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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 (Question 93, Article
3; Question 95, Article 2). But human custom cannot change
either the law of nature or the Divine law. Therefore neither can it
change human law.
Objection 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.
Objection 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 to Objection 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 to Objection 2: As stated above (Question 96, Article
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"
[Question 95, Article 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 to Objection 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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