Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

Custom and prescription agree together in many respects, and differ in others. They agree, I say, chiefly in two points. First indeed, because in each there intervenes something of fact, and something of right, which is introduced and established by the fact; secondly, because prescription itself requires some custom of fact, and in turn custom requires some prescription of time. But they differ first by reason of the very right compared; for custom introduces a legal right, or a right of law, by which all are bound; but prescription only confers a right of dominion over some thing, or a right of using it, and enjoying it.

Secondly, they differ from one another because custom is introduced by the practice, and usage of the people; for since it has the force of law, and law is referred to the common good, custom ought to be introduced through the manners, and observance of the community, or people: but prescription, since it pertains to the utility of some single private person alone, is introduced only through the use, and act of some private person: thus if someone enjoys a house or some inheritance peaceably for a long time, the right of inheritance is acquired by prescription in that private person himself. Finally thirdly, custom and prescription differ from one another, in that custom, for the efficacy, and value of its introduction, requires the tacit, or expressed consent of the Prince, as we shall soon say: but prescription does not require his consent, against whose utility it is prescribed: for if Peter should prescribe against Paul in some estate, it is not necessary that Paul himself should consent to this prescription tacitly, or expressly, but it suffices that Peter enjoy that estate for the determinate time required for prescription while he is ignorant of it.

Note 2. That although custom is sometimes used indiscriminately for usage, manner, form, and style: nevertheless it differs from them in certain respects: for although custom, considered as it is a matter of fact, is the same thing as usage, and manner, namely a uniform frequentation of free acts: yet if it be considered as it is a matter of right morally left behind, and persisting from that uniform frequentation of human acts, it has the force of binding to acting so. Custom differs from the very usage and manner, which import only the material uniform frequentation of free acts. But custom differs from forum, and style: for the forum is not whatever is confirmed by right, usage, and custom, but only those things about which judgment must be given in a Tribunal. Style moreover is that manner which is observed in writing, or speaking by the jurists in causes, and affairs to be transacted. Custom truly is a certain right instituted by manners, which is received in place of law, where law fails.

Note 3. It can be understood in two ways that custom has the force of human law. First indeed in abrogating some human law, so that by a custom introduced through long-continued manners of the people against a prescribed law, that law ceases to bind, and is abrogated: no otherwise than a prior law is considered revoked, and abrogated by a contrary later one. Secondly, so that the custom itself be a certain species of law, and bind no less than human law binds. We ask therefore whether on both these grounds custom has the force of Law. Three things therefore are at present to be briefly determined: First, what custom is: Second, how manyfold it is: Third, what force it has, or what conditions it requires, that it may be considered to have that force.

First conclusion. — Custom is a certain right of men instituted by manners, which is received in place of law when law fails. So Gratian d. 1. c. 5. First it is called right: then because it agrees with written law in the notion of right as in a genus; for as Gratian says in the same place C. 2. Right is a general name: but law is a species of right, and every right consists of laws, and manners: then because custom ought to be just, at least by reason of its object, or matter, about which it is concerned. By which it is distinguished from abuse, and corruption. There is added, Instituted by the manners of men, by which words it is distinguished from law; for law is borne from a superior, but custom is introduced by subjects with the sole tacit, or expressed consent of the Prince. There follows, that it is received in place of law: for, as we shall say at once, custom has the force of law, and is received in its place, where law fails. Now law can fail in three ways: first when it is not: second when it is useless: third when it is doubtful, or obscure; hence it comes about that also in three ways custom is received; for first where there is no law, there is received the custom introductory of law, or having the force of law; secondly, into the defect of a useless law comes the custom abrogating that law; thirdly when a law is obscure, or doubtful, into its defect comes the custom which, as we said within, has the force of interpreting a doubtful, and obscure law.

Second conclusion. — Custom has the force of instituting a new law, and abrogating an old one. So all Theologians, and Doctors of either law.

The first part is proved, from the Fathers; for Tertullian lib. De Corona militis, cap. 4. speaks thus: Custom even in civil matters is received in place of law, when law fails. And Augustine Epist. 86. ad Casulanum as it is cited cap. In istis dist. 11. writes these words: In those matters, in which nothing certain is determined by divine scripture, the manner of the people of God, and the institutions of the Elders, are to be held as law: and just as prevaricators of divine laws, so also contemners of ecclesiastical ones are to be coerced.

The second part is proved, from cap. Finali de consuetudine, in these words: Although also long-standing custom is not such authority, nevertheless it will not avail so far as it ought to generate prejudice against positive right, unless it be reasonable, and legitimately prescribed. And Digestis de legibus lege de quibus, where we read, most rightly also has that been received, that not by the sole suffrage of the legislator, but also by the tacit consent of all through disuse laws are abrogated. Secondly, because custom has the force of law: therefore since a law which follows takes away the preceding law, so also custom. Thirdly from Isidore, and the Theologians after him, law ought to be according to the manner of the fatherland, suitable to place, and time: therefore by a contrary custom law is abrogated; because through that it comes about that it is no longer according to the manner of the fatherland. Fourthly, experience attests this truth: for many ecclesiastical laws no longer prevail, because they have been abrogated by a contrary custom.

You will say. Custom ought to yield to reason, as is had dist. 8. Therefore since law rests upon reason, custom ought to yield to it, and not be abrogated by a contrary one.

— I distinguish the antecedent: that custom ought to yield to reason, which excludes every contrary reason, I concede: that it ought to yield to reason which does not exclude the contrary reason, I deny: such, however, is the condition of positive laws, that they rest upon reason: which nevertheless have an opposing reason that they do not exclude, and since in custom there is involved a reason opposed to the reason of the law, custom is to be preferred to it.

You will urge. It is said also above in Canon law and in Civil law that it is not within the power of custom to overcome a law.

— I answer, that this is not the force of any prescribed custom whatsoever, but of one that is reasonable and legitimately prescribed.

Third conclusion. — In order that custom may have the power of instituting and abrogating law, several conditions are required.

First indeed, in order to abrogate a law, it must be reasonable: which is not to be so understood as if the act from which the custom begins must necessarily be good, since it is against the law: but because after subjects by evil acts have done something contrary to the law, with the lapse of time the execution of that human law, against which sin is committed, is scarcely possible, and has great difficulties; it burdens and distresses consciences rather than aids them: whence it happens that subjects believe they can do in good conscience what is adverse to the law. — This custom must also be legitimately prescribed: but it is certain that it is not legitimately prescribed unless under these conditions: first, a custom is not prescribed except by acts contrary to the law, or by a negation of acts repugnant to the law. I say repugnant to the law, because it is not prescribed by any negation whatsoever of an act. Second, those acts through which the prescribed custom is introduced ought to be voluntary: because just as a voluntary acceptance is required in subjects in order that a human law may have the force of law, so a voluntary non-acceptance, or rather disobedience to the law, ought to be the cause why a custom abrogates the law. Third, those acts ought to be manifest: both because when acts are obscure, there can scarcely be conjectured to be good faith in the subjects, which nevertheless is necessary for prescription: and also because each thing is dissolved by that same kind by which it was bound: therefore since a law is introduced through manifest acts, the contrary acts, through which it ceases, must also be manifest. Fourth, the time of this prescription with respect to Ecclesiastical laws seems to be forty years, because nothing is prescribed against the Church except by forty years, as appears from the title on prescriptions: but with respect to Civil laws ten years must intervene: because prescription of long time is ten years among those present, as is had in the civil law, although among the absent it is twenty years: but subjects, for whose good the law was instituted, are always present. Finally, those acts through which a custom of this kind abrogative of a law is induced ought to be more frequent or rarer according to this length of time by reason of the matter: for if the matter occurs more rarely, the law is prescribed away from by custom through a smaller number of repeated acts: if more frequently, more will be required: in a word, there should be so many acts that it can be gathered that as often as an occasion of fulfilling the law presented itself, so often was it contradicted. — Likewise: in order that custom may have the power of inducing a law, it is necessary that it have conditions: first it is required that that about which the custom is induced be a good act, and can be the matter of a just law: for custom has the force of law: therefore it must concern that thing concerning which a law could be enacted. Second, it must be universal, and not of a few. Third, that which is brought into custom must be judged by all necessary of observance, and not as if to be done out of devotion of the people and pious affection. Fourth, there is required the express, or at least interpretative, will of the superior, in order that such a custom may oblige: for herein is distinguished the custom whereby a law is abrogated from the custom whereby a law is instituted, which has no force of law unless it juridically proceeds from a superior: whereas without the consent of a superior a custom can abrogate a law, because then the preceding law ceases to be useful. Fifth, it must be legitimately prescribed: but in order that it be such in Ecclesiastical matters as in Civil ones, a prescription of ten years suffices, nor is it required that it be of forty years: for otherwise, where the abrogation of a law is in question, the custom would have to be prescribed by a prescription of forty years, because it would be against an Ecclesiastical law; but nothing is prescribed against the Church within a shorter space of time: whereas where the question concerns a custom which has the power of instituting law, nothing is prescribed against the Church: therefore then it suffices if it be prescribed by a prescription of ten years. From these things

Collect 1. Custom also has the power of interpreting a doubtful or obscure law; for the true understanding of a law cannot better be had than from the common practice of men, especially the wise, approved and made manifest through received custom. Which also appears from the chapter Cum diffusus on custom, and likewise law 87 of the Decretals on laws, where it is said that custom is the best interpreter of laws. Which indeed happens in two ways: first insofar as it is a sign of the true sense of the law, and of the intention of the legislator, which is gathered from the manner and custom of observing the law as from a probable, or morally certain argument, unless the contrary be evident from elsewhere. Hence Doctors and jurists not rarely affirm that a law is to be expounded according to the custom of the place. Second, custom has the power of interpreting a law, because it concurs in introducing or establishing the sense of the law and the manner of observing and fulfilling it, however less conformable it may sometimes be with the first intention of the legislator: the reason of which assertion indeed is, that the custom itself can acquire the force of law, or abrogate a law: therefore also in another way it can interpret. Whence although from the words or the matter of the law it might be doubtful whether the law obliges gravely, and therefore speaking absolutely it would have to be interpreted benignly, it ought nevertheless to be judged to oblige gravely, if it has been so received by custom.

Collect 2. Custom having the force of law is distinguished into a twofold kind: one indeed prescribed; the other truly not prescribed. The former is that by which over a long time it acquires the force of law through the consent of the Legislator Prince, in the manner in which right is acquired in the goods of another by the long duration of possession through prescription, with possession of good faith, by virtue of a general law enacting prescriptions: of which custom mention indeed is made in the last chapter on customs, where it is called custom legitimately prescribed. The latter custom, however, is that which induces right without prescription, or determination of a long time, through the tacit at least consent of the Prince knowing and tolerating what is done, when he could easily impede it and ought to; unless he tacitly consented lest some evil be incurred. For confirming the former custom there is required at least a time of ten years, as appears from laws 1 and 2 of the Code On prescriptions of long time. Which time indeed must be continuous, that is, uninterrupted through contrary acts of a superior resisting, or of the people interrupting it. But how much time suffices for a non-prescribed custom within a decade can scarcely be defined with certainty. For some think three months suffice for it: others require less; but I judge it should be decided by prudent counsel and consent of the wise according to the frequency and notoriety of the acts by which it is induced, and other circumstances, from which it is to be prudently judged that the Prince tolerates such a custom, and tacitly approves it.

Collect 3. Custom having the force of law cannot be induced except by a community, or at least by the greater part of the community acting publicly and voluntarily; so that the acts by which the custom is induced be done publicly, and without any violence. The reason of the first part of this assertion is, that custom, since it has the force of law, and is a kind of unwritten law, cannot be induced except by those who have the power and authority to enact laws: of which kind is a perfect community, or a superior presiding over it: wherefore although private persons can prescribe, and acquire a right in a possessed good through prescription: nevertheless they cannot induce a custom having the force of law. The second part of this assertion also stands; for since the right induced through custom falls upon the whole community, it must be from the whole community morally at least; inasmuch as that customary right has the power of obliging the whole community after the manner of a law. That, moreover, is said to be from the whole community morally which is from the greater part of it, as appears from elections and deliberations, and other acts which are accustomed to be done by a community.

— Note nevertheless that if the Prince enact a law concerning a custom of a few, which seems better to him, that custom will truly have full force, yet not by reason of the custom induced through the fewer members of the community, but by reason of the law enacted and established by the Prince.