A ZENIT DAILY DISPATCH
Local Customs vs. Liturgical Law

"Each one should always remember that he is a servant of the Sacred Liturgy"

By Father Edward McNamara

Rome, 10 November 2015 (ZENIT)
Answered by Legionary of Christ Father Edward McNamara, professor of liturgy and dean of theology at the Regina Apostolorum university.

Q: I train altar servers in a parish. I was trained under the “old” Mass. Due to this I always refer to the missal, the General Instruction of the Roman Missal (GIRM), and Bishop Elliott's Ceremonies of the Modern Roman Rite, Revised before training or correcting the servers. There is increasing guidance to follow local “traditions” rather than making corrections. How much flexibility is there in the GIRM? May a pastor change or “interpret” the GIRM? — K.R., Virginia Beach, Virginia 

A: In this case it depends on the kind of local traditions we are talking about.

One form of local tradition might actually be national liturgical local law which has been duly approved by the Holy See. In this case it is not a violation of the law but a specific application of it to local circumstances. For example, the Latin text of the GIRM says that priests should not leave the sanctuary during the sign of peace. The U.S. bishops sought and were granted specific exceptions to this rule which were incorporated into the English translation published in the United States.

Other local traditions may acquire the force of law through legitimate custom. According to the Catholic Encyclopedia, "A custom is an unwritten law introduced by the continuous acts of the faithful with the consent of the legitimate legislator. Custom may be considered as a fact and as a law. As a fact, it is simply the frequent and free repetition of acts concerning the same thing; as a law, it is the result and consequence of that fact. Hence its name, which is derived from consuesco or consuefacio and denotes the frequency of the action. (Cap. Consuetudo v, Dist. i.)"

The overall rule regarding customs is found in canon law. To wit:

"No. 23. Only that custom introduced by a community of the faithful and approved by the legislator according to the norm of the following canons has the force of law. 

"No. 24 §1. No custom which is contrary to divine law can obtain the force of law.

"§2. A custom contrary to or beyond canon law (praeter ius canonicum) cannot obtain the force of law unless it is reasonable; a custom which is expressly reprobated in the law, however, is not reasonable.

"No. 25. No custom obtains the force of law unless it has been observed with the intention of introducing a law by a community capable at least of receiving law.

"No. 26. Unless the competent legislator has specifically approved it, a custom contrary to the canon law now in force or one beyond a canonical law (praeter legem canonicam) obtains the force of law only if it has been legitimately observed for thirty continuous and complete years. Only a centenary or immemorial custom, however, can prevail against a canonical law which contains a clause prohibiting future customs. 

"No. 27. Custom is the best interpreter of laws.

"No. 28. Without prejudice to the prescript of ⇒ can. 5, a contrary custom or law revokes a custom which is contrary to or beyond the law (praeter legem). Unless it makes express mention of them, however, a law does not revoke centenary or immemorial customs, nor does a universal law revoke particular customs."

The text of Canon 5 mentioned above says:

"No. 5 §1. Universal or particular customs presently in force which are contrary to the prescripts of these canons and are reprobated by the canons of this Code are absolutely suppressed and are not permitted to revive in the future. Other contrary customs are also considered suppressed unless the Code expressly provides otherwise or unless they are centenary or immemorial customs which can be tolerated if, in the judgment of the ordinary, they cannot be removed due to the circumstances of places and persons.

"§2. Universal or particular customs beyond the law (praeter ius) which are in force until now are preserved."

As can be seen above, the canons distinguish between different kinds of custom. First, there are customs "against the law"; that is, they go against the word of the law itself or are illegal.

Second, there are customs "beyond the law"; these are customs which regulate practice in areas where the law itself is silent. In legal Latin, the phrase praeter legem ("outside of the law") refers to an item that is not regulated by law and therefore is not illegal. 

Some liturgical experts argue that it is almost impossible to establish a custom contrary to law with respect to the liturgy since the legislator, in this case the Holy See, has reserved all essential elements regarding the liturgy to its definitive approval. Therefore, it is argued, it is impossible to fulfill the conditions of Canon 23 regarding the approval of the legislator except in the case of centenary or immemorial customs.

On the other hand, the 2004 instruction Redemptionis Sacramentum described a series of abuses in the celebration of the Mass. On eight occasions it reprobates certain grave abuses, occasionally using the formula: "This practice is reprobated, so that it cannot be permitted to attain the force of custom."

This would seem to at least imply that the Congregation for Divine Worship considers the possibility that some liturgical abuses might be able to attain the force of custom. It would appear to be an open question among canonists, and as this is not my field I can only acknowledge the existence of a debate.

If it is true than only centenary and immemorial customs can prevail, then, since the decree approving the first edition of the new missal is from 1970, that of the third typical edition in Latin in 2000 and the approval of the English translation is from 2011, one cannot usually speak of such long-term customs. Also, these decrees usually contain the phrase "anything to the contrary notwithstanding" which some canonists consider as an implicit revocation of the earlier law and its replacement with the new, even though, as a universal law, it would not revoke legitimate customs if there are any.

Even if a diocese or parish could develop a legitimate liturgical custom contrary to liturgical law, it is difficult to determine if a community intended to introduce a law as required by Canon 25. It is also difficult to prove the continued use of the practice as per Canon 26.

For example, Canon 528.2 says the following about the duties of the parish priest: "The parish priest is to take care that the blessed Eucharist is the center of the parish assembly of the faithful. He is to strive to ensure that the faithful are nourished by the devout celebration of the sacraments, and in particular that they frequently approach the sacraments of the blessed Eucharist and penance. He is to strive to lead them to prayer, including prayer in their families, and to take a live and active part in the sacred liturgy. Under the authority of the diocesan Bishop, the parish priest must direct this liturgy in his own parish, and he is bound to be on guard against abuses."

Thus it would be enough for one parish priest to have fulfilled his duty to remove abuses for the custom to be interrupted. Even if the custom is later reintroduced, the 30-year period would have to start again.

Again, no custom can prevail if specifically reprobated. For example, Redemptionis Sacramentum formally reprobates the following practices: The priest breaking the host at the time of the consecration (No. 55); priests or deacons varying the liturgical texts (No. 59); non-ordained faithful delivering the homily (No. 65); distributing unconsecrated hosts or other edible or inedible things during the celebration of Mass or beforehand after the manner of Communion (No. 96); suspending the celebration of Mass in order to promote a "Eucharistic fast" (No. 115); using common or domestic vessels for the celebration (No. 117); celebrating Mass with just the stole over a habit or ordinary clothes (No. 126); priests who are present at the celebration but abstain from distributing Communion and hand this function over to laypersons (No. 157).

The above-mentioned instruction lists many abuses besides those specifically reprobated, and sometimes uses other expressions such as "This abuse must be immediately set aside." It is clear that the legislator considers all of the abusive practices mentioned in the document to be not reasonable (see Canon 24.2 above), and therefore they should cease. It would be difficult to argue for their continuation as legitimate customs after the publication of that document.

When dealing with customs that are beyond the law there is probably more room for legitimate customs to develop. Father Mark Gantley, a canon lawyer, on EWTN offered the following possible example: "A person might argue that the use of a 'unity candle' in a wedding ceremony is a legitimate practice on the basis of a custom that is apart from or beyond the law. The law neither prescribes nor prohibits the use of the unity candle. So a legitimate custom of using a unity candle could meet the qualifications of a legal custom, provided that it met the other requirements of the law."

Thus, having considered all this, I would say that our reader should generally defer to the GIRM in all areas where the liturgical documents are clear, and he should direct his servers accordingly. This is also the best way to guarantee an authentically Catholic celebration of the liturgy.

If there are local traditions and customs in areas where the GIRM is silent or less specific, then it would be possible to follow the local tradition. 

A pastor is not a legislative authority and thus cannot make an authentic or official interpretation of the GIRM. Only the Holy See can do that. A pastor can, and often must, interpret how to apply the GIRM to the specific logistics of a parish building but cannot change anything that is essential.

As Redemptionis Sacramentum concludes:

"186. Let all Christ's faithful participate in the Most Holy Eucharist as fully, consciously and actively as they can, honoring it lovingly by their devotion and the manner of their life. Let Bishops, Priests and Deacons, in the exercise of the sacred ministry, examine their consciences as regards the authenticity and fidelity of the actions they have performed in the name of Christ and the Church in the celebration of the Sacred Liturgy. Let each one of the sacred ministers ask himself, even with severity, whether he has respected the rights of the lay members of Christ's faithful, who confidently entrust themselves and their children to him, relying on him to fulfill for the faithful those sacred functions that the Church intends to carry out in celebrating the sacred Liturgy at Christ's command. For each one should always remember that he is a servant of the Sacred Liturgy."

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