Whether Custom Can Obtain Force of Law?
Objection 1: It would seem that custom cannot obtain force of law,
nor abolish a law. Because human law is derived from the natural law
and from the Divine law, as stated above (Q. 93, A. 3; Q. 95, A. 2).
But human custom cannot change either the law of nature or the Divine
law. Therefore neither can it change human law.
Obj. 2: Further, many evils cannot make one good. But he who first
acted against the law, did evil. Therefore by multiplying such acts,
nothing good is the result. Now a law is something good; since it is
a rule of human acts. Therefore law is not abolished by custom, so
that the mere custom should obtain force of law.
Obj. 3: Further, the framing of laws belongs to those public men
whose business it is to govern the community; wherefore private
individuals cannot make laws. But custom grows by the acts of private
individuals. Therefore custom cannot obtain force of law, so as to
abolish the law.
_On the contrary,_ Augustine says (Ep. ad Casulan. xxxvi): "The
customs of God's people and the institutions of our ancestors are to
be considered as laws. And those who throw contempt on the customs of
the Church ought to be punished as those who disobey the law of God."
_I answer that,_ All law proceeds from the reason and will of the
lawgiver; the Divine and natural laws from the reasonable will of
God; the human law from the will of man, regulated by reason. Now
just as human reason and will, in practical matters, may be made
manifest by speech, so may they be made known by deeds: since
seemingly a man chooses as good that which he carries into execution.
But it is evident that by human speech, law can be both changed and
expounded, in so far as it manifests the interior movement and
thought of human reason. Wherefore by actions also, especially if
they be repeated, so as to make a custom, law can be changed and
expounded; and also something can be established which obtains force
of law, in so far as by repeated external actions, the inward
movement of the will, and concepts of reason are most effectually
declared; for when a thing is done again and again, it seems to
proceed from a deliberate judgment of reason. Accordingly, custom has
the force of a law, abolishes law, and is the interpreter of law.
Reply Obj. 1: The natural and Divine laws proceed from the Divine
will, as stated above. Wherefore they cannot be changed by a custom
proceeding from the will of man, but only by Divine authority. Hence
it is that no custom can prevail over the Divine or natural laws: for
Isidore says (Synon. ii, 16): "Let custom yield to authority: evil
customs should be eradicated by law and reason."
Reply Obj. 2: As stated above (Q. 96, A. 6), human laws fail in some
cases: wherefore it is possible sometimes to act beside the law;
namely, in a case where the law fails; yet the act will not be evil.
And when such cases are multiplied, by reason of some change in man,
then custom shows that the law is no longer useful: just as it might
be declared by the verbal promulgation of a law to the contrary. If,
however, the same reason remains, for which the law was useful
hitherto, then it is not the custom that prevails against the law,
but the law that overcomes the custom: unless perhaps the sole reason
for the law seeming useless, be that it is not "possible according to
the custom of the country" [*Q. 95, A. 3], which has been stated to
be one of the conditions of law. For it is not easy to set aside the
custom of a whole people.
Reply Obj. 3: The people among whom a custom is introduced may be of
two conditions. For if they are free, and able to make their own
laws, the consent of the whole people expressed by a custom counts
far more in favor of a particular observance, that does the authority
of the sovereign, who has not the power to frame laws, except as
representing the people. Wherefore although each individual cannot
make laws, yet the whole people can. If however the people have not
the free power to make their own laws, or to abolish a law made by a
higher authority; nevertheless with such a people a prevailing custom
obtains force of law, in so far as it is tolerated by those to whom
it belongs to make laws for that people: because by the very fact
that they tolerate it they seem to approve of that which is
introduced by custom.
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