CONSUETUDINE. — C. (consuetudo) may indicate either the continuous repetition of uniform acts on the part of a community (similium alicuius communitatis actuum frequentia), or the juridical norm which, in certain cases and under certain conditions, may be introduced by such a constant and uniform manner of acting (ius moribus constitutum).
SUMMARY:
I. Fundamental principles
II. History
III. Current canon law.I. FUNDAMENTAL PRINCIPLES
A distinction is usually made between a c. facti or materialis and a c. iuris or formalis, the former representing the material of the latter or, as it is also said, the means of arriving at II. From a juridical standpoint, therefore, only the c. iuris is truly relevant, while the other is taken into consideration only insofar as it constitutes the material element capable of generating the former.In Catholic doctrine, it is a fundamental principle that all legislative power (except, naturally, in the case of natural and positive divine law, of which the Church is merely the interpreter and whose sole source is God) resides in the pontiff and in the other higher organs of the hierarchy, whereas the faithful (populus, christiana plebi) are entirely deprived of II. It follows that canon law recognizes c. as a source of law, not as an independent product of the juridical consciousness of the people, but only insofar as the consent of the ecclesiastical superior confers upon it the force of law.
Given such a concept, one might think—and some have indeed asserted—that, if c. is permitted only insofar as the ecclesiastical authority approves it, so that everything depends upon that authority, its importance in canon law must be minimal and it cannot constitute a true distinct source of law. This objection may, however, be countered by observing that, even if the formal cause of ecclesiastical c. is identical with that of law, that is, if it rests upon the authority of the sovereign, this does not prevent it from constituting a particular source, a ius non scriptum, distinct from law or ius scriptum on account of its different material cause—namely, the practice of the community and the acts performed by the people—since the sovereign’s consent may be given not only in a special manner, expressly or tacitly, but also in a general or presumed (legal) manner, simply by virtue of the fact that the c. possesses certain general requisites. Its practical importance in canon law, moreover, has in fact been and remains considerable, so that it could rightly be said that nowhere more than in the Catholic Church is c. spoken of so frequently and respectfully. Hence the extensive development that the doctrine of c. received in the writings of canonists and theologians, and the particular attention with which it is treated in the CIC, which, recognizing its creative and abrogative efficacy in law, preserves for it a highly significant position in the ecclesiastical legislation now in force. The Church’s present-day law therefore displays in this matter a characteristic discipline of its own, with clearly defined features, standing in sharp contrast to modern secular legal systems, in which, as the sphere of authority of the state legal order has expanded, the normative efficacy of c. has been progressively reduced, leaving it only a merely supplementary function of very limited practical importance.
II. HISTORY
The doctrine of custom did not begin to appear in well-defined form within the Church’s legal system until rather late. During the first centuries, there was no precise notion of custom or of its value as a normative fact; nevertheless, although the early ecclesiastical writers regarded it in various ways, in the practice of the Church recourse was often had to custom for the resolution of disputes. Until the twelfth century, however, its efficacy was recognized only iuxta and praeter legem (c. 5 D. I.). The principle that custom could also derogate from a law was affirmed only in the Decretals of Gregory IX, in the celebrated chapter quum tanto, X, I, 4, which remained the fundamental text on the matter and whose terms were subsequently reproduced in the Code itself.According to this text, custom may not in any way derogate from natural law, whose transgression constitutes a danger to salvation; as for merely positive law (meaning positive human law, since positive divine law, before Thomas Aquinas, was included within the concept of ius naturae), “although the authority of a long-standing custom is not insignificant, nevertheless it cannot have such force as to prejudice it unless it is reasonable and legitimately prescribed.”
From these principles were derived, in particular, the fundamental elements of the general doctrine of custom. Its essential features, which would subsequently complete and characterize it, making it autonomous from civil-law theory, were gradually defined through controversies and the centuries-long scholarly work of the doctors.
In particular, the chapter quum tanto contains no mention of the need for the sovereign’s consent; but the orthodox doctrine of the Church did not take long to include it among the indispensable requirements for the validity of custom. Discussion continued, however, concerning the form in which such consent was to be expressed. Another issue that gave rise to major disputes concerned the requirement, mentioned in the decretal, of legitima praescriptio—a phrase whose scope later canonists, fully aware of the difference between the concepts of custom and prescription and distinguishing one from the other, explained as essentially requiring only that custom last for the period necessary for a prescription to produce its effect. But even once this concept had been clarified, considerable doubts remained, both regarding the time necessary to introduce, or, as it was said, to prescribe, a custom, and regarding other points. Codification resolved, if not all, at least the principal of these doubts and, while departing from it on certain specific points, officially sanctioned in its general outlines the doctrine developed by the school.
III. CURRENT CANON LAW
The CIC, II, title 2, cann. 25–30, does not define c.; its notion therefore remains the traditional one. Instead, before every other norm in the matter, it expressly sanctions the principle concerning the necessity of the consent of the ecclesiastical superior as the efficient cause of c. (can. 25).In the past there had been much discussion as to whether and when, in addition to the aforesaid special consent, expressed or tacit (there is tacit consent when the legislator, knowing of c., remains silent and does not contradict it although he could easily do so), legal or general consent, also called presumed consent (that granted to all c. rationabilibus et legitime praescriptis by the final chapter, X, quum tanto), was likewise sufficient to confirm c. Many, distinguishing c. iuxta and praeter legem from c. contra legem, admitted legal consent only for the first two kinds, but the majority held that it also applied to the third. The CIC adopted this latter doctrine, considering legal consent sufficient in every case; consequently, the consent of the superior required by can. 25 must be held to exist either when he concretely approves c., or when it possesses the requirements indicated by law.
C. may be a source both of general law with respect to the universal Church and of particular law with respect to lesser communities; it is in this second sphere that it most frequently exercises its efficacy. Every community capable at least of receiving an ecclesiastical law may give rise to the formation of c.: «communitas quae legis ecclesiasticae saltem recipiendae capax est» (can. 26), that is, one upon which a true law, rather than a simple command or precept, may be imposed. Thus, a diocese, a religious corporation, or a particular class of persons (e.g., that of clerics or magistrates), but not a private family or individual persons.
In every case, the essence of a legally effective c. requires a public, constant, frequent, and uniform practice on the part of the community, or at least of the majority of its members, with respect to a particular relationship, carried out consciously, and provided that it conforms to reason (rationabilis) and has been observed legitimately for a given period of time (the CIC says, reproducing the traditional expression of chapter 11, X, 14, legitime praescripta). Regarding the requirement of rationality, the CIC merely declares c. quae in iure expresse reprobatur non rationabilis (can. 27 § 2). However, the following are also regarded as such: in addition to c. contrary to divine law, those that provide occasion or incentive to sin, or endanger the salvation of the soul, contravene the common good, overturn the general system of ecclesiastical constitution and discipline, or are contrary to the essence of a particular institution.
Of the three kinds into which c. is divided—iuxta legem, praeter legem, and contra legem—the first is regarded simply as an interpreter, and the best one, of the law: optima legum interpres (can. 29). Since it therefore does not establish new juridical norms, c. in this case is not a true source of law, as it is in the other two kinds, which are of greater, although different, importance.
C. praeter legem, that is, c. which introduces a new norm absent from the previous legal order (namely, which makes acts that were previously free obligatory or prohibits them), requires the community to have observed the norm with the intention of binding itself for forty continuous and complete years (can. 28). By determining at forty years the period necessary for the validity of c. praeter legem (as also for that contra legem, as will be seen), the legislator resolved longstanding debates both concerning whether a legitima praescriptio was necessary for c. praeter legem as well, and concerning the period generally necessary to establish such a legitima praescriptio—which the communi opinio, eliminating every distinction among the various kinds of c., had ultimately come to regard as ten years, even for c. contra legem.
Given the animus se obligandi required for c. praeter legem, the common observance of certain practices would not introduce new law if the people observed them in error regarding their obligatory character (the example is recalled of Spain, where, through error, c. non miscendi epulae had arisen on days of abstinence alone, on which, ex Cruciata, it was in fact lawful to eat meat), or without the intention of submitting to a juridical norm, as with practices observed out of free devotion by the majority of the Christian people (e.g., hearing three Masses on Christmas Day, receiving ashes at the beginning of Lent, reciting the Angelic Salutation at specified hours, and similar practices). Today c. praeter legem is more important for explaining the origin of certain norms adopted in current law (among the most noteworthy is the introduction of the diriment impediment of disparitas cultus) than for introducing new ones; indeed, it would rarely be possible to establish that the community intended consciously to impose upon itself an obligation that it knew otherwise did not exist.
C. contra legem is regulated by the CIC according to the same fundamental criteria already laid down by chapter 11, X, quum tanto. No c. may in any way derogate from divine law, whether natural or positive; the contra legem efficacy of c. may instead manifest itself with regard to positive ecclesiastical law, provided that the aforementioned requirements of rationality are present and that c. has been legitime per annus quadraginta continui et complatos praescripta (can. 27 § 1). Although the legislator does not mention the necessity of an intentional element for c. contra legem, as he does for c. praeter legem, it was maintained that such an element was required here as well, namely, the intention to withdraw from observance of the law. But the contrary opinion—that no special animus is needed to introduce c. contra legem—seems better founded. This is so, among other reasons, because requiring in every case the specific intention to withdraw from observance of the law would in substance amount to denying efficacy to all c. contra legem established in good faith, that is, to those which, if anything, would deserve greater respect on the part of the legislator. From the moral point of view, theologians observe that, since good faith is not required, c. etiam peccando contra legem induci potest. The first persons who violate the law certainly sin, but when c. has been introduced by the majority of the community and is complete in its requirements, eiusdem unus innoxius evadit.
Sometimes an ecclesiastical law is provided with a clause that, in advance, prohibits any future c. concerning the subject it regulates. In the past, lively disagreements arose concerning the efficacy of such a clause, especially with regard to the disciplinary decrees of the Council of Trent. The CIC adopted the principle that a later c. may prevail even over the prohibition of the earlier law, but only when it is a centenary or immemorial c. (can. 27 § 1). Thus, this prohibition, generally expressed by clauses such as: «exclusa qualibet consuetudine in futurum» or equivalent formulas, whereas before the CIC it could be held to have the sole purpose of stimulating the vigilance of superiors to prevent c. from arising, now has the effect of requiring, for contra legem efficacy, a centenary or immemorial c. rather than the ordinary forty-year period. It must not be confused with the express condemnation by law of a c. (v. , e.g., cann. 343 § 2, 346, 396 § 2, 403, 818, etc), which really has the effect of rendering the condemned c. null and barring the way to it, because it is thereby declared irrational a priori (can. 27 § 2) and therefore incapable of acquiring juridical efficacy (cann. 27 § 1 and 28).
C. may be abrogated (revocatur) by a contrary c. or by a law; a law, however, unless it expressly mentions them, does not revoke centenary c.
CONSUETUDINE - CONSULTORI DELLE SACRE CONGREGAZIONI
or immemorial, nor does a general law revoke particular customs (can. 30).
As for customs in force when the CIC entered into force and contrary to its provisions, a fundamental distinction is established between customs expressly condemned by the CIC and the remaining ones. The former are all abrogated, even if immemorial, and it is forbidden to allow them to revive in the future. The other customs, contrary to the CIC but not expressly condemned by it, may be tolerated when the Ordinaries judge that, owing to the special circumstances of places and persons, it would be imprudent to remove them, but only if they are centenary and immemorial. All the others are abrogated, unless the CIC expressly provides otherwise (examples of customs maintained in force by the Code even if neither centenary nor immemorial, although in conflict with its precepts, vedi at cann. 168, 471 § 2, 1102 §§ 1 and 2, 1186, 1248, 1481). As for customs predating the CIC and not contrary to it, although the latter provides in various canons for their observance in certain specific matters, either absolutely (cann. 106 n. 5, 346, 1455 n. 3, 1504, etc.) or by leaving their determination and observance to the judgment of the Ordinaries (cann. 106 n. 6, 1444 § 1, 1519 § 2), it lays down no general rule. It must nevertheless be held that all of them, both universal and particular, even if not expressly recalled in the CIC, continue to have force.