CUSTOM. - C. (consuetudo) can 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, can be introduced by such a constant and uniform way of acting (ius moribus constitutum).
I. FUNDAMENTAL PRINCIPLES
A distinction is customarily drawn between a consuetudo facti or materialis and a consuetudo iuris or formalis, of which the former represents the matter of the latter or, as it is also said, the way to reach it. Juridically, therefore, only the consuetudo iuris truly has relevance, and the other is not taken into consideration except insofar as it constitutes the material element that can generate the former.
In Catholic doctrine it is a fundamental principle that every legislative power (except naturally that of the divine natural and positive law, of which the Church is only the interpreter, and whose exclusive source is God) resides in the pontiff and in the other superior organs of the hierarchy, while the faithful (populus, christiana plebs) are totally deprived of it. It follows that canon law recognizes custom as a source of law, not as an independent fruit of the juridical conscience of the people, but only insofar as the consent of the ecclesiastical superior confers upon it the force of law.
Given such a concept, it might be thought, and it has been affirmed by some, that if custom is permitted only insofar as the ecclesiastical authority approves it, so that everything depends on that authority, its importance in canon law is minimal, and it cannot constitute therein a true distinct source of law. But to this objection it may be replied that even if the formal cause of ecclesiastical custom is identical to that of law, that is, rests in the authority of the sovereign, this does not remove the fact that, since the consent of the latter can be given not only in a special manner, express or tacit, but also in a general or presumed (legal) manner by the mere fact that the custom possesses certain general requisites, it always constitutes a particular source, a ius non scriptum, which is distinguished from law or ius scriptum by its different material cause, namely the practice of the community, the acts performed by the people. Its practical importance in canon law has in reality been and still is relevant, so that it could rightly be said that in no place more than in the Catholic Church is custom spoken of with frequency and respect. Hence the extensive elaboration that the doctrine of custom received in the writings of canonists and theologians, and the particular attention with which it is considered in the CIC, which, recognizing its creative and abrogative efficacy of law, preserves for it in the current ecclesiastical legislation a quite notable position. The present-day law of the Church therefore presents in this matter its own characteristic discipline, with a well-delineated physiognomy, standing clearly apart from modern secular legal systems where, with the widening of the sphere of power of the state order, the normative efficacy of custom has been increasingly reduced, so that nothing remains to it but a merely supplementary function and of greatly reduced practical importance.
II. HISTORY
The doctrine of custom (consuetudo) does not begin to present itself clearly defined in the order of the Church until rather late. In the first centuries there is no precise notion of it or of its value as a normative fact; in any case, however variously the early ecclesiastical writers may regard it, recourse is often had in the practice of the Church to custom for the settlement of controversies. Its efficacy, however, until the 12th century, is recognized only iuxta et praeter legem (c. 5 D. I.). The principle that custom may even derogate from a law is affirmed only with 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 later reproduced by the same Code.
According to this text it is not admitted that custom can in any way derogate from natural law, the transgression of which constitutes a danger to salvation; as for simple positive law (by which is meant human positive law, since divine positive law before Thomas Aquinas was included in the concept of ius naturae) "although the authority of a long-standing custom is not slight, nevertheless it cannot avail to the point of prejudicing it unless it be reasonable and legitimately prescribed."
From these principles were especially derived the fundamental elements for the general doctrine of custom, whose outlines, which were later to complete and characterize it, rendering it autonomous from the civil-law theory, were then gradually made precise through controversies and the centuries-long elaboration of the doctors.
In particular, in the chapter quum tanto there appears no mention of the necessity of 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, regarding the form in which such consent was to be manifested. Furthermore, among the points that gave rise to the greatest disputes was that relating to the requirement, mentioned in the decretal, of the legitima praescriptio, an expression whose scope the later canonists, well aware of the difference between the concepts of custom and of prescription and distinguishing between the one and the other, explained in the sense that in substance it was only that of requiring that the custom should have the duration necessary for a prescription to produce its own effect. But even once this concept was clarified, no small doubts remained unresolved, both as to the time necessary to introduce, or as it was said, to prescribe, the custom, and as to other points. Codification resolved, if not all, the principal of these doubts, and, while departing from it on some particular point, officially sanctioned in its general outlines the doctrine elaborated by the school.
III. CANON LAW IN FORCE
The CIC, II, tit. 2, cann. 25-30, does not define custom, whose notion therefore remains the traditional one. It does, however, expressly sanction, before every other norm on the matter, the principle concerning the necessity of the consent of the ecclesiastical superior as the efficient cause of custom (can. 25).
There had been much discussion in the past as to whether and when, besides the so-called special consent, express or tacit (consent is tacit when the legislator, knowing of the custom, keeps silent and does not contradict it while he easily could), the legal or general consent, also called presumed, likewise sufficed to confirm a custom (that granted to all customs rationabilibus et legitime praescriptis by the final chapter, X, quum tanto). Many, distinguishing custom iuxta and praeter legem from that contra legem, admitted legal consent only for the first two kinds, but the majority held that it availed also for the third. The CIC has adopted this latter doctrine, holding legal consent sufficient in every case, for which reason the consent of the superior required by can. 25 must be considered to exist either when he approves the custom in concreto, or when the custom has the requisites indicated by law.
Custom can be a source both of general law with respect to the universal Church and of particular law with respect to smaller communities, and it is in this second field that it most frequently exerts its efficacy. Every community capable at least of receiving an ecclesiastical law can give rise to the formation of a custom: «communitas quae legis ecclesiasticae saltem recipiendae capax est» (can. 26), that is, such that a true law can be imposed upon it, not a mere command or precept. Thus a diocese, a religious corporation, a particular class of persons (for example, that of clerics, of magistrates), but not a private family or individual persons.
For the essence of a legally effective custom it is in every case required that there be 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 determined relationship, carried out consciously, and provided that it is conformable to reason (rationabilis) and legitimately observed for a given span of time (the CIC says, reproducing the traditional expression of cap. 11, X, 14, legitime praescripta). As regards the requirement of rationality, the CIC limits itself to declaring not rationabilis the custom quae in iure expresse reprobatur (can. 27 § 2). But such are also reputed to be, besides customs contrary to divine law, those that afford occasion or fuel for sin, or endanger the health of the soul, contravene the general good, or subvert the general system of ecclesiastical constitution and discipline, or are contrary to the essence of a determined institution.
Of the three kinds into which custom is distinguished, iuxta legem, praeter legem and contra legem, the first is considered simply as an interpreter, the best, of the law: optima legum interpres (can. 29). Since it therefore does not entail the establishment of new juridical norms, custom is in this case not a true source of law, as it is instead in the other two kinds, of greater, though different, importance.
Custom praeter legem, that is, the one that introduces a new norm lacking in the previous order (that is to say, which makes obligatory or forbids acts that were previously free), requires that the community have observed the norm with the intention of binding itself for forty continuous and complete years (can. 28). By determining at forty years the time necessary for the validity of a custom praeter legem (as well as for that contra legem, as will be seen), the legislator resolved age-old debates both on the necessity or otherwise of a legitima praescriptio also for a custom praeter legem, and on the time necessary in general to establish such legitima praescriptio, which the communis opinio, eliminating every distinction among the different kinds of custom, had ended by considering sufficient at ten years, even for a custom contra legem.
Given the animus se obligandi required for a custom praeter legem, the common observance of determined practices would not introduce new law if performed by the people through error as to their obligatory character (one recalls in this regard the example of Spain, where the custom non miscendi epulae had been introduced through error on days of mere abstinence, on which instead ex Cruciata it was lawful to eat meat), or without the intention of submitting to a juridical norm, such as the customs practiced out of free devotion by the majority of the Christian people (for example, those of hearing three Masses on Christmas Day, of receiving ashes at the beginning of Lent, of reciting the angelic salutation at set hours, and similar ones). Custom praeter legem is today of more importance in explaining the origin of certain norms received into present-day law (among the most notable is numbered the introduction of the diriment impediment of disparitas cultus) than in introducing new ones; indeed, it could rarely be established from the mind of the community that it wishes knowingly to impose upon itself an obligation that it knows otherwise not to exist.
Custom contra legem is regulated by the CIC on the basis of the same fundamental criteria already laid down by cap. 11, X, quum tanto. No custom can in any way derogate from divine law, whether natural or positive; the contra legem efficacy of custom can instead manifest itself with regard to positive ecclesiastical law, provided the already mentioned requisites of rationality concur, and the custom is legitime per annos quadraginta continuos et completos praescripta (can. 27 § 1). Although the legislator does not mention the necessity of an intentional element for a custom contra legem, as he does instead for one praeter legem, it was maintained that such an element is required here too, namely the intention of withdrawing from the observance of the law. But the contrary opinion, that no special animus is required to introduce a custom contra legem, seems better founded. And this, among other things, in view of the reflection that to require in every case the specific intention of withdrawing from the observance of the law would be in substance equivalent to denying efficacy to all customs contra legem that have been established in good faith, that is, to those that if anything would deserve greater respect on the part of the legislator. From the moral aspect, theologians observe that, since good faith is not required, a custom etiam peccando contra legem induci potest. Those who first violate the law certainly sin, but when the custom is introduced by the majority of the community and is perfect in its requisites, eiusdem unus innoxius evadit.
It sometimes happens that an ecclesiastical law is furnished with a clause that prohibits in advance any future custom on the subject regulated by it. On the efficacy of such a clause lively disagreements arose in the past, especially with regard to the disciplinary decrees of the Council of Trent. The CIC adopted the principle that a later custom can prevail even over the prohibition of a previous law, but only when it is a matter of a centenary or immemorial custom (can. 27 § 1). Such a prohibition, therefore, expressed for the most part by clauses such as: «exclusa qualibet consuetudine in futurum» or equivalent ones, while before the CIC it could be held to have the sole purpose of arousing the vigilance of superiors to prevent the arising of a custom, now has the effect of requiring for contra legem efficacy a centenary or immemorial custom rather than the ordinary one of forty years. It must not be confused with the express reprobation of a custom made by the law (v., for example, cann. 343 § 2, 346, 396 § 2, 403, 818, etc.), which really has the effect of rendering the reprobated custom invalid and barring the way to it, because the latter is thus declared a priori irrational (can. 27 § 2) and therefore not susceptible of acquiring juridical efficacy (cann. 27 § 1 and 28).
Custom can be abrogated (revocatur) by a contrary custom or by a law; the law, however, if it does not make express mention of them, does not revoke centenary customs or immemorial, nor does a general law revoke particular customs (can. 30).
As for customs in force at the time the CIC entered into force and contrary to its provisions, a fundamental distinction is established between customs expressly reproved by the CIC and the remaining ones. The former are all abrogated, even if immemorial, and it is forbidden to let them revive in the future. The other customs, contrary to the CIC but not expressly reproved by it, may be tolerated, when the Ordinaries consider that, given the special circumstances of places and persons, it is not prudent to remove them, only if they are centenary and immemorial. All the others are abrogated, except where the CIC expressly provides otherwise (examples of customs kept in force by the Code even though not centenary and immemorial, although in conflict with its precepts, see at cann. 168, 471 § 2, 1102 §§ 1 and 2, 1186, 1248, 1481). For customs prior to the CIC that are not contrary to it, the Code, while providing in various canons for their respect in certain specific matters, either absolutely (cann. 106 no. 5, 346, 1455 no. 3, 1504, etc.) or leaving their ascertainment and observance to the judgment of the Ordinaries (cann. 106 no. 6, 1444 § 1, 1519 § 2), lays down no general norm. It is to be held, however, that all of them, whether universal or particular, even if not expressly recalled in the CIC, continue to have force.
Bibliography26 works
Arnaldo Bertola