The reflex principles for resolving doubt

247. On universal principles. 1. Direct principles are called those truths from which the matter itself is proved and known certainly; but reflex principles are called certain general truths which indeed do not prove the matter whose truth is sought, yet serve for bringing about practical certitude.

They are called reflex principles because from their proper object they are, as it were, bent by reasoning toward another, so that through them a certain dictate concerning the honesty of an action can be obtained.

2. Reflex principles are of two kinds: some are universal, which can be employed in any doubt whatever for forming a practically certain conscience; others are particular, which can be employed only in negative doubt, whether of law or of fact, for the same end. The principle of possession indeed is employed for informing conscience in a negative doubt of law and of fact; but the other particular principles are employed only for solving negative doubts of fact.

3. Universal principles are counted as only two: a doubtful law does not oblige and an uncertain law cannot induce a certain obligation; these two principles are clear from the arguments by which the formula of probabilism is demonstrated. Since between these two principles there is scarcely any real distinction, in reality there is only one reflex principle, namely, a doubtful law does not oblige, which alone suffices for forming a practically certain conscience in all doubts. Particular principles are numbered as several, among which the chief is the principle of possession.

248. On the principle of possession.¹ 1. The principle of possession, which in law is set forth thus: in equal fault or case the condition of the possessor is stronger,² among moralists occurs in this formula: in doubt the condition of the possessor is better. This principle, which properly and immediately pertains to the matter of commutative justice, which concerns ownership of things, and indeed to the external forum, has this sense: if between two persons there exists a dispute concerning the property of some thing and each proves his right by an equal reason, the laws assign the thing to him who up to now possessed it, until the other sufficiently proves that the thing is his: for possession founds the presumption of ownership, and therefore grants the right of retaining the thing until the contrary is sufficiently established. No one denies that this principle, as regards the matter of justice, is valid not only in the judicial forum, but also in the internal forum.

Therefore the principle of possession protects a certain stability of things, so that things, by force of possession, remain unchanged in the same state in which they up to now legitimately existed, until there supervenes a reason sufficient for changing the prior state.

2. There are some who, because of analogy, transfer this same principle also to other matters of other virtues and apply it for solving doubts concerning the obligation of a law: for they imagine liberty and law as two persons, of whom one has the right of acting as it pleases, but the other the right of limiting liberty; now in the conflict between liberty and law victory must be assigned to that one which is in possession. But if liberty and law are said to be possessed, possession is nothing other than the existence of liberty and of law. And rightly indeed, provided its use is restricted to negative doubts whether of law or of fact; nevertheless in negative doubts of fact other principles also are rightly applied, as is clear from what follows.

¹ Bouquillon, Theologia moralis fundamentalis^3 (Brugis. Beyaert. 1903) n. 302 ss.

² C. In pari 65 reg. iur. in 6°.

249. On particular principles. Since negative doubt is founded only in no reason or in a slight reason, it does not impede sufficient certitude of conscience, and therefore is not to be attended to. And indeed he would act imprudently who from no motive or a slight motive would determine himself to placing or omitting an act. Wherefore in practice one must act in such a way as if no doubt were present; and this is expressed by the principle of possession or by another particular reflex principle, as the examples which follow show.

a. If in a negative doubt of law no reason or a slight reason proves that a law has been enacted, that the law extends itself to this case, that the law commands under grave obligation, etc., liberty remains, or the condition of liberty possessing is better. Likewise if no reason or a slight reason proves that a law has been abrogated, that someone is excused from it, that dispensation has been given in it, etc., the law remains, or the condition of the law possessing is better.

b. If in a negative doubt of fact no reason or a slight reason proves some fact on which the obligation of the law depends, it is often difficult to understand which side possesses, wherefore other principles are rather employed.

Thus in negative doubt whether a boy of seven years has the use of reason, whether a man of timorous conscience has consented to temptation, etc., this principle is applied: in doubt one must judge from things commonly occurring.

In negative doubt whether someone has emitted a vow, committed a sin, inflicted damage; whether the time of beginning an obligation is present (Friday has begun), the time of ending an obligation is present (Friday has ceased); whether someone has recited the hours, committed this sin or confessed it, whether he has satisfied a vow, paid a debt, etc., this principle is applied: a fact is not presumed, but must be proved.

In a negative doubt of fact on which the value of an act depends, where no reason or a slight reason proves that I did not have the due intention or attention in Mass, in the sacraments, in the hours, that I do not justly possess this thing, that baptism conferred was not valid, that confession was not integral, etc., this principle is applied: in doubt one must stand for the value of the act, or: what has been done is judged to have been done rightly.

There are various principles or axioms suitable for the purpose of forming one’s conscience when in doubt. They are for the most part taken from canon law, but they are also used in questions belonging to the forum of conscience.

In dubio melior est conditio possidentis—Possession is properly a physical fact, and consists in the corporal detention of a thing. In a wider sense rights are objects of possession, as a right of way, or the right to one’s liberty; so that if one’s liberty has hitherto been unrestricted, it is said to be in possession. The very fact of possession gives a right to continue in possession unless there is an adverse and stronger claim. There is also in the possessor a presumption of title to possess, for all men are jealous of their rights, and usually do not allow their property or rights to be held by others as owners. If, then, I am in possession of some object or right, and a doubt supervenes as to whether I am entitled to possession in the case or not, the question may be solved in the forum of conscience as it would be in a court of law, by applying the maxim —In dubio melior est conditio possidentis.¹

If, then, a doubt arises as to whether I have said my breviary, I must say it, for the law is in possession; if on the contrary a doubt comes into my mind as to whether I have taken food after midnight, I may go to Holy Communion, because my right to receive is in possession.

¹ Cf. Irish Eccles. Record, Sept. 1899.

In dubio standum est pro eo pro quo stat praesumptio. (In doubt one must stand by that for which the presumption stands.) A presumption is a probable conjecture about an uncertain event. The conjecture is such as would be formed in the circumstances by a man of ordinarily sound judgement and prudence. This is called a praesumptio hominis to distinguish it from a praesumptio juris, which the law itself sanctions in certain circumstances. Thus, according to the old canon law, if the parents of a boy and girl promised them in marriage and they did not express dissent, there was a praesumptio juris that they gave their consent, and they were reputed betrothed to each other. This praesumptio juris admits, indeed, of proof to the contrary; in cases where proof to the contrary is not admitted, there is praesumptio juris et de jure, as it is called.

When in doubt, I can frequently form my conscience by the aid of this axiom. If, for example, I am in the habit of saying my little hours after breakfast, and some evening a doubt occurs to me whether I said them on that day, I need not say them then, the presumption being that I said them in the morning as usual, and—In dubio standum est pro eo pro quo stat praesumptio.

¹ Cap. un., de despon. impub. in’ Sexto.

In dubio factum non praesumitur sed probari debet. Similarly, Nemo praesumitur malus donec probetur. (In doubt a fact is not presumed but must be proved. Similarly, No one is presumed wicked until he is proved so.) These axioms are understood of some principal fact, the fact of baptism, for example, or the commission of a crime, which obviously should not be presumed. If on the contrary the principal fact is certain, and a doubt arises as to some accessory circumstance, then other axioms should be used to guide the conduct: as, In dubio omne factum praesumitur recte factum; or, In dubio praesumitur factum quod de jure faciendum erat; or, In dubio standum est pro valore actus. (as, In doubt every act is presumed to have been rightly done; or, In doubt that is presumed to have been done which by law ought to have been done; or, In doubt one must stand by the validity of the act.) So that if I am certain that I baptized a child, but begin to doubt whether I anointed the head with chrism, according to the ritual, I am not bound to supply the ceremony afterwards.

88. Many canons prescribe that IN DOUBTS THE SAFER PART IS TO BE HELD. - St. Alphonsus himself replies: "What do the canons prescribe? They prescribe that in doubts the safer way is to be chosen. Therefore it is said, in doubts: What obstacle is that rule, if a man rests upon some certain principle? Then he already forms for himself a morally certain conscience about the honesty of the action, and he leaves the bounds of doubtfulness; nor can it any longer be said that he is in doubts. - Besides, the adversaries themselves concede that the aforesaid rule of following the safer part has no place in the matter of justice. But if the rule of the canons of following what is safer were universal for all doubts, even one who legitimately possesses a thing, in doubt whether the thing is another's, would be bound to be stripped of it. But St. Augustine teaches the contrary, saying: 'In the law of estates, each one is most rightly called a possessor in good faith so long as he is ignorant that what he possesses is another's,'" l. 1, n. 78, ed. 6, Gaude, p. 58.

151. In doubt one must stand for that for which presumption stands. - For presumption, taken from things ordinarily happening, or from other circumstances of person and thing, produces moral certainty, or at least probability. "In obscure matters it is customary to consider what is more like the truth, or what is usually done." L. 114 de R. I.; R. I. 14 in 6. It is a certain anticipated proof of a thing from signs, before direct proofs. Therefore presumption exhibits the thing as true, and stands for that side which is not bound by itself to prove the contrary fact, but transfers that burden of proving to the other side. For as often as something is known to have preexisted which by its nature perseveres until it is taken away by some contrary fact, that thing is judged to persevere so long as the contrary fact is not clear, which consequently will have to be proved by the adverse side.

153. In doubt a fact is not presumed, but must be demonstrated. L. 10 C. de Non numer. pec. - For no reason is to be given for non-being, but for being; because non-being does not have a cause of itself, but being does. Understand this, however, concerning the principal fact, if it is doubtful; because, if the principal fact is certainly clear, and there is doubt concerning an accessory fact, then other principles have force: In doubt every fact is presumed to have been rightly done; In doubt that fact is presumed which by right had to be done; In doubt one must stand for the validity of the act; always excluding unjust harm to one's own, or another's, or the community's good. For every being naturally tends to its own perfection and good. Therefore if nothing is clear as standing in the way, nature proceeds to pursue its own course. If consequently something had to be done, that thing is presumed to have been done. It is clear concerning the fact of Confession having been made; you doubt concerning right, whether you confessed rightly with sorrow and purpose; you can acquiesce. These three latter principles have force both for liberty and against liberty. For liberty, if contrary and certain presumption or the common good does not stand in the way; for an obligation is not to be imposed unless it is certainly clear. Against liberty, if namely a contrary and certain presumption or public good stands in the way; for the common good prevails over the private. - L. l. 1, n. 26, 27, 137, 182, 251, l. 3, n. 201, l. 6, n. 505; L. Quoties 12 de Reb. dub. ff.

155. In doubt no one is presumed evil, unless he is proved so. - This axiom is a corollary of the preceding one. For since facts, and consequently delicts, are not presumed, but must be demonstrated, neither must anyone be presumed evil, but he must be proved so. Indeed, no one is evil without reason.

42. You Will Resolve. - 1. As often as someone doubts whether the act which he is here and now about to posit is licit or not, he is held to apply diligence suitable for investigating the truth, according to the gravity of the matter and the condition of the person and place; let him consult upright and skilled men, investigate their practice, and weigh the reasons with the sole study of truth: for otherwise he exposes himself to the danger of violating the law from negligence in inquiry, and by that very fact sins.

2. If he cannot inquire, nor by himself is able to weigh the reasons of each part, nor in another way, for example through reflex principles, free himself from doubt, let him embrace the safer part; because otherwise he would act in practical-practical doubt, that is, with a truly doubtful conscience, and without any certain judgment concerning the honesty of the action.

3. He who, with diligent and sufficient inquiry having been performed, still doubts whether there is present a law commanding or prohibiting, is not held to obey it; because he can form conscience for himself from a reflex principle, namely, that a law which cannot be found cannot oblige, as will be said below, where probabilism is treated.

4. They act ineptly who, after an act already committed or omitted, inquire among the Doctors or from a Confessor whether they have sinned; for past sin does not depend on the following judgment of a Doctor or Confessor, but on the practical dictate which someone had in acting. - Nevertheless he acts prudently who asks so that he may know the truth, namely, in what way in the future in a similar case he can or ought to conduct himself.

331. If it is never licit to act with a practically doubtful conscience, it follows manifestly that a man existing in such a state ought either to lay aside the doubt or to desist from the action. But there exists a twofold way of laying aside such doubt: one direct, the other indirect. Doubt is laid aside directly if, either through consultation of a wise man or of an approved book, or through one's own investigation into the truth of the matter, the mind finally assents to one or the other part with moral certitude. Hence if the confessor cannot solve some difficult case with certitude, he is bound, if time permits, to consult books or even learned theologians (with the sacramental seal nevertheless preserved). But if such a direct way is not possible, then the doubt must be laid aside indirectly through the so-called indirect principles, concerning which we shall immediately discuss. But if moral certitude cannot be had even in this way, and if the action also cannot be deferred, then the safer part is to be chosen. But the safer part is that which includes observance of the law and excludes the danger of sinning.⁷⁶

⁷⁶ The worn rule: "in doubts the safer part is to be chosen," must be rightly understood. The safer part is sometimes understood as the more perfect part; thus, for example, in the religious life a man works out his salvation more safely than in the secular life. It is not required that the safer, i.e., the more perfect, part always be chosen. This is clear per se. - Sometimes to the safer part there is opposed a part that is not safe but sinful. Thus, for example, it is safer not to be in a proximate occasion of sinning than to be in it. The rule noted above holds in this sense, and indeed a) if there is question of any practical doubt, because it is never licit to act with practical doubt; b) if there is question of the doubtful validity of the sacraments or of a certain right of another or of things altogether necessary for salvation. Cf. below n. 333, where the reflex principle will be explained: "A doubtful law does not oblige."

332. Reflex principles. From the origin of Probabilism, direct principles are customarily distinguished, which immediately and per se produce either intrinsic evidence or at least evident credibility of some conclusion. Thus, for example, from the intrinsic and direct principle: "God, as supreme Lord, is to be worshiped," there follows immediately and per se: therefore any blasphemy is intrinsically evil. - Indirect or reflex principles are certain true and clear general norms which indeed do not directly and per se prove the matter whose truth is investigated, but nevertheless serve for driving away practical doubt and for obtaining moral certitude in a practical case. Therefore these principles as it were reflect their own light upon an obscure practical doubt and scatter its darkness for the moment of the action to be posited. If reflex principles are accepted in this sense, nothing prevents them, rightly understood and rightly applied, from being admitted.⁷⁷ For then they are very consonant with reason and similar to those 88 Rules of Law which were already in use under Boniface VIII. The more principal reflex principles are the following:

1. A doubtful law does not oblige.

2. In doubt one must stand for him for whom presumption stands.

3. In doubt the condition of the possessor is better.

4. A delict is not presumed, but must be proved.

5. In doubt favor is to be shown to the accused.

6. In doubt the presumption stands for the superior.

7. In doubt judgment is to be made from things ordinarily occurring.

8. In doubt one must stand for the validity of the act.

9. In doubt favors are to be enlarged and unfavorable things restricted.

10. In doubts, what is least is to be held.

Especially concerning the three prior principles, obscurities and falsities turn; hence it is helpful to explain them in a few words.

⁷⁷ St. Alphonsus deservedly says (Theol. mor. l. 1, n. 64): "It is certain and commonly explored among all doctors that moral certitude of some opinion, if it is not proved from some certain direct principle, is nevertheless proved from another reflex principle likewise certain."

333. 1. A doubtful law does not oblige. From the rise of Probabilism this principle caused very sharp controversies. Some, namely the more rigid Probabiliorists (Concina,⁷⁸ Patuzzi, etc.), reject it altogether, teaching that in doubt the safer part must be chosen. Others, namely the laxer Probabilists (Caramuel, Diana, Tamburini, Moya, etc.), on the contrary proclaim this principle as the philosopher's stone and apply it without any exception, whether there is question of the validity of the act or of its licitness, whether of strict doubt or broad doubt. But since the Holy See condemned this exaggerated application of the principle in some matters, hence moderate Probabilists indeed admit the principle, but do not extend it to the four following cases:

a) If there is question of the validity of the sacraments. For from the virtue of religion and charity, indeed sometimes also from the virtue of justice, the minister ought to administer the sacraments validly, because otherwise great irreverence is caused to God and great harm to the man receiving. Hence, unless grave necessity urges or unless the Church supplies the defect, it is a grave sin to administer a doubtfully valid sacrament. For this reason Innocent XI also proscribed proposition (1): "It is not illicit, in conferring the sacraments, to follow a probable opinion concerning the validity of the sacrament, the safer one having been abandoned, unless law, agreement, or the danger of incurring grave harm forbids this. Hence an opinion only probable is not to be used in the conferral of baptism, priestly order, or episcopal order."⁷⁹

b) If there is question of things necessary for salvation, for example, of truths to be believed by necessity of means, of baptism to be received when someone doubts whether he was validly baptized, of the proximate danger of sinning, etc. For eternal salvation must be obtained and eternal damnation necessarily avoided; hence if there is question of danger to eternal life, the safer part must be chosen. Right love of self manifestly demands this. Even the "prince of the laxists" himself, Caramuel, teaches this.⁸⁰ Hence likewise proposition (4) was condemned by Innocent XI: "An unbeliever not believing, led by a less probable opinion, will be excused from unbelief."⁸¹

c) If there is question of a certain right of a third person. Hence in a civil case the judge is bound to render judgment according to the more probable opinion. The reason is that the judge is obliged from justice to settle the litigation according to objective truth without any acceptance of persons. But there would be manifest acceptance of persons if the judge, abandoning the certainly more probable opinion, judged according to the less probable opinion.⁸²

But if the case of each litigant is equally probable, the judge is bound either to divide the controverted matter between them or to persuade them to an amicable settlement. Hence it is easily understood why the following propositions were condemned: "I probably think that a judge can judge according to an opinion even less probable."⁸³ "When litigants have opinions equally probable for themselves, the judge can receive money for rendering a sentence in favor of one rather than the other."⁸⁴ - When one part of the litigants already possesses the thing in good faith, then the adage must be applied: "The condition of the possessor is better." And so the thing is not to be adjudged away from the possessor unless the other party proves his right. - In a criminal case favor is to be shown to the accused as long as his crime has not been proved. Hence Rule of Law 11 in VI: "When the rights of the parties are obscure, favor is to be shown to the accused rather than to the plaintiff," and the Code of Canon Law, c. 1748, § 2, establishes: "If the plaintiff does not prove, the defendant is absolved."

d) If there is question of grave danger of spiritual or temporal harm (whether one's own or another's), which we ought to prevent from charity or from justice. Therefore a physician is bound to employ more certain and safer remedies (when they can be had) and sins if without urgent necessity he employs doubtful remedies, so that the life of the sick person is endangered. Likewise it is illicit to take a drink that is doubtfully gravely poisonous.

These four exceptions, which, even the Probabilists themselves admitting it,⁸⁵ must be added to the famous principle, "A doubtful law does not oblige," show enough and more than enough that it is not so precious a philosopher's stone as certain Probabilists advertise it. But if that principle is understood with the clauses added, and if there is question of a true and serious doubt concerning the existence of a law, nothing prevents it from being applied to eliminate practical doubt.⁸⁶

⁷⁸ De probabilismo diss. 8, c. 3.

⁷⁹ Denz. n. 1151. John Lugo taught a similar proposition, De sacr. in genere, disput. VIII, n. 139 and 141.

⁸⁰ Theol. fund. n. 533.

⁸¹ Denz. n. 1154.

⁸² Cf. S. theol. 2, 2, q. 63, a. 4.

⁸³ Innocent XI (Denz. n. 1152).

⁸⁴ Alexander VII (Denz. n. 1126).

⁸⁵ Cf. Noldin-Schmitt, De consc. n. 236. The author nevertheless thinks that those four cases are not exceptions from the principle of probabilism. It is a quarrel about words.

⁸⁶ So also St. Alphonsus (Theol. mor. l. 1, n. 64). The difficulty nevertheless remains, when the law is truly doubtful.

334. 2. In doubt one must stand for him for whom presumption stands. This principle was already in use among the old Canonists⁸⁷ and Moralists and is the foundation of many others. Presumption is not unfittingly defined: an anticipated proof of a doubtful matter, drawn from valid arguments and indications. It is said: anticipated proof, because presumption before proper proof admits something as true until the contrary is clearly proved. The matter becomes clearer by examples: Someone comes under suspicion of a certain crime. But since up to now he has been a pious and just man, he is presumed innocent until the contrary has been proved. And therefore the principle related above in the fourth place establishes: "A delict is not presumed, but must be proved," or also: "Anyone is presumed good unless he is proved evil." - Another example: A subject doubts concerning the obligation and rightness of some command made by a superior. Nevertheless he ought to obey, because in doubts the presumption stands for the superior, whose authority is not weakened by the doubt of the subject. - A third example: Someone is accused of a certain crime, whose existence nevertheless cannot be clearly proved. In this case the presumption stands for the accused, and therefore he ought to be freed according to the reflex principle related above: "In doubt favor is to be shown to the accused." Nevertheless, if the indications of the guilt of the accused are so strong that they generate moral certitude concerning the crime committed, the penalty can be inflicted. - A fourth example: Some religious made profession, but afterward doubts whether he had sufficient intention and knowledge of the obligations which arise from profession. The profession is nevertheless valid according to the adage: "In doubt one must stand for the validity of the act." But the reason is that the presumption stands for the validity of the profession.

⁸⁷ Cf. tit. 23 de praesumptionibus l. 2 Decretal.

335. 3. In doubt the condition of the possessor is better. This principle is the foundation of Equiprobabilism, and is briefly called the "principle of possession." With respect to the matter of commutative justice, this principle is most true and was already pronounced by Alexander III, who, having been asked whether some church is bound to hand over tithes which are claimed by another church, responded that it is not bound, "because by divine and human right the condition of the possessor is better."⁸⁸ Benedict XIV calls the same principle a "worn adage."⁸⁹ But Billuart⁹⁰ assigns the following reasons why that principle is best in the matter of justice: "1. because, since men on the one hand, eager for things, are not accustomed to leave their own [things] with others, and on the other hand an upright man is not accustomed to acquire possession of some thing without a title, hence in doubt possession brings in a presumption: that he who possesses the thing is the owner of the thing; 2. because, since goods of fortune are subject to human power, legislators have established, in order to the common good, that in doubt the possessor can retain as his own the goods which he possesses, lest the ownerships of things remain uncertain and litigations be interminable." - But deservedly the principle of possession is extended by analogy also to other matters besides justice,⁹¹ because Alexander III cited above attributed value to it in divine and human right. Hence St. Alphonsus continually applies it for discerning whether some law obliges or not. For law and human liberty can be considered as two possessors. Law possesses the force of obliging, and human liberty possesses the faculty of acting freely (with the order of the end nevertheless preserved). Hence according to this principle of possession, he who doubts whether he committed a grave sin, or whether a sin certainly committed is mortal, is not bound, strictly speaking, to declare acts of this kind in confession. For liberty possesses, as they say; for man is free from the obligation of confessing as long as he is not certainly guilty of mortal sin. - On the contrary, he who, certain of a mortal sin committed, seriously doubts whether he confessed it, is bound to confess it again. The reason is that the law possesses; for the law of confessing mortal sins certainly exists, and it is not satisfied by a doubtful fulfillment. Considered at first glance, this principle of possession seems to be very clear, but outside the matter of justice it suffers rather great difficulties, because often it is not established what possesses, namely whether liberty or law. But if it remains obscure whether law or liberty possesses, then let humanity and facility prevail, as St. Gregory Nazianzen says.⁹²

⁸⁸ It is found in c. 6, X 2, 26. Cf. also Rule of Law 65: "In an equal delict or case the condition of the possessor is stronger."

⁸⁹ Const. "Postremo mense" § 33, d. 28 Febr. 1747.

⁹⁰ De consc. diss. 6, a. 2, obj. 3.

⁹¹ That this principle does not hold except in the matter of justice is taught commonly by Probabiliorists, for example, Billuart (l. c.); besides Azor, Vasquez, Salas, etc. On the contrary all Probabilists and Equiprobabilists extend it also to other matters, for example, Suarez, Lugo, Sanchez, Sporer, etc.; to whom modern authors commonly accede; cf. St. Alphonsus l. c. l. 1, n. 26.

⁹² Orat. 39 in sancta lumina n. 19 (Migne, Patr. graec. 37, 358). See the sharp refutation of this principle applied in favor of probabilism in Concina, De probabilismo diss. 8, c. 2. Cf. also Bouquillon, Theol. mor. fund. n. 302.

336. Scholion. On the reduction of reflex principles to one. To one diligently considering the diverse reflex principles, it appears that in reality there is only one reflex principle, to which all the others are easily reduced, namely: "In doubt one must stand for that for which presumption stands." For, to pass over the principle, "A doubtful law does not oblige," which is altogether rejected by many, and which today is accepted by no one except with the limiting clauses brought forward above, all the other principles are nothing but corollaries deduced from the principle of presumption. For why in doubt is the condition of the possessor better? Because the presumption stands for the possessor. - Why in doubt must one stand for the validity of the act? - Because the presumption stands that an act once placed was placed rightly. - Why is a delict not presumed, but must be proved? - Because the presumption stands for the accused, since no one ought to be held evil unless it has been clearly proved. And so on. - Hence it is better and simpler if this principle alone of presumption is applied for obtaining the moral certitude necessary in any particular act. For this principle is admitted by all; it is easily understood even by the uneducated; it is applied in the forum both civil and ecclesiastical; before the controversies about Probabilism arose it was applied by the Scholastics; and finally, with it rightly applied, it is right to hope that the difficulties, and especially the interminable and in practice altogether useless altercations among the diverse moral systems, will gradually cease.

88. Most certain principles placed beyond all controversy. - Positive doubt, which, namely, is founded upon grave reasons morally equal, i.e., equal or almost equal on both sides, is serious and therefore impedes direct practical certitude, and consequently is not to be neglected but attended to. But conscience ought to be certain (n. 78). Therefore it is never licit, but always illicit, to act with a positive practical doubt concerning the honesty of the action to be placed here and now, or with a positively doubtful conscience. This, namely, is not a rule of acting prudently.

But from positive speculatively practical doubt there follows per se and ordinarily practically practical doubt or doubtful conscience: for he who doubts concerning the honesty of an action in general, per se and ordinarily doubts concerning the honesty of the same action in particular. Hence there follows the obligation of laying aside the said doubt, and

1. of acquiring certitude concerning the honesty of the action, and indeed direct certitude if this is possible: for he who is held to observing laws is held to knowing and inquiring into them; otherwise he would be in ignorance that is vincible and culpable;

2. but if he cannot have direct certitude, he is held, before he acts, to acquire indirect certitude and to form conscience by force of an indirect or reflex principle;¹

¹ According to one of the systems of probability: Probabiliorism, Equiprobabilism, Probabilism, as we shall see later.

3. but if he also cannot have indirect certitude, he is held to act more safely, namely, to abstain from the action which is doubtfully honest; and if he must altogether act, he must do what is safer and what removes more from the danger of sinning even materially. Here the principle is valid: In practical doubts the safer way must be chosen.

94. Corollaries. - 1. Although to follow Probabiliorism in doubt is safer, nevertheless it is simply safe, in a case of doubt, to act in the manner of the Equiprobabilists and Probabilists, because it certainly removes the danger of sinning formally.

2. For we are not always bound to act altogether more safely, which absolutely removes every danger of sinning, but it suffices that we act safely, so that we guard against that which is not safe, i.e., that which does not sufficiently remove the danger of sin or harm. Namely, nothing prevents that which is less safe (with respect to material sin) from now being simply and sufficiently safe (with respect to formal sin), because it removes every danger of formal sin.

3. Indeed Probabiliorism seems to suppose the principle: an uncertain law does not oblige. For it establishes that it is licit to follow the more probable opinion, the less probable one for the law being left aside. Now this rule cannot be certainly proved except because the less probable law, as being uncertain, does not oblige. But this almost equally proves the principle of the Equiprobabilists and Probabilists, which nevertheless the Probabiliorists reject.⁴

⁴ Cf. St. Alphonsus, Th. M., book I, n. 82.

4. In the case in which an end is not imposed, but in which someone absolutely wills to attain it, he also must, in order to act prudently, employ certain or safer means by which the end is certainly obtained, for example if someone wills to gain an indulgence or to know the truth. For this reason it is rather idle and imprudent, in the time of a jubilee, to indicate to the faithful several probable modes by which perhaps they can gain it; because by employing such modes they incur the danger of not gaining it.

5. Some falsely attack the difference between necessity of means and necessity of precept, saying that every law is a necessary means to the end. For one thing is a means only necessary because prescribed; another thing is a means necessary of itself and prescribed because it is a means.

6. What certain more recent authors say does not please:⁵ that one must act more safely in doubts which regard the truth (or value) of the thing according to itself, which is taken according to the notion of commensuration or debt toward another, concerning which is the cardinal virtue of Justice; but that one need not act more safely, and even the probable less safe may be done, in doubts which express order only to the one acting, and are about those things which are taken according to commensuration to the one acting, or about the dispositions alone of the one acting, concerning which are Fortitude and Temperance with the annexed virtues. In other words, in operations of the will toward another one must act more safely; but, on the contrary, in the passions or affections of the one acting, thus applying to the present question St. Thomas's doctrine on the division of the moral virtues.2 - But a) one must not act more safely in all things which express order to another, but only in the matter of justice properly so called, and in acts of religion which are concerned with the validity of a sacrament; but not in other acts of religion or in other virtues annexed to justice; b) even in justice properly so called, one must not act more safely in doubts of law, when the right of another is uncertain, but only in doubts of fact, when the right of another is certain; c) outside the matter of justice, for example from charity, sometimes one must also act more safely, even in those things which regard only the one acting, for example in doubts which concern things necessary by necessity of means for salvation, and in those which would expose one to a doubtful or probable danger of sinning formally.

⁵ Recent Equiprobabilists say that the principle The condition of the possessor is better is primary and most general; but that the principle A doubtful law does not oblige is secondary, derived from the primary principle and consequently to be limited by it. - Yet this does not seem to be admitted. For the principle a doubtful law does not oblige admits no exceptions; even in the case in which, on account of an end to be obtained absolutely, one must act more safely, the obligation arises not from the doubtful particular law, but from the higher law which then urges certainly. On the contrary, the principle The condition of the possessor is better seems rather to be restricted to the matter of justice or to doubts of fact. St. Alphonsus spoke in diverse ways on this point. In Confess. diretto, c. 1, n. 11, he assigns the first place to the principle of possession, and seems to signify the same in Hom. apost., tr. 1, c. 2, n. 14; but in the final redaction of Th. M., book I, n. 26, he has these words: "Of these (reflex) principles, the most principal is that one, that a doubtful law cannot induce a certain obligation... But from this first principle, that second principle is formed: The condition of the possessor is better." Since, however, this text is later and is found in a strictly theological work, it must be held as stronger and is presumed better to express the definitive mind of the Holy Doctor.

Therefore one must not depart from the received distinction between necessity of means and necessity of precept, validity of an act for the end and mere honesty (n. 90).

2. Certain pure Probabilists also hold this, among whom d'Annibale, Summula Theol. Mor., I, n. 244.

3. The thesis is secondary, because it does not treat of the principle, but only of the application of the principle to certain cases, and because, as the Mechlin theologians say, Th. Mor. gen., ed. 3, n. 190, q. 6: "Here indeed the distance is real, yet not so great. For 1) practically, equiprobabilists rarely invoke the principle of possession in favor of law: namely, in doubt or probability of fact alone, not of law; for they admit that law is satisfied through probable fulfillment by probability of law; and thus one who reads the hours according to that mode which probably only suffices is not held to read them again: the reason is that the law, insofar as it requires more, is doubtful, but a doubtful law does not oblige (cf. St. Alph., book I, nn. 97, 185; book IV, nn. 112, 700; H.A., tr. 15, n. 34). Moreover, probability of fact will be present more rarely: for if there is doubt about the very fact of fulfillment, often either there will be only a slight reason for doubting and therefore one to be spurned, or there will be such probability of fact that it reaches moral certitude. Therefore there remain those cases in which, in doubt about the cessation of a law, there is true probability of fact. Now 2) several principles are given by whose help, according to all, liberty is aided even then. Thus the equiprobabilists, with St. Alphonsus as guide, book VI, n. 477, resolve that one doubting whether he omitted a mortal sin is not held to confess it, if he was diligent in confessing his sins; but if he is accustomed to be negligent, scarcely, even according to the pure probabilists, because of the contrary presumption, will the doubt of confession made rise to true probability. Thus also another principle often solves the doubt: 'In a conflict of laws the higher law prevails'; whence, in doubt whether the recitation of the office, hearing Mass, or observance of the fast, to which the law certainly obliges, will be harmful to health, you are held to nothing; because the natural law or the right of preserving health prevails (St. Alph., book V, n. 154). Other principles also can come into use, for example, 'A way is not to be opened to scruples'; 'Positive laws do not oblige with grave inconvenience'; for these are frequently to be feared, if we oblige someone to fulfill a precept which he has already probably satisfied (St. Alph., book V, n. 177); and so on." Cf. also de Caigny, De Gemino Probabilismo licito, pp. 109-115.

1. Thus Beaudoin, Sertillanges and Dumas.

2. I-II, q. 70, a. 2; II-II, q. 57, a. 1; q. 58, a. 10.

105. Process to be followed in the formation of one's own certain conscience. - In order that man may act prudently and safely from a sufficiently certain conscience, he must follow the following process in forming his own conscience, namely:

1. to judge, or to be conscious, that he is practically certain concerning the honesty of the action here and now to be placed;

2. when he practically doubts, he must examine diligently according to the gravity of the matter and of the doubt and of the other conditions;

3. if, sufficient diligence having been employed, the reasons for doubting appear slight and the doubt is negative, by despising it he can lay it aside according to the principle: The condition of the possessor is better, and act freely if the doubt was concerning the existence of an obligation; on the contrary, he must follow the law if the doubt was concerning excuse from the law;

4. if the doubt appears serious, founded on grave reasons, he must, by attentively comparing the reasons and opposite opinions, by his own investigation if he can, or at least from consultation with the more learned, arrive at direct certitude - for which a most probable opinion, or one much and notably more probable, suffices;

5. if he cannot here and now arrive at direct certitude, that is:

a) either because he is unwilling to examine, or because from defect of means or time he cannot, and then he is held to act more safely, in order to remove the danger of sinning;

b) or the matter carefully examined is truly uncertain, and indeed so that the doubt concerns the validity of an act, because there is question of an end absolutely to be obtained or of harm absolutely to be avoided, for which the action must certainly be valid and perhaps does not suffice; and then from a certain higher law one must also act more safely;

c) or the matter carefully examined is truly uncertain so that the doubt concerns mere honesty, and then he can act freely and apply the principle: "An uncertain law does not oblige": always according to the Probabilists; according to the Equiprobabilists with the restriction: unless the obligation appears certainly more probable or it is not more probable that it has ceased; according to the Probabiliorists: if liberty is more probable.

106. Case. - That the practice of the doctrine may be better understood, let us apply it to the following case: Peter, ignorant of the moral system concerning the formation of conscience, approaches Timothy the confessor, and manifests a threefold doubt:

a) whether he made a vow;

b) whether a vow certainly made perhaps is invalid;

c) whether he has paid a debt certainly contracted.

How can these doubts be resolved?

From the principles explained, the proposed doubts are easily resolved. Timothy is indeed held to institute a diligent examination concerning Peter's doubts, in order to arrive at direct certitude, if this is possible (n. 76); but how he will form Peter's conscience as indirectly certain, if after diligent examination the doubts persist, is what must be investigated in the present place.

a) One doubting whether he made a vow is not held to fulfill it. For if the doubt is negative, i.e., if there is no reason or only a slight reason for thinking that the vow was made, the principle can be applied: The condition of the possessor is better, i.e., of liberty, which before the doubt arose was certain. Therefore in doubt the fact (i.e., the vow) is not presumed but must be proved, and in a doubt of a fact founding an obligation, liberty remains (n. 86). But if the doubt is positive, i.e., if there is a grave but uncertain reason for thinking that the vow was made, the principle can be applied: A doubtful obligation is practically none (n. 92). Therefore Peter is held to nothing.

b) One doubting whether a vow certainly made perhaps is invalid, if the doubt is negative, i.e., if there is no reason or only a slight reason for thinking that the vow is invalid, is held to fulfill the vow, because the condition of the possessor is better, i.e., of the vow or obligation which before the doubt arose was certain, since the vow was certainly made. A slight reason does not impede practical certitude; whence one must stand for the value of the act, and the fact (namely, the vow) is presumed to have been rightly done (n. 86). But if the doubt is positive, i.e., if there is a grave reason for thinking that the vow was not valid, he is not held to fulfill it; for a grave reason renders the validity of the vow and the obligation truly doubtful, whence the principle can be applied: A doubtful obligation is no obligation (n. 92). Therefore in a negative doubt Peter is held to the fulfillment of the vow; in a positive doubt he is not held.

c) One doubting whether he has paid a debt certainly contracted:

1. If the doubt is negative, i.e., if there is no reason or only a slight reason for thinking that the debt was paid, he is held to pay it, because the condition of the possessor is better, i.e., of the debt or obligation which before the doubt arose was certain, since the debt was certainly contracted. For a slight reason does not impede practical certitude; whence the fact (i.e., payment) is not presumed but must be proved, and in a doubt of a fact supposing an obligation and exempting from it, the obligation remains (n. 86).

2. But if the doubt concerning the fulfillment of the obligation is positive, i.e., if there is a grave reason for thinking that it has been fulfilled, according to St. Alphonsus and the Equiprobabilists the one doubting is still held to fulfill, because a certain obligation is not satisfied by a doubtful payment. Yet this does not seem founded, because in the case the obligation itself now becomes truly uncertain, whence satisfaction need not be made to it (n. 93). Therefore it would be better to say that, in a case of positively doubtful fulfillment, generally he is not held: for a grave reason renders the obligation truly doubtful, whence this can be applied: An uncertain obligation is practically none - unless nevertheless some higher law were present which would nevertheless urge the fulfillment of the obligation. But since there is question of the payment of a debt, i.e., of a matter of justice, and justice sometimes obliges in doubts to choose what is safer (n. 91), it must be inquired whether it does not require the payment of a debt which was not certainly paid.

3. Several affirm this, invoking the principle: The condition of the possessor is better, which properly regards the matter of justice: namely, the debt certainly contracted possesses, until it has certainly been paid. - But that principle cannot be invoked in the case; for by the very fact that there is a grave reason for thinking that the debt was paid, it is now doubtful whether the debt still exists, and consequently whether it possesses force of obliging and obliges, and whether the creditor possesses a right to payment. Therefore the possession itself of the right becomes doubtful. But if speech is made of possession of fact, no one ought to be deprived of his own good, and consequently he can retain it until it is certainly proved not to be his.

4. They also invoke the principle: It is the duty of the debtor to attend and watch that he certainly pay the debt, whence the doubt that has arisen must be imputed to his negligence, from which the creditor ought not to suffer harm.¹ This principle is valid, but only in the case of culpable negligence; this case in practice will rather be rare. The reason of the principle is that justice strictly obliges that our action or omission not be, for another, the cause of even probable or doubtful harm (n. 91); but from the negligence of the debtor the creditor will perhaps lose the payment of the debt, or will be exposed to this danger or to uncertainty of payment: this uncertainty or danger is already harm. Whence if someone foresees that this will arise from his negligence, he sins and is held to make restitution, not indeed because a doubtful debt obliges, but because he has brought about certain harm by exposing the creditor to the danger of uncertain payment; and therefore he is not held to pay the whole debt, but only according to the ratio of doubt and uncertainty.²

¹ Thus also St. Alphonsus, Th. M., book I, n. 34 and book III, n. 700, q. 2, and Suarez, Vasquez, Sanchez, Lacroix, etc.

² Several add that the debtor is held to pay the entire debt if he is notably negligent in paying debts, because there is a presumption that the debt was not paid. This indeed is true; but in the case there will be no serious and grave reason for supposing that the debt was paid, and the doubt will now become negative.

5. Others say that equality in strict justice must be preserved as far as can be done, whence they judge that an obligation is present of paying according to the ratio of doubt, just as also a judge decrees that uncertain goods are to be divided.³ This principle also is true, provided that it is certainly established that an obligation of justice is present: then satisfaction is not made by doubtful fulfillment, because it is only doubtfully equal to the debt. But in a case in which the obligation is not established, the principle cannot be invoked without this absurdity: if the debtor pays half, either he defrauds if he truly owes, or loses half of his own good if he owes nothing. Whence the obligation of paying according to the ratio of doubt is not proved, except in the case of culpable negligence, as we said above; or also unless the judge establishes it so: for a superior commanding must be obeyed until it is certainly established that he commands unjustly (n. 91).

³ Thus Laymann, Tamburini, Lehmkuhl, Ballerini, Marres, Vermeersch; Diana, Reuter and Sporer say this is probable.

And so, outside the aforesaid case of negligence, it is not proved that there is a higher law obliging one to pay a debt concerning which it is positively doubted whether it has already been paid, whence Peter is held to nothing, by force of the principle: A truly uncertain obligation is practically none;⁴ nevertheless, it should be counseled that for the sake of equity he pay something. But in the case of a negative doubt Peter is held to pay.

⁴ Thus Tannerus, Waffelaert, Genicot, Salsmans, Noldin, Bucceroni, the Mechlin authors in Th. m. gen., etc.

You Will Resolve. 1st. As often as someone doubts whether the act which he is about to place here and now is licit or not, he is bound to apply diligence congruent to the gravity of the matter and the condition of person and place for the inquiry of truth; let him consult upright and skilled men, investigate their practice, and weigh the reasons with the sole zeal for truth; otherwise he exposes himself to the danger of violating the law from negligence in inquiry, and by that very fact sins.

2nd. If he cannot inquire, nor by himself is able to weigh the reasons of each side, nor in another way, for example through reflex principles, free himself from doubt, let him embrace the safer part; because otherwise he would act in practical doubt, that is, with a conscience truly doubtful and without any certain judgment concerning the honesty of the action.

3rd. He who, after diligent and sufficient inquiry has been completed, still doubts whether there is a law commanding or prohibiting, is not bound to obey this law, if nevertheless he can form for himself a conscience from a reflex principle, namely that a law which cannot be found cannot oblige, as will be said below, where probabilism is treated.

4th. Merely negative doubt is to be held as nothing, because it is founded upon no reason at all, or upon a very light one. Therefore, even if it remains, because it cannot bring it about that the opposite moral certainty is overthrown, nevertheless the obligation presses, or liberty stands, according as it existed before. But if a prudent suspicion of error, resting upon a grave motive, arises for you, the doubt ceases to be merely negative, and you are bound to inquire. And so, when hereafter cases of negative doubt occur, you will easily dissolve them, this rule having once been established, and therefore we shall attend only to positive doubt. Cf. St. Alphonsus, n. 24.

VII. You are mistaken, they say. For there are given principles by which the doubt is laid aside, and a judgment is formed which is called "practically practical." By this judgment, which is also called the "reflex," the clouds of any doubt whatsoever are dispelled. What, I ask you, are such principles, which, the doubt having been dispelled, induce moral certainty? They are, they say, hidden in the depths of human liberty, which cannot be dislodged from its possession except by certainty — since the condition of the possessor is the better one. But this rule holds only in matters of justice, to avoid disputes and confusion in civil society, as jurists themselves, and the Doctors, explain. In other doubtful matters, however, that rule by no means holds — especially in the matter of eternal salvation, which must be preferred to human life, let alone liberty. But more on this invention in its proper place. For now let it suffice to have stated the true opinion concerning the doubtful vow alone.