When Does a Custom Have the Force of Law?

Q1: When the bishop in a diocese allows the faithful to receive Communion in the hand or on the tongue, can a priest, who objects on the grounds of conscience, refuse to give the faithful holy Communion in the hand?  Could a religious community or shrine just establish a custom of only receiving on the tongue?  –Fr. M.

Q2: Some parishes have been training their altar servers to do things I consider strange. They do so on the grounds that “that’s how we do things here.”  For example, they train altar servers to fill the lavabo with water before Mass and bring the bowl to the priest rather than pouring the water over the priest’s hands into an empty bowl.  This requires altar servers to carry around a sloshing bowl from the credence table to the priest at the altar….

My question: if parishes have been doing things like this for over 30 years, does that mean that they are now considered customs, and no pastor can change them?  Are we stuck with them for eternity? –Stan

A:  Both of our questioners are clerics, which presumably explains their awareness of the basic legal concept that in certain circumstances, a longstanding custom can attain the force of law.  But while this may sound like a straightforward idea that’s easy to wrap your head around, it’s actually more complex than one might think!  And it doesn’t help matters any that the six canons of the code which address customs (cc. 23-28) can be maddeningly oblique, and have to be pieced together somewhat like a jigsaw puzzle before the picture becomes clear.  Let’s first look at the definition of a custom, which is extremely precise; then at who has authority to introduce a custom and who doesn’t; and finally, at the specific examples mentioned in our two questions.

What’s a custom?  According to an English dictionary, a custom is a traditional practice or usual way of doing something followed by a social group or people.  Note immediately that this basic definition tells us what a custom is not.  A custom is a practice that is not required by law—otherwise it wouldn’t be a custom, but would simply be the common practice of obeying a law.

Tremendous confusion often arises regarding this basic point, so it’s worth emphasizing that if Catholics are correctly following a law, their right praxis doesn’t constitute a custom!  Consequently, it could and sometimes does happen that such laws are changed, requiring a corresponding change in common praxis.  By way of example, look at the practice of women wearing chapel veils to Mass, discussed at length in “Are Women Required to Cover Their Heads in Church?”  Over a century ago, this pious practice was mandated by law: in the 1917 Code of Canon Law (which is no longer in force), canon 1262.2 specifically stated that women should cover their heads, “especially when they approach the Lord’s table.”  Under the old code, therefore, if Catholic women attended Mass and failed to do this, they were actually in violation of canon law.

But this is what the code calls a “merely ecclesiastical law,” created by men, as opposed to a divine law given to us by God—and thus, as we saw in “Are There Any Limitations on the Power of the Pope?” it can be changed.   And it was!  The current Code of Canon Law, promulgated by Pope Saint John Paul II in 1983, contains no such requirement, and canon 6.1 n. 1 specifically states that the entire 1917 Code of Canon Law is abrogated (i.e., no longer in force).  This means that nowadays, women are perfectly free to attend Mass and receive the Eucharist without wearing any head covering, if they so wish.  In short, wearing a chapel veil to Mass was not an “immemorial custom”; it was a church law that women obediently used to follow.  Now that this law has been changed and the requirement is removed, nobody can claim that “wearing a chapel veil to church is a time-honored custom that must still be observed.”

There’s a second, equally important aspect of the definition of the term custom that we all have to bear in mind: if a group of Catholics have been violating canon law for a long period of time, this does not constitute a custom.  It merely means that these Catholics have been breaking the law and should stop!  Take, for example, a parish where the clergy refuse to give Holy Communion to communicants who choose to kneel, on the grounds that “we don’t do that here.”  In actual fact, such a statement amounts to saying, “we violate canon law and your rights here,” which is obviously no justification for such abuse.  We took a look at this issue in “Can You be Refused Holy Communion if You Kneel?” which, among other things noted that in the 2004 Instruction Redemptionis Sacramentum, the Congregation for the Doctrine of the Faith declared that

… it is not licit to deny Holy Communion to any of Christ’s faithful solely on the grounds, for example, that the person wishes to receive the Eucharist kneeling or standing. (91)

If universal law permits Catholics to do X, and a priest (or any other Catholic, for that matter) refuses to permit any Catholics to do X, that’s illegal.  And if the priest or other Catholic has been doing this for many years, that repeated illegal action doesn’t magically become a “custom” which has to be observed—quite the contrary.  Canon 24 builds on this concept, by noting that a custom which violates divine law can never attain the force of law (c. 24.1), and a custom must be reasonable (c. 24.2).  An illegal custom is never considered reasonable.

We’re still trying to define our term, so let’s continue.  If a custom isn’t merely the longstanding observance of church law, and it isn’t a violation of a law … then what constitutes a custom in canon law?  Canon 26 takes a confusingly roundabout route toward providing us with a partial definition: a custom (a) must have been legitimately observed for over 30 continuous years, and (b) must involve an action that is praeter legem (literally, “alongside the law”).

The term praeter legem is an indirect way of summing up what was already said above.  As we’ve seen, custom can’t be against the law (or contra legem), and it isn’t isn’t merely the longstanding observance of a written law (which would be secundum legem, “according to the law”).  In other words, a true custom in the Church involves a practice that is not directly mentioned in the law, and does not contradict the law.

The definition continues: as per canon 23, a custom must have been introduced “by a community of the faithful,” meaning that it wasn’t the decision of just a lone individual or two, and/or it wasn’t foisted on a community of the faithful against their will.  The “community of the faithful” is probably most commonly a parish, or the people of a diocese; but it might also be (let’s say) all the Catholic school teachers in a region, or some similar grouping.  Imagine, for example, that there are quite a few police chaplains in a large archdiocese, and they begin gathering together every year on the Feast of St. Michael, who is the patron saint of police officers, to concelebrate a special Mass at St. Michael’s parish.  It should be evident that this is an event that is praeter legem, since there is no law mandating it, or forbidding it; and it certainly sounds like a reasonable practice too.

Now let’s imagine that this event was started with the intention of making it a tradition: maybe the first occurrence was billed as the “First Annual St. Michael’s Day Mass” or suchlike—now it clearly meets an additional criterion found in canon 25, that this custom was “observed with the intention of introducing a law.”  And let’s say that this annual Mass continues for decades—more than 30 years, non-stop, at the same parish.

There’s one more element to the equation here, to ensure that this St. Michael’s Day Mass becomes a custom enshrined in law.  Let’s say that the archbishop becomes aware of it, and heaps praise on the practice, or at least says nothing critical of it.  In fact, imagine that on occasion, during the 30+ years of this practice, the archbishop himself even concelebrates the Mass with the chaplains on St. Michael’s feastday, in accord with their annual practice.  Now it can safely be said that this custom has, at least indirectly, been “approved by the legislator,” as mentioned in canon 23.  The chaplains can honestly claim that in all the years since the annual Mass began, the archbishop—who is the legislator within his diocese, as per canon 391—has never spoken against it, and has even participated in it himself, thereby giving his tacit approval to the event.

If all these conditions are in place, then we can say that the annual St. Michael’s Day Mass, celebrated by police chaplains at St. Michael’s parish, is a custom that has attained the force of law.  So what?  Well, if St. Michael’s parish someday gets a new pastor, who abruptly decides that this Mass is no longer going to take place (for whatever reason, or for no reason at all), he’s in for a surprise.  Parish priests are not legislators—see “Excommunication and the Authority of the Parish Priest” for more on this—and so he has no authority of his own to ban this practice, because banning it would basically amount to changing a law.

Armed with all this information, let’s now look at the specific scenarios mentioned in our questions.  Father M. wants to know if it’s possible to establish a custom of only receiving Holy Communion on the tongue in his parish—in other words, he’d like to ban the practice of receiving Communion in the hand.  Can he do this?

In “Can We Be Required to Receive Communion in the Hand, Because of the Virus?” we saw that Rome has repeatedly stated unambiguously that receiving the Eucharist on the tongue is the norm (and thus nobody can be prevented from receiving in this way), while receiving Communion in the hand was/is a practice that individual Episcopal Conferences could decide to permit, after receiving approval from the Vatican.  In 1999, the Congregation for Divine Worship issued a response to a dubium it had received, asking whether communicants could be restricted to receiving Communion only in the hand, and not on the tongue.  Note the careful wording of their reply:

…[T]hose who restrict communicants to receive Holy Communion only in the hands are acting against the norms, as are those who refuse to Christ’s faithful [the right] to receive Communion in the hand in dioceses that enjoy this indult.  (Original Latin text here, see pp. 160-161; English translation here)

At issue here is the second part of this statement.  In dioceses where the faithful are lawfully permitted to receive Communion in the hand, they cannot be required to receive only on the tongue.  At the same time, note the caveat about Communion in the hand, in a subsequent paragraph of the very same document:

However, let all remember that the time-honored tradition is to receive the host on the tongue.  The celebrant priest, if there is a present danger of sacrilege, should not give the faithful communion in the hand, and he should make them aware of the reason for way of proceeding.

Thus if Father M. determines that there is indeed “a present danger of sacrilege” at his parish, if Communion is distributed indiscriminately in the hand to whoever wishes to receive in that way, he can require Communion to be received on the tongue only.  See “Preventing Desecration of the Eucharist” for more on this topic.

But that’s not what Father M. is talking about.  Rather, he cites “grounds of conscience” against distributing Communion in the hand to anyone at all, and wishes to initiate a new custom in his parish mandating reception only on the tongue.  By now it should be clear that this is not an option.  For one thing, this “custom” would be a practice contra legem, or against the law, since in Father M’s diocese it is permitted to receive Communion in the hand.  For another, it would be established not by a “community of the faithful,” but by Father M. alone, and at least some of the faithful affected by this new practice would presumably object to it.  Consequently, this would not meet the definition of custom as found in canon law.

Stan’s question is sort of a mirror-image of Father M.’s.  At Stan’s parish, the altar servers at the Offertory of the Mass apparently have an established practice of bringing a full bowl of water to the priest to wash his hands—rather than pouring the water over his hands themselves.  It’s not very probable, but let’s imagine for the sake of argument that this has been going on for over 30 years.  Does it constitute a custom that has attained the force of law?

Hardly!  For one thing, this praxis was not established by the entire community of the faithful, as per canon 23; it’s far more likely that an individual priest taught the servers to do this at some point in the past, and they’ve simply continued doing it.  For another, the odds that this practice was begun “with the intention of introducing a law” are close to zero.  We may reasonably assume that somewhere along the line, whoever trained the altar servers merely told them, “bring the water to the priest like this,” because it seemed easier (or something along those lines).

Consequently, if the pastor of this parish determined that “carry[ing] a sloshing bowl” of water to the priest wasn’t a good idea, there’s absolutely no reason why he couldn’t tell them that henceforth, they’re to pour the water over the priest’s hands instead, obviating any sloshing and possible spilling of water in the sanctuary.  There has been no “custom” established here, much less one that has the force of law.

Stan’s observation is a solid one: if practices like this one were considered “customs” and had attained the force of law, they would be in place “for all eternity” unless/until they were directly reprobated by a legislator.  We would indeed be “stuck,” unable to correct poor liturgical (and other) practices merely because they’d been in place for a long time.

Fortunately, the canon law on customs is much more sensible!  Yes, it provides for the possibility that a practice which is not illegal, and not mentioned in law, can eventually become a custom with the force of law; but (as we’ve seen) there are quite a few conditions that have to be met for this to take place.  Once again, canon law is open to the chance that legitimate traditions might someday be enshrined in law … while simultaneously ensuring that poor practices can be changed for the better.

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