Article IV. On Special Rules and Applications of Probabilism

Besides the general principles by which the theory of probabilism has been established above, namely: an obligation is not to be imposed unless it is certain concerning it, or, a doubtful law does not oblige, there are also recounted some special rules by which those principles are confirmed, or are applied in particular cases. They are the following:

I. In doubt one must stand for him for whom presumption stands. The reason is that presumption produces moral certainty, at least broad certainty; and in this sense alone the cited principle or rule ought to be understood. Hence if you are accustomed at such a time diligently to recite the whole Breviary, and you doubt whether you have recited some part, the presumption favors you, and exempts you from the obligation of reciting or repeating it. Likewise, if you doubt whether a superior justly commands or dispenses, presumption stands for him; because he can be led by reasons unknown to you, or is judged to judge prudently concerning those known. Besides, right order and the common good require that in such a case deference be shown to him.

II. In doubt one must judge from things ordinarily occurring. This rule nearly falls back into the preceding one, since in each presumption is the reason for judging thus. But the former extends more broadly; since presumption can be drawn not only from things ordinarily occurring, but also from particular circumstances.

III. In doubt one must stand for the validity of the act. It is a rule of civil law; but also commonly applied to theological matters. It is applied if the principal fact is certain, and there is doubt concerning some necessary circumstance or condition, or concerning the due mode; for example, if you doubt whether you confessed a sin with sufficient sorrow, or if you doubt, without being able to drive away the doubt, whether you contracted matrimony duly, which certainly and in good faith was entered into, you are not bound to repeat the confession, and the matrimony must be held as valid.

IV. In doubt favors are to be enlarged and burdens restricted. It is rule 15 of canon law in the Sixth, and signifies that 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 established: 1st. As often as burdens and favors can be separated, burdens are to be restricted and favors enlarged, as much as can be done without force being brought upon the sense of the words. 2nd. If burdens and favors are indivisible, then one must judge concerning the intention of the legislator from his words, from the subject matter, or from the connected circumstances. 3rd. If the intention of the legislator cannot clearly be determined, one must attend more to the favor than to the burden. But here burdensome is understood as whatever tends to penalty, or harms the right of a third party, or is opposed to common law. But favor, or favorable, is whatever indulges liberty, or grants grace without detriment to private persons, or to the community, or to the law itself.

V. In obscure matters that which is least is to be held. It is rule 30 of canon law in the Sixth, and it is to be understood thus: where it is not certain concerning the true sense of a law or statute, and, inquiry having been premised, it cannot be determined either from the nature of the thing, or from the context of the words, or from the custom of the place, or from another circumstance, the less burdensome interpretation, or one more benign to liberty, is to be admitted. The reason is that the legislator is not judged to will to oblige beyond that which is clearly expressed in the law. Hence in doubt concerning the quantity of penalty to be inflicted, the minimum is to be chosen. Likewise, if it is not certainly clear concerning the delict, the accused must be absolved.

VI. In a doubt of fact the following axioms have force, or rules of civil law received among all, namely: 1st. In doubt a fact is not presumed, but must be demonstrated. But this is to be understood concerning doubt about the principal act, for example, if it is doubtful whether someone struck another, this fact ought not to be presumed, but he who affirms must prove it positively. 2nd. In doubt it is presumed rightly done, what had to be done by law. This is to be understood concerning doubt about an accessory act, the certainty of the principal act being supposed; for if something had to be done by law, or if it is ordinarily accustomed to be done, or is favorable to the one doing it, it is presumed to have been done. 3rd. In doubt no one is presumed bad unless he is proved. This has force as often as there is question of the doubt of some delict, which ought not to be imputed unless it is certainly clear concerning it. Therefore, since delicts are not presumed, no one is presumed bad, but must be proved.

VII. In doubt the safer part is to be followed. It is a rule of canon law, which is had in cap. Illud Dominus, de sent. excomm., and in cap. Ad audientiam, de homic. But this rule must be restricted to cases of practical doubt, or to those in which an end must necessarily be obtained, namely where probability would not remove the danger which the law commands altogether to be avoided, as, for example, in confecting the sacraments, according to the things said above, and as is ascertained from all things thus far set forth. But if it is extended to speculative doubts, it ceases to be a rule or precept, but is a mere counsel. Cf. St. Alphonsus, throughout, but especially lib. 1, nn. 26 and 99; Systema Mor., Obj. 4; and lib. 6, n. 505. - Voit, nn. 38 and seq.

Question 1. Is it licit to use probability, not only in the matter of positive human law, but also of divine and natural law?

Response. Affirmatively, because in any matter whatever it can happen that it is not certain concerning the existence of the law, namely as often as true and solid probability militates against it; and therefore concerning such a law there is given truly invincible ignorance. Moreover God, author of law and principle of the natural order, is not judged to will to obligate us when we invincibly ignore the existence of the law. Cf. Scavini, n. 103.

Question 2. Is it licit for a confessor to attend only to extrinsic probability, and to rely upon it alone in questions to be solved practically?

Response. Affirmatively, at least generally speaking, and especially in questions whose solution depends greatly upon the estimation of prudent men. The reason is that it is difficult for something to be extrinsically probable unless a grave reason militates for it; for many and grave authors ordinarily do not teach that some opinion is truly probable unless they have seen through the intrinsic reasons. Therefore this way is indeed rather little scientific, and scarcely worthy of a theologian, but it is short, and must be called safe. There is added the authority of the Sacred Penitentiary, which, having been asked whether a confessor is to be disturbed who follows the doctrine of St. Alphonsus without weighing his reasons, but only on account of his authority, responded negatively; and this response was approved by the Supreme Pontiff Gregory XVI. I said at least generally speaking, because if at some time someone perhaps detects that even many and grave authors have erred in asserting the probability of some opinion, their whole authority, however great it may finally be, and that whole extrinsic probability, will no longer bring it about that this opinion is truly probable for him.

Question 3. What must be thought concerning that principle most familiar to not a few probabilists: "He who acts probably, acts prudently"?

Response. Very many and very grave Doctors who have used this saying have employed it after the manner of a proximate rule of acting, but not as a principle by which they would prove the truth of their doctrine concerning probable opinions. Certainly that principle is false if it is held as a primary principle and one which suffices through itself. The reason is that an action cannot be prudent by force of probability alone, but obtains this from certainty alone. But it is true if it is held only, as it was held by these learned men, as a corollary of another primary principle, which is through itself the ultimate rule of acting, such as this can be: A doubtful law does not oblige; or, There is no obligation unless it is certain concerning it.

Question 4. If you doubt whether you have already satisfied some obligation, are you still bound to satisfy it?

Response. It is greatly controverted, and a twofold sentence is given.

The first sentence affirms. The reason is deduced from this commonly admitted principle: A certain obligation is not satisfied through a doubtful fulfillment. For a law once existing and commanding has the right of exacting rigorous obedience, or the undoubted fulfillment of the obligation. Moreover, when you doubt, or only probably or even more probably judge that you have fulfilled the law, you have by no means rigorously satisfied it. Therefore it still urges and presses you until you have certainly satisfied it. Besides, equity demands that what we grant to liberty we not deny to the law also in an equal condition: but we grant to certain liberty that it cannot be bound by a doubtful law. Therefore it must be granted to certain law that it cannot be loosed by a doubtful fulfillment. Finally, in doubt the condition of the possessor is better; but a law certainly existing possesses against liberty, which it has obligated to itself; therefore in doubt it prevails against liberty. Thus St. Alphonsus, nn. 28 and 29, who in this place, and in several other places, as, for example, lib. 6, n. 477, QQ. ref., ser. 2, nn. 1, 18, etc., seems fully to have retracted whatever he had written to the contrary, lib. 1, n. 99, vers. fin. Almost unanimously the more recent disciples follow the Master: Scavini, n. 87. - Neyraguet, cap. 3, inf. 2. - Gousset, n. 87. - Panzuti, n. 20. - Mueller, § 84, reg. 1, etc.

The second sentence denies, with not a few very distinguished theologians. For, they say, an obligation is not to be imposed unless it is certain concerning it, as was said above concerning probabilism. But it is not certain concerning an obligation to which satisfaction has already more probably or probably been made. Therefore. Besides, just as from that principle: An obligation is not to be imposed, etc., it is drawn that the human will is not obligated by a law whose existence has not yet been proved, so it necessarily follows that the same will is not obligated as soon as the existence of the law becomes uncertain; for just as obligation depends upon certain notice of the law, so also the continuation of obligation depends upon continuation of the same certain notice. But a law to which satisfaction has probably been made probably no longer exists. Therefore.

As to the axiom which is objected: A certain obligation is not satisfied through a doubtful fulfillment, it is answered that it is true as often as there is discussion of practical or negative doubt, but not if true and solid probability favors liberty. Suarez holds this sentence, in 3, St. Thom. ad q. 90, disp. 22, sect. 9, n. 6. - Roncaglia, de Voto, cap. 2, q. 4; and tract. 2, cap. 5, q. 3, de Leg. - Tamburini, Meth. conf., lib. 2, cap. 1, n. 10. - Lugo, de Paenit., disp. 16, nn. 59 and 60. - Bonacina, de Integrit. conf., disp. 5, q. 5, sect. 2, punct. 2, § 3. - Lacroix, lib. 1, nn. 599 and 600. - The Salmanticenses, de Voto, cap. 1, n. 145. - etc., etc. - Add from the camp of the probabiliorists Billuart, de Integrit. conf., § 4, and others who say that it is enough if satisfaction has more probably been made to the law.

It cannot be denied that this sentence, which Cardinal de Lugo in the cited place calls common, enjoys great extrinsic probability. Otherwise, the reasons upon which it rests are efficacious, and make it truly probable. Cf. Baller., notes (a), (b), (c), p. 74.

Question 5. Among several probable opinions is it licit to follow now this one, now the opposite?

Response. Affirmatively, and the reason is that among probable opinions none is formally safer and more secure than another. For all are equally secure. Nevertheless you cannot, as to one and the same matter, use at the same time a probable affirming sentence and a probable denying sentence, so that from one, for example, you gain an advantage, from the other you guard yourself against certain disadvantages. For he who feels the advantage ought also to feel the burden, as rule of law 55 in the Sixth bears.

Besides, I ought to retain the sentence which I have embraced, until it is not certain concerning its improbability, as often as liberty of varying the sentence results in prejudice to another who in that way is defrauded of his right. Add also that a superior obligating me to a precept obligates me to retaining the sentence once accepted, the change of which would impede fulfillment of the precept. Thus, for example, on a fast day it would be illicit in the morning to refresh myself fully, because, as I think, a probable opinion says the hour does not pertain to the substance of the fast, and at midday again to take a full refreshment, because it is probable that the fast has been violated; for indeed such a free faculty of changing would annul the very force of the precept. Moreover, it is not licit to leave a sentence once admitted and embrace another, if, because I act thus, one or the other of two laws is violated, although it is not clearly certain which has been violated. Cf. Castropal., disp. 2, punct. 2, nn. 2 and 3. - Baller., note (b), p. 76.

Question 6. What must be done when the penitent follows a probable opinion but one opposed to the opinion of the confessor?

Response. Since he who acts thus uses his own right, the confessor cannot dismiss him without absolution on this head. Indeed it is not lawful for the confessor to use his own probable opinion for imposing an obligation upon the penitent, whether the latter knows or does not know that the right belongs to him of following a probable sentence. If this opinion of the penitent is publicly probable, it is more difficult to excuse the confessor who does not absolve him: rather let him lay aside his own opinion, leaving liberty to the other. Cf. Baller., note (a), p. 76.