Article — Konings, Theologia Moralis
ARTICLE II: ON IRRITATING LAW
- An irritating law is that which establishes that some act is invalid from the beginning, or is to be invalidated by the sentence of a judge. Hence some laws irritate by the fact itself, but others only after sentence. Some are irritating absolutely, others conditionally, namely if the required conditions are lacking. Moreover some immediately irritate the act itself, as the impediment of marriage on account of clandestinity; others mediately, by rendering the persons themselves incapable, as the impediment of consanguinity.
Principles. - I. Every legislator can establish irritating laws; the reason is that this is required for the common good; otherwise frauds and dangers of human society could not be sufficiently driven away.
II. Laws which establish that acts can be rescinded do not irritate them before the sentence of a judge, as is plain from the terms, and therefore before the same sentence they do not obtain force.
III. But the sentence of a judge irritating must be stood by in all those things which are intrinsically born from irritation, because obedience must be given to the authority commanding.
- Questions. - Quaer. 1° Does an irritating law oblige in conscience to avoiding the act?
Resp. Affirmatively, if it is at the same time irritating and prohibiting, as are laws establishing impediments of marriage; otherwise, if it is only irritating, because then the end of the law is sufficiently obtained by the irritation of the act alone, as in many civil contracts.
Quaer. 2° Does invincible ignorance impede the effect of irritation?
Resp. Negatively of itself, because ignorance does not supply the defect of a thing essentially required, nor does it remove the grave inconveniences which would follow if the law did not irritate in every case. Thus a woman violated by an unknown man invalidly marries his brother, notwithstanding invincible ignorance of the impediment of affinity.
Make exception, however, if the law irritates solely for the penalty and odium of the offense; because then it intends to punish malice alone, and therefore, when the cause ceases, the effect also ought to cease.
Quaer. 3° Does an irritating law irritate notwithstanding very grave inconvenience?
Resp. Affirmatively, unless there is question of common damage; the reason is that an irritating law affects the act rather than the person, nor is there question of an obligation of conscience, but of the common good; otherwise men would more easily feign inconveniences for themselves, and the law would lose all its force. Hence a marriage contracted with a blood relative, even from fear of death, without dispensation, would not be valid.