Ecclesiastical custom – an easy excuse to disobey the law?
By Timothy Garvey
Occasionally when discussing ecclesiastical issues, especially when someone wants to do something contrary to what the Code of Canon Law (1983) (“Code”) requires, an interlocutor may attempt to justify his or her position by making the argument that “It’s our custom!”. But what does this mean? In fact, canon law does recognise the venerable institution of legal custom as a true species of law, so much so that a custom can overrule a clear contrary written law! Whereas other laws are usually issued by a competent legislator for a community, custom is a species of law which originates from the community itself. However, the law governing canonical customs is complex, so it is important not to appeal to custom too rashly. This article will give a brief overview of what canonical custom is, and perhaps more importantly, what it is not. However, this is not an exhaustive explanation of the law of custom, so a canonist should be consulted when applying custom to particular cases.
Broadly, there are three types of custom: according to law, beyond the law (praeter ius), and contrary to law. A custom according to law is one where the law itself refers to the custom (for example, canon 1279§1 refers to customs relating to who may administer ecclesiastical goods). A custom beyond the law fills a gap in the law, but it is not contrary to the law (for example, a diocesan custom governing certain religious devotions which are not regulated elsewhere in canon law). Finally, a custom contrary to law is one that is … contrary to the law! For example, a diocese may have a custom contrary to canon 1246§1 reducing the number of holy days of obligation.
Canon 23 of the Code confirms that a custom can truly acquire the force of law. However, any custom contrary to the divine law can never obtain the force of law (can. 24§1). For example, a custom allowing a deacon to celebrate the Mass could never obtain the force of law. Additionally, no custom contrary to or beyond the law can obtain the force of law unless it is reasonable (can. 24§2). Whether a custom is reasonable or unreasonable may depend heavily on its particular circumstances, leading to a degree of uncertainty.
For a custom to obtain the force of law, it must have “been observed with the intention of introducing a law by a community capable at least of receiving law” (can. 25). Hence, a custom cannot be introduced merely by an individual, nor by a community which is incapable of receiving legislation. The community does not need to be otherwise capable of making law (i.e. possess legislative power). Further, the community must have observed the custom with the intention of introducing a true law. For example, the community must not consider the observance of the custom to be optional. Verifying this intention may be complex in practice, but it may be evidenced when a superior attempts to remove the custom and receives resistance from the community.
A custom must also be “approved by the legislator according to the norm of the [relevant canons]” before it can have the force of law (can. 23). However, this approval may be tacit rather than explicit. Further, absent specific approval by the competent legislator, canon 26 of the Code provides that certain customs contrary to or beyond the law obtain the force of law if “legitimately observed for thirty continuous and complete years”.
Finally, canon 28 provides that a custom may be revoked by a contrary custom or legislative act. However, immemorial or centenary customs are not revoked by such a legislative act unless it makes express mention of them. The revocation of particular customs by universal legislation also requires express mention.
The canonical concept of a legal custom is absent from some secular legal systems, but reflects the possibility of a true legal norm originating from the community rather than from a higher legislator. However, it is clear that custom is not a general excuse to ignore the written canon law. Since establishing whether a relevant canonical custom actually exists can be difficult in the circumstances of a particular case, it is prudent to consult a canonist when seeking to apply the canons on custom, especially where a custom is invoked to overrule written canon law.