CUSTOM. — C. (consuetudo) can indicate both the continuous repetition of uniform acts on the part of a community (similium alicuius communitatis actuum frequentia) and the legal norm that, in certain cases and under certain conditions, can be introduced by such constant and uniform mode of action (ius moribus constitutum).
OUTLINE:
I. Fundamental Principles
II. History
III. Current Canon Law.I. Fundamental Principles
It is customary to distinguish between a c. facti or materialis and a c. iuris or formalis, the former representing the matter of the latter or, as it is also said, the path to reach II. Juridically, therefore, only c. iuris has real 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, of course, for natural and positive divine law, of which the Church is only the interpreter and whose exclusive source is God) resides in the Pope and in the other higher organs of the hierarchy, while the faithful (populus, christiana plebs) are entirely devoid of II. 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 gives it the force of law.
Given such a concept, one might think, 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 this, its importance in canon law is minimal and it cannot constitute a distinct source of law within II. But to such an objection it can be replied that even if the formal cause of ecclesiastical custom is identical to that of law, resting in the authority of the sovereign, this does not prevent the fact that, since the sovereign’s consent can be given in a special way, whether expressly or tacitly, even in a general or presumed (legal) manner simply by the fact that custom meets certain general requirements, it always constitutes a particular source, an 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 fact been and still is significant, so much so that it can rightly be said that nowhere is custom spoken of more frequently and with greater respect than in the Catholic Church. Hence the extensive development that the doctrine of custom 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 it in current ecclesiastical legislation in a position of considerable note. The Church’s present law therefore presents in this matter a characteristic discipline of its own, with a well-defined physiognomy, clearly distinguishing itself from modern secular laws, in which, with the expansion of the sphere of power of the state order, the normative efficacy of custom has increasingly diminished, so much so that it now remains with only a merely subsidiary function of very reduced practical importance.
II. HISTORY
The doctrine of custom does not begin to present itself as well-defined in the Church’s order until rather late. In the early centuries, there is no precise notion of it or of its value as a normative fact; however, although the first ecclesiastical writers consider it in various ways, custom is frequently resorted to in the practice of the Church for the resolution of controversies. Its efficacy, however, until the 12th century, is recognized only in this and praeter legem (c. 5 D. I.). The principle that custom can also derogate from a law was affirmed only with the Decretals of Gregory IX, in the famous chapter Quum tanto, X, I, 4, which remained the fundamental text on the matter, and whose terms were later reproduced in the Code itself.According to this text, it is not permitted for custom in any way to derogate from natural law, whose transgression constitutes a danger to salvation; as for mere positive law (understood as human positive law, since divine positive law before Thomas Aquinas was included in the concept of natural law), although the authority of a long-standing custom is not insignificant, it cannot, however, be so strong as to prejudice it unless it is reasonable and legitimately prescribed.
From these principles were especially drawn the fundamental elements for the general doctrine of custom, whose extremes, which will later complete and characterize it by rendering it autonomous from civilistic theory, will then be gradually clarified through controversies and the centuries-long elaboration of the doctors.
In particular, in the chapter Quum tanto there is no mention of the necessity of the sovereign’s consent; but orthodox Church doctrine soon came to include it among the indispensable requirements for the validity of custom. What continued to be debated, however, was the form in which such consent was to be manifested. Again, among the points that gave rise to the greatest disputes was that relating to the requirement, mentioned in the decretal, of legitima praescriptio, a term whose scope later canonists, well aware of the difference between the concepts of custom and prescription and distinguishing between the two, explained as essentially requiring that custom should have the necessary duration for a prescription to produce its effect. But even after this concept was clarified, no small doubts remained, both about the time necessary to introduce, or as it was said, to prescribe, custom, and on other points. Codification resolved, if not all, at least the main ones of these doubts, and, while departing from it on some particular points, officially sanctioned in its general outlines the doctrine elaborated by the school.
III. CURRENT CANON LAW
The CIC, II, tit. 2, cann. 25-30, does not define custom, whose notion therefore remains the traditional one. It expressly sanctions, before any 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).Much was debated in the past as to whether and when, in addition to the so-called special consent, whether expressed or tacit (tacit consent is present when the legislator, knowing of the custom, remains silent and does not contradict it when he easily could), legal or general consent, also called presumed (that granted to all customs rationabilibus et legitime praescriptis by the final chapter of Quum tanto, X, I, 4), would also serve to confirm custom. Many, distinguishing between custom according to and praeter legem and that contra legem, admitted legal consent only for the first two species, but the majority held that it also applied to the third. The CIC has adopted this latter doctrine, holding that in every case legal consent is sufficient, which is why the consent of the superior required by can. 25 must be considered as existing either when he has approved the custom in concreto or when it possesses the requirements indicated by the law.
Custom can be a source of both general law with respect to the universal Church and particular law with respect to smaller communities, and it is in this latter field that it most frequently exercises its efficacy. Every community capable at least of receiving ecclesiastical law can give rise to custom: “communitas quae legis ecclesiasticae saltem recipiendae capax est” (can. 26), that is, such that a true law, not merely a command or precept, can be imposed upon II. Thus a diocese, a religious corporation, a particular class of persons (for example, that of clerics, of magistrates), but not a private family or single individuals.
In every case, for the essence of a legally effective custom, there must be a public, constant, frequent, and uniform practice on the part of the community, or at least the majority of its members, regarding a particular relationship, carried out consciously, and always in conformity with reason (rationabilis) and observed lawfully for a given period of time (the CIC states, reproducing the traditional expression from chapter II, X, 1, 4, legitime praescripta). Regarding the requirement of rationality, the CIC merely declares that a custom which is expressly reprobated by law is not rationabilis (can. 27 § 2). However, customs are also considered irrational if they either provide occasion or incentive for sin, endanger the health of the soul, contravene the common good, subvert the general system of ecclesiastical constitution and discipline, or are contrary to the essence of a particular institution.
Of the three types into which custom is divided—iuxta legem, praeter legem, and contra legem—the first is regarded simply as the best interpretation of the law: optima legum interpretes (can. 29). Since it does not establish new legal norms, custom in this case is not a true source of law, as it is in the other two types, which are of greater, though different, importance.
Custom praeter legem, that is, one that introduces a new norm lacking in the previous legal system (namely, one that makes obligatory or prohibits acts that were previously free), requires that the community have observed the norm with the intention of obligating itself for forty continuous and complete years (can. 28). By setting forty years as the necessary time for the validity of custom praeter legem (as well as for that, as will be seen, contra legem), the legislator resolved long-standing debates both on the necessity or otherwise of a legitima praescriptio even for custom praeter legem, and on the time generally necessary to establish such a legitima praescriptio, which the communis opinio, eliminating every distinction among the different types of custom, had ended by considering sufficient in ten years, even for custom contra legem.
Given the animus se obligandi required for custom praeter legem, common observance of certain practices does not give rise to new law if it is done by the people in error regarding their obligatory nature (in this regard, one recalls the example of Spain, where a custom of not mixing meals on days of simple abstinence was induced by error, even though on those days it was licit to eat meat under the Crusade indult), or without the intention of submitting to a legal norm, such as 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 Angelus at certain hours, and the like). Custom praeter legem today has more importance in explaining the origin of some norms accepted in contemporary law (among the most notable is the introduction of the diriment impediment of disparity of cult) than in introducing new ones; in fact, it would rarely be possible to establish the animus of the community to impose upon itself an obligation that it knows does not otherwise exist.
Custom contra legem is regulated by the CIC according to the same fundamental criteria already established by chapter II, X, quum tanto. No custom can in any way derogate from divine law, whether natural or positive; the contra legem efficacy of custom can, however, manifest itself with regard to positive ecclesiastical law, provided that the aforementioned requirements of rationality are met and that the custom is legitime praescripta for forty continuous and complete years (can. 27 § 1). Although the legislator does not mention the necessity of an intentional element for custom contra legem, as is required for custom praeter legem, it was argued that such an element is also required here, namely, the intention to exempt oneself from the observance of the law. But the contrary opinion, namely that no special animus is required to introduce custom contra legem, seems more sound. This is so, among other things, because to require in every case a specific intention to exempt oneself from the observance of the law would in substance amount to denying efficacy to all customs contra legem that have been established in good faith, that is, to those which, if anything, would deserve greater respect from the legislator. From a moral standpoint, theologians observe that, since good faith is not required, a custom contra legem can even be introduced while sinning. Those who first violate the law certainly sin, but when the custom is introduced by the majority of the community, it is perfect in its requirements and its use becomes harmless.
It sometimes happens that an ecclesiastical law is altered by a clause that anticipatorily prohibits any future custom on the matter it regulates. Regarding the efficacy of such a clause, lively disputes arose in the past, especially with regard to the disciplinary decrees of the Council of Trent. The CIC adopted the principle that a subsequent custom can prevail even over the prohibition of a previous law, but only when it is a custom centenary or immemorial (can. 27 § 1). Such a prohibition, usually expressed by clauses such as “exclusa qualibet consuetudine in futurum” or equivalent, which before the CIC could be considered as having the sole purpose of urging the vigilance of superiors to prevent the arising of custom, now has the effect of requiring for contra legem efficacy a custom that is centenary or immemorial rather than the ordinary forty years. It must not be confused with the express reprobation of a custom made by the law (v. , for example, can. 343 § 2, 346, 396 § 2, 403, 818, etc), which truly has the effect of rendering the custom void and precluding the path to such a custom, because it is thereby declared a priori irrational (can. 27 § 2) and thus not susceptible of acquiring legal efficacy (can. 27 § 1 and 28).
Custom can be abrogated (revocatur) by a contrary custom or by a law; however, a law, if it does not make express mention of it, does not revoke centenary customs.