Custom (canon law)

Last updated
Scale of justice, canon law.svg
Part of a series on the
Canon law of the
Catholic Church
046CupolaSPietro.jpg Catholicismportal

In the canon law of the Catholic Church, custom is the repeated and constant performance of certain acts for a defined period of time, which, with the approval of the competent legislator, thereby acquire the force of law. [1] A custom is an unwritten law introduced by the continuous acts of the faithful with the consent of the legitimate legislator.

Custom may be considered as a fact and as a law. As a fact, it is simply the frequent and free repetition of acts concerning the same thing; as a law, it is the result and consequence of that fact. Hence its name, which is derived from consuesco or consuefacio and denotes the frequency of the action. (Cap. Consuetudo v, Dist. I.)

In order for custom to become a source of law, it must be approved by the competent legislator. [1] Custom in canon law is not simply created by the people through their constant performance of a certain act, [1] but it is the constant performance of a certain act, with the intention of making a custom, which is approved by the competent legislator, thereby acquiring the force of law. This is because of the Catholic ecclesiological teaching on the constitution of the Catholic Church, [1] which states that Christ constituted the Church by divine delegation of power to the hierarchical authorities; the Church was not created by the consent of the governed, but by the direct will of Christ.

Divisions of custom

The true efficient cause of an ecclesiastical custom, in as far as it constitutes law, is solely the consent of the competent legislating authority. All church laws imply spiritual jurisdiction, which resides in the hierarchy alone, and, consequently, the faithful have no legislative power, either by Divine right or canonical statute. Therefore, the express or tacit consent of the church authority is necessary to give a custom the force of an ecclesiastical law. This consent is denominated legal when, by general statute and antecedently, reasonable customs receive approbation. Ecclesiastical custom differs, therefore, radically from civil custom. For, though both arise from a certain conspiration and accord between the people and the lawgivers, yet in the Church the entire juridical force of the custom is to be obtained from the consent of the hierarchy while in the civil state, the people themselves are one of the real sources of the legal force of custom. Custom, as a fact, must proceed from the community, or at least from the action of the greater number constituting the community. These actions must be free, uniform, frequent, and public, and performed with the intention of imposing an obligation. The usage, of which there is question. must also be of a reasonable nature. Custom either introduces a new law or abrogates an old one. But a law, by its very concept, is an ordination of reason, and so no law can be constituted by an unreasonable custom. Moreover, as an existing statute cannot be revoked except for just cause, it follows that the custom which is to abrogate the old law must be reasonable, for otherwise the requisite justice would be wanting. A custom, considered as a fact, is unreasonable when it is contrary to Divine law, positive or natural; or when it is prohibited by proper ecclesiastical authority; or when it is the occasion of sin and opposed to the common good.

A custom must also have a legitimate prescription. Such prescription is obtained by a continuance of the act in question during a certain length of time. No canonical statute has positively defined what this length of time is, and so its determination is left to the wisdom of canonists. Authors generally hold that for the legalizing of a custom in accordance with or beside the law (juxta or prœter legem) a space of ten years is sufficient; while for a custom contrary (contra) to law many demand a lapse of forty years. The reason given for the necessity of so long a space as forty years is that the community will only slowly persuade itself of the opportuneness of abrogating the old and embracing the new law. The opinion, however, which holds that ten years suffices to establish a custom even contrary to the law may be safely followed. In practice the Roman Congregations scarcely tolerate or permit any custom, even an immemorial one, contrary to the sacred canons. (Cf. Gasparri, De Sacr. Ordin., n. 53, 69 sq.) In the introduction of a law by prescription, it is assumed that the custom was introduced in good faith, or at least through ignorance of the opposite law. If, however, a custom be introduced through connivance (viâ conniventiœ), good faith is not required, for, as a matter of fact, bad faith must, at least in the beginning, be presupposed. As, however, when there is question of connivance, the proper legislator must know of the formation of the custom and yet does not oppose it when he could easily do so, the contrary law is then supposed to be abrogated directly by the tacit revocation of the legislator. A custom which is contrary to good morals or to the natural or Divine positive law is always to be rejected as an abuse, and it can never be legalized.

Force of custom

The effects of a custom vary with the nature of the act which has caused its introduction, i. e. according as the act is in accord with (juxta), or beside (prœter), or contrary (contra) to, the written law.

Immemorial custom, provided it be shown that circumstances have so changed as to make the custom reasonable, has power to abrogate or change any human law, even though a clause had been originally added to it forbidding any custom to the contrary. To immemorial custom is also attached the unusual force of inducing a presumption of the existence of an Apostolic privilege, provided the said privilege be not reckoned among abuses, and the holder of the presumed privilege be a person legally capable of acquiring the thing in question without first obtaining a special and express Apostolic permission for it (cf. Wernz, op. cit., who has been followed particularly in this paragraph). Ferraris notes that no immemorial custom, if it be not confirmed by Apostolic privilege, express or presumptive, can have any force for the abrogation of ecclesiastical liberties or immunities, inasmuch as both canon and civil law declare such custom to be unreasonable by its very nature. In general, it may be said that a valid custom, in both the constitution and the abrogation of laws, produces the same effects as a legislative act.

Concerning Tridentine decrees

A special question has been raised by some canonists as to whether the laws of the Council of Trent may be changed or abrogated by custom, even if immemorial, or whether all such contrary customs should not be rejected as abuses. Some of these writers restrict their denial of the value of contrary customs to ordinary, some also to immemorial ones (cf. Lucidi, De Vis. Sac. Lim., I, ch. iii, n. 111). It is unquestionably a general principle in canon law, that custom can change the disciplinary statutes even of œcumenical councils. The main reason for rejecting this principle in favour of the Tridentine enactments in particular is that any contrary custom would certainly be unreasonable and therefore unjustifiable. It is by no means evident, however, that all such contrary customs must necessarily be unreasonable, as is plain from the fact that some authors allow and others deny the value of immemorial customs in the premises, even when they agree in reprobating the force of ordinary customs. As a matter of fact, there is no decree of the Sacred Congregation of the Council which declares, absolutely and generally, that all customs contrary to the laws of the Council of Trent are invalid. Moreover, the Tribunal of the Rota has allowed the force of immemorial customs contrary to the disciplinary decrees of Trent, and the Sacred Congregation of the Council has at least tolerated them in secondary matters. A salient instance of the Roman official view is the statement of the Holy Office (11 March 1868) that the Tridentine decree on clandestine marriages, even after promulgation, was abrogated in some regions by contrary custom (Collect. S. C. de Prop. Fid., n. 1408). The confirmation of the Council of Trent by Pope Pius IV (26 Jan., 1564; 17 Feb., 1565) abolishes, it is true, all contrary existing customs, but the papal letters contain nothing to invalidate future customs. Owing to the comparatively recent date of the Council of Trent and the urgency of the Holy See that its decrees be observed, it is not easy for a contrary custom to arise, but whenever the conditions of a legitimate custom are fulfilled, there is no reason why the Tridentine decrees should be more immune than those of any other œcumenical council (cfr. Laurentius, op. cit., below, n. 307).

Cessation of custom

Any custom is to be rejected whose existence as such cannot be proved legally. A custom is a matter of fact, and therefore its existence must be tested in the same way as the existence of other alleged facts is tested. In this particular, the decrees of synods, the testimony of the diocesan ordinary and of other persons worthy of credence are of great value. Proofs are considered the stronger the more closely they approximate public and official monuments. If there be a question of proving an immemorial custom, the witnesses must be able to affirm that they themselves have been cognizant of the matter at issue for a space of at least forty years, that they have heard it referred to by their progenitors as something always observed, and that neither they nor their fathers have ever been aware of any fact to the contrary. If the fact of the existence of an alleged custom is not sufficiently proved, it is to be rejected as constituting a source of law. Customs may be revoked by a competent ecclesiastical legislator, in the same way and for the same reasons as other ordinances are abrogated. A later general law contrary to a general custom will nullify the latter, but a particular custom will not be abrogated by a general law, unless a clause to that effect be inserted. Even such a nullifying clause will not be sufficient for the abrogation of immemorial customs. The latter must be mentioned explicitly, for they are held not to be included in any general legal phrase, however sweeping its terms may be. Customs may likewise be abrogated by contrary customs, or they may lose their legal force by the mere fact that they fall into desuetude. Finally, an authentic declaration that a custom is absolutely contrary to good morals (rumpens nervum disciplinœ) and detrimental to the interests of the hierarchy or of the faithful deprives it of its supposed legal value.

See also

Related Research Articles

Canon law is a set of ordinances and regulations made by ecclesiastical authority, for the government of a Christian organization or church and its members. It is the internal ecclesiastical law, or operational policy, governing the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion. The way that such church law is legislated, interpreted and at times adjudicated varies widely among these three bodies of churches. In all three traditions, a canon was originally a rule adopted by a church council; these canons formed the foundation of canon law.

Law is the set of rules and principles (laws) by which a society is governed, through enforcement by governmental authorities. Law is also the field which concerns the creation and administration of laws, and includes any and all legal systems.

Religious law includes ethical and moral codes taught by religious traditions. Different religious systems hold sacred law in a greater or lesser degree of importance to their belief systems, with some being explicitly antinomian whereas others are nomistic or "legalistic" in nature. In particular religions such as Judaism, Islam and the Bahá'í Faith teach the need for revealed positive law for both state and society, whereas other religions such as Christianity generally reject the idea that this is necessary or desirable and instead emphasise the eternal moral precepts of divine law over the civil, ceremonial or judicial aspects, which may have been annulled as in theologies of grace over law.

A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Related is the idea of prescription; a right enjoyed through long custom rather than positive law.

A decree is a rule of law usually issued by a head of state, according to certain procedures. It has the force of law. The particular term used for this concept may vary from country to country. The executive orders made by the President of the United States, for example, are decrees. In non-legal English usage, however, the term refers to any authoritarian decision. Documents or archives in the format of royal decrees or farming were issued by rulers.

Plenary Councils of Baltimore Wikimedia list article

The Plenary Councils of Baltimore were three national meetings of Catholic bishops in the United States in 1852, 1866 and 1884 in Baltimore, Maryland.

In the jurisprudence of the canon law of the Catholic Church, a dispensation is the exemption from the immediate obligation of law in certain cases. Its object is to modify the hardship often arising from the rigorous application of general laws to particular cases, and its essence is to preserve the law by suspending its operation in such cases.

The canon law of the Catholic Church is the system of laws and legal principles made and enforced by the hierarchical authorities of the Catholic Church to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the Church. It was the first modern Western legal system and is the oldest continuously functioning legal system in the West, while the unique traditions of Oriental canon law govern the 23 Eastern Catholic particular churches sui iuris.

Cathedraticum is a specified sum of money to be paid annually toward a bishop. It is a mark of honour and a sign of subjection to the cathedral church, from which its name is derived.

In the Catholic Church, a declaration of nullity, commonly called an annulment and less commonly a decree of nullity, is a judgment on the part of an ecclesiastical tribunal determining that a marriage was invalidly contracted or, less frequently, a judgment determining that ordination was invalidly conferred.

Trusteeism and the trustee system are practices and institutions within certain parishes of the Catholic Church in the United States, under which laypersons participate in the administration of Ecclesiastical Property. When laypersons are among the trustees, the Church seeks agreement with the civil authorities to have the property administered under principles of canon law.

The Acts of Roman Congregations is a term of the canon law of the Roman Catholic Church, used to designate the documents issued by the Roman Congregations, in virtue of powers conferred on them by the Roman Pontiff.

Regarding the canon law of the Catholic Church, canonists provide and obey rules for the interpretation and acceptation of words, in order that legislation is correctly understood and the extent of its obligation is determined.

The phrase law of the land is a legal term, equivalent to the Latin lex terrae, or legem terrae in the accusative case. It refers to all of the laws in force within a country or region, including statute law and case-made law.

In the canon law of the Catholic Church, a person is a subject of certain legal rights and obligations. Persons may be distinguished between physical and juridic persons. Juridic persons may be distinguished as collegial or non-collegial, and public or private juridic persons. The Holy See and the Catholic Church as such are not juridic persons, since juridic persons are created by ecclesiastical law. Rather, they are moral persons by divine law.

Promulgation in the canon law of the Catholic Church is the publication of a law by which it is made known publicly, and is required by canon law for the law to obtain legal effect. Universal laws are promulgated when they are published in Acta Apostolicae Sedis, and unless specified to the contrary, obtain legal force three months after promulgation. Particular laws are promulgated in various ways but by default take effect one month after promulgation.

For the legal system of ecclesiastical canons, see Canon law and Canon law.

A decree is, in a general sense, an order or law made by a superior authority for the direction of others. In the usage of the canon law of the Catholic Church, it has various meanings. Any papal Bull, Brief, or Motu Proprio is a decree inasmuch as these documents are legislative acts of the Pope. In this sense the term is quite ancient. The Roman Congregations were formerly empowered to issue decrees in matters which come under their particular jurisdiction, but were forbidden from continuing to do so under Pope Benedict XV in 1917. Each ecclesiastical province, and also each diocese may issue decrees in their periodical synods within their sphere of authority.

The jurisprudence of Catholic canon law is the complex of legal theory, traditions, and interpretative principles of Catholic canon law. In the Latin Church, the jurisprudence of canon law was founded by Gratian in the 1140s with his Decretum. In the Oriental canon law of the Eastern Catholic Churches, Photios holds a place similar to that of Gratian for the West.

The canon law of contract follows that of the civil jurisdiction in which canon law operates..

References

  1. 1 2 3 4 Metz, What is Canon Law?, pg. 39

Bibliography

Wikisource-logo.svg  This article incorporates text from a publication now in the public domain : William H. W. Fanning (1913). "Custom (in Canon Law)"  . In Herbermann, Charles (ed.). Catholic Encyclopedia . New York: Robert Appleton.BAUDUIN, De Consuetudine in Jure Canon. (Louvain, 1888); WERNZ, Jus Decretalium (Rome, 1898), I; LAURENTIUS, Institutiones Juris Eccl. (Freiburg, 1903); FERRARIS, Bibliotheca Canon. (Rome, 1886), II.