Article II: On the Manner of Laying Aside Doubtful Conscience by Reflex Principles

41. Doubtful conscience, according to the diverse condition of things, is laid aside diversely. In the present matter a twofold condition must be considered: either the matter concerns only the honesty of the action, as if I doubt whether fasting is commanded today, in which case there intervenes only the danger of violating the law; or the matter concerns some end necessarily to be obtained, for example, the validity of a sacrament, as happens if someone doubts whether he can use uncertain matter in conferring Baptism, in which case a twofold danger is incurred: namely the danger of transgressing the law and of frustrating the sacrament.

42. Rules to be observed. I. Whenever the matter concerns an end absolutely to be attained, or an evil not depending on conscience, but certainly to be avoided, in any doubt whatever the safer part is to be followed. The reason is that the necessity of the end does not allow it to be committed to the danger of frustration, since the attainment of the end does not depend on the persuasion of conscience, but on the means really applied.

II. Whenever, while an invincible speculative doubt stands, the matter concerns only the honesty of the action, a practically certain conscience can be formed from the following principles, which at one time urge the obligation of law, at another favor the liberty of man, according as possession favors either the law or liberty. The reason will be clear from the explanation itself of the principles.

And this is the sum of the Alphonsian system, which will be set forth more fully in the following chapter. But that we may proceed in order, first the reflex principles themselves, by which conscience is formed, must be set forth according to their genuine sense.

43. Distinction of reflex principles. Among reflex principles, some are more universal in extension or use: these immediately serve in every speculative doubt for forming practical judgment. Others are more special and, as it were, subsidiary: recourse is had to these in doubts of fact, in order to discern what is favored by that universal principle which is called the principle of possession.

44. I. THE CONDITION OF THE ONE POSSESSING IS BETTER. This principle is very well known in both canon and civil law.³ In canon law, indeed, there is the axiom: In equal fault or cause, the condition of the possessor is stronger; and in civil law: In an equal cause, the possessor ought to be held stronger.

It is of great importance that the principle of possession be rightly understood.

1. All know that it takes its origin from civil law, and there, in doubts, obtains juridical value. It draws its force from presumption. Presumption is defined: A persuasion concerning some thing as true and certain until the contrary is proved (Polman, 2.2, n. 681). Or, as others will it: An anticipated proof of a doubtful thing, drawn from valid arguments and indications. Therefore presumption takes something for true before direct proofs. From this it is concluded that, whenever something is known to have preexisted, it is judged to persevere in its condition until it is removed by sufficient proof of the adverse part. But in the matter of justice, the preexisting condition is nothing other than possession of some thing. Whence from the principle of presumption arose the principle of possession. Therefore in the matter of strict right, the aforesaid principle signifies this: In an equal cause, or in doubt, rights favor him who, besides a doubtful title common to himself and to his adversary, has besides the title of possession. For possession founds a certain presumption of true dominion, until the contrary is proved; for example, he who with a just title possesses an estate, which another claims for himself with doubtful right, remains in possession, nor ought he to be despoiled, until the competitor has legitimately proved that he enjoys a better right (cf. n. 850).

2. In the matter of legal justice and of the other virtues, the principle of possession is taken only analogically, insofar as whatever right precedes the doubt that has arisen, by evident analogy with the possession of a temporal thing, is to be protected in the same way as possession itself. Therefore in matter which wanders outside strict justice, the principle of possession (reason itself dictates this) has this sense: every thing which from its nature perseveres stably until it is removed by some supervening fact is judged to remain in its condition so long as the contrary is not established.

Considered thus, the principle of possession can favor either liberty or law. Equity demands that preexisting rights, whatever they may be, be protected. Lugo excellently says (de Just., disp. 23, n. 110): No better and more universal rule can be handed down than that which is drawn from the external forum. "It is fitting that each forum agree, insofar as it can be done," says D'Annibale (I, n. 264). So the doctors commonly.¹

To the matter thus St. Alphonsus (I, 26; Diss. 1757, n. 19): "But this principle, although some attempt to weaken it, saying that it is valid only for the forum, or only in the matter of justice; yet I do not know how it can be denied in all things. The question can only be whether in any moral doubt the law or liberty possesses. The Antiprobabilists say that the law always possesses; but we say that sometimes the law possesses, sometimes liberty, namely when the law has not yet been promulgated. This, I say, is the question; but no one can deny the principle, that the condition of the possessor is always better. Therefore in the case in which the law possesses, one must stand for it; but if liberty possesses, one must stand for liberty."

45. Therefore some assert gratuitously that the principle of possession has force only in negative doubt alone, or that with it the law always possesses, or that it is a mere fiction of law or equivocation.

Here, however, it is useful to notice that the principle of possession, in the matter of justice, is of stricter application than in the matter of the other virtues. The reason: 1. Because justice is more rigid than the other virtues (cf. n. 383). Whence it happens that lawsuits concerning justice demand stricter proofs; while the dispute which morally is moved between liberty and law is settled, as is fitting, by moral proof. 2. Because in the matter of justice, at least in goods of fortune, possession produces a presumption both for the possessor and against the plaintiff; for the possessor: for he, so long as the contrary is not certainly proved, is presumed to possess by force of his right; but against the plaintiff, because the plaintiff is presumed to be destitute of possession by right until the contrary is proved.

46. II. A DOUBTFUL LAW DOES NOT OBLIGE, or: A doubtful law cannot induce a certain obligation.² This principle is a universal principle, which is applied in every law, both divine and human, whenever there is question of a doubt of mere law, as we shall prove n. 91. But if the matter concerns probabilities or doubts of dangerous fact, some certain antecedent law forbids every use of doubt or probability, as is shown below (n. 80).

Now the aforesaid principle, according to St. Alphonsus, must be understood: 1. of a strictly doubtful law; 2. of an invincibly doubtful law, that is, of a law which, after diligent inquiry, certainly remains doubtful; 3. of a law simply doubtful, that is, of a law doubtfully existing. "For if the law is certainly established and certainly promulgated, and thence arises a doubt whether it has been abrogated or dispensed, it is to be observed, because then it possesses."³ Therefore in doubt concerning the cessation of a law or obligation, the principle is to be converted in such a way that it is said: "Doubtful liberation does not liberate."⁴ But that the axiom "A doubtful law, etc." was in this sense truly used by most theologians, Muzzarelli testifies, saying: "Similarly, if the matter concerns the cessation or abrogation of a law, doubt in that case must be said to favor liberty in nothing, but one must stand for the law, which is in possession against liberty. In this all doctors agree." So also D'Annibale, I, n. 266.

47. From the things just said it is clear that reflex principles can be recalled to one principle, namely to the principle of possession. But it does not always appear at first glance what possession favors, whether namely the law or liberty. The general rule is this: "To discern for which part possession stands in doubt, one must see for which part presumption stands. But presumption stands for that part which is not itself bound to prove the fact, but transfers the burden of proving it to the other" (I, 26). The reason is that rights (for example liberty or obligation), by their nature, are stable and are judged to persevere until a change is proved. Therefore it belongs to the one affirming the change to bring proof, by demonstrating namely the existence or force of a certain fact by which the preceding right is changed, or the possessor is overcome (cf. n. 97).

Here moreover certain very well-known principles of law have force, which regard either the substance of the fact or the conditions of the fact.⁵

48. I. In doubt the fact is not presumed, but is proved; that is, the fact concerning which doubt is involved is reputed not to exist, until sufficient proof is brought which persuades a prudent man. When this proof is lacking, all things are judged to remain in the same state in which they were found before the doubt arose.

But the fact concerning which inquiry is made can either found the law (for example, promulgation of the law, emission of a vow), or suppose the law (for example, abrogation of the law, fulfillment of a vow). In doubt of a fact founding the law, liberty possesses; in doubt of a fact supposing the law, the law possesses. Whence the aforesaid principle favors now liberty, now law (cf. n. 55).

Note. To the same principle are recalled those three sayings: 1. No one is presumed evil unless he is proved so: for everyone by his nature is good. 2. Crimes are not presumed: whence the judge ought to condemn no one unless he has been proved guilty. 3. In doubt of crime one must favor the accused. Reg. 11 in VI agrees.

49. II. In doubt the proof falls upon the plaintiff.⁶ Moral doubt generates, as we have said, a certain lawsuit between law and liberty. One part defends the former state, which the other part, on account of a fact alleged by itself, contends should be changed. This part is called the plaintiff, and the burden of proving the fact falls upon it.

From this principle it follows: 1. If the law requires certain qualities, or prescribes special conditions (for example knowledge, age) for this, that a benefice or office, a state or dignity, a privilege or exemption be obtained, etc., the petitioner assumes as it were the part of plaintiff, and is bound to prove the fact alleged by himself.

2. On the contrary, if the law, on account of some fact, prohibits me from a common right, it belongs to the law itself to prove the truth of the fact, so that it may be established that on that account I am despoiled of the common right. Thus, for example, in doubt whether I am fasting, whether after midnight I swallowed something, I can communicate. For the law is prohibitive, and forbids anyone to communicate after food has been taken. Whence the fact of the fast broken must be proved, so that someone may be prohibited from communion (I, 38; VI, 282; H. Ap., XV, 34).

50. III. In doubts judgment must be made from things ordinarily occurring. If direct proof of the fact cannot be had, indirect proof can often be had from legitimate presumption, which indeed furnishes moral but sufficient certitude. Therefore then the cited rule has force, or: From things commonly occurring a prudent presumption is made. These axioms are received by all and agree with the forty-fifth rule in VI: In obscure things we inspect what is more likely, or what for the most part is accustomed to happen.

Hence, in doubt whether a child has arrived at the use of reason and is bound by ecclesiastical laws, he is presumed to have arrived if he has completed the seventh year; otherwise not. In doubt whether you have recited part of the Hours, you prudently presume that you have recited it, if in recitation you are regularly accustomed to omit nothing. In doubt whether someone has consented to depraved thoughts, he is presumed to have consented if he is of lax conscience; otherwise, if he is of timorous conscience (III, 270, 1012; IV, 150; VI, 476).

51. I. In doubt one must stand for the value of the act, or: In doubt every fact is presumed to have been rightly done. These principles have force when the principal act indeed is established, and there is doubt only concerning an adjunct, for example, concerning a required condition, concerning the due mode. In these cases, so long as the opposite is not established, that is presumed to have been done which had to be done for the validity of the act, and which is accustomed to be done (III, 196, 201, q. 3; VI, 450, 505). The following sayings have the same sound: In doubt the fact is presumed which by law had to be done. A defect is not presumed, but must be demonstrated. What is regularly, what is ordinarily done, is judged to have been done.

From this rule (which rests on the preceding one) you will conclude: Given that they certainly have been placed, contracts, a vow, dispensation, the election of a superior, recitation of the breviary, Baptism, confession of sin, sacramental satisfaction, absolution, consecration, marriage, and like things are supposed valid. Except unless a positive reason to the contrary is had, or unless a law of this kind stands in the way, which demands certitude in every way.

52. II. In doubt presumption stands for the superior; that is: in doubt whether some command, imposed by a superior, is wise or just, regularly it must be obeyed.

We said, regularly it must be obeyed; for the case is excepted in which the law or precept certainly would be of excessive labor or difficulty, or would bring grave harm. But this exception is admitted by force of another certain principle, that is, by force of epikeia (cf. n. 173), or also by force of the following rule.

This principle is a certain particular application of the preceding principle. For since the principal fact, that is, the command, is established, the command is supposed to have been rightly made. The reason is that the superior is judged to be led by counsels unknown to the inferior, and to judge more prudently than the inferior concerning counsels known to him. Add that the power of commanding is a certain right, of which a legitimate superior cannot be despoiled in doubt (I, 31; IV, 47).

53. III. In doubt favors are to be enlarged, odious things restricted. By favor here is understood whatever indulges liberty, or grants grace, without detriment to right; but by odium, whatever imposes penalty, obligation, or burden. Cf. the treatise on Laws.

The following rules agree with the aforesaid principle: It is fitting that odious things be restricted and favors enlarged. In obscure things, what is least is to be held; understand: what burdens less. In penalties, the more benign interpretation is to be made. The reason for all these is the benevolence or prudence of the superior, which are legitimately presumed (Reg. 15, 30, 49 in VI; cf. Diss. 1757, n. 7).

54. It is asked: When must the rule be applied: IN DOUBT THE SAFER PART IS TO BE CHOSEN?

Resp. This rule of law is to be applied:

1. In practical doubts. Hence, if someone does not wish or cannot lay aside a practical doubt by some principle, whether direct or reflex, he is bound to choose the safer part (cf. n. 42).

2. In doubts of dangerous fact, namely when there remains a danger of bringing upon oneself or others a temporal or spiritual evil which must certainly be prevented, as will be explained below (n. 81). Apart from these cases, in which the law certainly possesses, the aforesaid rule of itself is of counsel, but by no means of precept (I, 77).

55. From the principles brought forward up to this point these general consequences flow (I, 97 ff.):

I. LIBERTY possesses, and therefore the law does not oblige:

1. In doubt whether a law has been established, or promulgated in the due manner; whether it imposes such a work; whether it has such a sense; whether it truly prescribes, or only persuades; whether it is extended to such a case, to that territory or subject; whether the superior (who is not yet in peaceful possession) enjoys legitimate authority.

2. In doubt whether a vow was emitted; whether it extends to this or to that; whether a pact or promise was made; whether some debt was contracted.

3. In doubt whether the obligation of the law has begun: for example, if on Thursday toward midnight you doubt whether the day of abstinence has already begun; likewise, if you doubt whether you have reached the age for undergoing the law of the Church.

In all these and similar cases, doubt is truly involved concerning the existence of the law or its beginning; and therefore the law is doubtful, and liberty remains whole (I, 27, 34, 195; VI, 468, 473 ff.).

II. But the LAW possesses, and therefore liberty remains bound:

1. If you doubt whether a law, certainly promulgated, was afterward abrogated, revoked, dispensed, or abolished by contrary custom. Likewise, if you doubt whether the law is just, or was received; whether the superior prescribed rightly and justly.

2. If you doubt whether the obligation of the law has ceased, for example, whether you are a sexagenarian and therefore released from the law of fasting; whether the day of abstinence or fasting has already entirely passed, for example on Saturday toward midnight.

3. If you doubt whether you have fulfilled the law, for example, whether you recited the Divine Office, whether you satisfied the precept of confession, sacramental penance, a vow, the obligation of a contract, the payment of a certain debt, etc.

In these and similar cases (unless the doubt is only concerning the value of the act fulfilling the law, as was said above), the principle of possession favors the law, and accordingly your liberty is bound, until it is morally certain that you have satisfied the law, or that the bond of the law is already dissolved (I, 26 ff.; VI, 475).

56. Note. The things which we have just said concerning the formation of a practically certain conscience by reflex principles are not equally approved by all. When the matter concerns a positive doubt, others follow other opinions. Hence that celebrated controversy CONCERNING PROBABILISM arose. Since this question is of the greatest moment, we judged it opportune to treat the great argument more accurately: not because new rules must be handed down, but because those already set forth must be weighed more diligently and confirmed by fitting reasons, since the whole MORAL SYSTEM of St. Alphonsus rests upon them.