III. On Probable Conscience

What is probable conscience; and what is its directive force? - "Probable conscience is that by which someone, relying on some probable opinion, forms for himself a practical dictate of reason from certain reflex, or concomitant, principles for acting licitly." L. 1. 1. n. 40. Thus, for example, Titius, a confessor, relying on a probable opinion, judges that he probably has jurisdiction. Then, however, he says, and this is the reflex principle: But while jurisdiction is truly probable, the Church certainly supplies it. Therefore, he concludes, and this is the practical dictate of conscience: I can validly and licitly absolve in this case; and he absolves. Its directive force is declared by the following propositions.

Note: 1. "That diverse species of probabilities are given.... A tenuously probable opinion is one which rests on some foundation, but not such as avails to draw to itself the assent of a prudent man.... Probable is that which rests on a grave moment, either of intrinsic reason or extrinsic authority, which avails to draw to itself the assent of a prudent man, although with fear of the opposite. More probable is that which rests on a graver foundation, but still with prudent fear of the opposite, so that the contrary is also judged probable. Most probable is that which rests on a most grave foundation, and for this reason the opposite is judged either tenuously or doubtfully probable.... An opinion or sentence morally certain is one which excludes every prudent fear of falsity, so that the opposite is reputed altogether improbable. Finally a safe opinion is one which withdraws from every danger of sinning; but the safer is one which withdraws more from such danger, although it may not rest on stronger reasons." L. l. c. But S. D. speaks more exactly about a most probable opinion, H. A. tr. 1. n. 65: "Unless we wish to confuse a most probable opinion with an absolutely certain opinion, it is necessary to say that the opinion contrary to the most probable is not tenuously probable, but doubtfully probable." The reason is that a most probable opinion "is within the limits of probability," and therefore "does not exclude every prudent fear." "But tenuous probability is not true probability, and therefore does not bring with it a prudent reason. But doubtful probability brings some prudent reason, although not altogether certain and stable." Cf. also Op. Mor. l. 1. n. 85. But lest there be quibbling about words, as far as concerns us, we recognize no opinions, as regards doctrine, within the limits of true probability except the probable opinion, the more probable, and the most probable. Below the probable there is only the non-probable, the improbable, of which there can indeed be various grades; above the most probable there is only the certain. The probable is immediately opposed, by an opposition of comparison, to the more probable; but mediately to the most probable; and likewise the most probable is immediately opposed to the more probable, but mediately to the probable, unless someone wishes really to confuse the most probable with the certain.

2. Various moral systems: Tutiorism: A moral system which establishes that in doubt the safer part is to be followed practically. One kind is absolute, and is Rigorism, which establishes that the safer part must always be followed. Another is mitigated, which establishes that the safer part must be followed unless the other part favoring liberty is most probable. Probabiliorism: It is a moral system which establishes that it is licit to follow an opinion favoring liberty only when it is more probable than the opposite favoring the law. Therefore according to this system a doubtful law obliges, against the most common opinion and against reason. Equiprobabilism: It is a moral system which establishes that it is not licit to follow the less safe opinion unless it is equally or almost equally probable as the opposite. It is indeed a right norm of acting, but not to the exclusion of probabilism, which is a moral system containing an altogether right norm of acting, embracing all the cases of a true probable opinion favoring liberty, when the question concerns merely the subjective honorableness of an action. Probabilism: It is a moral system which establishes that it is licit to follow a truly probable opinion favoring liberty, although the opposite in favor of the law is more probable, whether a little or much more probable, where nevertheless the question concerns only the liceity of a human action. The reason is that when there is a truly probable opinion against a law, the law is doubtful, and a doubtful law does not oblige. Laxism: It is a moral system which establishes that it is licit to follow an opinion even doubtfully and tenuously probable against the law. It was condemned by Innocent XI, proposition 3, condemned March 2, 1679.

With a practically probable conscience, which proximately directs the action really to be placed here and now, it is altogether unlawful to operate. - For only a subjectively certain conscience is the rule of morals. And in this sense that saying is consequently false: He who acts probably, acts prudently. L. 1. 1. n. 58. 69. 80. Therefore the whole question here concerns a speculatively probable conscience, which only remotely directs the action, stating the probable existence of a law: namely whether by means of some reasoning we can lawfully make the step from a speculatively probable conscience to a practically certain conscience, or, what is the same, whether, while a probable opinion stands concerning the honorableness of some action in general, we can form for ourselves a certain conscience concerning the honorableness of such an action in a particular and individual case, and thus licitly follow in practice a speculatively probable opinion. To resolve this question we establish the following propositions.

It is not licit practically to follow a tenuously probable opinion, the safer one being left aside. - The proposition is against lax probabilists. This is clear first from proposition 3 condemned by Innocent XI. Moreover, a tenuously probable opinion is an opinion resting on a slight motive; but a slight motive is a motive by no means sufficient to move a serious or prudent man to assent, and therefore it is not truly probable. Indeed that opinion is called truly probable which rests on such a motive that it is sufficient to move a prudent man to assent. But if such an opinion is insufficient to move a prudent man to judgment about the non-existence of the law, it is impossible to form for oneself a conscience concerning the liceity of the action. L. 1. 1. n. 40; E. M.

You will resolve: From the cited proposition condemned by Innocent XI, both because it deals with even tenuous probability, and because it asserts too generally that we always act prudently when, trusting in probability, we do something, nothing can be drawn against probabilism. For tenuous probability is not true probability. Nor indeed is probabilism extended to a case where the question concerns the truth of a thing and an end to be obtained absolutely. Nor indeed is it licit practically to follow a doubtfully probable opinion. For a doubtfully probable opinion is an opinion resting on a doubtful motive, namely one about which it can prudently be doubted whether it is sufficient to move a prudent man to assent. But it is an evident thing that a prudent man in matters of grave moment does not rely on a motive of this kind; whence, if the matter does not in fact turn out well, all would rightly and deservedly accuse him of imprudence.

But the moral goodness or malice of human acts is a graver matter than any other temporal business. Moreover, while this doubtful probability stands, it is impossible to form for oneself a morally certain practical dictate concerning the liceity of the action. Therefore to an opinion tenuously probable is opposed an opinion gravely probable, or simply probable; to an opinion doubtfully probable is opposed an opinion certainly probable, or simply probable. There are not lacking those who confuse a doubtfully probable and a tenuously probable opinion with each other. Practically indeed they are often confused; but speculatively, given the nature of the thing, they are altogether distinguished from each other. Cf. 112; La-Croix l. 1. n. 126.

It is not licit to follow a probable opinion concerning the objective truth itself of the thing, where the question concerns an end to be obtained absolutely, the safer one being left aside. Proof. He who is absolutely bound to the end is bound to choose those means which in no way bring into danger the end to be obtained. But a probable opinion, since it can be false, brings the danger of frustrating the end to be obtained absolutely. For the objective truth or existence of the thing will certainly not be had if the opinion concerning it is probable but false. Therefore. L. 1. 1. n. 42. To be obtained absolutely, "namely when someone is bound from justice or charity to avoid damage which is present in the thing itself," Suarez apud S. Alph. Op. Mor. ed. Rome, 1757, l. c. n. 33, or the danger of it. Then indeed "in doubt the safer way is to be chosen." C. Illud 5 de Cler. exc. The case must likewise be added in which someone is bound to the safer thing from some special positive law or precept, or contract, or vow. Suarez tr. 3. d. 12. s. 5. n. 8, s. 6. n. 10; L. 1. 2. n. 10, l. 6. n. 918 p. ult.

You will resolve: It is not licit to follow a probable opinion, but we must altogether choose the safer one in all those things which are necessary with the necessity of means for salvation, where the fact itself, or the truth of the thing, alone is attended to. Hence we must embrace the safer religion. Prop. 4 condemned by Innocent XI; L. 1. 1. n. 43. In the conferral of the sacraments, the minister is bound to follow the safer opinion, unless necessity is present or the Church supplies; for here again the question concerns the truth of the thing. For sacraments would not be had unless those things were really placed which Christ instituted for their validity. Prop. 1 condemned by Innocent XI.

Unless necessity is present; "for in extreme necessity we can well use any opinion, not only probable, but even tenuously probable, for the value of the sacrament... provided the sacrament is conferred conditionally: because the condition sufficiently repairs the injury of the sacrament, if perhaps it is conferred invalidly, and on the other hand necessity is a sufficient and just cause for conferring the sacraments conditionally." L. 1. 1. n. 49. Unless the Church supplies; for "we can licitly use a probable opinion where the Church is presumed to supply, as can happen in the sacrament of matrimony to validate a contract only probably valid, if perhaps that contract is null because of an impediment which the Church removes by supplying, and in the sacrament of penance to supply the jurisdiction of the confessor, if perhaps it is lacking."

L. 1. 1. n. 50. A physician is bound to apply the safer medicines which can be had in the case; for here the question concerns the objective effect itself, that is, the health of the sick person, to be obtained absolutely. And certainly the physician is bound not only from charity, but also from justice, by reason of his office and tacit contract, to provide in the better way for the health of the sick person, from whom he receives a stipend. L. 1. 1. n. 44. A judge cannot judge according to the less probable opinion; for he is bound by divine and human precept to render to each his right. Prop. 2 condemned by Innocent XI; L. 1. 1. n. 47.

A hunter who probably judges that an object hidden in the woods is a man cannot strike, although he judges more probably that it is a beast. For on the one hand the neighbor has a certain right to his life; on the other hand greater probability does not make it so that, if it really is a man, he will not perish by the blow. L. 1. 1. n. 52, H. A. tr. 1. n. 33. When scandals and more grave evils threaten, the safer part is to be chosen, by which they may be avoided, so that the utility of all may be consulted. C. Illud 5 de Cler. exc. - Generally the safer things are to be chosen when, as regards charity, the danger of sinning formally must be avoided, and as regards justice, the damage must be avoided of him who is in certain possession of his certain right. E. M.

It is licit to follow the most probable opinion, and even the more probable, the safer being left aside, where the question concerns only the honorableness of the action. - The proposition is against rigid and mitigated tutiorists. The honorableness of the action, about which the question here concerns, is quite diverse from the effect itself of the action, or from the truth of the thing, about which in the preceding proposition. The honorableness of a human action depends on the dictate of conscience, which is the proximate rule of human acts; the effect of the action, or the truth of the thing, depends on the very fact of the action. The former is subjective, the latter objective. Proof of the 1st part from proposition 3 condemned by Alexander VIII in 1690: "It is not licit to follow an opinion even the most probable among probables"; the author of this proposition was John Sinnich (+ Oct. 8, 1666), a Louvain doctor and defender of Cornelius Jansen, whom other Jansenists followed. Hence it is clear that the rigid tutiorism of the Jansenists had already been reproved by the Church. And certainly no obligation is given of doing what is safer; for it suffices to do what is safe. Likewise no obligation is given always to forestall the danger of materially sinning, nor can it be given, for this would be morally impossible; only the obligation is present to avoid the danger of formally sinning.

Proof of the 2nd part. If it were not licit practically to follow an opinion in favor of liberty unless it is most probable, then either this most probable opinion is taken as morally certain, or, as the word sounds, as probable in the highest degree indeed, but not certain. In the first case mitigated tutiorism would fall back into condemned rigid tutiorism; in the other case it would fall into false doctrine against the Apostle saying that all that is not from faith, that is, from a certain persuasion of honorableness, is sin, Rom. 14:23. Thus among the milder rigorists are counted Antoine, De Consc. c. 4. q. 4, Gazzaniga, De Consc. prob. n. 140. 141, requiring for operating direct truth, or an opinion certainly and very probable, and much more probable, or more probable by many degrees, and far excelling. Proof of the 2nd part by the same reasons as the following proposition. - L. 1. 1. n. 40. 54; Suarez tr. 3. d. 12. s. 6. n. 8; E. M.

It is licit to follow a truly probable opinion, the safer being left aside, whether equally probable or even truly more probable, where the question concerns only the honorableness of the action, by forming for oneself a conscience not directly, but from reflex principles.

The proposition is against probabiliorists and equiprobabilists. The first part is proved. Probabiliorism and equiprobabilism are refuted.

Proof 1. The system of the probabiliorists and equiprobabilists is not practical. For it is very difficult even for the doctors themselves to establish which opinion is more probable, which notably more probable. What appears to one more probable or notably more probable appears to another less probable and notably less probable. Indeed, what to one and the same person previously appeared more probable, far more probable, afterwards, the matter having been weighed better, seems less probable and much less probable.

Proof 2. For either the probabiliorists and equiprobabilists say that it is licit to act from the immediate judgment of the more probable or notably more probable opinion; or they say that it is licit to act from a mediate judgment, namely by force of the principle: a doubtful law does not oblige; an uncertain law does not produce a certain obligation; the will without knowledge of the law cannot be bound by its obligation. The first cannot be said, for although the opinion is more probable or notably more probable, nevertheless it is not certain; and without a certain conscience it is not licit to act. But the other, as is clear, leads not into probabiliorism or into equiprobabilism, but into simple probabilism. For where there is true probability against the law, the law is already doubtful and uncertain, and knowledge of the law cannot be had.

Proof 3. For we would be bound to follow the more probable or notably more probable opinion insofar as these approach more closely to truth. But this is false; for an opinion simply probable can approach more closely to truth, and a sentence can be false which bore before itself a certain greater appearance of truth. Moreover, here the question does not concern speculative truth but practical truth; the question does not concern adhesion of the intellect simply to truth, but the obligation of the will, which is not bound by the obligation of the law unless the law is certain and knowledge of the law is had.

The second part is proved. Simple probabilism is proved.

Proof 1. The proposition established is clear from the authority of very many and very grave theologians, who not only hand it down, but also affirm it as common doctrine, such as Suarez, Lugo, Struggl, La-Croix, Pignatelli, Vasquez, Elbel, Castropalaus, Sporer, etc. Cf. these Instit. Mor. ed. 4. Hence S. Alph. in Dissert. de usu moderato opinionis probabilis in concursu probabilioris, 2nd ed., Naples 1755: "We undertake to prove the last, more benign, and most common opinion, namely that it is licit to use a probable opinion even in concurrence with a more probable one in favor of the law, whenever that opinion has a certain and grave foundation." And certainly, although many after the Jansenists defended probabiliorism, nevertheless by far the greater part of theologians embraced probabilism. But he who in practice follows a doctrine which very many and very grave theologians teach, and which the doctors commonly hand down, acts prudently; but he who acts prudently acts honorably. For this reason, in the Dissertation just cited, S. D. immediately adds: "Add to these especially the argument, namely that if the benign opinion had been false, it certainly would by no means have been commonly received everywhere by doctors as it truly was received; or at least the Church would not have tolerated it, permitting souls commonly to walk by this way of perdition, as the adversaries cry out, deceived by such blind guides." And, as the same S. Alph. has it l. 6. n. 460, par. Haec autem, "nor is it an obstacle that several opinions which are circulated are not condemned by the Church, and yet by others more commonly are reputed lax; for the Church does not condemn all opinions which regard particular cases, although it does not approve them; but opinions which regard the universality of consciences, the Church does not approve nor keep silent about, as S. Aug. said, Epist. 119: The Church of God tolerates many things, and yet those things which concern faith or good life, it neither approves nor keeps silent about." Cf. L. 1. 3. n. 669 toward the end, Hoc unum, etc.; Bouquillon Theol. Fund. de Consc. c. 2. a. 1. § 2.

Proof 2. He who in practice follows an opinion which stands within the bounds of right reason and prudence acts prudently, and consequently honorably. But he who in practice follows a truly probable opinion, the more probable and safer being left aside, follows an opinion which stands within the bounds of right reason and prudence. Therefore. - The major is clear of itself. For what is more honorable than to follow right reason and prudence, which is right reason concerning things to be done? And Benedict XIV, C. Apostolica Constitutio § 21, indeed hands down this rule of acting, namely that we should follow the opinion which reason persuades and authority confirms. Moreover, it is by no means consonant with right reason, and especially with divine goodness, to wish to oblige man to perform somehow that which remains prudently uncertain to man himself after diligent inquiry, whether it is required by the order or not; especially since doubts of this kind are very frequent because of the weakness of the human intellect itself. This would be to impose unbearable burdens. L. 58. 86; S. Th. 1. 2. q. 19. a. 10 ad 1. But the minor is clear from the very nature and definition of a truly probable opinion, which is not changed by the concurrence of another opinion, although more probable and safer. And this S. Alph. himself openly affirms in the definition of the more probable opinion; for he says that its contrary is judged probable. Cf. 112. Muzzarelli Dissert. de Regul. mor. opin., Rome 1807, p. 30 seq.; L. 1. 1. n. 79.

Proof 3. S. Alph. says this in his Op. Mor. Theol., 6th ed., Rome 1767: "There are two principles on which, relying, I defend the licit use of a probable opinion. The first, that a doubtful law, in the conflict of two equally probable opinions, does not oblige, because a doubtful law is not sufficiently promulgated. The other, that an uncertain law cannot introduce a certain obligation, because the obligation of law is posterior to liberty, with which man has been endowed by God." Each of these principles is explained and proved at length by S. D. l. 1. n. 66 seq., H. A. tr. 1. n. 37 seq. But when a truly probable opinion is present, although it is in concurrence with another more probable and safer one, each principle is still verified, namely that the law is uncertain if the question concerns its existence, or that it is doubtful if the question concerns its interpretation, because it is obscure; and therefore neither does the law have the power of actually obliging, since it has not been sufficiently or certainly promulgated; "for then the doubt whether the law exists is sufficiently promulgated, but the law is not promulgated," L. 1. 1. n. 70, Turin ed. 1846; nor is man, having certain possession of his liberty, bound to reckon himself despoiled of it because of an uncertain law: for antecedently to every law, each possesses his own liberty, since man must first be conceived as free, and then the law which is imposed on man. Therefore. L. 54 seq.

Now, that the law in that hypothesis is really doubtful or uncertain, so that it may prudently be regarded as such, whence that twofold axiom flows, is clear from the very nature of probability. For where true probability is present, greater probability does not of itself destroy the lesser; and this philosophers and theologians commonly affirm, and S. Alph. expressly hands down, H. A. tr. 1. n. 29 and l. 1. n. 40, where he says that the contrary of the more probable is also judged probable. The same S. D. explains this in this way in the Dissertation ed. 1755, n. 13: Greater probability does not destroy the lesser, "unless that lesser probability is drawn from the same principle, or unless the more probable opinion has in its favor so convincing an argument that the contrary seems truly improbable, or no longer gravely and certainly probable. But otherwise it must be said if the excess is not notable, and the opposed probability receives force from diverse principles, as almost always happens in the concurrence of opinions; for then the less probable opinion is by no means deprived of its grave probability." Indeed the probability or improbability of some opinion is not the same as its truth or falsity, so that one excludes the other; but it is a worthiness of meriting prudent assent, arising from grave motives, which, although greater or lesser, do not contradict one another if they are taken from diverse principles. But if they exhibit an argument so convincing that the opposite is judged improbable, we are already outside the case of greater or lesser probability, since then one opinion will be certain or probable, the other false or improbable.

Hence S. D. l. 6. n. 604, raising the question: "Whether a penitent can be absolved who wishes to follow an opinion contrary to that which the confessor holds," responds: "The common and to-be-followed opinion teaches that the confessor not only can, but is also bound under grave sin (where the question concerns grave matter, H. A. tr. 16. n. 118), to absolve a penitent who wishes to follow a probable opinion, although the opposite seems more probable to the confessor.... This common opinion standing, strengthened by so many authorities and reasons, I do not see how a confessor can with a safe conscience deny absolution to one wishing to follow an opinion which appears probable to the penitent himself, indeed perhaps more probable, if not directly at least reflexively, as probabilist authors commonly think, who by following a probable opinion in concurrence with a more probable one judge that they embrace an opinion reflexively more probable, as being confirmed by graver foundations and by the most common authority of doctors." S. D. has the same doctrine in his last work, H. A. tr. 16. n. 118; and to this opinion he adds no limits except the following: namely that "the opinion of the penitent have some probability, so that the confessor, although he does not hold it as solidly probable, nevertheless does not repute it altogether false... evidently erroneous." Cf. also l. 1. n. 87, where S. D. after Gerson says: "Theological doctors ought not to be quick to assert that some things are mortal sins where they are not most certain about the matter: Note, WHERE THEY ARE NOT MOST CERTAIN." Lugo Resp. Mor. l. 1. d. 26. n. 3; Pignatelli Cons. Can. tom. 8. cons. 15.

Proof 4. In order that law certainly oblige, it must be sufficiently promulgated, S. Th. 1. 2. q. 90. a. 4. But sufficient promulgation of law is not had if the law is not certain and manifest. Hence in canon law it is generally established: "In these things, concerning which the law is not found expressed, proceed, equity being preserved, always inclining toward the more humane part, according as you will see persons and causes, places and times, to require." C. Ex parte tua 11 de Transact. And in civil law it is decreed: "Whenever the interpretation of liberty is doubtful, response must be made according to liberty." L. 20 de R. I. "In a doubtful matter, to follow the more benign interpretation is no less just than safe." L. 192 de R. I. But the reason is that law imposes moral necessity, and therefore must necessarily bind the will. But it cannot necessarily bind the will except through knowledge. Therefore, knowledge of the law being excluded, the will remains morally free. S. Th. De Verit. q. 17. a. 3. Now if a most probable opinion is present against the law, it is evidently clear that knowledge of the law is lacking. For certainty and evidence cannot be had with the greatest opposite probability; indeed not even with simple probability. Hence S. Alph. says: "To constitute a doubtful law, true probability to the contrary suffices." L. 1. n. 57, ed. 1762. 1763.

Confirmation 5. By the authority of S. Thomas. Law is a certain rule and measure. In order that a rule direct and a measure measure, it must be applied to the thing which must be directed and measured. S. Th. 1. 2. q. 30. a. 4. Therefore law must reach the subjects whom it directs; but it reaches them through knowledge. S. Th. De Verit. q. 17. a. 3. Accordingly law must be certain and evident. Therefore, if the law is uncertain, namely if its existence is not established, if the law is doubtful, namely if the meaning of the law is obscure, the obligation of the law ceases; a precept does not bind except through knowledge. S. Th. l. c. Hence those axioms: An uncertain law cannot introduce a certain obligation; A doubtful law does not oblige. For the effect cannot surpass the cause. These things S. Thomas says altogether generally, nor does he distinguish between a law having against it a less probable, or equally probable, or more probable opinion. Therefore the whole question from the Angelic Doctor is this: whether a law having against it a more probable, equally probable, or less probable opinion can be said to reach man through knowledge, to bind him by means of knowledge, through knowledge, through the power of knowledge. But knowledge is not given if true probability is against it. Hence every question about mortal sin is determined dangerously unless the truth is had expressly. S. Th. Quodl. 9. a. 15. And S. Alph. l. 3 after n. 139, Epist. Resp.: "But in order that some action be affirmed absolutely to be a mortal sin, a probable opinion is not enough, nor even a more probable one; for the more probable does not exclude rational fear of erring; whence it does not bring about that the law does not remain doubtful, and that the opposite cannot be true, if it is truly probable."

Confirmation 6. Innocent III allowed a spouse suffering from impotence a three-year trial, C. Laudabilem 5 de Frig., and did not prescribe that it must first be seen whether potency was more probable, or at least equally probable. In the eighteenth century, when certain Indians in the Kingdom of Paraguay who had been converted to the faith had several wives, and questions arose concerning the validity of their marriages, Urban VIII responded to John de Lugo, afterwards Cardinal: "Where the opinions of doctors concur as probable on each side, those opinions are to be followed which, for the condition of places and barbarian men, are more favorable." Urban did not say that the more probable opinions were to be followed, nor did he say where equally probable opinions concur, but absolutely where probable opinions concur. Carden. Cris. Theol. Diss. 2. § 553. E. M. 119.

Nor indeed is it of any force, in order to overturn all the aforesaid things in almost one word, to object against them that probabilism has already been condemned by Innocent XI. For Innocent XI only commanded that liberty be given to the Fathers of the Society to defend probabiliorism and to refute probabilism, if they wished. Cf. E. M.; Wirceburg. De Actib. hum. c. 4.

Is the proposition established above, n. 116, some exception to probabilism, as though a true case of probabilism? - R. Negatively. For if probabilism is true, it must always be true, and must be verified in every case. And certainly probabilism regards the formal or subjective honorableness or shamefulness itself of an action; by no means the objective or real existence or non-existence of the effect of such an action. Now that thesis precisely regards this objective effect to be obtained or not obtained.

Therefore if someone in that case, in which the effect must be obtained absolutely, uses a probable opinion, he will certainly sin; but he will not sin precisely because he uses a probable opinion concerning the liceity of the action, but because he uses a probable opinion concerning the validity of the act, exposing himself to the danger of frustrating the effect to be obtained absolutely.

Then this would be a case of probabilism, when there were a probable opinion that it is licit by one's action to expose to danger an effect to be obtained absolutely; but that is not a probable opinion, but a false and erroneous one. And thus, for example, a minister of the sacraments who follows in their administration a probable opinion as regards their value indeed sins, certainly not because he follows a probable opinion as regards the liceity of the action; rather on the contrary, because he follows an altogether improbable opinion as regards the liceity of the action; because, since the effect of the sacrament certainly to be obtained, namely remission of sins and infusion of grace, depends on true matter and true form, someone using doubtful matter or form exposes it to the danger of lacking such effect, and therefore inflicts harm on his neighbor, and consequently sins. - L. Op. Mor. ed. Rome, 1757, l. 1. n. 33; Laymann l. 1. tr. 1. c. 5. § 2. 3; Lugo De Iust. et Iure d. 16. n. 97; D'Annib. ed. 4. p. 1. n. 266.

Note: An exception, and a true and illogical exception of probabilism, is the limitation which some probabilists and equiprobabilists add to probabilism from the principle of possession: In doubt the condition of the possessor is better. Therefore, they say, a doubtful law, in doubt about the existence of the law, does not indeed oblige, because liberty possesses. But a doubtful law in doubt about its cessation obliges, because the law possesses. Hence if it is probable that you did not emit a vow, you are not bound by the vow. If you certainly emitted a vow, and it is probable that you satisfied it, you are still bound to satisfaction.

But thus to admit probabilism halfway concerning the existence of the law, and not concerning the cessation of the law, is to admit the principles and deny the conclusions. If a doubtful law does not oblige, precisely because it is doubtful, whenever it is doubtful it will not oblige. Now the law is as doubtful in doubt about its existence, namely about its first existence, as it is doubtful in doubt about its cessation; for if its cessation is probable, by that very fact the existence itself of the law becomes doubtful. But the law obliging is not a law which existed, but one which exists; nor is it the law which exists in the abstract, but one which binds us in the present by its certain obligation.

But if a probable opinion is had concerning the cessation of the law, however that may be understood, its obligation becomes doubtful, and its existence likewise becomes doubtful; namely again, not the very existence itself of the law in the abstract, but its force of obliging in the concrete, in the particular case, here and now. L. 1. 1. n. 63. 78. And thus, although it is certain that a vow was emitted and at some time existed, if you probably satisfied it, that certain vow, insofar as it once existed, becomes doubtful insofar as it binds you here and now; and that saying has force: A doubtful law does not oblige.

Possession indeed constitutes a prevailing right insofar as he who possesses is shown by possession itself, or at least is presumed, to be the owner of the thing which he possesses. But how can that be either demonstrated or reasonably presumed when the opposite is established by true or grave probability? For then it is established by true and grave probability that the possession is not legitimate, which alone can constitute a prevailing right. For if the fact alone of possession, without legitimate title, at least reasonably presumed, constituted that prevailing right, then all thieves and robbers could retain another's property by the prevailing right of possession. Cf. 157. 4; Troplong, Della Prescrizione c. 2 del Possesso a. 2228; D'Annib. ed. 4. p. 1. n. 260. 268.

The material fact itself of possession by no means constitutes a prevailing right in the internal forum, as regards the very right of dominion and ownership of the thing, but only as regards proof in the external forum, which must be instituted by the plaintiff against the possessor, because of the aforesaid presumption of dominion. But presumption yields to truth. Hence if someone has possessed in bad faith, even for a very long time, he must restore the thing even spontaneously and without proof or petition by the plaintiff. D'Annibale himself, who ed. 4. p. 1. n. 264 seq. follows the rule of possession, asserts n. 256 note 5: "Justice forbids giving damage to him who is in certain possession of his right....

I said, who is in certain possession of his right; for if the right of another is uncertain, either the condition of the possessor will be better, or at least because no certain right of another is violated, there will be no obligation of restitution." Behold how D'Annib. himself requires certain and legitimate possession, so that it really constitutes a prevailing right. And the same D'Annib. l. c. n. 259 note 18 also asserts: "Namely, certainty against true probability is not given." How therefore will the obligation of the law be certain, if it is probable that that obligation already ceased long ago?

See also ibid. n. 169. 181. 203. - Cf. 143. S. Alph. l. 3. n. 112 par. Secundo says: "When it is probable that the obligation of the law never began, or that it has been abolished, then the presumption in favor of the law ceases, and liberty possesses." Behold, the limitation of probabilism through the principle of possession is finished; and from S. D. also, it has no value except from presumption. S. D. joins indifferently the two cases, that the law never began, or that it has been abolished, and when each is probable, from S. D. the obligation of the law is not present. - Likewise n. 290 he says that probable custom suffices for excusing from the law. Behold again, no account is taken by S. D. of possession of the law.

And then, distinguishing well altogether between doubt and probability, he says: "that in doubt about custom the precept possesses, whence a dispensation must be sought; otherwise, if it is probable that custom is present." Cf. L. 1. 3. n. 325, par. Infirmi, n. 483, l. 4. n. 47. Besides, D'Annibale asserts the law of possession in a threefold case, namely in doubt 1. whether it receives a restrictive interpretation, 2. whether it is just, 3. whether it has ceased. P. 1. n. 262. And in the preceding n. 261 note 30 and n. 263 note 1, he affirms that S. Alphonsus perpetually used this rule of possession. - Now D'Annibale himself, cited n. 262 note 35, says: "except the 2nd case, in which all agree, Cf. here 157, in the others even those who seem to profess it depart from our rule."

And among these he expressly cites and reports only S. Alphonsus! And while the praised author notes this against Probabilism, that it must use exceptions which his rule of possession does not need, l. c. n. 266, he then candidly admits that his rule is not perpetual, and that it fails in several cases which he enumerates, l. c. n. 269 note 30. - But the alleged exceptions of Probabilism, namely when the question concerns not only the honorableness of an action, but an end to be obtained absolutely and the objective truth of the thing, l. c. n. 266, 256 note 5, are not really exceptions.

Cf. here 120. What he likewise says, l. c. n. 267, that the probabilist is forced to give contradictory responses, is in no way true. Cf. here 128. And it is certainly surprising that the learned theologian found a contradiction, cited n. 267, as regards that same case in which he himself had expressly affirmed a little before, namely n. 263, that it is licit to follow each of two contrary probable opinions. - Finally he asserts n. 264 that that rule of possession enjoys a better right, and n. 269 that it is better than the others not only as to the truth of the thing, but also as to practice; but in the following n. 270, immediately afterward, he affirms that it is licit to follow opinions truly and gravely probable; and n. 263, after he has set forth the various systems and also established his own rule n. 262, he says, let it be licit for each one to choose what pleases him more.

Perhaps to avert contradiction it can be said that the illustrious D'Annibale regarded that rule of possession not for the case of true probability, but for the case of doubt, which he seems sufficiently to suggest n. 269; and thus it is altogether true that theologians most commonly teach that rule, n. 268, and in this sense we also admit it and diligently explain it. Cf. here 143 seq. And certainly that rule is stated in doubt.

What is the force of extrinsic probability? - There is no doubt that extrinsic probability constitutes an opinion truly and sufficiently gravely probable. "Someone of small knowledge," says S. Th. 2. 2. q. 4. a. 3, "is made more certain about that which he hears from some learned person than about that which seems to him according to his own reason." This probability therefore has force, because someone is not judged to speak without grave foundation. L. 1. 1. n. 79. Hence, if someone does not rest in authority alone, but weighs this foundation, then extrinsic probability is resolved into intrinsic. But sometimes this extrinsic probability itself constitutes intrinsic probability, namely when the question concerns a matter which greatly depends on the estimation of the wise, L. 1. 3. n. 1032, namely a matter rather of fact than of law, for example, what is grave matter in the canonical hours, in fasting, etc.

An extrinsically probable opinion is usually designated by common, more common, most common opinion. Concerning these Sanchez, De Matr. l. 3. d. 44. n. 3, has these things, from which one can make a judgment about a common, more common opinion, etc.: "That opinion is not called common which has many doctors asserting it, with no preceding discussion, but superficially, and as they say, following it in passing....

Therefore Navarrus very well says that he regards as more common an opinion approved by six doctors treating the matter professedly, than by fifty who are led almost by the authority alone of the former. To these add Ioannes Lupus... saying that doctors are not to be believed, however much they excel in doctrine, when they lack foundation." - La-Croix l. 1. n. 164. 165; Muzzarelli Dissert. de Regul. mor. opin., Rome 1806, p. 21 seq.; E. M. 122. 131.

Note: From the common opinion of theologians "one must not easily depart in a practical matter." Lugo De Iust. et Iur. d. 16. n. 106. Yet this must not be taken too scrupulously, and much less extended. Hence S. Alph. does not hesitate to affirm that he "departed from the opinions of many grave authors," l. 3. n. 547, and ibid. below he says: "Where reason convinced me, I did not refuse to go against several authors." Cf. also l. 6. n. 257. 427, where S. D. departs even from the most common opinion. Indeed an opinion is not therefore probable because it is taught by several authors, if they do not bring to it a grave reason. La-Croix n. 136 seq.; L. 1. 6. n. 657.

You will resolve: Therefore we make the step from a speculatively probable conscience to a practically certain conscience by the following reasoning. What is forbidden by no certain law is licit. But such or such an action, which truly probably is prohibited by no law, is by that very fact forbidden by no certain law. Therefore such an action is licit. Since the major and minor of this syllogism are certain, the conclusion too will be certain. And hence again it is clear that an opinion both tenuously and doubtfully probable is altogether excluded from probabilism. But the conclusion contains the judgment or dictate of conscience. The same transition can be made by force of another reasoning. He who acts according as prudence dictates, acts honorably. But he who acts according to this or that probable opinion acts according to the dictate of prudence. Therefore, he who acts according to this or that probable opinion acts honorably. Since again the major and minor of this syllogism are certain, the conclusion will also be certain. L. 1. 1. n. 67. 68. 69. 84; Muzzarelli Dissert. de Regul. mor. opin., Rome 1807, p. 30 seq.

Does the authority of one doctor suffice for the probability of some opinion? - R. Negatively, ordinarily speaking. The reason is that if it is of some ancient author and has been deserted by all, by this very fact it ordinarily lacks a sufficient foundation. But if it is of some more recent author, either he brings a grave reason, or not. If the first, his opinion is ordinarily handed down also by others. If the second, he cannot render his opinion probable to others, since he brings no sufficient reason for this. Ordinarily speaking: for if some grave author treats some question which others have not treated, and brings a grave reason, or if he sustains an opinion against the common opinion, but sustains it by some new reason unknown to others, nothing prevents him, even alone, from rendering his opinion probable; but soon several others will adhere to it, if that doctrine is publicly spread. And thus "the Salmanticenses, etc., note that the statement of an excellent doctor, even a modern one, asserting that a law has been abrogated, suffices so that we are disobliged from the law." L. 1. 1. n. 107. And certainly the Holy See expressly declared that a confessor is not to be disturbed who follows the doctrine of S. Alphonsus on account of his authority alone, without having weighed his reasons. S. Poenit. July 5, 1831; E. M. 131.

Note: Proposition 27 condemned by Alexander VII: "If a book is by some younger and modern author, the opinion ought to be judged probable, so long as it is not established that it has been rejected by the Apostolic See as improbable," was altogether rightly condemned, because the proposition is general, and can be understood of any author whatever, even of humble reputation, and affirms an opinion to be probable by the very fact that it is not established that it has been rejected by the Apostolic See as improbable. E. M.

Is there an opinion speculatively, but not practically, probable? - R. Negatively, speaking per se; for the reasoning established above, n. 124, can always be made if the opinion in itself, or speculatively, is truly probable, by which we may advance to practical conscience itself. - R. Affirmatively, accidentally, namely if, when that opinion is brought into use, there is always or almost always some extrinsic circumstance which renders the use of such an opinion illicit, for example, danger of fall, scandal, hallucination, etc. - Pignat. Cons. Can. t. 8. cons. 15; Lugo Resp. Mor. l. 1. d. 26. n. 3, De Iust. et Iur. d. 10. n. 165. 189.

Can someone licitly follow in practice diverse probable opinions favorable to himself, although those opinions are opposed to each other? - No one is prohibited from using now one probable opinion, now the contrary also probable one. For if it is licit for you to follow one, and for me the other, it will also be licit for each of us to follow each; for by no means does the fact that someone has used one make the other cease to be probable and safe. In one and the same matter it is not licit to follow the probable opinion where it benefits; but where it harms, not that one, but the contrary. For, as is clear, it is an open contradiction. And thus, for example, since some affirm that a testament lacking legal formalities is valid, and others deny it, he would act illicitly who, on account of this twofold opinion, wished to acquire an inheritance for himself from a less solemn testament, and did not wish from the same testament to provide the legacies. It is not licit to use at the same time a twofold probability of the non-existence of a twofold precept, when the transgression of either one is certain. And thus, for example, the law of abstinence urges today; I wish tomorrow to approach communion; but it is probable that midnight has already elapsed, and the opposite is also probable; certainly it is not licit to eat meat and at the same time to approach holy communion. - Elbel De Act. hum. 190 seq.

Is it expedient to prefer stricter opinions to more benign ones? - "Where the question concerns removing the penitent from danger of formal sin, the confessor ought, generally speaking, and insofar as Christian prudence suggests, to use benign opinions; but where benign opinions render nearer the danger of formal sin, as are some opinions of authors, for example, as regards avoiding proximate occasions, and others of this kind, then it is always expedient that the confessor use, indeed I say that he, as a physician of souls, is bound to use the safer opinions which conduce to preserving penitents in the state of grace." L. 1. 1. n. 87, l. 3. n. 547.

Where the penitent is prepared to follow the dictate of the confessor, whatever it may be, then "it belongs to the prudence of the confessor to weigh whether the use of the safer or less safe opinion will be profitable to his penitent... because although that is of itself safer and more perfect, nevertheless it will be more dangerous to impose on many the obligation of always acting according to the stricter opinions." L. 1. 6. n. 605. - Generally in practice, as far as can be done, the confessor ought rather to be benign than rigid with penitents. L. l. c. The same is clear by the authority of the Fathers and theologians, whom you have cited apud S. Alph. l. c. and l. 1. n. 86 par. Ego, and n. 89 toward the end, Praeterea res, H. A. tr. 1. n. 79.

Must a confessor know all probable opinions? - "A confessor is not to be obliged to knowledge of all probable opinions, but to that knowledge which the moderately learned commonly have; just as an advocate, judge, physician, or artisans also are not obliged to the highest and exquisite knowledge and skill in their profession, but to moderate knowledge according to the degree of their office and condition... thus a penitent ought not to require from an ordinary confessor anything except common knowledge about common sins and common opinions also; but if he desires subtler remedies, let him approach a more learned confessor." Lugo Resp. Mor. l. 1. d. 26. n. 2.