherwise, or unless they are centenary and immemorial. These, provided the Code has not declared them corruptions, "will be able to be tolerated, if the Ordinaries, according to the circumstances of places and persons, judge that they cannot prudently be removed." Those words invite Ordinaries to try to abolish them; but if they themselves have positively done nothing, they seem tacitly to connive at the custom, which therefore will continue to be in force. That is, that a former custom be tolerated, no positive action of the Ordinary seems necessary.

¹ Cf. Aichner, Comp. iuris can., p. 33.

— Notion. The more principal and general definitions of right must be completed by secondary and more particular dispositions by which provision is made for the execution of the former. Those determinations can be contained in the law itself; but not rarely they are reserved to a certain less solemn form of an obligatory norm, which in canon law is called by the name of instruction, but in civil law rather royal decree or decree of the president of the commonwealth. Therefore, in civil law it proceeds from a power distinct from legislative power, which is called administrative or executive. But in canon law instructions are made through the same Congregations which the Supreme Pontiff has not rarely used for establishing laws.

Instruction indeed of itself denotes a simple declarative norm, whose direction is to be observed, rather than its literal observance is to be urged. Thus, on 19 September 1671, the Sacred Congregation of Propaganda Fide said that the resolutions of the Holy Office and Propaganda Fide were communicated by it "not as definitions, but as simple instructions," by which, in occurring doubts, they could and should be governed ¹. Yet not rarely certain points, especially secondary ones, are defined and imposed authoritatively by instructions. Thus, the Instruction of the Holy Office of 7 June 1867 imposed a stricter notion of quasi-domicile than was being handed down by the most approved authors: yet the competence of a pastor to assist at marriages then depended on that notion. Thus, when the death of a prior spouse must be proved, the instructions of the Holy Office of 13 May 1868 and 29 August 1890 are to be followed. Wherefore Wernz, I, n. 146, III, only warns that we not attribute the force of universal law to all instructions.

That distinction between laws and instructions is clearly rendered in the Motu Proprio Cum Iuris canonici, 15 September 1917, by which Benedict XV reserved authentic interpretation of the Code to a special Commission. For it has this to our matter: the Sacred Roman Congregations are not to issue new general decrees now, unless... Therefore their ordinary office in this kind will be both to care that the prescriptions of the Code are religiously observed, and, if the matter bears it, to issue instructions which bring greater light to the same prescriptions of the Code and produce efficacy (A.A.S. 1917, t. 9, p. 483). It also happens that general chapters of regular Orders mandate that instructions be made by the Superior general.

To give examples, the Normae de sacra praedicatione, which the Sacred Consistorial Congregation established on 28 June 1917, acceded as an instruction to the encyclical letter Humani generis, 15 June 1917 (cf. A.A.S. 1917, t. 9, pp. 318 ff. and 305 ff.).

Recently, to its responses concerning the force of the general decree Inter reliquas, 1 January 1911, on religious bound to military service, the Sacred Congregation for Religious added a true instruction (A.A.S. 1919, t. 11, p. 321 ff.).

Now further, these instructions and royal or presidential decrees are directed to the same community for which the law is destined, and they obligate it likewise. Yet these differences stand between laws and complements of this kind: 1. that they cannot derogate from the law which they complete; 2. that therefore, if certain things cannot be composed together, the law, although prior, is to be preferred to the later instruction; 3. that, when the law has been suppressed, the instruction, as accessory, must cease together with the principal.

N.B. Beware lest you confuse decrees of the civil executive power with general decrees of the Sacred Congregations, which are often true laws made in a less solemn form.

¹ Collect. Paris. Constitutiones S. Sedis, n. 5.