Summa summae S. Thomae, Tomus II

as the sun illuminates by its rays things previously obscure to us, which become visible when those rays are reflected back to us. And for this reason principles of this kind are rightly called reflex. In this therefore consists the efficacy of these very principles, that, since the existence of some law can be affirmed only probably, and by that very fact the obligation of observing such a law remains doubtful, from the aforesaid principles it is pronounced whether one acting against a doubtful law can act licitly, or whether he is bound to observe it.

That 5° reflex principles are necessary for solving the practical doubts here treated of is demonstrated from the very fact itself. For whatever opinion prevail in the present matter, immediately some reflex principle intervenes. Tutiorists, as well as probabilists, are compelled to concede that a doubtful law as such does not oblige, that is, in reason of the doubt itself, because doubt is a negative thing, from which nothing positive, such as obligation, can arise. On either side therefore recourse is had to some external principle, for determining what is practically to be decided. Tutiorists, affirming obligation in every doubt, lean upon this reflex principle : « In doubt the safer part must be followed. » Probabilists, who deny obligation, since the opinion opposed to the law is truly and solidly probable, place among the reflex principles they allege this principal one : « A doubtful law does not oblige. » Therefore in the present question some reflex principle necessarily intervenes.]

[Since in the present question we treat of the value of probable opinion relative to conscience, in practical matters, it must first be said what opinion is, and then what probability is and in how many ways it is diversified.

Opinion in general is assent to one or the other of two propositions, or adherence to one or the other of two contradictories, with fear of the other. It excludes certainty, which so clearly manifests a thing that the opposite appears not merely doubtful, but impossible.

Probability is the likelihood which, according as it is greater or less, draws the assent of the mind more or less toward one of two contradictories. Hence a probable opinion or sentiment is a judgment resting upon a weighty motive or foundation, though with fear of the opposite. An improbable opinion, however, is a judgment destitute of a solid motive. Whence it seems that opinion, so long as it does not exceed the limits of probability, however probable it be, does not altogether destroy the likelihood of the contradictory proposition, but only weakens it, according to the solidity of the foundation on which it itself rests.

Probability is distinguished in many ways:

1° It is intrinsic, when the reasons establishing it are sought from the very nature, properties, causes and effects of the thing, and also from the inconveniences of the opposite side. It is extrinsic, when it rests upon the authority of weighty doctors who deservedly consent that this sentiment should be held on account of solid reasons, even if those reasons have not been weighed in themselves.

2° It is of law or of fact, according as it turns upon the existence of a right or law and its application, or upon some fact.

3° It is speculative or practical, according as it regards the question in itself, abstracting from every act here and now to be posited, or an act to be posited presently.

4° It is absolute, if on account of the validity of its reasons it is admitted by all or by most; or relative, when only one man or a few are determined by arguments that do not draw common assent.

5° It is solitary or comparative, according as such it appears in itself, without any relation to another, or its reasons are compared with the arguments which contend for the contradictory proposition.

6° Comparative probability is divided by degrees into greater, less and equal: that is, a certain proposition is more probable, or equally or less probable than its opposite, according as it rests upon stronger reasons, or upon reasons equally or less strong.

7° A more probable opinion also admits of degree; for an opinion is more probable, or notably preponderant, when the reasons of the sentiment preponderate; a little or notably more probable than its adversary, when

8° Most probable likewise is the opinion which rests upon a most weighty foundation. Then the opposite is slightly or doubtfully probable.

9° Moreover, a probable opinion is safe, or safer, or less safe, according as it simply favors the law, or favors it more or less than does its adversary. Therefore a more probable sentiment is not necessarily safer, since a greater probability can also stand for liberty.]

[From the distinctions prefixed it is plain that probability is here understood by us insofar as it affects, not the intellect in speculative matters, but conscience in things to be done. Moreover actions are determined and imposed by law. Law, therefore, as it ought here to be considered, is the will of a superior concerning what he wills or wills not to be done, made manifest to the subject. If the law be altogether and invincibly unknown through defect of promulgation or of cognition, the action repugnant to it is called material sin, or matter of sin; but if the law be known, or vincibly and culpably ignored by the agent acting against it, the sin is formal, because the will of the inferior contradicts the will of the superior, and thus is inordinate and evil. It happens however not rarely that the subject can neither affirm nor deny the existence of the law, opposite arguments contending for it and against it. Then the law is merely probable or doubtful; and since obligation is an effect of law, the question is raised whether the subject is then held to obey such a law, or is immune from it.

We must therefore treat solely, in the present question, of the licit or illicit alone, that is, of the honesty of an action against a probable or doubtful law posited. This must always be held before the eyes in this dissertation, lest certain confusions be incurred which would render the matter inextricable, and of which there will be mention below.

The systems which have issued concerning probability can be reduced to three heads, namely tutiorism, probabiliorism and probabilism. — There can be added a certain system lately arisen under the name of compensative probabilism.

1° Rigid or absolute tutiorists are those who, in the conflict of two opinions whereof one favors the law and the other liberty, will that the side of the law always be embraced, professing this principle: « In doubt the safer side is to be followed. » From this doctrine it follows that even a most probable opinion favoring liberty cannot safely, that is licitly, in practice be preferred. And in truth many of the Jansenian sect, with Nicolaus for leader, required in every case moral certainty of the honesty of the action, that conscience be unhurt. But when Alexander VIII had condemned the following proposition: « It is not licit to follow the opinion, even though most probable among probables, » several, withdrawing from their pristine rigor that they might avoid the pontifical censure, conceded it licit to follow an opinion against the law provided it be most probable, because then the action is most probably honest, and as such opposed to no rules of prudence. These later tutiorists are called benign.

2° Probabiliorists hold it licit to follow the less safe opinion, provided it be truly, that is notably, more probable. If the opinion favoring liberty be only lightly more probable, they permit it not to be preferred, because, say they, in morals little is reputed as nothing. Of the truth of this system our Billuart above endeavored to give demonstration.

3° Probabilists teach it licit to follow the less safe opinion although it be not notably more probable. They are divided into three classes: 1° Rigid probabilists, or equiprobabilists, assert that election is not free unless the opinions for the law and against the law be equally probable. 2° Benign or moderate probabilists hold it licit to follow the opinion less safe and less probable, provided it be truly and solidly probable. 3° Lax or laxer probabilists taught that it is ever lawful to follow the opinion less safe and probable, even should its probability be slight or most slight, « provided one go not beyond the bounds of probability ». This system was condemned, as will plainly appear below.

4° The system of compensative probabilism, which will be set forth more fully below, consists in this. Since the law is doubtful, or existing only probably, if such a law binds, in favor of liberty it is not licit to solve the doubt, unless first the advantages and disadvantages which must arise have been pondered and weighed, whether one act according to the law or against it. If the advantages which the agent acting against the law will enjoy surpass, or at least equal, the inconveniences thence arising, it is licit to use liberty; otherwise the law prevails. — This pseudo-probabilism will be weighed in its own place, and we shall demonstrate its emptiness, the question of probabilism being first exhausted, to which truly it does not belong.

The various systems opposed to moderate probabilism will sufficiently be overthrown by the demonstration of the proposition which enunciates the whole doctrine of the probabilists. Whence

[Note 1° that the question is here restricted absolutely to the sole licitness or honesty of the action, to avoid the confusion into which many authors have fallen, who did not sufficiently distinguish the licitness of an action from the validity of an act. For two following cases essentially differ: Is it licit on such a day not to fast, if truly doubtful be the law prescribing fasting on this day; and: Is it licit to employ doubtful matter for confecting a sacrament, when certain matter is present. In the former case there is question of the licitness of the action, and it is the very question of probabilism. In the latter case there is question of the validity of the act, and this question nowise pertains to the system of probabilism, as will be explained more fully below.

Note 2° that the contest here instituted is between an opinion truly and solidly probable favoring liberty and an opinion equally probable, or even more probable, favoring the law. For it must be observed 1° that opposite opinions are buttressed by grave reasons, so that the mind hesitates in suspense, considering the matter objectively, and then each opinion is truly and solidly probable. 2° The difference of probability is often merely subjective. For it can happen that what appears more probable to one seems less probable to another, because each is affected differently by reasons warring among themselves, on account of circumstances which, if changed, would incline each in a contrary manner to judge. This variable inequality, which cannot be notable, cannot bring it about that one of the opposite opinions become thus notable that the other no longer be truly and solidly probable. 3° Even if objectively one opinion be in fact more probable than another, this latter can be so far from being attenuated that it ceases to be truly and solidly probable. Our proposition therefore stands whenever an opinion favoring liberty is truly and solidly probable, although the opposite can be defended by somewhat stronger arguments. And thus must be understood the equiprobabilism of St. Liguori, who, while he denies it licit to follow the less probable opinion, leaving the more probable and safer, understands this latter to be certainly and notably more probable, not indeed little or doubtfully more probable, because then the former would be only doubtfully or lightly probable and could not draw the assent of a prudent man.

Note 3° that our proposition must be understood both of extrinsic probability, which rests only upon the decisions of doctors, and of intrinsic probability, which is drawn from consideration and weighing of the question to be solved. For he who is not sufficiently expert in theological matters, so as to be able himself to settle a practical doubt, prudently forms his judgment from the decisions of the more learned. Whence, when it has been ascertained by him that such an opinion is held as truly probable by authors of the best note, he has the probability required to act legitimately upon it. This was defined by the Holy See, when the holy Penitentiaria pronounced, in the year 1831, before St. Liguori was inscribed in the catalogue of saints and adorned with the title of Doctor of the Church, that a confessor following the opinions of this theologian was not to be disturbed, the reasons on which they rest not being weighed, because he judges them safe for this sole reason that the Holy See has declared nothing worthy of censure found in the Alphonsian writings.

These things posited.

I say : It is licit to follow an opinion truly and solidly probable favoring liberty, leaving the safer opinion equally probable, or even more probable, where there is question solely of the licitness of an action.

It is proved 1° by reason. Reflex principles here intervene, by which the proposition must necessarily be established.

FIRST PRINCIPLE : A doubtful law does not oblige.

Proof. The law does not oblige unless it have actually binding force. But the law against which is opposed an opinion truly and solidly probable has not actually binding force. Therefore such a law does not oblige. — The major does not seem to need proof, but only explanation. Law can be considered two ways, namely in fieri or in potency, and in fact accomplished, or in act; and this distinction is intimated by St. Thomas, Iª IIae, q. 90, a. 1, ad 1 : « Since law is a rule and measure, it is said to be in something two ways. In one way, as in the measuring and ruling; and since this belongs properly to reason, in this way law is in reason alone. In another way, as in the ruled and measured; and thus law is in all things which are inclined to something by some law. » In the former way, as you see, law existing in reason alone is in fieri, and if it already has some act, it is no other than the first act, from which it exists only in potency. But how law is in the ruled and measured, that is, in its subject, as regards the second act, which is simply and properly act, the Angelic Doctor declares below, a. 4, c, saying : « Law is imposed on others after the manner of a rule and measure.

But a rule and measure is imposed by this that it is applied to those things which are ruled and measured. Whence, in order that law obtain the virtue of binding, which is proper to law, it must needs be applied to men who ought to be ruled according to it. » But by this application law obtains its act, as understood above, that is, the second act. Therefore it does not bind except through this act. — Proof of the minor. The law has not actually binding force unless it have been really promulgated. But the law against which is opposed an opinion truly and solidly probable has not been really promulgated. Therefore it has not actually binding force. — Proof of the major. This proposition is equivalent to the following: The law does not oblige unless it really exists and is a true law. Moreover, it is certain that the law does not have full or true existence, or is not in second act and applied, and consequently is not a true law that binds, unless it has been promulgated. It is disputed among theologians whether promulgation is of the essence of law. Some say it does not belong to the essence, but nevertheless is a condition sine qua non that the law oblige, because the subject cannot be held to keep any law if he ignore it. Others teach, and better, as will be proved in the treatise on Laws, that promulgation is of the essence of law. St. Thomas, ibid., a. 4, solves the question thus : « Whether promulgation is of the nature (ratio) of law? » At the head of the objections the negative proposition is read : « It seems that promulgation is not of the nature of law. » After having said in the body of the article, as read above, that law is imposed « after the manner of rule and measure, » and that it is necessary, in order that it obtain binding force, that it be applied or imposed upon men, the Angelic Doctor continues : « But such application is made by this that it is led into their knowledge through promulgation itself. Whence promulgation itself is necessary in order that law have its virtue. » But having alleged the most trite axiom of law : « Laws are instituted when they are promulgated, » he places promulgation in the definition of law, which he establishes : « Law is nothing else than a certain ordination of reason for the common good, promulgated by him who has the care of the community. » Into whatsoever part anyone incline, he is compelled to admit our proposition, namely that the law has not actually binding force unless it has been really promulgated. — Proof of the minor. The law whose existence is not certain (or a doubtful law) is not really promulgated. But the law against which is opposed an opinion truly and solidly probable is not certain (or is a doubtful law). Therefore such a law is not really promulgated. — To guard against all ambiguity, it must be noted that there is not treated in this argument, as in the whole question, the promulgation made in the external forum for the community, which binds juridically all subjects ipso facto, who are held to know it and cannot commonly pretend ignorance to excuse transgressions and escape penalties, because they are presumed by right to have violated the law knowingly. We weigh here the force of a doubtful law in the internal forum, and it must be asked whether a truly doubtful law ought to be held as really promulgated in this forum, that is, whether it binds conscience. This standing. — Proof of the major. With St. Thomas we say, here q. 90, a. 1, c : « Law is a certain rule and measure of acts, according to which someone is led to act or withdrawn from acting; for law is said from binding (ligando), because it obliges to acting. » Whence law ought not to be considered in the abstract, but as it is something practical; and this rule and measure becomes practical only if applied really to a subject, as the Angelic Doctor teaches, ibid., a. 4, c, saying : « Rule and measure are imposed by this that they are applied to those things which are ruled and measured. Whence, in order that law obtain the virtue of binding, which is proper to law, it must needs be applied to men who ought to be ruled according to it. » Further, according to the same, ibid., « such application is made by this that it is led into their knowledge through promulgation itself. » But he who is truly uncertain about the existence of the law has no knowledge of this law. Therefore it is not really promulgated to him. If it be answered, as pleased some, that one doubting the existence of the law has some knowledge of this law, which is sufficient promulgation that he be held to regulate and measure himself according to this law, such objection is refuted by St. Thomas himself, explaining what must be understood by the knowledge required in order that law be really applied through promulgation. For he says, q. 17 de Veritate, a. 3 : « It must be known that obligation, taken metaphorically from bodily things to spiritual things, imports imposition of necessity... So stands the command of someone governing to bind in voluntary things, in that mode of binding which can happen to the will, as stands bodily action to binding bodily things by necessity of coercion. But the bodily action of an agent never induces necessity into another thing except through contact of its own coercion upon the thing in which it acts. Whence neither is anyone bound from the command of any king or lord, unless the command reach the very one commanded. But it reaches him through knowledge. Whence no one is bound by a precept to anything except through mediating knowledge of that precept: and therefore he who is not capable of knowledge is not bound by precept, nor is anyone ignorant of God's precept bound to doing the precept, except inasmuch as he is held to know the precept. But if he be not held to know it, nor know it, he is nowise bound from the precept. As therefore in bodily things the agent acts corporeally only through contact, so in spiritual things the precept binds only through knowledge... Since the precept binds only through the virtue of knowledge, nor knowledge except through the virtue of the precept. » But if anyone should dare affirm, with Patutio, most bitter attacker of St. Alphonsus de Ligorio, and with the chief of compensative Probabilism, of which below, that knowledge is here taken by St. Thomas in a broad sense, and to be understood of any knowledge whatever, even doubtful, whose motive is grave, so that simple opinion about the existence of the law is equivalent to promulgation, our Doctor closes this escape, saying, IIª IIae, q. 1, a. 5, ad 4 : « Knowledge together with opinion cannot at once exist simply concerning the same thing, because it is of the nature (ratio) of knowledge that what is known be judged impossible to be otherwise; but it is of the nature of opinion that what is opined be judged possible to be otherwise. » Whence, according to the Angelic Doctor, the law of which there is not had science or certain cognition neither reaches nor binds the subject, because it is not imposed upon him as befits such a bond, that is, through knowledge. But knowledge of law is acquired only through promulgation. Therefore the law whose existence is not certain is not really promulgated. —

The minor is evident. Yet if it needed proving, we should proceed thus. Two opposite probabilities necessarily induce uncertainty or doubt. But, when an opinion truly and solidly probable denies the existence of some law, two probabilities are opposed. Therefore the existence of this law is uncertain or doubtful.

All further proof is useless, indeed would be impossible, for evidence neither requires nor admits demonstration.

The foregoing argumentation is resolved thus :

A law which only probably exists is a doubtful law.

A doubtful law is not really promulgated.

A law which is not really promulgated has not actually binding force.

A law which has not actually binding force cannot really oblige.

It is confirmed by this argument instituted by Billuart in favor of probabiliorism : « He who does what he judges probably to be objectively honest, or contrary to no law, if perchance it be a prohibiting law, ignores it invincibly. But invincible ignorance of law excuses from formal sin, as is evident from this second proposition condemned by Alexander VIII : « Although there be given invincible ignorance of natural law, this in the state of fallen nature does not excuse the agent from formal sin on account of itself. » — Proof of the minor. He who seriously strives for truth, and does the whole that morally he can in order to attain it, if perchance he do not attain it, ignores it invincibly; because that ignorance is invincible which cannot be conquered by human effort, as says St. Thomas Iª IIae, q. 76, a. 2, c. But this whole thing he performs who, after sufficient examination, follows a probable opinion. Therefore. »

Where Billuart says more probable, we say probable, and indeed with equal right. For since the opinion favoring liberty is truly and solidly probable, the very existence of the law is only probable and cannot be demonstrated. The agent therefore is constituted in ignorance « which cannot be conquered by human effort, » that is, in invincible ignorance of the law, if perchance it exist. But the agent « is not bound except through mediating knowledge of the precept, » as says the Angelic Doctor. Therefore.

Therefore a doubtful law does not oblige.

You will say perhaps : Natural law was not promulgated. But nevertheless natural law obliges all men, and human laws proceed from this law. Therefore promulgation is not necessary in order that law oblige.

I answer. St. Thomas objected to himself this difficulty, Iª IIae, q. 90, a. 4, in the first place, saying : « Natural law especially has the nature (ratio) of law. But natural law has no need of promulgation. Therefore it is not of the nature of law that it be promulgated. » And he answers : « It must be said that promulgation of natural law is from this very thing that God inserted it into the minds of men to be naturally known. » Explaining this more clearly Sylvius says, on Iª IIae, q. 90, a. 4, at the end : « Actually then it [natural law] is promulgated to everyone when he receives cognition from God, dictating what according to right reason is to be embraced, what fled. » Ibid., q. 19, a. 4, ad 3, the Angelic Doctor, urging that it is necessary that law, inasmuch as it is a measure, be most certain, says of natural law, which is in us a participation of eternal law : « Although eternal law be unknown to us as it is in the divine mind, yet it becomes known to us in some manner through natural reason, which is derived from it as its proper image, or through some added revelation. » Mark these last words, from which it is inferred that, if reason were not sufficient for manifesting to us the divine will, at least in necessary things, the ignorance of man would have to be driven away by some supernatural revelation, in order that natural law become most certain, so that before this special promulgation it could not actually oblige.

SECOND PRINCIPLE. An uncertain law cannot induce a certain obligation.

Our proposition seems to have been sufficiently and even irrefragably demonstrated by the foregoing argument, wherein we weighed the essence of law, considering it especially as cause of obligation. Nevertheless, in abundance of right it will be well further to examine the effect of law and its process from law, proving that an uncertain law cannot induce a certain obligation. Therefore

It is proved thus. A natural effect is necessarily proportioned and homogeneous to its cause. But obligation is a natural effect of law. Therefore obligation is necessarily proportioned and homogeneous to law. — Proof of the first part of the major. A natural effect is contained in the cause. But the contained is necessarily proportioned to the containing and cannot exceed it; otherwise it would be at once contained and at least in part not contained, which implies contradiction. Therefore a natural effect is necessarily proportioned to its cause. — Proof of the second part of the major. According to St. Thomas, Ia p., q. 43, a. 7, c, « every effect represents its cause in some manner. » And he says the same, ibid., q. 4, a. 2, c : « Whatever perfection is in the effect must be found in the effective cause... For it is manifest that the effect preexists in virtue in the agent cause; but to preexist in virtue in the agent cause is not to preexist in a more imperfect mode, but more perfect. » But to preexist in virtue in the agent cause supposes the homogeneity of the natural effect to the cause. Therefore a natural effect is necessarily homogeneous to its cause. — Proof of the minor. The natural effect of law is that for which it is instituted and which proceeds from its nature. But this is nothing else than obligation; for, as says the Angelic Doctor, Iª IIae, q. 90, a. 1, c, « law is said from binding (ligando), because it obliges to acting, » and ibid., argument Sed contra : « To law belongs to command and forbid, » which is to oblige. Therefore obligation is a natural effect of law. — Whence is rightly concluded : Therefore obligation is necessarily proportioned and homogeneous to law.

This conclusion obtained, the following argument is instituted : Obligation is necessarily proportioned and homogeneous to law. But, if an uncertain law induced a certain obligation, this obligation would not be proportioned and homogeneous to the law. Therefore an uncertain law cannot induce a certain obligation. — Proof of the first part of the minor. The certain exceeds the uncertain, as proceeding further. Therefore certain obligation is not proportioned to an uncertain law. — Proof of the second part of the minor. The certain is opposed to the uncertain and excludes it. Therefore certain obligation is not homogeneous to an uncertain law. — Therefore, as asserted in the proposition, an uncertain law cannot induce a certain obligation.

It is confirmed by these words of St. Thomas already alleged in favor of the preceding principle, q. 17 de Veritate, a. 3, c : « Nor is anyone bound from the command of any king or lord, unless the command reach the very one commanded. But it reaches him through knowledge. Whence no one is bound by any precept except through mediating knowledge of that precept. » But knowledge of the precept, as we already noticed, is certain cognition of the law. Therefore an uncertain law cannot induce a certain obligation.

THIRD PRINCIPLE. Better is the condition of the possessor.

It must be observed that the present question is placed between law and human liberty. Moreover it is licit for man to use his liberty so long as he is not deprived of it legitimately, that is by some true law, because before law he possesses liberty, and this possession confers on him certain right, if no superior and contrary right destroy it.

It is proved. No one can be justly deprived of certain right except by him who has a superior and certain right. But before law liberty possesses certain right, and that this is so is evident; for any right subsists so long as another superior right does not destroy it, according to the known axiom : « There is no given right against right; » which is understood of a truly existing right. Whoever possesses such a right can defend it against anyone whatsoever not proving himself to have a contrary right which prevails. — Proof of the minor. To the intellectual nature of man free will essentially pertains, as St. Thomas demonstrates, saying, Ia p., q. 59, a. 3, c : « Certain things there are which act not from any judgment, but rather as acted and moved by others, as an arrow is moved by the archer toward an end. But certain things act with a certain judgment, yet not free, as irrational animals: for the sheep flees the wolf from a certain judgment whereby it judges him harmful to itself; but this judgment is not free to it, but implanted by nature. But only that which has intellect can act by free judgment, inasmuch as it knows the universal reason of good, from which it can judge this or that to be good. Whence wherever there is intellect, there is free will. » It must be adverted that our Doctor speaks here not of liberty of contrariety, which is not an essential dower of intellectual nature, but of liberty of contradiction, which the agent uses « inasmuch as he knows the universal reason of good, » which he attributes in this place to blessed angels, and ought equally to be attributed to man even as wayfarer. But intellectual nature to be ruled, measured, bound by law is conceived before the rule, measure and bond to be imposed upon it. And this the Angelic Doctor teaches, Iª IIae, q. 91, a. 1. He asks « whether there is any eternal law. » First he objects to himself : « It seems there is no eternal law. Every law is imposed upon some. But there was not from eternity anyone upon whom a law could be imposed; for God alone was from eternity. Therefore there is no eternal law. » He answers : « It must be said that things which are not in themselves exist in God, inasmuch as they are known by him and preordained, according to that, Rom., IV, 17 : Who calls those things that are not, as those that are. Thus therefore the eternal concept of divine law has the nature of eternal law, according as it is ordered by God to the governance of things foreknown by him. » Mark this : « The eternal concept of divine law is ordered to the governance of things foreknown. » Therefore by priority of reason man was first considered by God as free, and afterwards, by posteriority of the same kind, was considered the law by which man was to be bound. If this is true of eternal law, much more is it true of natural law and of human law. Therefore before law the liberty of man possesses certain right. And it is confirmed by these words of Sacred Scripture, Eccli., XV, 14-16 : God created man from the beginning, and left him in the hand of his own counsel. He added his commandments and precepts. If thou wilt keep the commandments, they shall keep thee. Thence it is evident that man was constituted essentially free. His liberty is restricted only by commandments and precepts which God added. Mark well this last word, added. Therefore as above. Therefore liberty cannot be deprived of its certain right except by a certain law.

Whence the following argument, which clinches the matter : Liberty cannot be deprived of its certain right except by a certain law. But a probable law is not a certain law. Therefore a probable law cannot deprive liberty of its certain right. — But that right is possession. Therefore in this matter better is the condition of liberty possessing.

By means of the three foregoing principles, demonstrated is the inefficacy of a doubtful law, in itself, as it is a cause, as to effect and in subject. Nothing more can be required to prove by reason such a law practically of no value.

Argument from authority.

This argument is excellently set forth thus by Fr. Gury^1 : « It consists of various headings, namely :

» 1° From the common consent of authors through many centuries. For since arose the dispute about probabilism, namely about the middle of the sixteenth century, innumerable straightway from every nation, state, condition, and from all religious orders undertook its patronage, among whom not a few shine illustrious in fame of doctrine, as Suarez, cardinal de Lugo, Lessius, Eusebius Amort, Bonacina, etc., and in recent times St. Alphonsus de Ligorio. But if some amid so great a multitude of doctors perhaps seem too far to have extended the limits of probabilism, let us surely guard against danger of this kind, retaining the limits of true probabilism, namely by not admitting an opinion as probable unless it rest upon a solid foundation, or unless solid reasons fight for it, as almost all understood probabilism, even before St. Liguori. » — To the authors enumerated by Gury must be added St. Antoninus, who re-

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lates the opinions of several ancient doctors, and notably of St. Thomas, which can be demonstrated only through the principles of probabilism.

» 2° From the commonly handed down doctrine of the present time. Indeed, if the schools diffused throughout the whole world be inspected, in most will be found handed down and defended the moderate doctrine of probabilism, especially at Rome, which deservedly ought to be held as the center of theological sciences, and where false doctrine, and indeed publicly, the Church being silent, certainly cannot be taught. So likewise in the whole of Italy, Spain, Germany, etc. — In France also itself it is now received almost with unanimous applause daily growing, that is the doctrine of St. Liguori, which assuredly wholly abhors probabiliorism. » — Since the time when Gury wrote there arose indeed in France the system of compensative Probabilism, which undeservedly usurped the name of probabilism, in order utterly to overthrow the principles of Liguorian doctrine. But that system attracted very few followers, and briefly, as an empty thing, will vanish.

» 3° From the approval of the Church, at least implicit, in the approval of the works of St. Liguori. For the sacred Congregation of Rites solemnly declared [in the judgment passed upon the writings before canonization] that there is « nothing worthy of censure » in the works of the holy Doctor. Again, in the decree of the holy Penitentiaria (July 5, 1831) approved by St. P. Gregory XVI, any professor of theology may follow and teach all the opinions which St. Liguori professes in his moral theology, nor is the confessor to be disturbed who follows them in practice in the sacred tribunal of penance. [The holy Doctor is praised more expressly in the Brief written by SS. D. N. Pius IX, April 7, 1847, to Peter Scavini, who teaches in his Compendium most openly the Liguorian probabilism : « We congratulate you heartily, says the Pontiff, because in composing these Institutions you have had nothing nearer your care than to propagate ever more and more the salutary doctrines of that most holy and learned man Alphonsus Maria de Ligorio, and therewith to imbue the minds of ecclesiastical youth especially. »] Finally by apostolic letters given July 7, 1871, whereby St. Liguori is declared Doctor of the universal Church, St. P. Pius IX established this : « Moreover the books, commentaries, opuscula, finally all the works of this Doctor, like those of other Doctors of the Church, we will and decree to be cited, produced, and, when occasion requires, employed not only privately but publicly in gymnasia, academies, schools, colleges, lectures, disputations, interpretations, sermons, discourses, and all other ecclesiastical studies and christian exercises. » — Now indeed St. Liguori in his works : 1° Teaches expressly and confirms with wondrous erudition all the speculative principles in which, the adversaries themselves confessing, the whole substance as it were of our doctrine consists, namely : that no one is held to keeping any law unless it be manifested to him as certain; — that an uncertain law cannot induce a certain obligation; — that a doubtful law does not oblige, etc. (Morale systema, n. 63-69). 2° As to practice, he asserts with us that it is licit to use true and solid probability against the law, provided he who uses it form his conscience by means of the reflex principles so often recalled. Him indeed he holds alone as such which is equal or almost equal in probability to the opposite: we, on the contrary, admitted it sometimes to be and remain such, although the opposite be more probable; but this does not impede him from agreeing with us as regards essentials; [for, as we noted, St. Liguori requires only that the opinion favoring liberty be truly and solidly probable; and even if the opposite opinion be more probable, it destroys not the truth and solidity of the contrary opinion whenever it is not notably more probable, in which case the former would become lightly probable and put outside the question]. Therefore in his works shines forth the approval of the Church and the principles of our doctrine.

» Add, with the Würzburg Theology, n. 252, to those who use probabilism with due moderation, following only opinions truly and solidly probable, that « few are the opinions manifestly and notably more probable, and concerning whose excess it is certainly established, than any which they affirmed manifestly and notably more probable, while it is known to oppose them, have the truth of theological probability. Thence equiprobabilism of St. Liguori and our moderate probabilism fall almost into the same thing. »]

Argument from consequences.

These consequences are set forth by the same Fr. Gury, ibid., n. 66-68. « 1° In the system of probabiliorists would follow a difficulty too grave for confessors. For a confessor would expose himself to danger of sinning through defect of sufficient diligence in weighing the various degrees of probability, especially in matter of restitution, when out of two equally probable opinions he followed one. For if he assumed the more benign opinion, he would sin by permitting that in which he apprehended probably existing deformity. If he acted according to the more rigid opinion, he would sin by imposing upon the penitent an uncertain yoke. Moreover, although the more rigid opinion appear to him more probable, when will he be certain that it really is such, and does not appear less probable to another confessor? Nor could anyone undertake the office of confessor unless perchance he were so versed in moral theology that he could certainly distinguish between more probable and less probable opinions: for the burden of doing includes the burden of knowing: but very few are able to perform this.

» Thence follows also that contradiction of confessors who, professing probabiliorism however they will, nevertheless not rarely say they cannot rigorously apply the principles of probabiliorism in the administration of the sacrament of penance, and therefore hold one thing in theory and something quite opposite in practice. Nor are wanting those who, placed in straits, easily judge more probable what elsewhere they held less probable. [This we ourselves above noticed, namely that greater probability is often merely subjective.] Would it not be better to establish and admit milder principles together with so many most wise doctors, and to draw them out more exactly into practice?

» 2° There would follow a most troublesome difficulty for the faithful.

For upon them would be imposed in doubts the obligation of inquiring which opinion is more probable: since the obligation of acting according to the more probable includes the necessary duty of inquiring it. Further, for the most part there is given moral impossibility of distinguishing between the more probable and the probable. And indeed I ask, whether I am bound to the more probable in itself or absolutely, or as regards me, or relatively? If the former, whence do I know it? If the latter, again there is question of intrinsic or extrinsic probability. If of the latter, which school is to be followed? which doctors are to be consulted? If of the former, the difficulty grows: whence shall I know whether I am sufficiently fit for this judgment, whether I lie in invincible ignorance or not? Suspenseful therefore and pressed by doubts, what shall I do? Shall I recur to masters? But, on hypothesis, it is mine to judge. How many and how great straits therefore impend over the faithful from that necessity of following the more probable or safer, is manifest. — So Segneri, opusc. on Probability.

» 3° There would follow perpetual fluctuation of doctrine. For from probabiliorism follows perpetual fluctuation of doctrine among probabiliorists themselves, as daily experience proves. But also from the very nature of probabiliorism arises that discrepancy. It is impossible indeed that they agree in fact; for, posited the obligation of following the opinion which appears to each more probable, necessarily some will resolve for the affirmative side, others for the negative. One will bind, another loose, and what appears to you more probable will easily seem to another equally or less probable. Thence follow confusion of decisions, perplexity of the faithful and straits; of modes, at least for the most part, it lacks. For only two things are to be weighed by probabilists, namely certain obligations and merely probable obligations. Although however true probability be not always established, yet no one does not see that, ordinarily speaking, it is much easier to discern whether solid reason or authority is had against a law than to bring forward some excess of probability. Therefore... etc. »

4° To these inconveniences set forth by Fr. Gury is superadded the following, which seems grave to us. No one will deny that a confessor has no other office regarding the law than to apply it to the penitent after the manner of a judgment: whence in this part he is not legislator but only minister of the law. But, if the confessor be a probabiliorist, and as such impose upon the penitent observance of a doubtful law because it appears to him more probable, the opposite opinion remaining truly and solidly probable, he applies not the law but makes it, and by his own authority constitutes himself legislator, making out of a truly doubtful law a certain law; for above we proved, with St. Thomas, that law cannot be imposed upon a subject unless it be a true law, that is unless it have been promulgated, such as a truly doubtful law is not. Therefore the confessor, in the case supposed, transgresses the limits of his mandate and subverts the order established.

This last inconvenience can be invoked a fortiori against tutiorism, which moreover was condemned, as will be seen below.]

The objections are solved.

[Obj. 1° from Scripture : It is read Eccli., XI, 27 : He that loveth danger shall perish in it. Ibid., XXXVII, 20 : Let the word of truth go before all thy works, and stable counsel before every act. I Thessal., V, 22 : From all appearance of evil refrain yourselves. But he who practically follows the doctrine of probabilism, 1° loves danger, because he exposes himself to sin; 2° before his work has not the word of truth, for the opinion he passes over is doubtful; 3° has not before his act stable counsel, for the counsel he admits rests only on a fragile foundation; 4° refrains not from all appearance of evil, since transgression even of a doubtful law cannot be called good. Therefore. Thus argue the probabiliorists themselves.

I answer. 1°. This argument can be retorted upon the probabiliorists; for, even when they act against a doubtful law from the more probable opinion, or such as appears such to them, there is present materialiter danger of sinning, which is not wholly removed except when certainly the law does not exist; and the same must be said of other inconveniences they object, which, if lightly diminished in their system, are nevertheless not entirely turned away.

I answer. 2° directly. Ad 1um. 1° There is treated there of final impenitence, as is evident from the context : A hard heart shall have evil in the last end, and he that loveth danger shall perish in it. Therefore this text is not aptly alleged here. 2° He who loves real danger shall perish in it. But, in our opinion, there is no danger of sin when one acts from right conscience. If perchance a truly existing law, that is objectively existing, be violated, sin will be merely material, and we are bound only to avoid formal sin. Therefore. — Ad 2um. If the opinion which the probabilist follows in the particular case be not intrinsically the word of truth, the reflex principle from which he forms his conscience is true, as we proved above; and since conscience is practically certain, the judgment whereby it is pronounced that the law is none and does not oblige accords with truth. Therefore. — Ad 3um. As to 2um. — Ad 4um. The Apostle indeed commands that one abstain from every act which offers the agent the appearance of sin. But, on hypothesis, the act does not offer the agent the appearance of sin, since morally certain is he that such act is opposed to no law. Therefore.

Obj. 2° : In canon law the following rule is everywhere enunciated : « In doubt the safer part is to be chosen. » But the probabilist embraces not the safer part; for the safer part is that which, standing for the law, would altogether remove sin. Therefore. So also the probabiliorists.

I answer. 1°. I retort the argument. The probabiliorist embraces not the safer part; for, etc. Therefore. — Therefore recourse must be had to absolute tutiorism. But this system was condemned by the Church. Therefore.

I answer. 2° directly. 1° True it is that in practical doubt the safer part is to be chosen, if there be question standing while that doubt remains. But, although the speculative-practical doubt be not removed, the probabilist acts not with practical doubt, since his conscience, by means of a certain reflex principle, has been made morally certain about the honesty of the action. Therefore the alleged rule is invoked undeservedly against probabilism. 2° As above proved, this principle is restricted in law to doubts of fact, which become practical, and to cases in which the validity of acts to be placed ex officio is imperiled; these wander outside the present question, as will straightway be demonstrated. Therefore it cannot be objected against us.

Obj. 3° : several Fathers proclaimed diversely the above-cited axiom of canon law.

I answer. : These authorities must be understood in that manner in which the axiom of law is interpreted. Moreover testimonies are not wanting whereby the doctrine of probabilism can be buttressed. Augustine says, Epist. 54, c. 2, n. 2 : « What is proved to be neither against faith nor against morals is to be held indifferent. » Greg. Naz., orat. 39 : « But if the matter is doubtful, let humanity and frailty conquer. »

Obj. 4° : A probable opinion does not remain probable in the concurrence of a more probable one; for lesser probability is elided by greater. Therefore.

I answer. I deny the antecedent. For if the opposite opinion is truly more probable, this happens from this that the other is probable; for the comparative supposes the positive. Whence, if what is objected were true, the more probable opinion would nowise be more probable, but certain. That this is false is manifest. — Moreover, reasons drawn from disparate principles not subordinate to each other cannot elide each other. For my reasons, notwithstanding opposite probability, and even greater probability, will stand in all their force, until you prove them false.

Obj. 5° : Probabilists act not with moral certainty, nor even from a reflex principle, since they cannot call improbable the opinion opposed to their own. Therefore. So our Billuart, dissert. VI, art. 1^1.

I answer. 1°. I retort it against the probabiliorists, from parity of reason.

I answer. 2° directly. Probabilists act not with moral

²

certainty from the direct principle taken from the very question, I concede; for, if it were so, certainty would occupy the place of probability. They act not with moral certainty concerning the honesty of the action acquired by means of a certain reflex principle, I deny; for probabilists discuss the practical doubt in the same manner as probabiliorists, namely rendering their conscience certain through principles sought outside the doubtful matter, whereby it is demonstrated that the probable law is not, for the agent, a true law which reaches him and binds him. Therefore.

Obj. 6° : Prudence requires that sin be altogether avoided. But the probabilist avoids not altogether sin, since he does what he judges to be probably, or even more probably, sin. Therefore he acts imprudently. Therefore he sins.

I answer. 1°. I retort it against the probabiliorist, whose deed is also probably sin, and who by his own argument is compelled himself to embrace tutiorism.

I answer. 2° directly. I distinguish the major. Prudence requires that sin be altogether avoided, when the act is certainly and formally sin, I concede; when the act is not even certainly material sin and certainly is not formal sin, I deny. But the probabilist prudently judges his act not to be material sin, because a doubtful law, if perchance it exist objectively, he rationally holds as non-existing toward himself, through defect of due promulgation; and he pronounces with certainty, from the same unshaken principle, such an act not to be formal sin. Therefore he acts not imprudently. Therefore he does not sin.

Obj. 7° : To will something, even though perchance it be material sin, is to will formal sin. But thus acts the probabilist. Therefore he sins formally.

I answer. 1°. I retort it against the probabiliorist, who himself admits that an act done against a doubtful law can be material sin.

I answer. 2° directly. Let the major pass, and even it I concede. — I deny the minor. For the probabilist, judging prudently from a certain principle, holds that the law does not exist, does not admit his act to be materially evil, and wills it nowise under this respect. Therefore he does not sin formally.

Obj. 8° : If a sick man choose a remedy only probably efficacious, leaving another which is more probably efficacious, he acts imprudently. But greater care must be bestowed on the soul than on the body. Therefore. So Collet, with several other probabiliorists.

I answer. That this example is outside the question; for here there is question not of honesty of action but of efficacy of the remedy applied. Moreover the probabilist judges not only probably, but pronounces with certainty and legitimately that his act is not harmful to his soul.

Obj. 9° : A judge, in giving sentence, ought to follow the more probable opinion, as is evident from the condemnation of the following proposition by Innocent XI : « Probably I judge that a judge can judge according to an opinion even less probable. » Likewise, a physician licitly employs not a doubtful remedy, when there supplies to him a certain or more probably efficacious remedy. Therefore, in like manner, it is not licit, in acting, to follow a less probable opinion.

I answer. The examples alleged in the antecedent are not to the point. For in this twofold case there is not question of moral honesty or of licitness of placing the action, but of the obligation of attaining a determined end through certain or apter means, by reason of office or quasi-contract. Indeed we absolutely concede the antecedent of the argument, and shall demonstrate the same in the following article; but, parity denied, we deny the consequent and consequence.]

Consequences.

[You gather from the foregoing :

1° If it be licit to follow an opinion truly and solidly probable concerning the honesty of an action, although the opposite be more probable, then a fortiori it is licit to act according to a more probable and most probable opinion favoring liberty. This need not now be demonstrated. Moreover, as regards the most probable, the following proposition of Sinnich was condemned, which is third among those

31 condemned by Alexander III : « It is not licit to follow the most probable opinion among probable ones. » Besides, an opinion favoring liberty cannot be most probable without the opposite being slightly, or even most slightly, probable; and besides the reasons alleged above must be invoked the principle : « In moral matters little is reputed as nothing. » Whence then is had a certain kind of moral certitude of the non-existence of the law.

2° It is not licit to follow a slightly probable opinion, leaving the safer. For no one acts licitly unless he act prudently, that is unless he be morally certain of the honesty of his action. But, when the opinion favoring liberty is only slightly probable, from it one acts not with moral certainty concerning honesty of action, or prudently, since, on the contrary, practically it is morally certain that the law exists. Therefore. Whence was condemned by Innocent XI this proposition, n. 3 : « Generally speaking, trusting to intrinsic or extrinsic probability, how slight soever, provided one depart not from the bounds of probability, when we do something, we always act prudently. » Rejected likewise by Alexander VII, n. 27, was this other proposition which refers to extrinsic probability : « If it be free to any junior and modern author, the opinion must be held probable, provided it be not established that it was rejected by the holy apostolic See as improbable. » Which proposition must be understood in this sense, that the opinion be new, departing from common doctrine, its author reckoned by no title among theologians of good repute.

3° It is not licit to follow an opinion only probably probable against the law, because the probability favoring liberty is not true and solid, and it cannot prudently be pronounced that the law de jure does not exist toward the agent. He who acted from such probability would act only probably, that is in practical doubt and not with moral certainty of honesty of action. Further, he who thus acts acts not from conviction (ex fide), and sins.

4° It is not licit to follow an opinion probable to others, even more learned, which is actually improbable to the agent. The reason is because, while he thus judges, the action appears to him illicit, or at least not certainly licit; and acting against his own judgment he would inflict violence upon his conscience, and by reason of a practically practical doubt he would sin. Therefore no one ought to act according to another's opinion unless he know and approve the reasons on which it rests, or can at least prudently judge it safe to embrace the opinions of such a theologian, v. g., St. Liguori.

5° Even if the opinion fighting against the law be truly and solidly probable and in itself licit to follow, it can happen, on account of circumstances, that someone in a particular case ought practically to pass over the safer part, lest he give scandal to those to whom he would seem to violate an existing law. Certainly he is not bound to decline the burden of a doubtful law, and certainly he is bound not to scandalize his neighbor. This pertains to the question of indirect obligation, elsewhere.

6° Mark diligently that the question of probabilism is one of strict right. We intend to prove this one thing, namely that no obligation exists of observing a truly doubtful law, so that in this case the liberty of the agent remain whole, and there be not present danger of formally sinning by omitting such a law, even if in fact perhaps the law exists and the act done against it be in itself material sin, or better the matter of sin. Indeed he will be praiseworthy who, seized with zeal for perfection, studies in doubtful cases to avoid even possible material sin, denying himself the legitimate use of his liberty and acting just as if the doubtful law were a certain law. But this was not to be a hortatory discourse toward perfection, but rather it was to be established that those who follow the common ways are bound only by certain laws.]

[For the whole matter of this article we have drawn from the Compendium of P. Gury, from n. 75 to n. 80. (Edit. Dumas.)

« Besides the general principles by which the theory of probabilism is established, namely : « No obligation is to be imposed, unless it be certainly known of it ; » or : « A doubtful law does not oblige ; » [or : « Better is the condition of the possessing liberty, »] there are also enumerated certain special rules by which those principles are confirmed, or applied in particular cases. They are however the following :

» I. — In doubt one must stand for him for whom the presumption stands. The reason is, because presumption usually produces moral certitude, at least wide. Hence, if you are accustomed diligently to recite your Breviary at such a time, and doubt whether you have recited some part, the presumption favors you and exempts you from the obligation of reciting or repeating. Likewise, if you doubt whether a superior justly commands or dispenses, the presumption stands for him; because he may be led by reasons unknown to you, or is held to judge prudently concerning known ones. Moreover right order and the common good require that in such a case deference be shown to him. — Thus theologians commonly.

» II. — In doubt judgment must be made from what ordinarily happens. This axiom is commonly received. S. Lig. passim. — This rule falls back almost into the preceding, since in both the presumption is the reason of judging thus. But the former extends more widely, since presumption can be drawn not only from what ordinarily happens, but also from particular circumstances. — S. Lig., ibid.

» III. — In doubt one must stand for the validity of the act. This rule is of civil law, applied commonly even in theological matters. This must be understood if the principal fact be certain, and doubt arise about some circumstance or condition necessary, or about the due mode : v. g., if you doubt whether you confessed your sin with sufficient sorrow, you are not bound to confess again. — S. Lig., lib. I, n. 26, etc. — This principle seems also to be understood, 1° in favor of liberty, provided the contrary presumption does not stand in the way, nor the common good of the state or of religion; 2° against liberty in the external forum, or even in the internal forum, when the public good is concerned, v. g., contracts, especially matrimony. But the reason why that principle should not be applied in every case against liberty is sought from another principle recalled above, namely : « No obligation is to be imposed, unless it be certainly known of it. » Moreover, nothing is known of an obligation unless some evident reason of justice, religion, public good, or of another end necessarily to be obtained urge it. — S. Lig., lib. I, n. 26 ; lib. VI, n. 505. — Voit, n. 38.

» IV. — In doubt favors are to be extended and odious things restricted (Reg. jur. can. 15, in Sexto); that is, in doubt the more benign things are to be preferred. Whence, according to this principle and the more common interpretation, these things seem to be laid down : 1° Whenever odious things and favors can be separated, odious things are to be restricted and favors extended as far as can be done, without violence being offered to the sense of the words. 2° If odious things and favors be indivisible, then judgment must be made concerning the intention of the legislator from his own words, from the subject matter, or from the attached circumstances. 3° If the intention of the legislator cannot be clearly determined, more attention must be given to the favor than to the odious thing. — S. Lig., lib. I, n. 99.

» Odious here is understood whatever tends toward punishment, or injures the right of a third party, or is opposed to common law. Favor truly, or the favorable, is whatever indulges liberty, or grants grace, without damage to private persons, or to the community, or to the law itself.

» V. — In obscure cases, what is least is to be held (Reg. jur. can. 30, in Sexto). This rule is thus to be understood. Where nothing is known of the true sense of a law or statute, and neither by previous inquiry, nor from the nature of the thing, nor from the context of the words, or the custom of the place, or any other circumstance can it be determined, the less burdensome interpretation, or the one more benign toward liberty, is to be admitted. The reason is, because the legislator is not held to wish to oblige beyond what he clearly expresses in the law. Hence in doubt concerning the quantity of punishment to be inflicted, the least is to be chosen. Likewise, if it be not certainly known of the offense, the accused must be absolved.

» VI. — In doubt of fact, the following axioms or rules of civil law, received among all, avail : 1° In doubt, a fact is not presumed, but must be demonstrated. This however is to be understood of doubt concerning the principal act : v. g., if it be doubtful whether someone struck another, this fact ought not be presumed, but he who affirms must prove it positively. 2° In doubt the fact is presumed, or rightly done, which was to be done by law. This is understood of doubt concerning an accessory act, the certitude of the principal act being supposed; for if something was to be done by law, or if it is wont ordinarily to be done, or be favorable to the doer, it is presumed to have been done. 3° In doubt no one is presumed evil unless he be proved. This holds whenever there is question of doubt about some crime. For it ought not be imputed to him unless it be certainly known of him. Since therefore crimes are not presumed, neither is anyone presumed evil, but he must be proved.

» VII. — In doubt the safer part is to be chosen (Reg. jur. can. passim). This rule must be restricted to cases of practical doubt, or to those in which the end must be necessarily obtained, namely where probability would not remove the danger which the law commands to be altogether avoided, as, v. g., in confecting the sacraments : which is clear from all that has been set forth hitherto. But if it be extended to speculative doubts, the rule or precept ceases, but it is mere counsel.

» You will ask 1° whether it is licit to use probability not only in matter of positive law, but also in matter of divine and natural law.

» I answer. affirmative, because in every kind of matter it can happen that nothing be certainly known of the existence of the law, namely whenever true and solid probability militates against it, and consequently of such a law there is given ignorance truly invincible. Moreover God, author of the law and principle of natural order, is not held to wish to oblige us when we invincibly ignore the existence of the law. — Lacroix, etc.

» You will ask 2° whether a confessor can or ought absolve a penitent who wishes to follow an opinion indeed probable, but opposed to the opinion which he himself holds.

» I answer. affirmative, if the penitent adhere to a probable opinion with formed conscience. The reason is, because the penitent has the right of following a truly probable opinion, nor has the confessor the right of imposing his own opinions upon him, even though they seem more probable to himself. For the confessor is not judge of the opinions which the penitent is bound to follow, but is only judge of the disposition of his penitent, as appears from Trident., sess. XIV, c. 3. — So S. Lig., lib. VI, n. 604, and others commonly.

» You will ask 3° whether extrinsic probability constitutes a truly probable opinion.

» I answer. affirmative, at least speaking generally. Nay, in questions whose solution greatly depends upon the estimation of prudent men, greater authority constitutes greater probability. For it is difficult for anything to be extrinsically probable without there being grave reason for it. But such a reason must reasonably be presumed present, when many and grave authors hold some opinion probable, since it is deservedly conceded that they perceived the truth of the thing and saw it to rest upon solid motives. Hence St. Thomas : « One of small science is more certified concerning what he hears from a scientific man than concerning what seems to himself according to his own reason. » IIa IIae, q. 4, a. 8. — There is added also the authority of the holy Penitentiaria. For the Holy Congregation, interrogated whether the confessor who follows the doctrine of St. Liguori ought to be disturbed, without weighing his reasons, but only on account of his authority, answered negatively; and this answer was approved by the Sovereign Pontiff Gregory XVI. Therefore extrinsic probability supposes intrinsic. Therefore.

» I said, at least speaking generally, because, if sometime perchance you discover that authors, even many and grave ones, erred in asserting the probability of some opinion, their whole authority, however great it finally be, together with all that extrinsic probability, will no longer make this opinion truly probable to you.

» You will ask 4° what should be thought of that principle most familiar to not a few probabilists : He who acts probably acts prudently.

» I answer. Very many and most grave doctors, who used that saying, employed it as a proximate rule of acting, not however as a principle by which they would prove the truth of their doctrine concerning probable opinions. Certainly this principle is false, if it be held as primary and as having force of itself. The reason is, because an action cannot be prudent by force of probability alone, but holds that from certitude alone. But it is true, if held only as it was held by those learned men, as the consequence of another primary principle which is per se the ultimate rule of acting, such as this can be : A doubtful law does not oblige; or : No obligation exists, unless it be certainly known of it.

» You will ask 5° how that axiom is to be understood : In doubt better is the condition of the possessor, and what is its use in forming conscience.

» This axiom, in the external forum both ecclesiastical and civil, is received as a certain rule of judgments. For rule 65 of law in Sexto stands thus : In equal crime or cause, the condition of the possessor is stronger, and L. 128, § de div. reg. juris says : In an equal cause, the possessor ought be held the stronger. It is asked however whether it avails also as regards conscience to be formed, that is, as regards the internal forum; and if it avail, what that possession is, and what doubt, in which is said better condition of the possessor.

» I answer 1°. That this axiom has the same force in the internal and in the external forum is evident from the testimony of almost all theologians, who use it most frequently to solve cases pertaining only to conscience. It is evident also from this, that, as Suarez noted (de Voto, lib. IV, c. 5, n. 11), « where there is no proceeding from presumption, » or from a false cause of supposition, « the law of conscience and of ecclesiastical judgment is the same. » Cf. also Suarez, de Cens., disp. 40, sect. 3, n. 16. — Lugo, de Justit. et Jure, disp. 23, n. 110. — S. Lig. lib. I, n. 26.

» I answer 2°. Certain authors judged this axiom to hold only in matter of justice, or as regards possession belonging to the right of property, among whom Pilluart, de Actib. hum., diss. VI, a. 2, obj. 3. But truly the far more common and more certain opinion asserts the same to hold also in matter of other virtues. So Suarez, de Voto, lib. IV, c. 5, n. 7 and seqq. — Sanchez, de Matrim., lib. II, disp. 41, n. 31. — Castropal., de Consc. dub., resol. 2. — Lacroix, lib. I, n. 502, and many others whom S. Lig. approves, loc. cit. The reason is, because peaceful exercise, or possession or quasi possession, not only of proprietary right, but of any other right whatsoever, namely of commanding, of acting or not acting, etc., when they are certain, furnish a certain title for retaining what is had, while it is not proved that it ought not be retained; for, in general, against a certain title a merely doubtful title cannot prevail. Thus, in matter of obedience, the subject in doubt owes obedience to the superior who is in possession of the right of commanding, as Lacroix demonstrates from canonical law, the holy Fathers and reason, lib. I, n. 432.

» I answer 3°. In practical or negative doubt, according to all, better is the condition of the possessor; but not, according to many, in opinionative doubt, or where true and solid probability opposes the possessor; for they judge that then the presumption ceases which otherwise could be alleged in his favor¹

» You will ask 6° : If you doubt whether you have already satisfied some obligation, are you still bound to satisfy?

» I answer 1° entirely affirmative, whenever there is question of doubt properly so called, or of negative doubt, or of practical doubt. The reason is, because in such doubt it is never lawful to act against the law, as follows from the principles posited above.

» I answer 2°. But if there be question of positive doubt, or of true and solid probability, it is controverted.

» The first opinion affirms. The reason is deduced from this principle commonly admitted : « A certain obligation is not satisfied by doubtful fulfillment. » For a law once existing and commanding has the right of demanding rigorous obedience or undoubting fulfillment of the obligation. Moreover, when you doubt, or esteem only probably, or indeed more probably, that you fulfilled the law, you have by no means satisfied it rigorously. Therefore it still urges and presses you until you shall have certainly satisfied. — Besides, equity requires that what we concede to liberty, in equal condition, we deny not to the law. But we concede to certain liberty that it cannot be bound by a doubtful law. Therefore it must be conceded to a certain law that it cannot be loosed by deobligation or by doubtful fulfillment. — Finally, in doubt better is the condition of the possessor. But a law certainly existing possesses against liberty, which it holds bound to itself. Therefore in doubt it prevails against liberty. — S. Lig., lib. I, n. 28 and 29, who in this place, and in many others, seems to have fully retracted whatever he had written to the contrary, v. g., n. 99 toward the end². Almost unanimously his disciples follow the master. Scavini, tom. I, n. 87, edit. Paris. — Neyraguet, c. 3, inf. 2. — Gousset, n. 87. — Panzuti, n. 20. — Müller, § 84, reg. 1, etc. From others may be cited Voit, n. 39 and de Voto, n. 587. — Filliuc, Collet, Antoine, etc.

» The second opinion denies, with not a few very conspicuous theologians. For, they say, no obligation is to be imposed unless it be certainly known of it, as was said above concerning probabilism. Moreover nothing is certainly known of an obligation to which satisfaction has already been made more probably or probably. Therefore. — Besides, as from that principle : « No obligation is to be imposed, etc., » it is drawn out that the human will is not obliged by a law whose existence is not yet proved, so it necessarily follows that the same will is not bound at the same time as the existence of the law becomes uncertain; for as obligation depends upon certain knowledge of the law, so also the continuation of obligation depends upon the continuation of the same certain knowledge. But a law to which satisfaction has probably been made probably no longer exists, and therefore its existence becomes uncertain. Therefore.

» As regards the axiom objected : « A certain obligation is not satisfied by doubtful fulfillment, » it is answered to be true whenever there is talk of practical or negative doubt; not unless indeed true and solid probability favor liberty. This opinion hold Suarez, in IIIam part. S. Thomae, ad q. 90, disp. 22, sect. 9, n. 6. — Roncaglia, de Voto, c. 2, q. 4, and tract. II, c. 5, q. 3° de Legib. — Tamburinus, Meth. conf., lib. II, c. 1, n. 10. — Lugo, de Poenit., disp. 16, n. 59 and 60. — Bonacina, de Integrit. conf., diss. 5, q. 5, sect. 2, punct. 2, § 3. — Lacroix, lib. I, n. 599 and 600. — Salmant., de Voto, c. 1, n. 145, etc., etc.

Add from the camp of the probabiliorists Billuart, de Integrit. conf., § 4, and others who say it suffices if satisfaction have been made more probably to the law.

It cannot be denied that this opinion enjoys probability at least extrinsic, since not a few theologians, and none of lesser note, patronize it. — Elsewhere the motives on which it rests seem by no means contemptible, [whence probability even intrinsic is drawn].

So Gury and his commentator P. Henricus Dumas. But what is to be counseled in practice? Although in this conflict of opinions anyone may seem able to choose what pleased him more, we shall open our own opinion.

The theory of probabilism is founded, as abundantly appears from the context of this dissertation, especially upon the following principle : « A doubtful law does not oblige. » Moreover, this principle is deservedly applied to doubt about the existence of a law and about its extension. But truly also to doubt about the cessation of a law or of an obligation? Plainly it will be judged better not to admit such an extension, since the reflex principle noted above, understood in this sense, is not morally certain even among probabilists, but very doubtful, as is clear from the reasons opposed on either side and from the names of authors passing into different parties. Whence it seems that affirmation must be made, not only in practical doubt, in which it is always nefarious to act against the law, but also in doubt about the cessation of a previously valid law, that the law must be obeyed, until the cessation become known through morally certain reasons. In doubt however whether satisfaction has been made to an obligation certain of itself, we say the burden of satisfaction still subsists, unless perhaps through another reflex principle joined to it one be freed, v. g., the following principle : « In doubt one must stand for him for whom the presumption stands : » so much the more as this doubt objectively touches not directly the law itself, but only the effect of the law, namely its obligatory force, and therefore the palmary principle : « A doubtful law does not oblige, » can be applied less properly to cases of this kind. Thus we think with the most wise cardinal Gousset, n. 86 and 87.]

[It must be noted that this question has undeservedly been held by many theologians to pertain pertinently to probabilism, whose error arose from this, that there intervened here a certain probability to whose object they paid insufficient attention.

Certain probabilists, after they had demonstrated their system with valid reasons, lest they seem to transgress the limits of just moderation, established certain exceptions, as they said, to which the principle of probabilism may not licitly be applied, v. g., the case of the sacraments validly to be conferred out of necessity, the obligation incumbent upon a physician to use the more efficacious means for restoring the health of the sick person, etc. They judged that, with these exceptions admitted, their theory would become unshaken, not considering that, if from their doctrine there flowed false consequences which they rejected in practice, the principle itself would be convicted of falsity.

And in fact the antiprobabilists, leaning on these exceptions, tried to overthrow the system by way of absurdity, reasoning thus : A principle that leads to false consequences is false. But the principle of probabilism leads to consequences so evidently false that they are rejected by the probabilists themselves. Therefore this principle is false. And to prove the minor they alleged the cases recalled above. Indeed this conclusion would have to be acknowledged as well founded, if the various cases comprehended under the present question were only exceptions in the aforesaid sense : which is false.

That this confusion may be dissipated, there must be recalled to memory the distinction which we have already had occasion several times to note. In the system of probabilism, the question concerns exclusively the liceity of an act posited against a law doubtful or only probably existing, in which case the obligation, which is the essential effect of the law and is necessarily proportioned to and homogeneous with the law, is itself probable or doubtful. But if it be truly and solidly probable that the law does not exist, from the reflex principles whose truth was demonstrated above it is rightly pronounced that the obligation is none, because the law is practically none, so that the agent who omits such a law does not sin formally. — On the contrary, in the question now to be solved, the law commanding that some determinate end be obtained, and indeed by efficacious means, is not doubtful, but altogether certain, and from it consequently arises an equally certain obligation. It is supposed that there are simultaneously present means certainly conducing to the end, and other means by which the same end can be attained only probably, and the question is whether it is lawful, leaving the former, to employ the latter : i. e., whether, the certain obligation still remaining, the act itself avails.

That this discrepancy may be expressed more briefly : the probabilist treats of the liceity of an action posited against a doubtful law, and in the present question there is treated of the validity of an act posited by force of a certain law. And these two differ as heaven from earth. Therefore I say : It is not lawful to follow a probable, or even a more probable, opinion, leaving the safer, when there is present a certain obligation of obtaining a determinate end.

Proof. When there is present a certain obligation of obtaining a determinate end, the agent is bound to employ those means by which he will attain this end in the most efficacious way possible. But if means certainly efficacious are at hand, and the agent chooses means whose efficacy is only probable, he does not attain the end in the most efficacious way possible. Therefore he does not fulfill the obligation imposed upon him. Therefore it is not lawful to use these means, but the safer part must be followed.

Thence you will gather :

1° In matters necessitated by the necessity of means for salvation, the safer must be chosen. For the gravest and most certain obligation is imposed upon everyone to make certain the eternal salvation of his soul. But means only probably efficacious do not make the salvation of the soul certain. Therefore, leaving the others, it is not lawful to employ these means. Hence in matters pertaining to faith and the true religion, all probability being set aside, the safer part must necessarily be followed. Whence this proposition was condemned by Innocent XI, n. 4 : « An infidel not believing will be excused from infidelity, led by a probable opinion. » The same must be said of an opinion even more probable subjectively. So St. Liguori, lib. I, n. 43.

2° The minister of a sacrament is bound to make its validity certain, embracing the safer part, leaving the less safe opinion, though probable and even more probable. The reason is, because the honor and reverence of the sacrament are entrusted to him, and together with them the spiritual good of the neighbor, who has the right not to be deprived of the grace which he needs or desires to enjoy. But by acting otherwise, the minister would expose the sacrament to the danger of nullity and the neighbor to the proximate danger of spiritual loss. Whence the following proposition was deservedly condemned by Innocent XI, n. 1 : « It is not illicit, in conferring the sacraments, to follow a probable opinion about the value of the sacrament, leaving the safer, unless the law, a convention, or the danger of incurring grave loss forbids it. Hence an opinion merely probable is not to be used in the conferring of baptism, of priestly or episcopal order. » — Excepted is 1° the case of urgent necessity, because, as the received axiom runs, the sacraments are for men, and to a man placed in grave danger of death they must be administered in the best way possible, even with mere probability, nay with a thin and very thin probability regarding validity. Whence baptism can not only be, but must be, conferred on one about to die shortly with liquid doubt, if natural water is lacking and cannot be obtained. — Excepted is 2° the case in which, on account of necessity, the defect is presumed to be supplied by the church; for sometimes the Church can and is held to supply what is wanting to the value of the sacrament. Which indeed can happen in two sacraments, namely in the sacrament of penance, if for a grave reason it be conferred with doubtful or only probable jurisdiction, and in the sacrament of matrimony, when it is celebrated with a doubted impediment of ecclesiastical law. S. Lig., n. 48-50.

3° He who has undertaken toward another an obligation from an express or tacit contract, or from a quasi contract, is bound to fulfill it in the more certain and safer manner. Whence the physician and the surgeon must employ the more efficacious remedies and means that are available here and now, because for this they are summoned by the sick. S. Lig., n. 44.

4° When perilous action is directed against someone, one must abstain from it, unless true necessity excuses it, or the public good requires it. Whence a hunter ought not kill a wild beast, if he fears lest by the same blow he kill or merely wound a man. And he must abstain from it, even if he judge it more probable that the danger is absent; for if in truth it be present, it will not be removed by a contrary probability, even though greater.]

[We shall expound this pseudo-probabilism from the writings of three authors who professed it, namely D. Manier, D. Laloux, and Rev. P. Potton¹

D. Manier lays down this principle, Ethica, de Conscientia, chapter 2: « A doubtful law neither lacks all obligating force, nor has all its force of obligating, but obligates more or less strictly according as it is more or less known: hence a cause not excusing from a law certainly known can sometimes excuse from a law known only imperfectly. »

Advert that here there is denied absolutely the palmary principle of probabilism: « A doubtful law does not oblige, » against which is opposed contradictorily, as head and principle of the whole new system, the following proposition: « A doubtful law obligates, » that is, the doubtful law is true law sufficiently promulgated; for here the doubtful equals cognition.

For why should a doubtful law obligate? The same author answers: « Whenever a law is wholly known to us, it has all its obligation relatively to us; if, on the contrary, it be wholly unknown to us, it has no obligation at all. Therefore, by equal reason, if a law be known to us, but imperfectly, it has some obligation, but an imperfect one. »

If the obligation arising from a doubtful law be imperfect, thence the three authors conclude together « that a cause not excusing from a law certainly known can sometimes excuse from a law known only imperfectly. »

But that anyone be excused from keeping a doubtful law, three things must be considered: 1° the nature and gravity of the law, 2° its probability, 3° its difficulty in practice, or the inconveniences which arise from observing it.

These things perceived, the principle is thus applied to the various degrees of probability: « 1° If the opinion favoring liberty be notably more probable than the opinion favoring the law, then, ordinarily speaking, the sole inconvenience arising from the privation of liberty suffices for running the risk of material infraction. It is said, ordinarily speaking, because if the law, although notably less probable, were of natural right and forbade something gravely evil, then this inconvenience alone would not seem to suffice... Hence in this case mitigated tutiorism holds, but with this condition, that the fault committed by the infraction of the law will be only light. 2° If the opinion favoring the law and the opinion favoring liberty be equally probable, but the law be most grave, nor any other motive for departing from it than the mere faculty of doing what pleases, then it is not lawful to depart from the observance of the law without some sin; and in that case probabiliorism holds, yet with this condition, that the sin of infraction will be less grave than if a certain law or one notably more probable were infringed. 3° If the opinion favoring the law and the opinion favoring liberty be equally probable, but the law be of positive right, and its observance bring great inconvenience, even though that inconvenience would not suffice to excuse from the aforementioned law supposing it certain, it will suffice to excuse from this law uncertain... Hence in this case equiprobabilism would hold. 4° Finally, if the law be notably more probable than liberty, but of positive right, and its observance bring with it some inconvenience, although that inconvenience would not suffice to excuse from the observance of a law which would be certain, nevertheless it could legitimately excuse from one which is only notably more probable; and in that case benign probabilism holds. »

In this system, 1° a doubtful law obligates per se; because 2° sin, not only formal but material merely possible, is always to be avoided; unless 3° compensation be made between the advantages accruing to the agent from the infraction of the law and the inconveniences which must arise from the same act.

On account of this compensation D. Laloux adorned that theory with the name Compensative Probabilism, which denomination P. Potton adopted with great applause.

It is asked now what is to be thought of this new system.

I say: The system of compensative probabilism is altogether to be rejected.

It is proved. That system is to be rejected which 1° relies on false principles, 2° is contradictory, 3° induces into a condemned error, 4° supposes an imaginary obligation, and 5° whose use is impossible. But compensative probabilism labors under these defects. Therefore it is to be rejected.

It is proved. First part of the minor. Compensative probabilism relies on this palmary principle: « A doubtful law obligates. » But above, art. 3, we demonstrated the truth of the contradictory proposition, namely: « A doubtful law does not oblige. » Therefore the palmary principle of the new system is false. — We proved besides « that an uncertain law cannot induce a certain obligation, » and « that before the law, namely true or certain law, the liberty of man possesses [its rights]; » which two principles flow immediately from the first, as necessary consequences. But these principles are denied in the recent theory, and contraries supposed. Therefore this theory rests on false principles.

It is proved. Second part of the minor. 1° The defenders of the system attribute to the doubtful law the power of obligating proper to a true law, from this principle, that every law obligates insofar as it is known. Whence, renewing the error into which P. Patuzzi stumbled while disputing against St. Liguori, they contend that doubt is equivalent to cognition or science; which is contradictory and absurd, and is overturned by St. Thomas saying, q. 17 de Veritate, a. 3: « No one is bound by any precept except through knowledge of that precept. » And the holy Doctor, as was demonstrated above, understands by science certain knowledge. 2° They affirm indeed that merely material sin is always to be avoided, and that toward this in every case one must flee to the safer part; and yet they concede that the sole inconvenience of the privation of liberty, which the agent would have to sustain from the observance of the doubtful law, suffices so that he may be permitted to pass over such a law, at least if the matter be light. How stands the absolute principle of embracing the safer part? 3° If such inconvenience can liberate from the obligation of a doubtful law, why would it not hold when the law exists certainly, since these theologians assert that in both cases the agent is bound by the law? Let them see how they can extricate themselves from these snares.

It is proved. Third part of the minor. That system induces to following tutiorism. For its defenders proclaim that a doubtful law always obligates more or less, and if they admit excusing causes, by this very fact they establish an obligation, since it is not necessary that the agent be excused from an obligation not existing. Therefore the safer part must necessarily always be followed in order to avoid sin in the case of a doubtful law, although a greater or even maximal probability favor liberty, seeing that however uncertain the law may be, it always presses. And this P. Potton openly professes in this proposition, which is the eighth among the twelve in which he includes his whole doctrine: « Given a law whose existence is doubtful, the evil of probable material transgression cannot be efficaciously prevented unless all probable opinions against the law are abandoned and recourse be had to the safer part. » And he concludes in the ninth proposition: « Therefore, given a law whose existence is doubtful, one must always follow the safer part. » But tutiorism is entirely reprobated, since by Alexander VIII this proposition was condemned, n. 3: « It is not lawful to follow an opinion, though most probable among probables. » Therefore the aforesaid system is involved in this condemnation, at least implicitly, but most certainly.

It is proved. Fourth part of the minor. It cannot be said that an uncertain law obligates certainly except because, if perchance it exist, the transgression of this law is sin, at least material, which is always to be avoided. This follows from the exposition of the system, and is asserted positively by P. Potton in the seventh proposition: « If, in fact, a law whose existence is doubtful to me really exists, acting against its dispositions I transgress it, at least materially, and this transgression is a true evil. » And in the eighth proposition related above, he pronounces that all probable opinions against the law are to be abandoned and recourse had to the safer part, to avert this evil of merely material sin. But this obligation is gratuitously supposed and is an imaginary thing. Therefore. — Proof of the minor. This obligation is gratuitously supposed and is an imaginary thing, if 1° material sin, considered as such, be nothing in the genus of morals, and 2° if it be in fact impossible to avoid every material sin. But so it is. Therefore. — Proof of the first part of the minor. Material sin is nothing else than the matter of sin, that is, an act which becomes sinful if the required moral form arrive. But this matter, so long as it is deprived of its proper form, is nothing morally. St. Thomas says, 1ª p., q. 15, a. 3, ad 3, that « matter, in itself, neither has being nor is knowable. » And VII Metaphys., lect. 2, he teaches that in itself matter has neither what, nor how much, nor anything of those things by which being is determined. Whence he concludes, 1ª p., q. 66, a. 2: « Matter, according to that which it is, is in potency to form. Therefore matter, considered in itself, must be in potency to the form of all those things of which it is common matter. » Matter which per se has neither what nor being becomes something through form and obtains being; for, as the Angelic Doctor says, ibid., q. 76, a. 5, « since form is not on account of matter, but rather matter on account of form, from the form must be taken the reason why matter is such, and not conversely. » And these principles are applied not only to physical matter, but also to moral matter, as is evident per se and sufficiently intimated by the denomination of material sin. Therefore material sin, so long as it is deprived of its form, with which it is clothed only through a certain law knowingly violated, is nothing morally. — It is confirmed from what St. Thomas says specially of sin, 1ª 2ae, q. 71, a. 6: « Sin is nothing else than a bad human act... Now the human act has what makes it bad from the fact that it lacks due commensuration; but every commensuration of anything is attended by comparison to some rule, from which if it depart it will be incommensurate. Now the rule of human will is twofold: one proximate and homogeneous, namely human reason; but the other is the first rule, namely the eternal law, which is as it were the reason of God. And therefore Augustine placed two things in the definition of sin: one belonging to the substance of the human act, which is as it were the material element in sin, when he said: « A word, or deed, or desire; » but the other belonging to the reason of evil, which is as it were the formal element in sin, when he said: « Against the eternal law. » » But that which is as it were formal is not found in material sin viewed in itself, because by this very fact that it is not against a certain law, that is, a true law, it is not against the eternal law. Therefore material sin is nothing in the genus of morals. Proof of the second part of the minor. The obligation of always following the safer part, to avoid material sin in every case, is imaginary if material sin ought sometimes to be permitted, and cannot in fact be avoided in every case. But so it is. For 1° material sin sometimes ought to be permitted; which happens when conscience is perplexed, that is, when someone is constituted, or judges himself constituted, between two incompatible precepts, and believes he sins whichever part he chooses. The same happens when the act is to have a twofold effect, one good and the other evil in itself, and the agent acting ex officio is bound to posit such act. 2° Experience demonstrates what Sacred Scripture testifies, Sap., IX, 14, namely that the thoughts of mortals are timid, and our providence uncertain. For even the wiser cannot foresee all things so as not to be constituted in the cases mentioned, where not only may, but must material sin be permitted, lest innocent persons transgress some law. Therefore from this twofold head it must be concluded that the obligation of always avoiding material sin is imaginary.

It is proved. Fifth part of the minor. That the compensation required by the defenders of the system can be established, there must first be taken account of the gravity of the law and its probability; then must be weighed the motives which can dispense from its observance; and afterwards it must be examined whether a true and exact proportion or equality exists between the good which the agent intends, declining the burden of the law, and the evil, as they say, of material sin which will arise from the violation of the law: and if this compensation be made not adequately, but only in part, the agent will sin more or less gravely, according to the reason of the difference². But these computations, weighings, and comparisons are impossible. For: 1° the gravity of a law is estimated from its necessity or utility; but a doubtful law does not appear as necessary, and concerning its greater or lesser utility much can be disputed without the degree being precisely determined. Besides, it is certain that the legislator can command or forbid a thing grave in itself under a light penalty alone. How then will his intention, in this respect, be discernible, since it is uncertain that he willed anything? 2° If the probability of the existence of the law be examined, opinions about a merely possible fact can differ greatly. 3° If grave difficulties arise already concerning the doubtful law objectively considered, not less difficult, nay more difficult, will it be to weigh with equal scale the subjective motives of dispensation, because everyone is prone to defend his own liberty, and he who constitutes himself judge in his own cause interprets most easily beyond the just and fair, in his own favor, the principle of law: « Hatred must be restricted and favors amplified. »

4° And yet, that sin be avoided, exact proportion, that is, true adequation, must be established between these indeterminate elements, which look either to the law or to the subject of the law. If from these the less learned will never extricate themselves, the more learned, impeded in them, will fall into most divergent opinions; and when action must proceed amid this practical doubt, recourse will have to be had to the safer part. Therefore the use of compensative probabilism is impossible. P. Potton fore saw this objection. He does not deny that the application of the system is at least very difficult in practice, and he answers ingenuously that the truth or falsity of any moral system is not demonstrated by the fact that it can be easily or hardly deduced into practice. Truly, this difficulty is so great as to constitute at least a moral impossibility, which would suffice to demonstrate that it is truly impossible to apply this theory to moral matters. But it has been proved, as it seems to us, that this impossibility is not only moral, but absolute; and thence our conclusion is deduced a fortiori.

The minor having been proved in parts, we conclude: Therefore the system of compensative probabilism is to be rejected.

Another system akin to the preceding.

To certain theologians of today, who are not pleased with the system of moderated probabilism, it seemed better to solve the question of the obligation of a doubtful law by the theory of an act about to have a double effect morally contrary.

This theory can be briefly exposed thus. When an act is about to have a double effect, one indeed good, which is intended, the other truly evil, which is foreseen to follow per se and proximately from the same act, but beside the intention, this act is posited with conscience unharmed, if some law imposes it upon the agent, or if the agent have right or legitimate motive for not omitting it: and this reason exists if the good effect outweighs or at least equals the evil. And this we admit with our Billuart, who demonstrated the truth of this opinion above, dissert. I, art. 1, on the voluntary indirect or in cause.

But, say the aforesaid theologians, when the law is doubtful, from the non-observance of such law there follows a double effect, one good, which is at least the use of liberty or any other advantage whatever, and another evil, which is the violation of the law. Therefore with conscience unharmed the doubtful law is passed over, if a legitimate reason persuade it.

Further, according to the same men, that the reason for passing over the doubtful law be reputed legitimate, both effects must be examined and diligently weighed, that it may be seen whether the good, which is intended, at least compensate the evil which is permitted; which compensation made, the agent licitly exempts himself from the law.

These things exposed,

I say: 1° The theory of an act about to have a double effect, although true in itself, has no relation with the question of the obligation of a doubtful law. For: 1° in that theory, the double effect is foreseen as certain, whereas in the present case the effect which is called evil, namely the material evil of violation of the law, is only possible; and elsewhere we proved that this material evil, if perchance it be present, is altogether nothing in the genus of morals. Further, no comparison nor compensation can be instituted between something and nothing. 2° The use of liberty, which is alleged as a good effect, is nowise the effect of the act posited against the doubtful law, but is the act itself: whence this term of comparison equally fails. 3° If it were admitted that a doubtful law obligate somewhat, then liberty, in the sense intended here, would no longer exist, seeing that the agent would truly be bound by the law.

2° The theologians above said suppose that the doubtful law has per se an obligatory force; which is false, as was proved above.

3° This system is nothing else than compensative probabilism, as founded upon the same principle and requiring the same condition. It is therefore undermined by the same arguments.

Let these things suffice for demonstrating the emptiness of this new system.