ARTICLE III: MATTER TO WHICH THE CONTROVERSY CONCERNING THE LICIT USE OF PROBABLE OPINION DOES NOT EXTEND

58. • The controversy of theologians concerning the licit use of a probable opinion can be moved only when the question is about the honesty of the action alone, but by no means where there intervenes the danger of some evil that will follow, distinct from the honesty of the action. For all theologians, at least the more recent, agree that it is illicit to follow a probable opinion whenever from its use some evil is feared to be going to follow, which cannot be averted by the dictate of conscience and which we are bound to avoid.

For the understanding of this saying, it must be observed that the evil which is feared to be going to follow from some action can be either one only or manifold, namely either the lesion of honesty alone, or sin, or besides this some other temporal or spiritual evil distinct from the former. Thus, for example, homicide comprises both moral evil, or sin, and physical evil, or grave harm of the neighbor through privation of life.

Therefore, before we expound the systems of theologians concerning the choice of opinions which we can licitly follow, we must set aside the matter which is not their object.

59. Proposition. - Where there is present danger of an evil which does not depend upon conscience and which we are bound to avoid, the safer part must always be followed in doubt.

It is proved. When a man is bound to avoid some evil, he is also bound to avoid its danger; for in morals this is equivalent. But in speculative doubt concerning the honesty of the action alone, the danger of sin can indeed be removed; while in a doubt of this kind concerning an evil distinct from the morality of the action, the danger of this evil cannot be removed. Therefore in the former case, the danger having been removed, it is lawful to act with speculative doubt, but not in the latter.

The minor is proved. For in the former case conscience is the proximate and formal principle of the honesty of the act; but in doubt the reflex principles of Probabilism form the ultimate certain dictate of conscience concerning the honesty of the action, as we shall prove below: therefore the danger of formal sin is then altogether taken away. But the contrary obtains in the latter case. For an evil of this kind depends in no way upon the dictate of conscience, but upon what is true on the part of the thing. Therefore it can equally happen, whatever the conscience of the agent may be. Therefore unless we follow the certain or safer way, we do not avoid the danger.

It has been said: which we are bound to avoid; for sometimes there is a just cause for permitting an evil, and therefore its danger, either because between two evils the lesser must be chosen, or because the safer way is judged morally impossible. Therefore in a case of this kind it will be lawful to leave the safer way and to choose the less safe.

60. Corollaries. - From the proposition proved it follows that the use of an opinion, however probable, is prohibited by the precept both of religion and of charity and justice; but that the safer, or morally certain, sentence is to be followed where the question is about the validity of a sacrament, about danger to one's own soul, or about the spiritual or temporal harm of the neighbor.

And so the use of a probable opinion will be illicit:

I. In the administration and (practically) reception of the Sacraments, with regard to essentials; for the virtue of religion prohibits that they be exposed to the danger of frustration. - But that danger is not to be feared if either 1° the necessity of administering the Sacrament urges, provided that then it is conferred under condition; or 2° the Church can and is reasonably presumed to supply, in which case it must be conferred absolutely: this indeed can be presumed in two Sacraments, namely a) in the Sacrament of Penance, if from a just cause it is conferred with jurisdiction probable in law; b) in the Sacrament of Matrimony, if there is present an ecclesiastical impediment doubtful by a doubt of law.¹ See proposition 1 among those condemned by Innocent XI, p. XV.

Note. - With regard to the matter of each Sacrament, the same degree of certainty is not required. LL. VI. 57, 461.

II. In danger of one's own harm (at least spiritual) or of the neighbor:

1° In things necessary for salvation by necessity of means; therefore, for example, in the matter of faith the safer religion must be followed. For in things absolutely necessary for salvation, the dictate of conscience does not take away the danger of damnation; therefore in these the axiom must be followed: "No security is excessive where eternity is endangered." Add that here the truth will most certainly offer itself to the one inquiring. For this reason proposition 4 was condemned by Innocent XI: "An infidel, not believing, led by a less probable opinion, will be excused from infidelity."

Similarly, it is wrong to follow several opinions which are indeed speculatively probable, but which, translated into practice, taking account of the common or special fragility of the operator, are certainly joined with probable danger of lapse into sin, as we shall say more broadly later.

Likewise, on account of scandal of the neighbor, a law must sometimes be observed which probably does not exist.¹

2° Physicians, surgeons, etc., from a pact even tacit, are bound to the safer means. Nevertheless, when the health of the sick person is despaired of, it is lawful to apply a dangerous means probably going to be useful, but also probably going to be harmful; because in that desperation of affairs some hope of life is to be preferred to the danger of hastening death. But it is not lawful, for the sake of experiment only, to apply remedies altogether uncertain and unexplored to the sick, even the desperate, with danger of gravely harming; for this is, as someone says, to seek medicines through deaths.²

The same holds in other similar cases. Therefore, for example, offensive war is illicit in doubt of law; the discharge of a gun is illicit in doubt of fact whether that at which one aims is a beast or a man, etc.³

3° A judge, from a pact with the republic, in a civil cause where neither party possesses in good faith, is bound to follow the more probable opinion, by rendering judgment in favor of that party for whom the more probable opinion stands. The reason is that justice obliges the judge to render to each one his own right according to the merits of the cause and the weight of the reasons which favor each one. Hence proposition 2 was condemned by Innocent XI: "I probably judge that a judge can judge according to the less probable opinion."

But if the cause of each litigating party is equally probable, the judge is bound to reconcile the parties through a settlement (what a settlement is, see n. 1051), by dividing the controverted thing, if it is divisible, or, if it is not divisible, its price between the parties. The reason is that in judgments there must be no respect of persons, which would be had if in such a case he favored one rather than the other. Hence the opposed doctrine was condemned by Alexander VII, proposition 26, p. XIV.

I have said: 1° where neither party possesses in good faith; because possession makes the reasons preponderate for the possessor, so that his condition becomes the better; 2° in a civil cause; because in criminal causes, where the question is about inflicting punishment, especially capital punishment, between opposed probable sentences the opinion favoring the accused must always be followed, even if it is less probable, according to the rule of Canon Law 11 in Sexto: "When the rights of the parties are obscure, the accused is to be favored rather than the accuser."

The same holds in other similar cases, whenever the neighbor is in certain possession of his right. For this reason, for example, hidden compensation is illicit unless the debt is certain.¹