Chapter VII — The paradoxes of the Probabilists are weighed

I. In a doubt about the honesty of an action, the condition of the possessor is the better. The law takes away the right of liberty, say the Probabilists. When Theologians dispute about the obligation of a law, the law becomes doubtful; therefore it cannot take away the right of liberty. For in doubt, the condition of the possessor is the better.

II. It has been shown above that this rule holds only in the matter of justice, for the exterior forum. But now I admit it in any matter whatsoever, that I may prove that this very rule utterly overthrows Probabilism. Before the probabilistic tribunal, then, there present themselves the eternal will of God, and the human will. Each sets forth its rights, which appear equal, or controverted. The probabilistic tribunal decides the cause in man's favor against God, because in an equal cause the condition of the possessor is the better. Be not affrighted, says the prince of the Probabilists, Fr. Terillus, at hearing that man brings suit against God — for God too brings suit against man. Hear what Terillus writes in his treatise On conscience, question 23, number 48, page 426: I answer that the same rule equally favors God against us, and us against God. It favors us, so long as we are in possession of liberty; it favors God, so long as the law is in possession. Whence, if the law certainly exists, and it be doubtful whether I have paid the debt, I am as much bound in that doubt to pay, as if I had certainly not paid the debt. Since, therefore, this rule favors God when possession stands for the law, so it favors us when possession stands for liberty, and the doubt is about the law.

III. There exists, then, a title which equally favors man against God, and God against man? Why not? replies Terillus. The same rule equally favors God against us, and us against God. The Probabilists speak of liberty not physical, but moral. When it is disputed whether a contract be usurious, it is disputed whether I am free to celebrate the contract. When therefore it is disputed whether the contract be licit or illicit, it is disputed whether I am free, or not, to complete the contract. Therefore, when the Probabilists allege in controverted matters the said rule, The condition of the possessor is the better, they commit a most ridiculous begging of the question. That you may be able to allege this rule in the tribunal, the possession of the estate must be certain; otherwise it would be opposed in vain. Now what Christian can display a certain possession of liberty against God, by which he may celebrate that contract about which Theologians dispute on both sides? None, surely. For while it is disputed whether the contract be usurious, it is disputed whether the man is free to enter into it. Therefore the possession of liberty is controverted, not certain, in respect of such a contract.

IV. Is not the free dominion of man over his own actions subject to the supreme dominion of God? You grant it. Therefore, whenever it is doubted whether God has granted such dominion over this or that contract or work, the rule cited — The condition of the possessor is the better — favors God, not man. For the possession of God is most certain; that of man, doubtful. Therefore, if the rule holds, it favors God, the certain, supreme, and absolute possessor — not man, subject to God, and a doubtful possessor. Therefore the right of possession which in controverted matters the Probabilists ascribe to human liberty is false and altogether chimerical; it wounds the supreme divine dominion, inflicts injury upon the tremendous majesty, disturbs the subjection of men to God, and equals man to God.

V. [The Probabilists apply this paradox to] natural, divine, and human laws, about which Theologians dispute on both sides. This paradox also appears incredible; therefore their words must be transcribed. Fr. Terillus, On the rule of morals, part I, question 2, number 45, page 19, writes as follows: No law obliges unless it be sufficiently promulgated. But whenever reasons are present probably establishing that the less safe part is licit, the law commanding the safer part is not sufficiently promulgated. Therefore that law obliges no one, so long as it is certainly probable that the less safe part is not prohibited. Terillus is followed by La-Croix, Viva, Paolo Segneri, and commonly all the Probabilists.

VI. No law without promulgation. No sin, not even a material one, without a law. These two things are certain among all. When you embrace an opinion, whether less or more probable, you sin at least materially, supposing the opinion to be false; which fault is not imputed to you on account of invincible ignorance, as all the Probabilists teach. But if the law, on account of greater and lesser probability on both sides, were not a law, because not promulgated, there would be no sin, not even a material one: because, as I have said, there is no sin without a law.

VII. Upon the same law there are given two contrary probable opinions, of which the one affirms, the other denies, that the action is licit — as all the Probabilists attest. But if it were true that a controverted law is not sufficiently promulgated, and therefore is not a law, the first proposition would be false. Nay, this principle being admitted — that a law probably controverted on both sides is not a law — no probable opinion would be given at all. For the opinion, whether affirming or denying that the action is licit, no law existing, would be not probable, but false and chimerical, as being about a non-supposing subject, as they say. Therefore, etc.

VIII. God commands in Deuteronomy 17: If thou perceive that there be among you a hard and doubtful matter in judgment ... arise ... and thou shalt come to the priests of the Levitical race ... and thou shalt do whatsoever they shall say. If a law controverted among the Doctors were not a law, the divine command would be both empty and about an impossible thing. And yet this is the principle which the Probabilists most loudly exaggerate. Perchè legge dubbia non fu mai legge — "because a doubtful law was never a law" — says Fr. Paolo Segneri in his third epistle. Against them cry out all the grave Theologians with St. Thomas, who, I-II, q. 106 [recte 96], article 6, ad 2, defines: for if the matter be doubtful, one must either act according to the words of the law, or consult one's Superior.

IX. There is given a less probable opinion against a civil or canonical law which forbids a usurious contract, in view of the more probable. In this position the law is controverted. Therefore doubtful. Therefore null. The litigants bring their suit to the tribunal. What is the judge to do? If he pronounces sentence in favor of the Party defending the more probable opinion, he sins, because he adjudges the contract usurious by force of a law which, according to the Probabilists, does not exist in the nature of things. If he judges according to the less probable, he sins, because by the precept of the Church he must judge according to the more probable opinion.

X. Either the Probabilists say that natural, divine, and human laws are true laws, and have the complete force of laws, before the disputations and controversies of subjects — or they deny it. If the second, they err most shamefully, and offer themselves up to be laughed at by all Theologians and Jurisconsults. If the first, their Probabilism goes up in smoke.

XI. Scarcely is there a commandment in the Decalogue immune from disputations. The probabilistic principle being admitted, that a controverted law is not a law, nearly the whole Decalogue collapses. Nor is there any force in the objection that the probabilistic controversies regard not the existence of the laws, but the extension of the laws. For they stray no less shamefully in denying the extension of the laws, as is evident from holy Scripture, Deuteronomy 17, where God commands that the judges be consulted, whether or not a work be forbidden by the law. But, that you may grasp more fully the horror of the probabilistic doctrine, hear Terillus, On conscience, question 23, number 19, page 413, speaking thus: "A human legislator, if he be prudent, knows well that the sense of his laws is in many things doubtful, and that many men more learned than himself prudently reckon that such an expression does not extend to such objects. Whence there is a manifest presumption that he does not will to comprehend such things under his law with obligation. For if he had willed to comprehend them, he would have expressed it: therefore they are to be counted as not included in the law. And this holds above all because favors are to be enlarged, and burdens restricted. The same holds of the eternal law, by which God corroborates human laws ... nay, the same holds of the divine law, which God himself promulgates by such signs as men do not perfectly understand. For hence arises an evident presumption that God does not will to oblige us to those things about which we have prudent motives for reckoning that they were not intended by him through the law. For God, who comprehends all things, if he had willed otherwise, would have expressed that very thing, since this would have been as easy for him as the opposite. But God has not expressed it. Therefore he has not willed it to fall under obligation. This is the whole of what we intend; and it follows most manifestly from the defect of sufficient promulgation." Then he adds, number 25, page 416: In these matters, therefore, let the Legislators blame themselves, if they sometimes see their commands violated, since they have not sufficiently explained their will.

XII. The Legislators have sufficiently explained their wills, and the laws are perspicuous; but cavils often obscure and disturb them — nay, do away with them. If laws probably controverted on both sides are not laws, let all tribunals go into exile from the Catholic world. This probabilistic doctrine being admitted, Christians can straightway abolish the greatest part of the natural, divine, and civil laws. Let them take up the books of Diana, of Zanardi, of Candidus, of Tamburini, of Escobar, of Gobat, of La-Croix, of Viva. Let them gather a most numerous catalogue of the opinions which are probably disputed on both sides concerning natural, divine, and human law. Thence let them draw out this conclusion: Controverted rights are not rights; a doubtful law is not a law. Therefore we are free from all the laws about which Theologians probably dispute on both sides. These are the paradoxes by which Probabilism is sustained. See more in Tome 2 of the Apparatus, book 3, dissertation 8, chapter 3.