§ I. On Custom

I. Notion. Custom, named from consuesco or consuefacio, can be taken both for fact and for right. Custom of fact is the frequency of similar acts in some community. Custom of right is a right arisen from custom of fact, and is customarily defined: a right of the people, established by morals, with the consent of the legislator acceding. We are treating custom accepted in this way.¹ It is said:

1. Right, that is, a law commanding, prohibiting, or permitting something.

2. Introduced by the morals of the people; namely, insofar as the aforesaid morals gave occasion to the consent of the legislator, by whom finally the right must be established (St. Thomas, I-II, q. 97, a. 3, ad 3; St. Alphonsus, I, 107).

3. With the consent of the legislator acceding; for custom in the Church obtains the force of law solely from the consent of the competent ecclesiastical Superior (can. 25).

The consent of the legislator, if there is question of the supreme legislator, that is, of the Supreme Pontiff, is distinguished as twofold: personal and legal.

Personal consent is that which the legislator gives specifically for this or that determined custom. This is twofold, express and tacit, according as the legislator approves the custom explicitly, or by conniving, or not contradicting, when he could conveniently contradict.

Legal consent (general, juridical) is that which is given through law, or through the law itself, insofar as, namely, the legislator generally and antecedently consents to all customs furnished with certain conditions. Personal consent supposes that the custom is known by the legislator; but for legal consent, knowledge of the custom in the legislator is not required (St. Alphonsus, I, 107, 5°).

¹ Cf. Bauduin, De consuetudine in iure canonico; Kreutzwald, De canonica iuris consuetudinarii praesumptione; Wernz, Ius Decr., t. I, nn. 184-194; Vlaming, Instit. iuris eccles., nn. 32-40; Vermeersch, Epitome Iuris Canonici, 4th ed., I, n. 108 sq. Therefore we abstract from the right which a private or singular person can sometimes acquire through frequency of acts.

II. Division. Custom is chiefly distinguished:

1. Into custom according to law, beyond law, and against law. The first is that which confirms by use a law already established. The second is that which establishes a new law. The last is that which is opposed to a law and brings it about that the established law is abrogated or derogated from.

2. Into universal and particular. The first is that which has force in the whole kingdom, in the whole Church, or in the whole Order or Congregation; the second is that which has force only in some part, for example, in a province, diocese, parish, or convent.

3. Into ordinary and extraordinary. Ordinary is a custom of forty years. Extraordinary is centenary or immemorial, that is, one whose beginning does not exist in memory (can. 27).

4. Into custom by way of connivance and by way of prescription, according as it obtains the force of law through personal or legal consent. Many, however, call customary right introduced by way of connivance customary right improperly so called.

III. Efficacy. Legitimate custom has the force of law, that is, it either abrogates or derogates from a prior ecclesiastical law, or constitutes a new law. Moreover, it can regard a commanding law as well as a penal and invalidating law (St. Alphonsus, I, 107, IV, 108). I said ecclesiastical law; for, as is plain, custom cannot abrogate divine law, whether natural or positive (can. 27, § 1). But that an ecclesiastical law can be abrogated, and likewise that a new law can be constituted through custom by way of connivance, that is, through the personal consent of the legislator, is clear from the nature of the matter. That the same can generally be done by way of prescription is deduced from can. 27, § 1, and 28.¹ I said generally; for:

1. Custom cannot, by way of prescription, derogate from rubrics contained in liturgical books. For the Supreme Pontiffs and the Sacred Congregation of Rites have repeatedly signified that customs against the rubrics are abuses and corruptions;² considering this, legal consent cannot be presumed. This, however, does not prevent, first, the use against rubrics from being legitimated by way of connivance, or by force of the personal consent of the legislator, and thus, although it was an abuse before personal consent, when consent accedes it ceases to be an abuse. Nor do the things said above prevent, second, a use contrary to the rubrics from being tolerated until it can conveniently be removed by the Bishop.³ What has been said about rubrics contained in liturgical books you should also apply to decrees of the Sacred Congregation of Rites.⁴ That these things have not been changed by the new law follows from can. 2.

2. It is disputed whether a custom which is expressly reprobated by law can, by way of prescription, become legitimate. Some deny it, because a custom of this sort is said by can. 27, § 2, not to be reasonable. Others think that a custom of this sort, when circumstances have changed, can become reasonable and therefore, once the things to be posited have been posited, legitimate (St. Alphonsus, I, 108; cf. n. 194).

¹ In Holland, civil law cannot be abrogated by custom.

² Constitution of Innocent XIII Apostolici Ministerii, May 23, 1723, renewed by Benedict XIII through the constitution In supremo, September 23, 1724; S.R.C., January 10, 1852, n. 2993, ad 1, 2, and 4. Cf. other things in Victor ab Appeltern, Manuale Liturgicum, t. I, pp. 22 and 23.

³ Cf. S.R.C., May 9, 1857, n. 3043, ad V; n. 3044, ad V.

⁴ S.R.C., August 3, 1859, n. 2792, ad 2.

IV. Requisites in order that a custom be efficacious, that is, either abrogate a law or introduce a new law.

1. In order that custom abrogate a law by way of connivance, there is required and suffices, besides a certain frequency of acts of the community, for there is question of a law to be abrogated dependently upon the morals of the people, that the personal consent of the legislator (or of his successor or superior) accede, whether express or tacit (can. 25). The reason is that the continuance of a law, equally as its beginning, depends on the will of the legislator. Hence as soon as the legislator consents to a custom contrary to the law, the law ceases. There will generally be sufficient certainty about tacit consent if the legislator permits the law to be commonly infringed, although he could conveniently contradict. If he cannot conveniently contradict, from silence one generally cannot conclude to consent to the abrogation of the law; nevertheless it can happen that the legislator, although he does not abrogate the law, still suspends the obligation of the law until he can urge it more conveniently.

2. In order that custom introduce a law by way of connivance, besides a certain frequency of acts of the community, there is required: first, that it be reasonable, that is, such that it can be the object of law. What things can be the object of law was explained in n. 116. There is required, second, that the personal consent of the legislator accede, whether express or tacit. For no law can be constituted without the will of the legislator (can. 25). Tacit consent of the legislator can be established, for example, from the fact that he punishes transgressors of the custom.

3. In order that custom abrogate a prior law or introduce a new one by way of prescription, there is required: first, a legitimate subject; second, frequency of acts; third, an intention of abrogating or introducing law; fourth, a reasonable object; fifth, a definite time. It is said:

a) A legitimate subject; namely, a community which is capable at least of receiving an ecclesiastical law. Thus can. 26, which indeed speaks expressly only about a law to be introduced, but there is no reason why these things cannot be applied to a law to be abrogated. Which communities are capable of receiving an ecclesiastical law was said in n. 73.

b) Frequency of acts; namely: first, the custom must proceed at least from the greater part of the community, or from those in the community whom the law regards; second, the acts must be notorious at least with notoriety of fact and not occult, similar or uniform, and repeated several times according to the diversity of the matter, in accordance with the estimation of a prudent man (St. Alphonsus, I, 107, IV).

c) An intention of abrogating or introducing law, that is, an intention which inclines toward abolishing or establishing a law. For there is question of the abrogation or passing of law dependently upon the morals of the people. But such abrogation and such passing of law are not considered to have place unless the people incline toward abrogating or constituting a law. Besides, as regards a new law to be constituted, that there is required in the community an intention of obligating itself is clear from can. 28. Nevertheless, it suffices that the aforesaid intention be present interpretatively; this has place when the people does not actually incline toward abrogating a law because it is ignorant of it, but, if ignorance were lacking, would incline toward abrogating it; or when it is not actually inclined toward constituting a law because it erroneously thinks that it already exists, but, if error were lacking, would incline toward constituting it. These things suffice because they sufficiently argue the disposition of the people, to which the legislator is considered to acquiesce.

Corollary I. Where there is question of abrogating a law, it does not matter whether the people knows the law or is ignorant of it, in other words, whether it transgresses the law in good faith or in bad faith. For in either case there can be an intention alien from the law. But it does not suffice that the community act against the law from fear or from mere ignorance. Hence a custom would not abrogate a law if the people were so disposed that, if it knew the law, it would promptly observe it. In this hypothesis there is in no way an intention opposed to the law (St. Alphonsus, I, 107, 110; Homo Apostolicus, tr. 2, nn. 79 and 80; Istruzione e Pratica, c. 2, nn. 84 and 85). But since a law is generally not unknown by the community, a custom against law generally "has a threefold state. In the beginning, those introducing the custom against the law all sin. In progress, those using the custom already introduced by their elders do not sin, but can be punished by the prince. In the end, those using it after it has already prescribed neither sin nor can they be punished" (St. Alphonsus, I, 107, 2°).

Corollary II. In order that custom introduce a new law, it does not suffice that the people observe it from mere error, that is, only because it erroneously thinks that the law exists, or from mere devotion, gratitude, or civility. The reason is that in that hypothesis there is lacking an intention of obligating itself. Hence the custom, for example, of hearing three Masses on the Nativity of the Lord or of receiving the sacred Ashes on Ash Wednesday does not oblige (St. Alphonsus, I, 107, 4°).

d) A reasonable object (can. 27 and 28).¹ Furthermore, a custom against law is considered reasonable if the legislator, considering the circumstances, could validly and licitly abrogate the law. But a custom by which a new law is introduced is reasonable if it can be the object of law according to what was explained in n. 116.

A custom is unreasonable: first, if it is opposed to divine law, whether natural or positive; second, if it is the tinder or occasion of sins, so that it is, as it were, remotely opposed to the law of nature;² third, if it breaks the sinew of ecclesiastical discipline,³ that is, if it tends not only to abolishing one or another law, but to subverting authority itself, as, for example, a custom of not subjecting oneself to a visitor; fourth, if it is opposed to the public good or, in view of the singular nature of some institute, to the common utility, and in general, if it is against ecclesiastical immunities (cf. St. Alphonsus, I, 107, at the end);⁴ fifth, if it is expressly reprobated by law (can. 27, § 2). Furthermore in the latter case it certainly remains unreasonable if the circumstances are not changed. But it is disputed whether such a custom, when the circumstances have changed, can become reasonable; considering the nature of the matter, since many things depend on circumstances, this seems to be affirmed, although the case will not have place very easily (St. Alphonsus, I, 108; Homo Apostolicus, tr. 1, n. 81).

But if contrary future customs are only prohibited, not reprobated, such a prohibition is relative, that is, while the same circumstances remain. Wherefore, when the circumstances have changed, a contrary custom can become reasonable. Today, however, for such a contrary custom a longer time is required, and indeed, as we shall see, a centenary or immemorial custom.

Only the competent superior judges authentically concerning a reasonable object. In the absence of such a judgment, the testimony of even one outstanding doctor, even a modern one, suffices (St. Alphonsus, I, 107, 3°; III, 290, 1025); indeed, for the internal forum any prudent man, especially a confessor, can judge concerning a reasonable object.

e) A definite time. Furthermore, forty continuous and complete years are required. But against an ecclesiastical law which contains a clause prohibiting future customs, only a reasonable centenary or immemorial custom can prescribe (can. 27, § 1). I said that continuous years are required. For custom must be begun anew if it is interrupted, suppose because competent authority contradicts it, or because the greater part again observes the law (St. Alphonsus, I, 107, 3°; Homo Apostolicus, tr. 2, n. 79). If the aforesaid conditions are present, the legal consent of the Supreme Pontiff is had, by which finally the abrogation or introduction of law, whether general or particular,⁵ is accomplished.

Note. In strict doubt whether the requisites for a custom which abrogates a law are present, the law must be observed; otherwise, if the requisites are more probably present (St. Alphonsus, III, 290, 304; IV, 174). In doubt whether the things necessary for a custom which introduces a law are present, liberty persists (n. 226; St. Alphonsus, I, 107, 4°).

¹ Cap. Cum tanto, De Consuetudine, bk. 1, tit. 4.

² c. 10, de consuet.

³ c. 5, cod. tit.

⁴ Cf. cap. 49 (V, 39).

⁵ Where there is question of abrogating or introducing a particular law, legal consent of the particular legislator, that is, of one inferior to the Supreme Pontiff, is not established.

V. Cessation of custom, that is, of the right or obligation introduced through custom. Custom can cease by the same modes by which written law can cease, since there is the same reason of unwritten and written right. Therefore it can cease through cessation intrinsically, through abrogation, etc. As regards abrogation, however, which is made through a new law, note:

1. A general law abrogates a contrary general custom (can. 30; cap. 1 [I, 2] in VI); but not an ordinary particular custom, unless an abrogating or derogating clause is added, for example, "notwithstanding any custom whatsoever"; nor a centenary or immemorial particular custom, unless special mention of it is made (can. cit.), for example, by saying: "notwithstanding any custom whatsoever, even centenary or immemorial," or: "notwithstanding any custom whatsoever, even one worthy of special mention."

2. A particular law abrogates a contrary particular custom. This follows from can. 30, which says only about a general law that particular customs are not revoked by it. St. Alphonsus rightly says: "Bishops, however, by their laws abrogate any particular custom whatsoever, because they are presumed to have full knowledge of the customs of their dioceses" (I, 109).