Well, the canon law community thinks otherwise of Dr. Peters, who is a much-respected canonist. I wonder, do you have a source from a generally acceptable canonist (one who would not be suspected due to radical opinions either disciplinary or doctrinal) who supports your view?
BTW - if something has been observed by law it has not been observed with the intention of forming a custom, and thus cannot create a custom protected by force of law.
I have a very close friend with ties to the Holy See’, my intention (after being part of this conversation), is to atempt to get this topic raised to a more appropriate adience in Rome for a review and comment. I have previously posted a very sound analysis of this topic, you can go there at:
catholicintl.com/epologetics/articles/pastoral/covering.htm
You will notice that Dr. Peters speaks of Canon 1262, but does not bother with a pletora of other Canons that have authority in this area…that is why I say he is a bad lawyer. A Canon lawyer should be unbiased, and looking only for what the truth is, not for personal agendas. The fact that Dr. Peter’s has done such a lousy job of analzing the topic tells me a lot about his agendas.
Here is a direct quote in which Jimmy Akin’s response has been countered about customs and laws:
*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 1900 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. *