§ 5. On the Probability of Fact

— The principle of the safer part. Since the danger of fact is diminished by no probability of opinion, it is said that in morals to act and to expose oneself to the danger of doing are equivalent. Therefore no immediate application of probabilism can be made to probable judgments concerning various facts. Therefore:

1. From an action which will probably be harmful to one's neighbor, one must abstain almost as from one certainly harmful, unless you can bring forward excuses of avoiding proportionately grave harm (one's own or another's). Yet in that estimation the distinction of certain danger and probable danger can be observed.

Nor can the probable honesty of an action be confused with the merely probable existence of a condition required for that honesty. This probable existence leaves the action practically doubtful, and therefore certainly dishonest. Thus a hunter is forbidden to intend the killing of a wild animal with danger to human life; nor can we throw a thing through a window with danger, even merely probable, of harming a passerby.

2. The necessity of attaining eternal salvation demands that, if the supply is had, means be chosen only which will certainly suffice (with moral certainty strictly accepted). He who is content with probable means would gravely derogate from charity toward himself. Hence no one can be content with a baptism which is only probable.

They are accustomed in this place also to allege prop. 4, reproved by Innocent XI: "An unbeliever not believing, led by a less probable opinion, is excused from unbelief." But the condemnation is not to be understood as if one ought to elicit an act of faith who perceives the Catholic religion only as more probable. For this is impossible, since the assent of faith ought to be certain above all things. But this is the sense. While by successive graces the unbeliever is drawn to faith, he cannot resist the inviting grace of God and cease from inquiry by alleging the probability which he then attributes to his unbelief; much less will he be able to do this if the superstition in which he was born now appears to him less like the truth. Or, to use another way of speaking, never, in no order of things, would this opinion have been probable: "It is permitted to adhere to a religion which is known to be less probable." But now it cannot happen that, for one believing, the credibility of religion is only probable.

3. The reverence owed to the sacrament, and often also an obligation of justice and charity, demand that we procure the certain validity of a sacrament by moral diligence. This moral diligence must be weighed from the necessity, dignity, rarity of the sacrament, and from the ease or difficulty of obtaining certainty. Thus the disposition of a penitent, the genuineness of wine for Mass, the truth of water for baptism, ought to be established in unequal measure. Besides, that principle is tempered by this other one: the sacraments were instituted for men. Wherefore, as often as the good of the faithful seems to have to be preferred to care for a valid sacrament, it is altogether permitted to abandon this care in order that you may procure that good. Therefore, in order wholly to avoid the danger of idolatry, it will never be lawful consciously to put forward doubtful matter for confecting the Eucharist, especially since the Eucharist does not have necessity of means; but often it will be necessary to confer a doubtful baptism, a doubtful absolution, upon one dying.

4. All physicians or surgeons who employ only probable medicines when certain ones are at hand are lacking to the debt of justice. And they will sin more gravely if uncertain medicines can at the same time be harmful. Nor, with strict harm to his own body, can a sick man renounce his right. Wherefore not even with the sick man's consent will it be permitted to try medicines for the sake of experiment, if either life or health would be much endangered thereby.

— Exceptions which permit the use of probability of fact. Nevertheless probability of fact can suffice for the honesty of an action:

1. Where the Church can and wills to supply by her authority a condition required of itself for validity. Thus, "in positive and probable doubt, whether of law or of fact, the Church supplies jurisdiction for both the external and the internal forum" (c. 209).

2. With a legitimate dispensation acceding, which renders the honesty certain. Thus, even when there is question of invalidating and inhabilitating laws, "in doubt of fact, the Ordinary can dispense in them, provided there is question of laws in which the Roman Pontiff is accustomed to dispense" (c. 15).

3. When no certain reason obliges one to forestall the danger of error, even material error: as the danger of involuntary emission of seed.

4. When, on account of various opinions concerning liceity in such and such a case, the probability of fact can be converted into probability of law.

Thus, not only when you have done a work by which a vow is probably fulfilled; when you have recited the canonical hours in such a mode or time that you have probably satisfied the law; but also if it is probable, though not certain, that the vow has in fact been fulfilled, that the breviary has been recited, a probable opinion judges that you are relieved of the burden, because the obligation does not remain except as uncertain, and it would be little human to oblige you to repeat what you have probably already performed. Therefore, because of this probable opinion, and not as if an immediate use of probabilism then offers itself, practically you will have to do nothing further.

What if there was an obligation of justice? Does he who probably paid what he owed from justice now owe nothing, or will he at least, in proportion to the doubt, have to supply what perhaps he did not pay? Although this is approved by some sense of honesty and therefore is to be urged, and appears to us speculatively truer, nevertheless the matter is disputed; and, because of the disagreement of doctors, a debtor who refuses to supply anything will be able to estimate himself safe.

And observe that practically it does not matter whether the action whence the doubt draws its origin is culpable or not. Certainly it is not permitted to use a less secure way for sending owed money to a creditor. Yet if you have done so badly, as long as it is probable that the money thus sent has arrived, the debtor will be held by no practical obligation.

— On the simultaneous use of opposite probabilities. It is customary to ask whether it is permitted or not to use contrary probabilities. And the following cases are proposed:

a) Two testaments affected by the same defect of form, so that both are probably valid, probably null. Is it permitted to Titius, on account of his own utility, to hold one as valid, the other as null?

b) A testament is formless. Can the legatee accept the legacy because the testament is probably valid, but not fulfill the burdens which are imposed upon the legatee, because the testament is probably null?

c) Two foods are set out on a day on which one or the other is certainly prohibited, but which one it is can no longer be distinguished. Is it permitted to Titius to take both ¹, or either one?

d) On a fast day, Titius, using the opinion which denies that the hour of dinner pertains to the substance of the fast, takes a full refection in the morning. Can he take another full one in the evening, because according to the more severe opinion, by the morning dinner the fast of that day has been substantially broken, so that the observance of the fast on that day has been made impossible?

e) On the night on which a feast day follows a day of abstinence (v.g., on the night between the vigil of Pentecost and Pentecost), Titius, from the diversity of clocks, estimates as probable that the feast day has already and has not yet arrived. Can he eat meat as on a feast day, and recite Compline and approach the holy Eucharist because, at the time when he ate meat, the feast day probably had not yet arrived?

Answer. - First of all, this must be observed, that these questions pertain to probabilism neither proximately nor properly. If you except the fourth case concerning full refection on a fast day, all the rest directly allege probability of fact, and suppose that the use of a formless testament, of food probably (by probability of fact) forbidden, and an estimation of days from a private clock, are permitted. This supposition being made, now the question arises: is it lawful to use contrary probabilities? For the morality of an action which uses those probabilities must be examined directly. And its goodness or malice can be certain, or can be uncertain but probable. Therefore the individual cases must be weighed.

a) The two testaments are two causes numerically fully distinct. Moreover it is established from another source that Titius is permitted, according to his judgment or utility, to hold both testaments as valid or invalid. Therefore, while he treats one as valid and the other as invalid, he makes two options which, taken separately, are honest. And because they are joined to each other by no bond, nothing hinders the honesty of each.

Yet one must abstain from a scandalous variety of option, which is commanded by motives scarcely honest. Besides, the right administration of justice demands that a judge not change his jurisprudence without reason;

b) No probable opinion permits that a legatee consider a testament at the same time as valid and as invalid. For of the two opinions brought forward in this matter, one says that the whole testament, with legacies and burdens, is valid; the other says that the whole testament falls. Therefore the legatee makes an option whose honesty is by no means probable;

c) We think it must be said thus. Probability of fact - it is like the truth that such food is the food which I know to be certainly forbidden - creates a serious danger of violating the law. Wherefore this holds: "In morals to do and to expose oneself to the danger of doing are equivalent." Wherefore, unless I am excused by proportionate inconvenience, it will be permitted to me to eat neither food. Yet the inconvenience can be taken more benignly than if food certainly illicit were set out.

Yet there will be those who think differently. Most will say that mixed dishes from both foods are prohibited, because a dish composed of meat and fish is forbidden by certain law. All also will condemn him who indeed lets the bodies be separated, but has introduced confusion among them artificially: for we are forbidden to make fraud against the law. But if the confusion has occurred by chance, some will permit partial use, others successive total use;

d) Titius could honestly choose the morning dinner under the sole account of the one refection. By that choice the other dinner was excluded. Besides, both opinions concerning fasting have this in common, that they permit only one full refection. While the more severe opinion prohibits the morning dinner under grave sin, it by no means permits another full refection to one acting according to the more benign opinion. Wherefore this cunning of Titius is defended by no probable reason;

e) The difficulty of accurately knowing the time is the cause why, when a more certain indication is lacking, it is permitted to estimate time from clocks even private ones. Hence it happens that clocks, though improperly, are said to be probable doctors ¹. Moreover the most common opinion, which C. de Lugo ¹ attempts to declare by a very subtle reason, solves the case of Titius thus. Titius could not eat meat except as on a feast day. But food taken on a feast day prohibits subsequent communion on that day. Therefore it is not permitted to him to choose both the eating of meat and communion at the same time.

Yet in reality the respects of each fast, ecclesiastical and eucharistic, are diverse and can be separated of themselves. Why must they be joined in the estimation of the day? An intrinsic argument is desired. This at most can be said: because of the material affinity of each cause and a sort of congruence, the reasonable mind of the legislator is that they be joined. This reason seems sufficiently weak to us.

Certainly Lehmkuhl himself permits this, I, 205: He who, needing food and judging Friday to have passed, therefore eats meat and renounces the right of communicating, if afterward he is warned by another clock, in which he can equally trust, that he probably ate on Friday, can, by correcting his error, change his purpose and in the morning be refreshed with the Most Holy Eucharist.

Nor shall we condemn him who, using a discrepancy of clocks, eats meat as on a feast day and recites Compline as on the vigil. Why cannot distinct probabilities be applied to distinct actions?

¹ As if he should pronounce successively concerning each food: this food is probably licit.

¹ To him for whom only one clock is available, he must follow this; nor, unless perhaps there is question of one moment, can he presume that the later hour is indicated by another good one. For when another probable doctor is absent, we must follow the only one who is present.

¹ De Eucharistia, 3, 15, nn. 47, 52, 53.

— On neutral time. Matters must also be judged more benignly where the law itself permits a varied option of time. Canon 33, § 1 permits this: "in private celebration of Mass, in private recitation of the canonical hours, in receiving Holy Communion, and in observing the law of fast or abstinence, although the usual computation of the place is otherwise, one can follow the time of the place, or local time, whether true or mean, or legal, whether regional or another extraordinary time." And we have thought it consonant with the mind of the legislator that we should transfer this ample faculty also to indulgences and festive rest (Summa novi iura, n. 19. Cf. also Claeys Bouuaert, Selecta capita Codicis, n. 15).

By that disposition the legislator seems to us to have introduced, for these various actions or offices, a time almost common between two days or two parts of a day, which, as if neutral, can be attributed to either day or part of a day. Wherefore nothing prohibits that, according to true time, you recite the breviary; according to mean time, you observe the law of abstinence; and according to legal time, you attend to the eucharistic fast.