Custom and mere use

200. Definition. The word custom is taken in two ways: a. causally, for acts frequently repeated by a community; b. formally, for the right which, with the consent of the legislator acceding, arises from those acts. Hence custom formally can be defined as a certain right or law introduced by long-standing use of a community, with the approval of him who has care of that community.

The distinction which intervenes between (derogatory) custom and prescription of right, with which custom is sometimes confused, must be carefully noted: for some principles govern custom, others govern prescription; wherefore the same conditions are not required in both. Especially, however: a. good faith is required for prescription; it is not required for custom; b. for prescription the consent of him against whom prescription is made is not required, but for custom the consent of the legislator is required; c. for prescription a time, sometimes longer, sometimes shorter, determined by law is required; for introducing custom, time is indeed ordinarily required, but to be determined by the judgment of prudent men, which nevertheless is not extended beyond ten years.

201. Division. 1. By reason of extension, custom is divided into universal or most general, which is in force in the whole Church; into general (in itself it is particular), which is in force in some whole province; into special, which is in force in smaller societies, but nevertheless perfect ones, i.e. societies capable of laws; and into most special, which is observed by private persons and imperfect societies, namely those which are not capable of law. It is clear that this last does not have the character of law, but after the manner of a privilege is only a faculty of doing or omitting something.¹

2. By reason of relation to law, custom is divided into custom against law, which removes an existing law either altogether or at least in part; custom beyond law, which introduces a new law; custom according to law, which confirms or interprets an existing law by use itself.

a. From this division it is clear that the effect of custom is threefold: a. of interpreting law; b. of introducing a new law; c. of abrogating an existing law.

b. Only a twofold custom must be treated here: a. derogatory custom or custom against law, and b. obligatory custom or custom beyond law.

¹ Cf. Wernz I. n. 187.

A custom in the technical sense must be distinguished from a mere use. A use is a constant manner of acting but without binding force. Thus we take holy water on entering the church, and receive blessed ashes on Ash Wednesday, and palms on Palm Sunday, but there is no obligation of doing so, and no sin is committed if we neglect these pious practices; they are only uses. A custom has the force of law from which it only differs in its origin. It arises from the repeated acts of the community which it binds. However, inasmuch as in ecclesiastical matters at least, the community as such has no legislative authority, the binding force of ecclesiastical. customs is derived from the express, tacit, or legal consent of the legislative authority. Legal consent to all customs which have the requisite qualities is given in the last chapter of the Title on Custom in the Decretals, and Can. 27.

A custom is said to be according to the law if it confirms and interprets the law by long-continued usage.

It is beside the law if it introduces a new law in a matter for which no written law exists.

It 1s contrary to the law when the acts by which the custom was introduced were forbidden by law. There is nothing repugnant in the notion of a lawful custom being introduced by wrongful acts, for when the custom is formed the acts cease to be forbidden, because the contrary law has in fact ceased to exist.

With reference to their legal effects, there are three kinds of customs: (a) customs according to the law, which are those that confirm by use an existing law; in this way custom interprets law (see 386); (b) customs beside the law, which are those that introduce a new obligation that is not prescribed by any written law; in this way custom establishes law; (c) customs contrary to law, which are those that remove the obligation of a previous law; in this way custom repeals, at least in part, the law to which it is opposed.

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).

How manyfold is custom? - A threefold custom is usually distinguished: according to law, namely that which confirms and interprets an already established law by long use, Cf. Can. De istis D. 4; L. Si de interpretatione de Leg. 27 Dig.; beyond law, which introduces a new right, commanding or prohibiting something concerning which no written law is had, Cf. Can. Consuetudo D. 1; L. De quibus de Leg. 32 Dig.; against law, namely by which either a law is not received, or, once received, is abrogated or derogated. L. 107. 108. "Custom both has the force of law, and abolishes law, and is the interpreter of laws." S. Th. 1. 2. q. 97. a. 3. - C. I. 580. 1654; C. G. 671.

Besides, one custom is universal, which obliges all in the universal Church, or in the whole territory of some temporal Prince; another particular, which obliges only in some place, in some diocese, etc. The style of the Curia is reduced to particular custom, which is taken for the customary observance in the Roman Curias, and for unwritten law, and is to be observed as law from the Constitution Cum gravissimae of Paul III. - But generally the customary observance in some place is called the local style, and outside the place it has no force, Riganti on Reg. 42. n. 225, on Reg. 45. § 1. n. 97 etc. From C. I. Comm. 89, C. I. Civ. 1513, in the matter of commerce style and custom prevail over common Law. - Suarez l. 7. c. 5. n. 5.

St. Thomas, I-II, q. 97, a. 3.

404. Custom, considered as a fact, properly is use or manner, that is, frequent repetition of the same acts, a frequent mode of acting, and the inclination arising from this to act similarly. But in the present matter, in juridical speech, it designates right introduced by the use or manners of the people. It is usually defined: legal right introduced by the long-standing manners of the community with some consent of the legislator.

Another custom is according to law (inhesive or declarative), which interprets a law previously enacted; another against law, which abrogates a law or derogates from it; another beside law, which introduces a new law, as is that which is now strengthened by can. 135.

1. Hence special promulgation is not required. Hence the nature of the thing is not changed when custom is reported in a written document, unless the writing itself is formally promulgated.

The conditions required for custom are:

a) On the part of the acts, that they be 1) frequent, that is, often repeated; 2) long-standing, that is, exercised for a long time; 3) uniform or constant and therefore not interrupted, whether on the part of the people or on the part of a superior contradicting; 4) public and notorious, otherwise it would not be the custom of society as such; 5) deliberate or freely placed, and not placed from force or fear or error, by which the consent of the community is impeded; 6) practiced not by a few particular persons, but by the greater part of the community, or of the part for which a law can be made (can. 26), for example, of a diocese, class of faithful, religious order, or its province, but not of a parish or religious house.

b) On the part of the matter, that the custom be reasonable (can. 27), at least negatively, and therefore that the conditions necessary for law be present.

c) On the part of the subjects, the intention of obligating themselves (or of de-obligating themselves, or of understanding and fulfilling the obligation in such a mode, or of extending or limiting the obligation to this), which can be manifested by word or deed of the superior or subjects, by practice, by the common judgment of experts, etc.: thus customs from gratitude or devotion, for example, of hearing three Masses on the Nativity of the Lord, of signing oneself with blessed water, of saying "The Angel of the Lord...," are not obligatory.

d) On the part of the legislator, consent (can. 25), whether special, express or tacit, which is gathered from action or omission, or general or presumed, given to every legitimate custom, or of approving any customs whatever adorned with certain conditions.

405. What the Law establishes concerning custom. - According to the new Law:

1. To introduce a custom beside law, there are now required forty continuous and complete years (can. 28); when the required time is present, the custom is called prescribed (can. 27).

Nevertheless custom differs from prescription:

a) the latter is the mode by which private persons acquire a right; the former induces an effect for the community;

b) for prescribing, good faith is required by which someone is ignorant that the thing is not his; for custom it is not always required that those introducing it be ignorant that the law exists;

c) for prescription the consent of him against whom prescription is made is not required; for custom the consent of the legislator is required;

d) for prescription and custom a different continuous time is required: for prescription thirty years ordinarily suffice, or another lesser time determined by law; for custom, a time of forty years.

2. Custom against law or beside law is revoked by contrary custom or law (can. 30).

3. Nevertheless, unless it makes express mention of them, a law does not revoke a centenary or immemorial custom, just as neither does a general law revoke particular customs (can. 30).

Hence, by promulgation of the new Code, centenary and immemorial customs were not removed, unless they are expressly reprobated there (can. 5).

406. In what way custom obtains the force of law. - Custom, furnished with the due conditions, just as it can make laws, so also can abrogate them and derogate from them. This happens in two ways:

a) By way of connivance or special personal consent, with the superior personally knowing and consenting either expressly or tacitly, that is, not contradicting when he conveniently can and ought to contradict: for he is not judged to consent if the custom is unreasonable, for example, one which is contrary to divine right, offers an occasion of sinning, is harmful to the common good, dangerous to faith, pernicious to ecclesiastical discipline, divine worship, the liberty of the Church, or is expressly reprobated in law as an abuse or corruption (can. 27, § 2), such as a custom contrary to the preceptive rubrics of the Mass (can. 818), unless it is so called because of circumstances now changed. This of itself does not require time but has force as soon as it is clear that consent is present: thus a law which was never received by use ceases to obligate after a few acts tolerated by the superior.

b) By way of prescription, or by consent not special but general, not personal but legal or juridical (which is contained in a law which ratifies all legitimate customs), with the superior even ignorant of the custom and giving presumed consent: this requires that it be reasonable and that it have been continued for a long time, and not interrupted; otherwise it does not sufficiently appear that the law is not accommodated to the manners of the subjects, nor could the legislator be presumed to consent. How much time is required must be determined by the judgment of the prudent.

But now it is universally established in law that no custom can derogate from ecclesiastical law unless it has legitimately prescribed through forty continuous and complete years; but against a law which contains a clause prohibiting future customs, only a centenary or immemorial custom can prescribe (can. 27, § 1).

Wherefore it has seemed to some that a custom tacitly approved by way of connivance no longer has force unless it has also endured without interruption for forty years (or one hundred). But they do not demonstrate this efficaciously.

407. In what way custom against law can be introduced. - To understand how a custom against law can be introduced, even without sin, let St. Thomas be heard, q. 97, a. 3, ad 2: "Human laws fail in some cases. Hence it is possible sometimes to act beside the law, namely, in a case in which the law fails (epikeia), and nevertheless the act will not be evil; and when such cases are multiplied on account of some change of men, then it is manifested through custom that the law is no longer useful; just as it would also be manifested if a contrary law were promulgated by word. But if there still remains the same reason on account of which the first law was useful, custom does not conquer law, but law conquers custom; unless perhaps the law seems useless for this reason alone, that it is not possible according to the custom of the country, which was one of the conditions of law. For it is difficult to remove the custom of a multitude."

From this last point it is already understood that it is not necessary that every custom against law be introduced by acting legitimately and without sin; as moderns are accustomed to note with St. Alphonsus, Theologia Moralis, book I, n. 107: "Custom against law does not require good faith, but can also be introduced by sinning. For custom has a threefold state. In the beginning those introducing it against law all sin (unless they are excused by some reason). In progress, those using it, already introduced by their elders, do not sin (in good faith), but can be punished by the prince. But in the end they neither sin nor can they be punished when using it, already prescribed."

408. Custom can do everything which the legislator can do, for example, abrogate obligation in conscience as to fault and not as to penalty, or vice versa; likewise abrogate invalidating laws; indeed even laws which are borne with the clause: notwithstanding any custom whatever to the contrary, because this regards customs already existing, but does not impede future ones. But it cannot change the law against the legislator when he wills that it not be changed by custom, as if he contradicts this; whence if the law was enacted with the clause: notwithstanding any custom whatever, even future, the law does not presume consent unless the custom is centenary or immemorial (can. 27).

409. Custom ceases 1) from within, if it has become unreasonable;

2. from without, by contrary custom legitimately prescribed;

3. likewise by a law which suppresses it. Nevertheless:

a) Special laws of places, as particular customs, statutes, and privileges, because although they are reasonable, they can easily be unknown to the universal legislator, are not judged abrogated by a contrary universal law, even if it is borne with the clause: notwithstanding custom; unless the law indicates this specially and expressly, for example, by saying: notwithstanding nothing, or notwithstanding any contrary custom whatever (can. 30); nevertheless they are removed by a law enacted by the particular legislator of the place.

b) Likewise an immemorial or centenary custom is not judged abrogated even by a law which is borne notwithstanding any custom whatever, unless it expressly indicates this, for example, by adding "even centenary," or implicitly, by declaring it "unreasonable or a corruption" (can. 30).

[Custom is twofold¹ : one of fact, the other of right. Custom of fact is defined by St. Thomas : « Frequent acting freely in the same manner. » Custom of right, which follows from custom of fact, is defined by Isidore, book V Etymol., c. 3, cited chapter 5, dist. 1 : « A certain right instituted by manners [that is, by frequent acts], which is taken for law when law fails. » Here chiefly custom of fact is treated.] ¹ In III Sentent., dist. 23, q. 1, a. 14, quaestiunc. 2.

St. Thomas attributes three things to custom² : first, that it introduce law, namely when it exists apart from law and presupposes none; secondly, that it abrogate a law laid down and received; thirdly, that it interpret it. But custom can obtain these three in a twofold way : 1° by way of connivance, when the superior personally consents tacitly or expressly to the custom, to which no determined time is required; 2° by way of prescription, when the custom has prevailed for a certain time, with consent concurring, if not personal, at least juridical or legal, of the superior, as will be explained below. ² Here q. 97, a. 3, c.

Whether therefore and how custom can obtain these three things, we inquire. Wherefore