“Therefore the end of all legislation is that man love God.” St. Thomas Aquinas

Custom has the force of law

Custom has the force of law


J.R.R. Tolkien’s works are profoundly political. This is in spite of his infamous detestation of “allegory in all its forms,” and the corresponding fact that his one recorded (to my knowledge) explicitly political statement reads as such:

My political opinions lean more and more to Anarchy (philosophically understood, meaning abolition of control not whiskered men with bombs) – or to ‘unconstitutional’ Monarchy. I would arrest anybody who uses the word State (in any sense other than the inanimate realm of England and its inhabitants, a thing that has neither power, rights nor mind); and after a chance of recantation, execute them if they remained obstinate! If we could get back to personal names, it would do a lot of good. Government is an abstract noun meaning the art and process of governing and it should be an offence to write it with a capital G or so as to refer to people. If people were in the habit of referring to ‘King George’s council, Winston and his gang’, it would go a long way to clearing thought, and reducing the frightful landslide into Theyocracy (Letter, 29 November 1943).

The length of this quotation is justified on the merits of its profound, poetic, and paradoxical appraisal of a healthy politics (with an equally healthy touch of irony). Whatever quibbles one might have with his verbiage, it seems quite evident that such an unconstitutional anarcho-monarchy tugs at the heartstrings of the romantic Catholic, but it is also oddly grounded in historical reality. In fact, it is an applicable definition of the state of affairs described in Andrew Willard Jones’ Before Church and State. However, I would like to focus on a theme that is only implicit in Tolkien’s analysis: the place of law in a healthy society.

It is widely held that most, if not all, actions whose object is theoretically unobjectionable are, all things being equal, perfectly acceptable from a moral standpoint. But, conversely, is it possible that an action the performance of which is per se unobjectionable (like eating eggs for breakfast) or not positively required nor prohibited (such as perjury)—in other words, a “neutral” action—acquire binding force in my conscience? More simply, can a societal custom become law?

If you are like most anglophones, “custom” has the sense of something approximating a conventional social habit, like which fork to use for your salad. On the other hand, “law,” or more specifically the rule of law, inspires the patriot to a reverence that calls for the removal of his hat and the bowing of his head. Discrete laws are classified as good or bad according to strictly functional criteria: are they efficient, without violating the metaphysical “rights” of others? Such is the litmus test of the justice of laws. But to prescinding from laws: what of Law? What is it? Like pornography, most people would not be able to define it, but could easily identify it if presented with an example.

Law is conventionally understood to mean the rules and regulations promulgated by the “legitimate” legislative subject, whose legitimacy in whatever form derives from the democratic-republican principle. Therefore, to the Conservative Catholic (“conservative” really meaning nothing more than an unadulterated liberalism, unhampered by the death and subsequent zombie-ish resurrection into neo-liberalism between the World Wars), one is morally bound in conscience to obey the civil laws as they exist, so long as they are not “very unjust”—the threshold being, I assume, something like forced abortion. We are, after all, commanded by Christ to “render unto Caesar” and by Saint Paul to submit to temporal authority as to God, from whom all authority flows (cf. John 19:11).

The Conservative Catholic is well-intentioned; he certainly does not want to be one of those Liberal Catholics who favors moral laxity and doctrinal ambiguity. No, the Church cannot be a slave to the democratism of the crowd but must rely on the rule of law to provide a basis for culture and society that is isolated from popular passions. In this sentiment, the Conservative Catholic does not err; but neither does he get to the heart of the matter.

If the Conservative Catholic’s intentions are blameless, it is with his tacit assumptions, inherited through successive generations, that we principally find fault. The framework in which the Conservative Catholic lives and thinks is essentially a liberal framework, one component of which I might call “legislative monopoly”. Here, the regulations promulgated by “the government”have a transcendent quality that render them qualitatively different from the rules a father makes for his family (which is true), simply in virtue of being issued by that self-same amorphous and abstract entity that we call the government (which is false). A more conventional, though in my opinion less precise, term for this idea is “legal positivism.”

Saint Thomas Aquinas’ Treatise on Law, while not strictly unique, is precisely for this reason eminently representative of a profoundly Christian worldview. Therein he casually mentions that “custom [consuetudo] has the force of law, nullifies law, and serves to interpret law” (ST, I-II, q. 97, a. 3, corp.). Blink and you miss it—Aquinas has deconstructed legislative monopoly before it even existed.

It is true that Aquinas does not give a succinct definition of custom here. But in many ways, this omission speaks louder than any definition that he could have given, for in the sheer nonchalance of his usage of the term, he unconsciously bears witness to the profound integration of the idea of custom in the consciousness of the society of which he was a part. Nevertheless, for our present purposes, a definition of custom is needed, and as such I would propose “the collectively-expressed rationality of a community, pertaining to norms of behavior.”

In light of this definition, one could interpret Aquinas’ pithy doctrine of custom as such: custom pertaining to the social order, in so far as it is custom, simply is law. Furthermore, all things being equal, should a given “governmental” law contradict an established custom, or should a (just) custom contrary to governmental law emerge, the custom renders the positive law null and void. Furthermore, when it comes to the implementation of positive law (which is by no means objectionable in itself), it is in many ways at the mercy of the interpretive authority of custom, which is ultimately reducible to “what we’ve always done.”

I do not wish to enter here into the related discussion, without a doubt necessary, of what happens when unjust customs and virtuous positive law collide. But just as sin itself is theoretically irregular (the mysterium iniquitatis), so the issue of unjust customs over against just positive law is really the relatively rare exception to the rule, and for the present must remain as such.

What does all this mean for us today? As far as I can tell, not much in the realm of legislative reform. The principal value of the current discussion is the subversion of the conventional meanings of common terms, viz. law and custom, and the transformative recovery of their more robust, Christian meanings. Yet this issue of authentic self-government, as opposed to its pseudo-variety common among modern conservatives, is not as alien as it might initially appear. We abide by customary law all the time, and in fact are occasionally cited for transgressing it. An example is a road in a snow storm, with a speed limit usually posted for 45 miles per hour. Now, assuming that weather only permits a reasonable speed of 25 miles per hour, one can transgress this “spontaneous, rational” customary law, literally “legislated” in a way that everyone seems to have agreed upon it without ever having spoken to each other, by going “unreasonably” fast—and receive a traffic ticket (!), even though one did not transgress the sign on the road.

The pseudo-self-government referenced above has to do with the contractualism which seems to be the ace in the hole of the liberal machine. With the framing of all human relationships in contractual terms, all human interactions are thereby governable. (This is one of the deepest meanings of the idea that “the family is the primary and indestructible unit of society,” since the family is essentially a pre-contractual communion; contractualism can only exist within the framework of individualism.) Therefore, even libertarianism is theoretically totalitarian, due to its understanding of the primary function of governments being the enforcement contractual agreements, which are ubiquitous. The depth of contractualism within liberalism can be seen clearly in the architectonic writings of Locke and Rousseau’s theory of the social contract: hierarchy is construed as a functional necessity and formed by qualitatively equal (read: anonymous) actors called “citizens” who graciously allow the “government” to legislate on their behalf. It is certainly true that Aquinas situates the legislative prerogative in the hands of a single ruler or body, but only insofar as said ruler stands “in the person of” the community as a whole. Yet we cannot be fooled by some obtuse “Thomistic Lockeanism.” The very foundations of the two thinkers are separated by a chasm with radical individualism (liberalism) on the one side, and communio (Catholicism) on the other.

I conclude with another reference to Tolkien, this time from the prologue to the Fellowship of the Ring. The Hobbits of the Shire have no bicameral legislature or president; they do, however, have a mayor, whose chief responsibility consists in presiding over banquets, and a Thain, nominally the king’s representative but in reality a ceremonial figurehead (much like the modern British monarch). They have no “government” to speak of. Yet the Shire is not a mess of greedy self-interest and ubiquitous, ontological violence between individuals—these do not come, ironically, until the advent of industrialism under Sharkey’s regime—but we are told that the Hobbits kept “all the essential laws” voluntarily, for the simple reason that they were “both ancient and just.” This is truly the meaning of Tolkien’s unconstitutional anarcho-monarchism, that free persons, who are existentially crippled if not immersed in a community of love, constitute the only basis for a healthy social order. This is nothing other than the social teaching of the Church, which transcends all political machinery in order to arrive at the Gospel: the transformation of man into Christ himself through the efficacious power of grace.

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