Thesis I

One who strictly doubts about the making of a law, in other words, one who holds it as equally or almost equally probable that the law has not been made and that it has been made, is not held to observe it. It is proved:

I. From the authority of St. Alphonsus. For this authority is such that it seems to create a grave presumption in favor of the system which he himself defended. But the holy Doctor defended the proposed thesis.

The major is confirmed by these things: first, the Church recognized St. Alphonsus as an outstanding master of Moral Theology, and repeatedly declared that he was a most safe and divinely given guide of directors of souls (n. 215). Moreover, these things ought especially to hold for the principal question of Moral Theology, that is, for the moral system; indeed the aforesaid praises and commendations seem scarcely capable of being honorably explained if St. Alphonsus had erred in choosing the moral system which extends most widely throughout the whole of moral science and, as it were, pervades it, and by force of which the innumerable doubts that occur in the said science are solved for practice. These points are confirmed by what the Vindiciae Alfonsianae report from the Acts of the Cause of Beatification:¹ "Already a decree had been issued concerning 'Nothing worthy of censure,' and already the heroic virtues of Alphonsus had been discussed. But nevertheless, by command of the Pontiff, a new Positio on the Virtues was instituted, and indeed on Prudence, not with respect to the exercise of that virtue, but because of some rules of morals contained in his works. Hence besides other particular questions, the moral system in particular and the doctrine on habitual sinners and recidivists were called back to a more severe weighing." Once these things had been carried out, Pius VII solemnly declared that the heroic degree of the virtues was established. In addition, the Sacred Penitentiary on 19 Dec. 1855 wrote back to a certain professor of Moral Theology that he, notwithstanding his oath to defend Probabiliorism, could follow and publicly hand on the doctrine of St. Alphonsus (n. 215). Hence several, and those distinguished, theologians confess that the system which St. Alphonsus embraced seems worthy of commendation.²

The minor is admitted by all.

Objection. When it was asked of the Holy See whether by the words of the Decree of 11 March 1871, by which St. Alphonsus is said to have "paved a safe way amid the tangled opinions of theologians, whether laxer or stricter...," whether, I say, by those words Equiprobabilism had been designated and commended before Probabilism, the response was that by those words the Sacred Congregation "had wished to condemn no opinion or prefer one to another, but only to designate a fact admitted by all, namely, that St. Alphonsus by his system took care to avoid both laxer and stricter opinions."

Response. This response did not proceed from legitimate authority, as was learned after diligent examination instituted at Rome. It is also absent from the authentic edition of the Decrees of the Sacred Congregation of Rites. It was given by the substitute of the Secretariat of the Sacred Congregation of Rites alone, in the name of the Secretary alone.³

II. From the authority of theologians. Theologians today almost commonly defend the thesis stated. Concerning the opinion of St. Thomas, there will be discussion later.

III. From reason. Preceptive and prohibitive laws are in the likeness of a spiritual bond, and therefore, in order that they obtain their effect, they must reach a human being positively; this cannot happen except through at least some knowledge properly so called of the making of the law. "Just as a rope," says St. Alphonsus, "does not bind unless it is applied to the thing to be bound by contact, so a precept does not bind except through knowledge of it" (I, 76). But in strict doubt, all knowledge properly so called of the making of the law is lacking. "Then," says St. Alphonsus, "...we do not have knowledge of the law, but only knowledge of the doubt or question whether the law exists or not" (I, 74). It is indeed known that each part, namely both the making and the non-making of the law, is equally probable; but no knowledge is had about the conclusion or term of the inquiry.⁴

Then, in strict doubt about the making of a law, that is, in strict doubt whether a law prohibits or permits some act, all knowledge properly so called about the ordinance of the law concerning the said act, or about the objective morality of that act, is lacking. Once this has been posited, that act in second act, as it is said, is situated with respect to me outside the order of morality, or is regarded as a merely physical act. But nothing prevents an act of this sort from being placed, provided a good end is added. Therefore in strict doubt whether some act is objectively permitted or prohibited, it is right to place that act for a good end.

So that the argument just brought forward may be more fully clarified, I note these things: by force of our rational nature we are, as regards being, in the moral order, that is, in first act we are bound by law; but as regards acting, by force of our rational cognition, we are constituted in the moral order, that is, in second act we are bound by law. Hence, since in strict doubt there is no knowledge properly so called about the morality of an act, as regards acting we are not in the moral order except insofar as by a higher law the obligation of always acting for an honorable end is imposed on us.

Nor should you object that perhaps that act is prohibited by the legislator. This is true; but that prohibition, if it has place, binds only my rational being; in other words, it binds me because I have a rational nature, but my acting is bound only by rational cognition.

Hence in strict doubt the act, as regards my acting, is not in the moral order; but it is merely physical, and must receive morality from the end.

Finally, if the discussion concerns positive law, the principle proved in n. 229 has force: in strict doubt the condition of that which is prior is better than the condition of that which is posterior. But moral liberty is prior to a positive preceptive or prohibitive law.

¹ Dissertatio, Proemium, n. 46.

² Thus, for example, Lehmkuhl, Theol. mor., I, 165; Noldin, De Principiis theol. mor., n. 239; Sweens, Theol. mor. fund., n. 700 sq.; Beauduin-Gardeil, cited work, p. 79.

³ Cf. Ter Haar, Ven. Innoc. P. P. XI de Probabilismo Decreti Historia et Vindiciae, p. 107.

⁴ Therefore neither do we deny that contradictory parts considered in themselves, or even compared, can retain the probability which they have from good reasons. But this is not the matter at issue. The matter concerns the parts insofar as they are contradictorily opposed, or insofar as they are simultaneous affirmation and negation with respect to one question of truth.

Objection 1. In doubt, before all things the danger of sinning materially, or of transgressing the prohibitive ordinance of God, must be guarded against.

Response 1. I turn the argument back: namely, if in doubt the danger of sinning materially had to be guarded against before all things, it would also be illicit to follow the more probable opinion for liberty. But the adversaries reject this together with us.

Response 2. I deny the assertion, at least insofar as it is applied to strict doubt. For it cannot be admitted that in strict doubt a prohibitive ordinance is to be preferred to a permissive ordinance. But if in strict doubt material sin had to be guarded against before all things, in the said doubt a prohibitive ordinance would have to be preferred to a permissive ordinance, or the former would have to be assumed before the latter as the norm of acting.

The major is deduced from the fact that the permissive ordinance of God the legislator is equivalent to a prohibitive ordinance, or from the fact that the rights of a human being, as flowing from the eternal law equally with his duties, are equally holy as duties.

What the law is in strict doubt must be deduced from other principles.

And these things also involve a refutation of the System of Compensation, which teaches that in doubt the safer thing is to be followed unless a relatively grave inconvenience excuses. For that system rests on the supposition that of itself duty is to be preferred to right, even if it is conceded that by accident, because of a relatively grave inconvenience, duty can be postponed. But from what has been said it is clear that the aforesaid supposition must be rejected. There is added that this doctrine scarcely seems capable of being applied; since in individual cases not only the gravity of the law and the inconvenience which fulfillment of the law, considering the circumstances, would bring with it would have to be weighed against each other, but also the degree of certainty of the law would have to be compared with its inconvenience. To observe all these things rightly seems scarcely possible in practice. Moreover, no one would admit that a rule and norm of this sort for solving doubts is right.

Objection 2. In doubt the condition of the possessor is better, that is, of that which is prior by nature or time. But eternal law is prior to liberty, that is, to the moral faculty of placing an act. Therefore in doubt whether eternal law prohibits an act, the condition of eternal law is better.

Response. I concede the major. I distinguish the minor: namely, eternal law which permits an act is prior to liberty, that is, to the moral faculty of placing that act, I concede; eternal law which prohibits an act is prior to liberty, that is, to the moral faculty of placing that act, I deny. Or rather, in our case it is doubtful whether eternal law prohibits some act or permits it, that is, whether it grants the moral faculty of placing that act. In this doubt, as we have explained, a human being uses his physical liberty at will, provided he places his act for an honorable end.

Corollary I. Law does not oblige in strict doubt: first, whether it has been established or promulgated; second, whether it comprehends some case or person, because there is strict doubt whether it has been made with respect to that case or person; third, whether the fact founding the law has had place, because there is strict doubt whether the law has now begun, or rather, whether it can now be applied. Hence, for example, it is licit to eat meats in doubt whether Friday has arrived; likewise to eat with the intention of celebrating, in doubt whether it is midnight; likewise to celebrate in doubt whether you have taken something after midnight (St. Alphonsus, I, 32, 97).

Likewise, in strict doubt whether a law is mixed or purely penal, practically it can be held as purely penal, because there is strict doubt whether a law has been made which commands the act. Finally, in strict doubt whether a law obliges under grave or under light sin, the obligation is light, because there is strict doubt whether a law has been established which commands under grave sin (St. Alphonsus, loc. cit.).

Corollary II. Since a promissory oath and a vow are in the likeness of particular laws, obligation is lacking in strict doubt whether an oath or vow has been emitted (St. Alphonsus, I, 28).

Corollary III. If there is question of distinct things, it is licit in strict doubt to use now one opinion, now the other, or even both at the same time. Hence, for example, it is right, out of two testaments equally probably valid and invalid, to treat one as valid and the other as invalid, according as validity or nullity turns to your favor. I said "if there is question of different things," because it is impossible in one and the same individual thing to use two contrary opinions at the same time; in cases which are proposed by some authors, this has place only in appearance. Moreover, questions which are referred here by authors cannot be solved by a general principle, but rather each is treated separately in its own place.¹

Corollary IV. A parishioner and penitent ordinarily safely follow the judgment of a prudent pastor or confessor, because they prudently opine, or at least hold as equally probable, that no law prohibits what is declared licit by them. These words of St. Thomas pertain here: "Someone of little knowledge is made more certain about what he hears from someone scientific than about what seems to him according to his own reason" (II-II, q. 4, a. 8, ad 2).

¹ Yet for the reader's sake it is pleasing to touch upon some questions. They ask, for example, whether it is licit for someone, relying on a sufficiently probable opinion about the validity of an informal testament, to accept an inheritance against the heir ab intestato, and at the same time, relying on an equally probable opinion about the nullity of the same testament, to retain legacies. Moreover, in the proposed example the legacies cannot be retained, because it is certain, and therefore the case is entirely outside our matter, that they do not belong to the testamentary heir. For a testament in itself is either valid or invalid. If the former, the legacies belong to the legatee; if the latter, they fall to the heir ab intestato, or legal heir. They also ask what is licit for one who has before him two foods; one is certainly meat, but it is doubted which one is such. Moreover, it is sufficiently probably licit for him to eat both if the acts of eating are also morally speaking different; otherwise if morally speaking they constitute one act. The reason for the former is that each act is equally probably objectively, and therefore certainly subjectively, licit, and in the case there is no reason preventing the same solution from holding if there is question of two acts which morally speaking constitute one act. The reason for the latter is that it is not licit by acts which morally constitute one act certainly to violate the law. Objection: It is never licit certainly to violate the law. But this has place even if each act is also morally different. Response: It is never licit certainly to violate the law, that is, to place an act which you certainly know violates the law, I concede; that is, to place two morally different acts, one or the other of which will violate the law, although you do not know which of the two will violate the law, this seems to have to be denied, or at least is denied sufficiently probably.