Moral Theology. Charles J. Callan
of social circumstances, requires now and then that human laws be improved or adapted to new conditions. But, since laws derive a great part of their influence from custom, they should not be changed unless the break with custom is compensated for by the urgent necessity of the new law, by its manifest advantage, or by the evident iniquity or harmfulness of the old law, In brief, the common good should be the norm by which to decide whether a law should be retained or changed.
390. Constitutional law, as being fundamental and organic, is more immutable than ordinary law. (a) If given to a society established according to the positive ordinance of a superior, it cannot be abrogated or modified by the legislative authority of that society, since this would be contrary to the will of the founder. Hence, the Church has no power to change the fundamental constitution given her by Christ, who prescribed the religious society as established by Him to be necessary. (b) If a constitutional law is given to a society which is perfect and necessary from the law of nature, such constitution can be modified for extraordinary reasons and in the special ways provided (e.g., by amendments approved by the people).
391. The Law of Custom.—Custom (i.e., a long-continued practice that has acquired binding force) is able to establish a new law or to do away with an old law. For the will of the lawgiver is manifested not only by words, as happens in the written law, but also and more clearly by repeated and continued acts, as happens in the case of the unwritten law of custom. In a democracy it is the consent of the people who follow the custom as law that imposes the obligation; in a monarchy it is the consent of the ruler who permits the custom.
392. With reference to their legal effects, there are three kinds of customs: (a) customs according to the law, which are those that confirm by use an existing law; in this way custom interprets law (see 386); (b) customs beside the law, which are those that introduce a new obligation that is not prescribed by any written law; in this way custom establishes law; (c) customs contrary to law, which are those that remove the obligation of a previous law; in this way custom repeals, at least in part, the law to which it is opposed.
393. Custom has not the power to establish or repeal a law, unless it possesses the requisites of law itself (see 285). Hence arise the following conditions:
(a) Since the exercise of the legislative power requires freedom, customs do not possess legal force unless they have been practised freely. Hence, a custom that has been established by force does not suffice;
(b) Since laws can be made only for perfect societies, customs have not the force of law, unless they are practised by a perfect society, or by a majority of its members who are representative. Hence, a custom observed by a family or by a minority of the voters in a body that has its own jurisprudence has not the status of law;
(c) Since laws must proceed from competent authority, customs do not make or unmake law, unless they have the approval of the ruling power. In a society where the legislative function rests with the people (e.g., in the ancient democracy of Athens), the fact that they follow a custom with the purpose of enacting it into law or of using it against an existing law is sufficient approval. But if the supreme power is not with the multitude, their customs do not obtain the force of legislative acts, unless approved by the constituted authority;
(d) Since law needs to be promulgated, a custom, to have the effect of law, must be practised by public acts through which it becomes known to the people as a whole.
394. Customs that have the other requisite conditions begin to be obligatory or derogatory as soon as the approval of competent authority is had. (a) If the approval is given expressly, the custom has the force of law at once; (b) if it is given tacitly, inasmuch as the lawgiver, knowing the custom and being under no restraint, does not disapprove, the custom has the force of law as soon as tacit consent is recognized by the learned and prudent; (c) if it is given by the law itself, which explicitly accepts reasonable customs, the custom has the force of law when it has lasted for ten years, or other length of time prescribed.
395. If the superior disapproves of a custom or maintains diplomatic silence for fear of greater evils, his consent is withheld, and the custom cannot be deemed as of legal force.
396. There are other conditions necessary that a custom may acquire the force of law. (a) Since a law is an ordinance knowingly imposed by the will of the legislator, a custom does not constitute a law if it is followed through the erroneous conviction that it is already a law, or if there is nothing to indicate a will to make it obligatory. Signs of the intention to raise a custom to the dignity of a law are the punishment of transgressors of the custom, the observance of the custom even at the cost of great inconvenience, the opinion of the good that it should be followed, etc. (b) Since a law cannot prescribe except what is reasonable and for the common good, a practice opposed to the Natural or Divine Law, or expressly reprobated by written law as an abuse, or one that is injurious to the welfare of the community, cannot become unwritten law through custom.
397. There are special conditions in order that a custom may do away with an existing law. (a) A written law is not repealed unless the legislator wills to take away its obligation, and hence desuetude or a custom contrary to law does not abrogate a law unless it manifests a purpose not to be obligated by what the law prescribes. This it does if the whole people regard a certain law as a dead letter, or feel that circumstances or the common welfare require the opposite of what the law requires, and have no scruple in acting uniformly according to this conviction.
(b) A written law is not repealed, if it is immutable, or if a change would be prejudicial to the common interest; similarly, therefore, a custom cannot abolish a law, unless this law is one that can be abrogated by human acts, and that is not essential to the public good. Hence, customs contrary to the Commandments or to the Law of Christ, customs that are expressly condemned in Canon Law as corruptions, customs that encourage lawlessness or afford occasions of sin, can never do away with a law, no matter how long or by how many they are practised.
398. Those who start a custom contrary to law are sometimes in good faith, and hence are not guilty of disobedience. (a) It may be that they are in ignorance of the law, but have the interpretative will not to be bound by it; (b) it may be that they know the law, but sincerely think that, on account of conditions, it has ceased of itself.
399. Even when a custom has been started in bad faith, it may continue through good faith, and so become not a violation, but an abrogation of the law. Changed conditions may make the law useless or harmful; or the very fact that it is no longer observed may make it too difficult to enforce.
400. Today customs do not so often attain the force of law. Moreover, so difficult is it to know whether any custom has all the qualities necessary for establishing, modifying, or abrogating a law that only an expert is competent to judge in this matter.
401. Dispensation.—Human law has not the immutability of the Divine Law. Hence, not only may it be changed, but it may also be dispensed. Dispensation is a relaxation of the positive law made for a particular case by him who has the competent authority.
(a) It is a relaxation of the law—that is, it takes away the obligation of the law. Thus, it differs from permission, which is fulfillment of what is conditionally allowed by the law.
(b) Dispensation is made for a particular case—that is, it is granted when the provisions of the law, though beneficial to the community as a whole, are not suitable for a particular person or case. Thus, it differs, first, from abrogation and derogation, which remove the obligation of the whole or a part of the law for the entire community; and, secondly, from privilege, which is granted permanently as a private law.
(c) Dispensation is given by competent authority—that is, by the legislator or others who have the lawful power. Thus, it differs from epieikeia and private interpretation, which are made by those who have no power to dispense.
(d) Dispensation is a relaxation of the positive law, for since the Natural Law is immutable (see 305), no dispensation can be given from its requirements. Thus, dispensation differs from the official declaration or interpretation of the Natural or Divine Law (see 315).
402. Those who have the power to dispense from a law are the lawgiver and others duly authorized. (a) The lawgiver himself can dispense as follows: in his own laws, since he