Wednesday, June 20, 2018

The Legal Force of Tradition

The Roman Church is much more traditional than it was twenty years ago, but one cannot say tradition governs that Church, at least not the way it once did and some hope it might one day govern again. The Church is ruled by men, by bishops and other representatives of the Apostles who may or may not faithfully execute their sacred charges. A general guideline of administration has been received for these times. No, not the Didache or the canons of Trent; no, it is the 1983 Code of Canon Law, a modern reduction of a slightly less modern consolidation of authority.

On its own a code of law may be a good thing. The code could provide the same protections and processes in Church law that Common Law does in secular administration. The problem is that while the "spirit" of secular law is often alive and well with regard to trial by a jury of one's peers or property rights, the 1983 Code of Canon Law does little regarding Christian living other than set widely ignored minimums which make establishing a stronger standard of Catholic life difficult.

Take, for instance, fasting.

The Eastern Churches, Catholic and Orthodox, still take fasting very seriously; the more ethnic the parish the stricter the observance. Lent, to the best of one's ability, admits one vegan meal a day after sunset. In practice the vegan diet is more widely observed than the Spartan quantity, but the spirit and a degree of the letter remain. Less fasts for the Apostles, Dormition of the Blessed Virgin, and the Nativity of the Lord fill out the rest of the year. One cannot say fasting is not a legal requirement of the supposedly non-legalistic Eastern Churches. Fasting and abstinence are laid out in the canons of various synods of Eastern bishops and their antiquity has not made them any less binding than current law. The difficulty in observing the fasts and abstinence often results in genuinely pastoral accommodations and the encouragement to do as much as one can during those seasons. Does tradition of this sort, so embedded in Christian life and the basic outlook of repentance that it cannot be reduced to mere custom, have a force of law where standards lack?

None other than the Common Doctor warned against men altering their own laws and weakening their effect:
"Consequently, when a law is changed, the binding power of the law is diminished, in so far as custom is abolished. Wherefore human law should never be changed, unless, in some way or other, the common weal be compensated according to the extent of the harm done in this respect. Such compensation may arise either from some very great and every evident benefit conferred by the new enactment; or from the extreme urgency of the case, due to the fact that either the existing law is clearly unjust, or its observance extremely harmful." Summ. Theol. II.97.2
Another Dominican, Saint Pius V, was aware of this in making the Curial Missal and Office the normative rite for Latin Christianity. Rites more than two centuries old retained the force of obligation and could only make way for the Roman rite with the mutual consent of both the ordinary and the unanimity of his cathedral chapter, which often happened only out of laxity. The problem in this case is that the current Code of Canon Law asks very little, tradition asks very much, and the latter is a hard case to make to people who prefer the niggardly standards of the former.

The aim of tradition, in the sense of this post, was always to cultivate the dictates and continued presence of Christ in the Church. Christ sanctified fasting by spending forty days in the desert to subdue what is wanting in human nature and in doing so subdued Satan, too. Our Lord even put fasting on par with prayer as a necessary means of driving out devils (Mark 9:29)—how many devils have we that we refuse to confront? In the kalendar the Church historically pairs fasting with feasting so as to unite ourselves to the sufferings of Christ and to share in His joy afterward. This is most visible from Septuagesima until Whit Wednesday, but also during the vigils of great saints and the ensuing feasts in their octaves. Ember days and Lent once saw abstinence on par with Eastern custom until the dawn of the French Revolution. Keeping vigil, of which fasting was a part, was so integral to medieval feasts that a feast would be considered a lesser occasion if it lacked a strong vigil. Now fasting is required two days a year and, in the United States at least, accompanies the previous six Fridays of Lent as the only days which do not permit substitute "penances" for abstinence. It is difficult for this writer, who is as guilty as any of having scallops and swordfish drenched in French sauces on Fridays, to conceive a way of convincing others to observe abstinence and fasting when the written law, equivalent with direct obeisance to the current episcopate in the eyes of some, asks nothing more. If something is not explicitly asked for how can its neglect be a sin?

To end this very inconclusive post, I leave you with another quote from the Angelic Doctor's dealing with law:
"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." Summ. Theol. II.97.3


  1. The Portuguese were exempt from fasting for a few centuries due to an indult (I believe the Spaniards have/had something similar). I believe that, it the long run, it was prejudicial to "Portuguese Catholicism". The Portuguese, on the most part, have no appreciation of fasting, and many now have no understanding of the indult (which allowed for certain penances to be made in lieu of abstinence from meat - like giving money, for example). If you're interested, I can provide you with the guidelines for the indult.

    1. Interesting. What instigated the indult?

    2. Portugal received indulgences pretty much from the get-go associated with the Reconquista, which was considered something of a crusade; the indulgences over the centuries became known as the Bull of the Holy Crusade. Benedict XV extinguished the Bull in 1914, substituting it with Papal Indults (even though people still referred to them as "the Bull"). These indulgences came to an end in 1966.
      Before they were extinguished, they consisted in the following:
      1- Use of any kind of fat for seasoning, as well as eggs and dairy on any day of the year, as well as at any meal;
      2- a:Days of fasting and abstinence -- Lenten Fridays, as well as the Vigils of Pentecost, Assumption, All Saints and Christmas;
      b:Days of fasting and no abstinence -- Lenten Wednesdays and Saturdays;
      c:Days of abstinence and no fasting -- Adventide Fridays, Embertide Fridays;
      3- To take advantage of the Bull, a "tax" had to be paid; the poor were not obliged to pay anything to take advantage of it (and apparently there was one diocese where, because of immemorial custom, no one was obliged to pay). Those who did not "pay the Bull" (as was the expression in Portuguese) were obliged to follow the full force of the Church's law on fasting and abstinence.

    3. Prof. Hull talked a bit about this on page 165 of "The Banished Heart" about the laws of Latin fast and abstinence becoming laxer and laxer. Urban II gave the indult first in 1089 to Spanish countries who fought the Moors, according to footnote 34.

  2. My best friend, who is a Bosnian Muslim, just recently completed his month long fast for Ramadan. When I asked him about how he able to perform such a strenuous fast, he told me, "it's hard but we are commanded to do it. Plus, over time, the progress you see in your spiritual life brings you a deep joy so there is certain sadness when the month finishes."

    Even though I am no longer a Roman (I'm part of the Russian Greek Catholic Church), I hope the Roman Church will once again ask more from her children.