§ 14. Customary Law

[…] necessary for society. Tradition rests on the authority of him who handed something down. In civil law, custom can exist independently, resting on immediate social conviction; in church law it is dependent on some tradition, or at least presupposes tradition, and serves as one of the forms in which delivered truth is expressed.

Just as in civil law, in that sense,[1] so too in church law, in this sense, custom constitutes a source of law. Many aspects of church life which, for one reason or another, had not been established through church legislation, became fixed in the course of time in the Church by way of custom, and that custom, through its long continued use, became for church law a source of law alongside the law [proper]. But for a custom truly to be able to be a source of law—in other words, for customary law to be able to be valid in the Church (ἔθος ἐν τῇ ἐκκλησίᾳ ἐνεργούμενον)—it must enclose truth within itself. What holds in general for customary law must hold above all in the Church, which is herself embodied truth, and accordingly the object of the custom must be strictly of a church nature, and its particular aim must coincide with the general aim of the Church herself. If this is not so, and a custom has no truth at its foundation, then however old it may be, it can have no validity.[2]

The importance of custom as a source for church law, to the extent that it is justified from the general point of view, is equally recognized by the positive laws of the Church. The First Ecumenical Council confirms the privileges of the respective church primates on the basis of existing customs: “Let the ancient customs (τὰ ἀρχαῖα ἔθη κρατείτω) prevail which exist in Egypt, Libya, and Pentapolis, so that the bishop of Alexandria has authority over all these regions, since this is customary also for the bishop of Rome.”[3] “Since it has been established by custom and ancient tradition (συνήθεια καὶ παράδοσις ἀρχαία) that the bishop who is in Aelia is honored in a particular manner, let…”[4] As a consequence of the fact that some bishops, presbyters and deacons were transferring, of their own will, from one eparchy to another, the same council ordains that this custom (περιαιρεθῆναι τὴν συνήθειαν) must be done away with, since it had taken root, contrary to the apostolic canon, in certain places.[5] In some places deacons had begun to distribute the eucharist to presbyters, and this same First Ecumenical Council condemns this, since it was handed down neither by canon nor by custom,[6] thereby placing custom on an equal footing with the canons in point of authority. The Second Ecumenical Council establishes the boundaries of the respective church regions in the eastern half of the empire, and, with regard to the churches which are among other peoples, prescribes that they are to be governed according to the ancestral custom that has been kept until then.[7] The same council prescribes how those converting from some heresy are to be received into the Church, and states that in this it follows custom.[8] The Council of Ephesus, the Third Ecumenical Council, in confirming the privileges of the church of Cyprus, rejects the claim of the bishop of Antioch that he should ordain bishops in Cyprus, chiefly on the ground that this is contrary to ancient custom.[9] The Council in Trullo prescribes that the bishops of the Hellespont are to appoint the primate of Justinianopolis independently, according to the ancient custom (κατὰ τὴν ἀρχαίαν συνήθειαν), and that in general the established customs (ἔθη) are to be kept in every church.[10] Basil the Great, in his epistle to Diodore, bishop of Tarsus, concerning one who enters marriage with two sisters, stresses most decisively the importance of custom, and states expressly that the custom in question has, in this matter, the same force as law.[11] In the Nomocanon in Fourteen Titles, title three, chapter one, it is stated specifically “that unwritten church custom must be respected as law,” and in confirmation the relevant canons on this subject are cited; and then, in the scholion, it is added that in civil law too, when a custom has been confirmed in court and does not contradict the written law, it is valid just as an unwritten law.[12]

From all this it is seen how great the importance of custom is as a source of church law, and, equally, under what conditions and when a custom can be valid in law. In the early Church, when there were as yet few written laws, custom had juridical significance and was regarded as confirmation of the delivered teaching of the Church. Of this we have a classic testimony from Tertullian, a writer of the end of the second and beginning of the third century—a testimony all the more weighty and authoritative for the fact that his opinions, as those of a jurist, entered into the Digest of Justinian. “If something,” says Tertullian, “is not fixed in writing, and yet is kept everywhere, this means that it is established by custom, which rests on tradition. Should anyone note that even tradition requires written testimony, then we may point to many institutions which are kept without any writing at all, but by the weight of tradition itself and the force of custom.” And in confirmation of this he adduces several examples, and concludes: “Were anyone to wish to seek a written law concerning these and many other such institutions, he would not find it. Here tradition stands as the foundation, custom as the confirmation, and faith as the guardian.”[13] Tertullian’s contemporary, Firmilian, bishop of Caesarea, mentions customs kept in various local churches which are to be sacredly respected.[14] Church tradition, established by custom and preserved by faith, constituted in the early Church a law alongside the written precepts, and served as a foundation for church law, and held good, like the legislative ordinances, with regard both to its source and to the universal respect in which it was held.

In cases where doubt exists as to the juridical validity of some custom that has not been fixed by law, either the church authority decides alone, or, if the object of the custom is of a mixed nature—that is, if it also concerns the civil authority—then the church and civil authorities decide jointly.[15] The authority in such a case pronounces its judgment, and, by issuing the relevant ordinance, either legitimizes the custom in question, or abolishes it.[16]