On the use of probability, and the special rules by which conscience is practically formed in doubts

[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 favor^{1 1} How you ought rightly use the principle praised above, you have in Suarez, in Ia IIae, tract. 3, disp. 12, sect. 5, n. 7 : « If it be simply doubted concerning the whole law, that is, whether it be promulgated or not, the general rule is, not to oblige. The reason can be sought from that principle, that in doubt better is the condition of the possessor; but man contains [that is, possesses] his liberty. But if the law and its sense be known, it can be doubted whether in this case it oblige; and then the general rule is, if there be no sufficient and probable reason for excusing, then the law must be obeyed, because itself or a superior contains its right. »

» 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 end¹. 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. ¹ St. Lig. says, lib. I, n. 29: « If anyone judges probably that he has already satisfied a vow, is he bound, this notwithstanding, to fulfill it? Many authors deny, namely Roncaglia, de Praecept. decal., c. 2, de voto, q. 4; Salmant., eod. tit., tract. 17, c. 1, punct. 6, § 2, n. 145, with Layman; Lugo, de Poenit., disp. 16, n. 60, and others; because, as they say, since the obligation of the law in that case is doubtful, the possession of the law becomes doubtful also. Formerly I thought this opinion probable, led rather by extrinsic than by intrinsic probability. But, the matter better weighed, now I in no wise esteem it probable. Whence I say the opposite must be held, with Concina, tom. III, diss. 2, de Voto, c. 4, n. 10; Antoine, de Relig., c. 3, de Voto, q. 5; Filliuc., Leander and others. The reason, because when a vow has been emitted doubtfully, it is rightly said there is no obligation of fulfilling it, for then liberty possesses. When however the vow is certain, this liberty remains bound by the obligation of the vow until the vow be certainly fulfilled. Then alone could the first opinion be admitted, when the probability were such as to make presumable with a certain moral certitude that satisfaction had already been made to the vow. But what we said of a vow must be understood also of the satisfaction of sacramental penance. » The same the holy Doctor says, lib. VI, n. 477, concerning the doubt whether one who has confessed a mortal sin certainly committed has sinned or not, and there he refers himself to the opinion declared by him here concerning a vow. Can it be affirmed that from this twofold retraction, as regards particular cases, he wholly departed from the opposite doctrine? The contrary seems proved from what he has in the same book I, n. 99: « What if you doubt whether you fulfilled the law? In a negative doubt, you are bound to fulfill; otherwise in positive. » And lib. IV, n. 290: « In doubt concerning custom [namely derogating from the law], the precept possesses, whence dispensation must be sought; otherwise, if it be probable that custom is present. » And again in the same book, n. 112, q. 3, de inhabilitate ad obtinenda beneficia, § Secunda sententia, he writes: « Here we are not concerned with doubt, but with probable opinion… But when it is probable that the law has been abolished, then the presumption for the law ceases, and liberty possesses. » Whence Ant. Ballerini concludes, annot. on the place of Gury cited above : « Therefore St. Alphonsus surely changed his opinion as regards the special question of a vow, not truly as regards the general principle. And indeed that resolution concerning a vow seems to be understood of him who is uncertain whether he has performed anything toward fulfilling the vow or not; but not of him who has done something, and is uncertain only whether it suffices for fulfilling the promise. For otherwise a hundred times, nay a thousand times, St. Alphonsus inculcates that he is safest in conscience who, as regards obligations, follows probable judgment, since his whole moral work rests upon this principle. »

» 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.]