Question on Custom

From a concerned blogger:

Boniface, sorry, but this question is a bit long and complicated: for at least twenty years in our parish, we have had a summer festival every year out in a parish-owned piece of property near the Church. As part of the festivities, the parish priest has always said an open-air Mass outdoors on the big day of the festival, with no major abuses except the ones common to the Novus Ordo. I always questioned whether or not we ought to be doing this (since the Church was close by and there was no pressing need to have a Mass outdoors except for novelty).

Anyhow, we recently got a new priest of a more conservative persuasion who cancelled the outdoor Mass and moved it into the Church. Many of the more liberal-minded persons of the parish were upset by this move, and a certain gentleman parishioner who claims to be an expert in canon law claims that the priest cannot lawfully move the Mass back to the Church because since the custom of observing the Mass outdoors has been done for over twenty years, it therefore has the force of law and cannot be altered by the priest.

Is it true that anything done for over twenty-years has the force of law? He showed me in the Code where it said this, but something still seemed fishy. Can you offer any clarification? (anonymous)

Thanks for the question. This is indeed a tricky point, but your suspicions are well-founded; this guy who claims to be a canon law expert is completely off. Fortunately, this situation is easy to resolve because the Code of 1917 and the Code of 1983 are in agreement on the matter, so there is no room for ambiguity.

First, your friend was probably referring to Canon 26 of the 83 Code, which says, "A custom...aquires the force of law only when it has been lawfully observed for a period of thirty continuous years." So, what does thirty continuous years mean? Well, Cicognani in his commentary on Canon Law writes that "the years must be in continuous succession; the years must not be interrupted, even by one contrary act, because continuous time according to Canon 35 [26 in the new Code] means a space of time which does not suffer any interruption. And the years must be completed, that is, completed in duration-not even one particle of time should be wanting" (pg. 652).

First, you will notice that the canon calls for thirty continuous years, not twenty. In your situation, this means that the priest, by canceling the custom and removing the Mass back to the parish Church, has already nullified the possibility of using the argument from thirty-continuous years, since even one contrary act nullifies the succession of years. Thus, if it takes thirty-years to establish custom with the force of law, and the priest alters the custom in the twenty-ninth year, in the following year you must start over from one, so that "not even one particle of time should be wanting."

But, I would say you do not even have to have recourse to this argument, because there is a more fundamental one that is against this gentleman's opinion. Canon 25 (26 in the 17 Code) reads: "No custom aquires the force of law unless it has been observed, with the intention of introducing a law, by a community capable of at least receiving a law." There are two elements here (1) intention of introducing a law, and (2) the only community who can introduce legally binding custom are those who are capable of receiving an ecclesiastical law.

Regarding the first point, the commentary footnotes of the 1983 Code says, "Custom must be observed with the intention of introducing a norm." Cicognani says of this same canon, "Moreover, the members of the community are to perform these acts with the intention of obligating themselves" (pg. 648). In otherwords, the custom of the outdoor Mass could only acquire the force of law if, from the beginning, it was being performed with the intention of establishing a binding custom, which it seems you'd be hard pressed to be able to prove.

Regarding the second point, that only those who are capable of receiving a law can establish a binding custom, it is clear that only a community who can receive a law is able to likewise bind themselves to a customary law. The commentary on the 83 Code is silent on who can receive a law, but Cicognani says of the same canon in the 17 Code: "The following communities are capable of receiving laws: an ecclesiastical province, a diocese, a body of clerics, the province of a religious Order, monasteries that are sui juris and convents of nuns also" (pg. 648). We must point out that parish churches, festival planning committees or parish councils are not listed. In fact, all of the above bodies are either religious orders or ordained clerics. Thus, this man is misapplying canon law in attributing the power to establish customary law to parish churches or festival planning committees.

There is one final reason why this gentleman is errant in his assertion that the parish is obligated to hold the festival Mass outdoors. Canon 24 of the 83 Code states that "No custom which is contrary to divine law can acquire the force of law." The corresponding canon in the 1917 Code (Canon 27:1) is much more explicit: "No custom can in any way derogate from the Divine Law, either natural or positive; nor does a custom prejudice an ecclesiastical law, unless it is a reasonable custom and lawfully prescribed..." Both Canon 27 of the old Code and 24 of the new Code speak about the reasonableness of the custom, and though the 1983 Code speaks only of custom being unable to contravene Divine Law, it points out in the footnote that this includes "ecclesiastical discipline" as well. So, is it against divine law (either natural or positive) or ecclesiastical discipline to hold an outdoor Mass in a field within walking distance from a parish Church?

The answer is yes. Canon 932 of the 1983 Code states: "The eucharistic celebration is to be carried out in a sacred place, unless in a particular case neccesity requires otherwise; in which case, the celebration must be in a fitting place." In case anyone has any qualms about what constitutes a "sacred place," Canons 1205 and 1210 clearly define them as "those which are assigned to divine worship" and where "only those things are permitted which serve to exercise or promote worship, piety and religion." Clearly a field adjacent to the parish does not qualify as a sacred space, and the 1983 Code seems to envision nothing other than a church, oratory or private chapel by the phrase "sacred space."

So, unless there is "particular necessity," a Mass must be said in a consecrated Church (a consecrated cemetary is also permitted, provided there is a suitable place for the Sacrifice). Now, we must ask ourselves, is there necessity in having the Mass outdoors against the order of Canon 932? The answer must be no, for three reasons: (1) There is no emergency; it appeared to be done just for "novelty," as the anonymous questioner pointed out (2) The parish Church was very close-by, making it pointless to needlessly have a Mass in a field when it could easily be done in the Church (3) The fact that the new priest did in fact move the Mass to the Church proves that it is reasonable and feasible to have the Mass in the Church building and that doing an outdoor Mass is uneccesary in this case. Therefore, Canon 932 remains in force. Cicognani says that the introduction of custom "cannot arise from error or ignorance" (pg. 648); in this case, it seems that both error and ignorance were the source of this dubious custom of celebrating Mass out in the field.

It is a long-winded answer, but I can summarize it in a few short points:

1) Mass cannot be celebrated in the field with good reason because it violates Canon 932, which requires Mass to be said in a consecrated Church unless there is particular necessity, which it has been proven that there is not.

2) Even so, a parish-body is not a competent legal entity to establish legally binding custom because it is not capable of receiving a law (Canon 25); furthermore, there was no demonstrable intent of the parish to bind itself to this custom.

3) Even so, thirty-continuous years have not been observed, the parish priest having interrupted the succession the past year (Canon 26).

I hope this helps. As is the case with many other things, Canon Law becomes very tricky when people attempt to take individual canons out of context and without reference to canonical tradition.