A few years ago I came across an argument by an anonymous canon lawyer on the blog St. Louis Catholic in which he posited that it was still required for women to wear chapel veils while at Mass. The basis of his argument rested on classifying chapel veils as immemorial custom and then arguing that this meant its legal obligation remained despite the dropping of 1917 CIC c. 1262 from the new code. The argument was never really addressed despite it being noticed by canonist Dr. Edward Peters as well as Catholic commentators Fr. John Zuhlsdorf and Jimmy Akin. I was not very well read in the canonical concept of custom at the time, but after three years of off-and-on investigation into it, I do clearly agree with Dr. Peters’ remarks that this anonymous canonist made several conceptual errors. I respect this anonymous canonist for the credentials I’m sure he has, but I am reminded of a comment by Fr. Stuart MacDonald, JCL at Musings of a Canonist—not every canonist is a good canonist.
Below, I offer my take on the situation in the hopes of supplying the reasoning which those three did not at the time. I hope I do them justice. I don’t intend this post to be a full academic treatment of the topic. I’m content simply to lay out a few basic ideas and direct interested readers to the titles I consulted.
Custom—the habitual behavior of a community—has a fairly long history in canon law going all the way back to when canon law grew out of Classical Roman law. Customary law played a very important role in medieval law, both secular and ecclesiastical, but the last few centuries have seen a significant decline in its use. Nonetheless, it has remained a part of canon law, both in the 1917 and 1983 codes. Custom, however, is not strictly speaking law (lex). The two codes of Canon Law have provided circumstances and criteria under which this behavior can acquire the force of law (see cann. 23-28), but it is not an act of the legislator, i.e. law. In this sense, custom yields to law. Both the 1917 code and the 1983 code allowed cases in which immemorial custom and centenary custom would not necessarily yield to law (1917 CIC c. 5 & 1983 CIC can. 5), but these have to do with customs that go against the prescripts of the code (so-called custom contra legem). The use of chapel veils has never been contra legem.
The use of chapel veils may well have been at one time an immemorial custom considered binding on the Christian community. Certainly, Scripture and the Church Fathers speak of the practice, but I am not a historian or an anthropologist, so I cannot say how widespread the practice actually was. Regardless, however, the question whether wearing chapel veils was a custom with the force of law prior to the code is largely irrelevant. After the 1917 code it was no longer a matter of custom—it was a matter of law. Thus, from 19 May 1918 to 26 November 1983 wearing a chapel veil was simply doing what the law dictated. On 27 November 1983 when the 1983 code took effect and 1917 CIC c. 1262 was lost its legal force (see. 1983 CIC can. 6, § 1, 1°), wearing a chapel veil went from being a matter of law to, again, being a matter of custom. Given that the 1983 code abrogated 1917 CIC c. 1262 and that the use of chapel veils has gone back to being a matter of custom, if there is still an obligation to use them today, it would stem from post-1983 custom, not post-1983 law.
The truth is there is no post-1983 custom establishing the use of chapel veils. In fact, due to social upheaval, disruption in the Church, lack of enforcement and catechesis, and changing attitudes among Catholics, the use of chapel veils as customary behavior had ceased well before 1983, even in spite of the law of 1917 CIC c. 1262. Whereas it might have been the case in, say, 1930 that the legal obligation of 1917 CIC c. 1262 was buttressed by a customary social obligation, by 1982 it was only a legal obligation (the social obligation having ceased). Any discussion about the use of chapel veils being an immemorial custom is purely academic in the face of this clear change in behavior. Immemorial doesn’t mean incapable of changing, rather that it’s been around a long time; and, it is clear that in this case the community changed its customary behavior, immemorial or not.
The use of chapel veils may well again become a custom, i.e. a habitual practice of a community, and it may well eventually obtain the force of law if it meets the conditions laid out by cann. 23-28 of the present code. At the present moment, it has not done so universally in the Church.
For further study, I refer the reader to:
- J. Beal, et al., eds., New Commentary on the Code of Canon Law (Paulist Press, 2000).
- J. Coriden, et al., eds., The Code of Canon Law: A Text and Commentary (Paulist Press, 1985).
- E. Caparros, et al., eds., Code of Canon Law Annotated, 2nd ed. (Wilson & Lafleur, 2004).
- Amleto G. Cicognani, Canon Law, 2nd ed., trans. Joseph M. O’Hara and Francis Brennan (Philadelphia: The Dolphin Press, 1935).
- John Patrick Cook, “Ecclesiastical Communities and their Ability to Induce Legal Custom: A Historical Synopsis and a Commentary,” JCD diss. (The Catholic University of America, 1950).
- Merlin Joseph Guiloyle, “Custom: An Historical Synopsis and Commentary,” JCD diss. (The Catholic University of America, 1937).
- Francisco Suarez, Tractus de legibus ac deo legislatore, in Des lois et du dieu législateur, trans. Jean-Paul Coujou (Paris: Dalloz, 2003).