Section IV. Penal and Voiding Laws

We saw in Chapter VI that if the legislator chooses, and if he thinks it will be for the public good, he may intend a positive law made by him to bind, not under pain of committing sin by its mere violation, but only under pain of being obliged to pay the penalty imposed. Such a law is, as we saw, called by theologians a penal law. Besides the rules and constitutions of certain religious orders, ecclesiastical legislation does not afford many examples of penal laws. As a rule, ecclesiastical laws are either moral laws or mixed; they forbid or command an action under pain of sin, and frequently they impose a penalty on transgressors.

It may be asked whether ignorance excuses from the penalty imposed by a law. This question is now settled by Canon 2229.

Sec. i. Affected ignorance, whether of a law or of a penalty only, excuses from no penalties latae sententiae.

Sec. ii. If a law has the words, shall have presumed, dared, knowingly, studiously, rashly, designedly done it, or other similar phrases which require full knowledge and deliberation, any diminution of imputability whether on the part of the intellect, or of the will, exempts from penalties latae sententiae.

Sec. iii. If a law has not those words, ignorance of the law, or even of the penalty alone, if it were crass or supine, exempts from no penalty latae sententiae, if it were not crass or supine it excuses from medicinal penalties, but not from vindictive penalties latae sententiae.

Some penalties are by the will of the legislator incurred by the very fact of committing the crime to which the penalty is attached; others require the sentence of the judge. Penalties which require some action on the part of the delinquent, and especially if deprivation of office is annexed to it, as a rule require the sentence of a judge; the guilty party cannot be expected to punish himself.

In order to make sure of attaining the end he has in view, the legislator sometimes annuls and makes void some act which otherwise would have its natural effect. Such a law is called a voiding or annulling law, and there are many examples of it both in civil and ecclesiastical legislation. Thus a deed is void unless sealed, signed, and delivered; a will is void unless made with the requisite formalities; marriage between near relations is null and void. Sometimes the law makes an act voidable only, and not immediately void, at the instance of someone who must move in the matter; otherwise the act will remain valid. Thus a contract entered into under constraint is voidable by English law; a gift made of his property by a religious under simple vows is voidable by his superior, unless it has taken effect and a third party has thereby acquired rights. Sometimes the law does not annul the act or make it voidable, but it refuses to grant an action to vindicate a claim or it bars the remedy. Thus English law will not aid the winner to recover a wager, nor does an action lie to recover payment of a debt barred by lapse of time.

A voiding law sometimes directly affects the act, and makes it of no effect, as does an impediment of marriage; sometimes it immediately affects the capacity of the person, as ecclesiastical law deprives religious who are solemnly professed of the capacity to make a valid will; sometimes it annuls an act destitute of certain formalities, as a clandestine contract of marriage.

If a voiding law also prohibits the acts which it annuls, it binds subjects not to perform such actions; charity and justice require also that a lawyer employed to make a will should draw it validly according to the law; otherwise one who performs an act made void by law, but which is not morally wrong or injurious to others, does not commit a sin.

Neither ignorance, nor grave fear, nor serious private inconvenience avail to make valid an act which has been made void by the law. For none of these causes affects the objective validity of the act which the law strikes at for the common good. If, however, a voiding law causes great public inconvenience, then it ceases to be for the common good; it ceases to be useful, and thereby ceases to be a law with binding force.