Canon 1262:

§1. It is desirable that, consistent with ancient discipline, women be separated from men in church.

§2. Men, in a church or outside a church, while they are assisting at sacred rites, shall be bare-headed, unless the approved mores of the people or peculiar circumstances of things determine otherwise; women, however, shall have a covered head and be modestly dressed, especially when they approach the table of the Lord.

The Code of Canon Law is a document that for the most part does not deal with liturgical law (see canon 2 of both the old and the new codes). As a result, whenever the Code does say something of a liturgical nature (like canon 1262), there tends to be an echo of it in the Church's liturgical books. This means that, when the liturgy was integrally reordered following Vatican II, the head covering requirement may have lapsed at that time since it was not repeated in the new liturgical documents.

R. Sungenis: Vatican II didn't repeat or address a lot of things, but that doesn't mean we no longer have to believe them or practice them.

J. Akin: The promulgation of the new liturgical law may have overridden the liturgical provisions of the 1917 Code, just as many provisions of the Code were being overridden in the years leading up to the promulgation of the 1983 Code. While this is a possibility, I have not been able to verify it.

Nevertheless, it is certain that the legal obligation ceased with the release of the 1983 Code of Canon Law. The reason is that the new Code expressly abrogated the old Code, stating:

Canon 6:

§1. When this Code takes force, the following are abrogated:

1° the Code of Canon Law promulgated in 1917;

The legal requirement made by canon 1262 of the 1917 Code thus lapsed with the abrogation of the 1917 Code itself. For the head covering rule to still be in force, it would have to have a different legal basis. However, the revised liturgical documents do not contain it, and neither does the 1983 Code. In fact, the new Code has no canon that parallels the old Code's canon 1262 (meaning that at Mass men and women no longer need to sit apart, men no longer need to remove their hats as a matter of law, and women no longer need to wear them).

R. Sungenis: As we will see, "revised liturgical documents" do not have to contain the matter of head coverings in order for it to be upheld or practiced. Unless there is a specific provision doing away with the practice, arguments cannot be drawn from silence. If that were not the case, then every time an official statement came from the Vatican, if it did not cover every single article of the faith and of practice, we would not be required to abide by them.

As for the issue of "sitting apart," St. Paul did not address that issue in 1 Corinthians 11, and thus, sitting apart is a practice issued by the Church that has no Scriptural mandate, and therefore could easily be put into disuse when appropriate. Not so with head coverings, since St. Paul is very clear that it is a divine directive, inspired by the Holy Spirit, and for the purpose of giving the woman a symbol that she is under the authority of the man, as many other passages, by divine directive, also teach (1 Cor 14:34-38; 1 Timothy 2:11-15; Col 3:18; Eph. 5:22-33; 1 Peter 3:1-6, et al).

J. Akin: Some recently have tried arguing a different legal basis for the head covering rule by appealing to custom. Canon law does provide for the possibility of customs obtaining force of law, but for this to happen several requirements must be met, as you can see from the following canons:

Can. 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.

R. Sungenis: Head covering, as a "custom," which also become a divine law promulgated by St. Paul, was introduced in the first century AD. This same custom, and law, was already "approved by the legislator," namely, all the previous popes. There has been no pope who has specifically rescinded the practice of head coverings. See more below.

J. Akin: Can. 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.

R. Sungenis: Apparently, the traditional Catholic Church had no problem of being "capable at least of receiving law," since she practiced the matter of head covering from the first century to the early 1970s. Hence, the burden of proof is upon those who, without any specific magisterial statement, have arbitrarily put the practice into disuse.

On the other hand, perhaps it is the case that people like Mr. Akin are "not capable at least of receiving law," since throughout his explanation Mr. Akin makes no reference and gives no answer to the divine directive in 1 Cor 11, and elsewhere, for the woman to be under the authority of the man, and to symbolize it by wearing a head covering.

J. Akin: Can. 26 Unless the competent legislator has specifically approved it, a custom contrary to the canon law now in force or one beyond canonical law 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.

R. Sungenis: Mr. Akin has his bearings all wrong. The starting point for the "thirty years" is not when liberal Catholics decided to dispense with head coverings, but with the Catholics of the first century who practiced the custom of head covering, and which St. Paul reinforced by giving it a divine basis connected to the authority of the man over the woman.

J. Akin: The argument that is made appears to be that the mandatory wearing of head coverings by women is an immemorial custom and thus obtains force of law per canon 26. The problem with this line of argument is that it involves a category mistake. Though we might colloquially speak of the "custom" of women wearing head coverings, this matter did not belong in the legal category of custom prior to its abrogation. It was not a matter of custom but a matter of law. The 1917 Code expressly dealt with the subject, so it was not a custom but a law that women wear head coverings in Church. That law was then abrogated.

One cannot appeal to the fact that, when a law was in force, people observed the law and say that this resulted in a custom that has force of law even after the law dealing with the matter is abrogated. If one could say this then it would be impossible to abrogate any long-standing law--or at least any long-standing law that people generally complied with--because mere law keeping would create a binding custom that would outlive the law.

R. Sungenis: It appears Mr. Akin is making up his own rules. Where does Canon Law say that a custom cannot also be a law? A custom can become a law, or even have the force of law, and unless the law specifically abrogates the custom, the custom is still a custom.

Second, Mr. Akin conveniently forgot to deal with the main argument of Canon 26, which is:

"Only a centenary or immemorial custom, however, can prevail against a canonical law which contains a clause prohibiting future customs."

In other words, if a custom has been practiced for 100 years, then even a canon of the 1983 code which specifically mandates that head coverings are not to be worn, cannot usurp the previous custom! (Of course, there is no such law in the 1983 code, which makes Mr. Akin's argument all that much weaker).

Since the 1983 code is showing us its own limitations in regard to 100 year old customs, we now know why the 1983 Code makes no mention of head coverings! That is, it wouldn't make any difference whether it did or did not, since it could not abrogate a custom older than 100 years.

Now reason it out for yourself: how long were head coverings practiced in the Church, even before the 1917 code? The answer is, for 1700 years until 1917, and 1970 years before the liberals of the post-conciliar Church decided to stop the practice.

Third, if we want to consider this a matter of law, that is, the 1983 code versus the 1917 code, then Mr. Akin needs to deal with Canon 21 of the 1983 code, which says:

"In a case of doubt, the revocation of a pre-existing law is not presumed, but later laws must be related to the earlier ones and, insofar as possible, must be harmonized with them."

Now, this tells us that the law of head covering promulgated in the 1917 code, is "not presumed" to have been revoked (especially since the 1983 code says absolutely nothing about head coverings being revoked). In other words, just because the 1983 code abrogates the 1917 code as a legal document, this does not mean that "pre-existing laws" in the 1917 code have no affect upon us.

Why would the 1983 code make this stipulation? Obviously, because the 1983 code does not want to appear at odds with its own tradition. The Catholic Church (at least the one most of us know from the past) does not wish to yank beliefs and practices from the people which have stood the test of time, especially those beliefs and practices stemming from the first century and which are specifically mandated in holy writ, as head coverings are.

In fact, Canon 21 says that the 1983 code "must be related to the earlier ones [the 1917 code] and insofar as possible [the 1983 code] must be harmonized with them [the laws of the 1917 code]."

Do we see Mr. Akin trying to do any "harmonization"? No, not at all. He is happy to try and dismiss each and every argument put before him, so that he doesn't appear to be going against the progressive church of the second millennium which despises head coverings.

J. Akin: This means that, following the abrogation of the head covering law, the faithful of the Latin church (the community supposedly still affected by the head covering rule) would have to introduce the practice as a matter of custom, intending it to gain force of law (per canon 25), following which the legislator of the Latin church (the pope) would either have to specifically approve the custom or it would have to be observed for a thirty year period.

R. Sungenis: Notice, now, the force of Mr. Akin's words: "This means that, following the abrogation of the head covering law." Can Mr. Akin show us in the 1983 code of Canon Law, or any official statement from the Magisterium, where it states that the Church is "abrogating the head covering law"? No, he cannot.

The only thing to which Mr. Akin can appeal is that, on a legal basis, the 1983 code of Canon Law abrogates the 1917 code of Canon Law as a legal and binding document.

But we already saw in Canons 20-21 (the issue Mr. Akin doesn't address) that the 1983 code does not make its legal authority over the 1917 code absolute, rather, it says that the "revocation of a pre-existing law is not presumed (e.g., head coverings) but that the "later laws [the 1983 code] must be harmonized [with the 1917 code]."

Pretending that women should no longer wear head coverings, and ignoring St. Paul's command in 1 Cor 11, is not what we would call "harmonizing" with the 1917 code. It is a flat out rejection of both the principles of the 1917 and 1983 code, and the Scriptural mandates behind them, and Mr. Akin and the post-conciliar Church are in flagrant violation of all three.

If there is any doubt about Canons 20-21, then Canon 26 tells us that a custom of 100 years can prevail even over a new code of Canon Law that specifically prohibits the practice! Can it be any clearer? So is Mr. Akin obeying the 1983 code? No, he is picking and choosing from it what he would like to believe and practice.

If that is not clear, then Canon 28 says that "Unless it [the 1983 code] makes express mention of them [the issue of head covering]...a law [of the 1983 code] does not revoke centenary or immemorial customs [head coverings], nor does a universal law revoke particular customs."

J. Akin: Those things have not happened. The faithful of the Latin church did not introduce head coverings after the abrogation of the law regarding them.

R. Sungenis: Again, Mr. Akin's argument is anachronistic, since the 1983 code is speaking about NEW customs that have not been practiced previously, not customs that have already been practiced for nearly two millennia (e.g., head coverings).

J. Akin: In fact, even when the subject was a matter of law, it was widely disregarded--so much so that the disregard is probably the reason the law was abrogated. The Latin faithful certainly did not introduce a head covering custom with the intent to bind themselves to observe it, so the requirement of canon 25 is not met.

R. Sungenis: Besides the fact that Canon 25 is speaking about the introduction of new customs, notice how Mr. Akin is not the least bit ashamed of revealing that the law of head covering was so "disregarded" by the "Latin faithful," (in other words, the people were being disobedient both to Canon law and to Scripture) that the Church decided to do away with the practice of head covering all together! In other words, disobedience is the "custom" to which Mr. Akin appeals in order to have it become the "binding" practice of the Latin church. Yes, this is the impeccable logic of the post-conciliar Church.

J. Akin: Further, the pope has not specifically approved this non-existant custom, nor has it been observed for a thirty years period, so the requirements of canon 26 are not met.

R. Sungenis: How can a pope approve a "non-existent custom"? All he can try to do is enforce or rescind a present custom. But according to his own 1983 code of Canon Law (Canon 26), even if the pope tried to introduce a new canon to specifically abrogate the practice of head covering, the fact that head covering is a custom of over 100 years old means that the new canon law could not "prevail" against the custom!

Sound a little difficult? Well, that's what happens when you arbitrarily attempt to change long-standing Catholic traditions. You run smack into a brick wall, and even the 1983 code admits there is a brick wall.

J. Akin: Also, canon 28 provides that: "Without prejudice to the prescript of can. 5, a contrary custom or law revokes a custom which is contrary to or beyond the law." Since the matter of women's head coverings at Mass is not dealt with in present canon or liturgical law, a custom involving it would be beyond the law and hence would be revoked by a contrary custom, which is what we in fact have had in the Latin church for the past thirty years.

The argument from custom thus does not provide a basis for a continuing legal obligation for women to wear head coverings at Mass.

July 28, 2004 in Liturgy | Permalink

R. Sungenis: Since Mr. Akin failed to cite the rest of Canon 28, we can see why he makes such false conclusions. As noted above, the rest of Canon 28 says that if a custom is 100 years old, then not even a new law can revoke its practice.

Ask yourself the logical question: How long, prior to the 1970s, was the practice of head covering in the Catholic Church? Answer: 1970 years. Do you think that fits the criterion of Canon 28 that it must be 100 years or older to be impervious to any attempt to abrogate it? I'll leave the answer to you.

Robert A. Sungenis, M. A.
Catholic Apologetics International
July 31, 2004