Tutiorism

229. Absolute tutiorism teaches: it is never lawful to follow the opinion for liberty, even if it is most probable.

1. This doctrine, rigoristic beyond measure, was defended by Sinnichius (d. 1666), a doctor of Louvain, and the Jansenists maintain it. For since the Jansenists taught that there are precepts which are impossible for men, and that grace is not given by which they would become possible, they tried to increase the burdens and precepts imposed on the faithful in order to protect this doctrine.

2. Their arguments are these: a. It is a received axiom: in doubt the safer part is to be chosen; but the safer part stands for the law; therefore we are always bound to observe the law, unless it is certain that the law never existed or has already ceased. b. It is not lawful by one's action to expose oneself to the danger of sinning; but even he who follows a most probable opinion exposes himself by operating to the danger of sinning: for even a most probable opinion can be false.

3. Refutation. a. This doctrine has been reprobated by the Church: for by Alexander VIII this proposition (3) was condemned: it is not lawful to follow an opinion even the most probable among the probable. b. He who simply teaches that in doubt that must be done which is safer falsely affirms that what is of counsel is a precept: for God does not oblige to that which is safer, but to that which is simply safe. c. He who affirms that even doubtful laws must be observed imposes against the will of God an intolerable yoke on the faithful and makes divine precepts impossible for them; but it is lawful for no one to impose obligations from which God wills the faithful to be immune, lest precepts be rendered impossible for them. d. What the tutiorists add, that it is lawful for no one by acting to expose himself to the danger of sinning, is true if there is question of the danger of formally sinning; but it is not necessary that even the danger of materially sinning always be excluded, as will be clear below.

230. Mitigated tutiorism teaches: it is not lawful to follow the opinion for liberty unless it is most probable.

1. This system, which likewise involves exaggerated rigorism, was maintained in the 17th and 18th century by the doctors of Louvain, more devoted than was right to Jansenius: Opstraet (d. 1720), Steyaert (d. 1701), Henry of St. Ignatius (d. 1719), etc. They indeed tried to soften the harshness of the Jansenian doctrine in this way, by admitting a most probable opinion for liberty. Moreover, they defend their doctrine by the same arguments as the Jansenists. In recent time Cardinal Gerdil (1802) acceded to this opinion, which now no one any longer holds.¹

There are several probabiliorists (Antoine, Gazzaniga, Patuzzi, L. Habert, etc.) who exaggerate the greater probability which they require for acting licitly against the law to such an extent that the more probable opinion becomes most probable and their probabiliorism degenerates into tutiorism.²

2. It is refuted by the same arguments as absolute tutiorism; besides, it must be noted that mitigated tutiorism has not indeed been proscribed by the Church, but necessarily falls back into proscribed doctrine unless it wishes to affirm that it is lawful to act with a practically doubtful conscience: for the most probable opinion which it is lawful to follow against the law either produces a certain conscience or it does not; if the first, we fall into condemned tutiorism; if the second, it is lawful to act with a practically doubtful conscience, which is false.

¹ Gerdil, Opere edite ed inedite (Firenze. Gelli. 1850). Vol. VII. c. 3. et 4.

² Cf. Bouquillon l. c. p. 544. note 3.

III. Diverse systems. Seven are enumerated, namely: absolute Tutiorism, mitigated Tutiorism, Probabiliorism, Equiprobabilism, Probabilism, Laxism, and the System of Compensation.

Absolute Tutiorism states: It is not licit for me to follow an opinion favoring liberty unless this is certain to me; or: The law obliges me unless I am certain that it does not exist.

Mitigated Tutiorism teaches: It is not licit for me to follow an opinion favoring liberty unless this is most probable to me; or: The law obliges me unless I hold it as most probable that the law does not exist.

Probabiliorism states: It is not licit for me to follow an opinion favoring liberty unless this is more probable to me; or: The law obliges me unless I hold it as more probable that the law does not exist.

Equiprobabilism professes: In doubt about the making of a law, it is licit for me to follow an opinion favoring liberty, provided this is equally or almost equally probable to me as the opposite opinion favoring the law. But in strict doubt about the cessation or fulfillment of a law, the law is to be observed.

Probabilism contends: It is licit for me to follow an opinion favoring liberty, provided this is truly probable to me, and this even if the contrary opinion is certainly more probable to me; or: The law does not oblige me provided I hold it as truly probable that it does not exist, and this even if I hold it as more probable that it does exist. And these things hold even if the law certainly existed, provided it has probably ceased or has been fulfilled.

Laxism admits the use even of a thinly probable opinion.

The System of Compensation teaches that in doubts the safer thing is to be followed unless a relatively grave inconvenience excuses.¹

Absolute Tutiorism,² mitigated Tutiorism, and Laxism³ are commonly rejected; Probabiliorism, Equiprobabilism, Probabilism, and the System of Compensation are sustained. We admit Equiprobabilism, which system indeed we now undertake to prove and to vindicate from objections.

¹ Thus Laloux, De actibus humanis; Potton, De theoria probabilitatis; Boisdron, Theorie et systemes des probabilites; Prummer, Manuale Theol. Mor., t. I, n. 351; McDonald, The Principles of Moral Science, p. 254. The system of Cardinal d'Annibale deserves special mention; in his Summula Theologiae moralis (I, nn. 262 and 264), relying only on the principle of possession, he gives his vote, with respect to doubt about the existence of a law, rather to Probabilism; and with respect to doubt about the cessation or fulfillment of a law, to Equiprobabilism. That system could be called the System of Possession, or Possessionism.

² Alexander VIII struck down the thesis: "It is not licit to follow an opinion, or among probable opinions the most probable one."

³ Innocent XI condemned this proposition, the third: "Generally, while, relying on probability either intrinsic or extrinsic, however slight, provided one does not go beyond the limits of probability, we do something, we always act prudently."

Tutiorism.—This system has been condemned by the Church, and with good reason, for the following motives:

(a) If by that which is safer, Tutiorism intends that which is better, it contradicts the Gospel, which distinguishes between counsel and precept (see 364 sqq.), commanding what is good, but only recommending what is better.

(b) If by that which is safer Tutiorism means that which favors law against liberty, it imposes an intolerable yoke on the consciences of men; for, while law obliges only in so far as it is promulgated and known, Tutiorism would bind one to observe, not only what was not known to be obligatory, but what was held to be most probably not obligatory.

A modified form of Tutiorism taught: “When one is undecided between the safer and the less safe, one must choose the safer, unless the less safe is most probable.” This system has not been censured by the Church, but Catholic theologians with hardly an exception have rejected it, for the following reasons:

(a) Most probable, as understood by the defenders of this system, is that which has such likelihood and such appearance of truth as to remove every probable danger of even material sin. Thus, in reality this system requires absolute certitude and agrees with the rigorous tenet of Tutiorism that even a most probable opinion against the law may not be followed.

(b) Most probable, as commonly understood, is that side of a question which so far excels the other side that no answer can be given to any of its arguments, while all the arguments of the other side can be answered. To require this in moral difficulties is to require the impossible, for even the greatest theologians have to be content at times with less.

We are obliged always to follow a safe course, that is, not to expose ourselves to the danger of formal sin (see 249, 258); but Tutiorism errs when it teaches that we are also obliged always to follow the safer or safest course, that is, never to expose ourselves even to the danger of material sin. There are cases, however, when we are obliged (because some law requires it) to follow a safer course, that is, not to expose ourselves or others to some great harm. Thus, we must follow the safer side in the following cases:

(a) when there is question concerning something essential for the salvation of ourselves or of others, for the law of charity forbids that any risk be taken in this supremely important matter. Example: Titus instructs the dying Caius only concerning the existence of God and of the future life. He should also instruct him about the Trinity and the Incarnation, which is the safer course, since it is more probable that an explicit faith in these two mysteries is a condition of salvation;

(b) when there is question of some great spiritual loss or gain for ourselves or others, for justice or charity forbids that we take chances in such affairs. Examples: Sempronia doubts whether she is excused from the law of abstinence, and whether she will be guilty of sin if she eats meat. Caius doubts whether attendance at a certain school will do harm to the religion of his son. Balba doubts whether she is bound to inquire about the truth of her sect. As long as their serious doubts remain, these persons should follow the safer course;

(c) when there is question of the validity or invalidity of a Sacrament, for the virtue of religion requires that the Sacraments be administered with fidelity, and be not exposed to the peril of nullity. Example: It is not lawful to consecrate matter that has probably been substantially adulterated;

(d) when there is question of some temporal good or evil to oneself or another, and one is certainly obliged to promote the former or prevent the latter. Examples: Caius suspects that a drink before him is deadly poison; Titus suspects that an object at which he is preparing to shoot is a human being. Neither may disregard his suspicion, even if its contrary is more probable, because the safer side must here be taken. The Fifth Commandment forbids one needlessly to imperil one’s own or another’s life.

In emergency one may expose a Sacrament to nullity by taking a course that is less safe for the Sacrament, but safer for the subject, relying on the axiom that the Sacraments are for men, and not men for the Sacraments. Example: Titus is called to baptize the dying Caius. No water can be procured except rose water, whose sufficiency is doubtful. Titus not only may, but should, use the doubtful matter, since no other can be had.

What have been the vicissitudes of Moral Theology? - There have been various vicissitudes of Moral Theology, both as regards its didactic development and as regards the development of the general rule of morals in doubtful cases.

As regards its methodical form, various ages can be distinguished in it, and they are the following six.

The first age, from the beginning, in the time of the Apostles, was when moral doubts were resolved by the decisions of the Supreme Pontiffs, by the decrees of Councils, and by the opinions of the Fathers, who especially in their homilies and sermons to the people explained those things which are necessary for rightly informing morals and for salvation.

The second age succeeds a little later, when in the first centuries of the Church the use of canonical penance became established, and Penitential Books were employed. Special treatises on moral matters were gradually multiplied in this age, either together with speculative doctrines or separately, up to the twelfth century, when, after St. Anselm, Archbishop of Canterbury, who died in the year 1033, and after St. Bernard, first Abbot of Clairvaux, who died in 1153, Peter Lombard, called the Master by antonomasia, wrote the books of the Sentences, in the third of which he treats of the virtues and of vices; he died in 1164. Benedict XIV, de Syn., l. 11, c. 11; Decree of Gratian, at the end.

The third age extends from the thirteenth century to the fourteenth. In this age sacred practical doctrine made great progress, especially through the work of William of Paris, who died in 1249, St. Bonaventure, O. Min., who died in the year 1274, St. Thomas Aquinas, O.P., who died in the year 1274, called the Angelic Doctor, St. Raymond of Pennafort, of the Order of Preachers, who died in the year 1275, and Peter Paludanus, O.P., who died in the year 1342, who for St. Alphonsus is a doctor of perfect knowledge.

The fourth age embraces the two following centuries, the fifteenth and the sixteenth; and it is distinguished by the notable saints who flourished in this age. Among others are celebrated St. John of Capistrano, O. Min., who died in the year 1440, St. Bernardine of Siena, O.S. Fr., who died in the year 1444, St. Lawrence Justinian, who died in the year 1455, St. Antoninus, Archbishop of Florence, who died in the year 1459, Thomas Cardinal Cajetan, O.P., who died in the year 1534, a man of most subtle genius, Francis de Vitoria, O.P., who died in the year 1546, Dominic Soto, O.P., who died in the year 1560, Peter Soto, O.P., who died in the year 1563, Bartholomew Medina, O.P., who died in the year 1581, St. Charles Borromeo, who died in the year 1584, Martin Azpilcueta, called Navarrus, who died in the year 1590, Cardinal Francis Toletus, S.J., who died in the year 1596, and Louis Molina, S.J., who died in the year 1600.

The fifth age embraces the seventeenth and eighteenth century up to St. Alphonsus M. de Liguori, and it is distinguished by many learned scholastic theologians who expressly expounded and illustrated moral questions in copious treatises. Among many others there excel Thomas Sanchez, S.J., who died in the year 1610, Francis Suarez, S.J., who died in the year 1617, Leonard Lessius, S.J., who died in the year 1623, Basil Pontius, O.S. Aug., who died in the year 1629, the Salmanticenses, O. Carm. Disc., from 1631 to 1722, Martin Bonacina, who died in the year 1631, Giles Coninck, S.J., who died in the year 1633, Ferdinand De Castro Palao, S.J., who died in the year 1633, Paul Laymann, S.J., who died in the year 1635, Francis Sylvius, who died in the year 1649, Augustine Barbosa, who died in the year 1649, Cardinal John De Lugo, who died in the year 1660, Peter Marchant, O. Min., who died in the year 1661, Antoninus Diana, Cleric Regular Theatine, who died in the year 1663, Zacharias Pasqualigo, Cler. Reg., who died in the year 1664, Hermann Busembaum, S.J., who died in the year 1668, Henry Pirhing, S.J., who died in the year 1670, Thomas Tamburinus, S.J., who died in the year 1675, Anacletus Reiffenstuel, O.S. Franc., who died in the year 1703, Claude La-Croix, S.J., who died in the year 1714, Patrick Sporer, O. Min., who died in the year 1714, Prosper Lambertini, Benedict XIV, who died in the year 1758, and Lucius Ferraris, Ord. Min., who died in the year 1760.

The sixth age takes its beginning from St. Alphonsus M. de Liguori, who died in the year 1787, and extends down to our own times. St. Alphonsus, most outstanding in genius and doctrine as well as in sanctity of life, and divinely given for exterminating Jansenist errors and severities, wrote a Moral Theology in which he treats all questions learnedly, eruditely, and with the highest prudence, recounting almost all that had been handed down before him; hence he was deservedly adorned by the Church with the title of Doctor. Hence it happened that in more recent times Moral Theologians followed St. Alphonsus as leader and master. In our age very many compendia of Moral Theology have been published.

The name indeed is modest, but the works are certainly of notable merit. For in these compendia the whole doctrine of Moral Theology is handed down briefly and in order, and in them is contained, accurately set forth, not only the doctrine of the old theologians accumulated in the course of time, but also that which has been acquired for Moral Theology either from the more recent Acts of the Holy See and of the Sacred Roman Congregations, or also from the progress of the natural sciences. Nor indeed have more expansive treatments been lacking in this age, as can be seen in the treatises On Justice and Law and On Contracts of D. Carriere, and in the scholia, annotations, and dissertations of Fr. Anthony Ballerini, S.J. Zitelli, Enchirid.;

Hurter, Nomenclat.; D'Annibale, Summ., 4th ed., p. 1, n. 2 ff.; Bouquillon, Inst. Theol. Mor. Fundam., Introduction V.

As regards the development of the general rule of morals in doubtful cases, for several centuries each one defended his own opinion, according to the varying weight of the reasons, as seemed better to him. In the year 1572 Antonius Cordubensis first began to contend on behalf of law, because of the authoritative and obligatory prerogative of law, and accordingly he established that in doubt the safer part must always be held. But in the year 1577 Bartholomew Medina, professor at Salamanca, began, on the contrary, to contend on behalf of liberty because of the prerogative of its natural right, and accordingly he established that in doubtful matters he acts prudently and licitly who follows an opinion truly probable and favoring liberty, even after leaving aside the more probable opinion in favor of law. He was the first who reduced the doctrine concerning probable opinions into a system. From this Tutiorism and Probabilism arose.

In the following seventeenth century Synnichius, who died in the year 1666, brought Tutiorism down into Rigorism, while Caramuel brought Probabilism into Laxism: for the former denied that we can follow an opinion favoring liberty, even if it is most probable, which was condemned by Alexander VIII in the year 1690; the latter, on the opposite side, affirmed that we can follow an opinion even slightly probable, which was proscribed by Innocent XI in the year 1679. Hence in that same century Probabilism was widely diffused, and became a very common and very received doctrine in every school: of almost all the disciples of St. Thomas, of almost all the disciples of Scotus, of almost all the Fathers of the Society of Jesus, and of other theologians, with few exceptions.

But since many of these probabilists favored liberty too much, asserting that it was lawful to follow even an opinion that was probably and doubtfully probable, the Probabilists were divided among themselves, and there arose moderate Probabilism, standing in an opinion truly and gravely probable, and broad Probabilism, proceeding even to doubtful probability. Hence, while the Fathers of the Society of Jesus commonly remained in Probabilism, the Thomists passed over to Probabiliorism, requiring for liberty an opinion more probable than the opinion favoring law. Zitelli, in his Enchiridion, mentions as the head of the probabiliorists Francis Genet, who died in the year 1702.

In the eighteenth century, to overthrow broad Probabilism and Probabiliorism at the same time, St. Alphonsus M. de Liguori undertook to defend moderate Probabilism, establishing that it is lawful to use a probable opinion even in competition with one more probable for law, whenever the former has a certain and grave foundation. And for that reason the Holy Doctor called his system moderate Probabilism, against rigid Probabiliorists and lax Probabilists, Equiprobabilism, with aeque taken according to the nature of true probability, not according to equality of degree.

But since the word nevertheless was not free from ambiguity in itself, hence after St. Alphonsus another system arose, which the Redemptorist Fathers defend, namely the system of Equiprobabilism, by which it is established that it is lawful to follow an opinion favoring liberty when it is equally or a little less probable than the opinion favoring law; but that it is not lawful when the latter is much more probable than the former, which in truth falls back into Probabiliorism. La-Croix, vol. 1, prodromal book, Franc. Ant. Zachariae and Quaest. facti of Stephen De Champs; Zitelli, Enchir.; D'Annibale, p. 1, n. 8 ff.; Bouquillon, Inst. Theol. Mor. Fundam., Introduction II; E. E. M. n. 114, 119.

Note: 1. "That diverse species of probabilities are given.... A tenuously probable opinion is one which rests on some foundation, but not such as avails to draw to itself the assent of a prudent man.... Probable is that which rests on a grave moment, either of intrinsic reason or extrinsic authority, which avails to draw to itself the assent of a prudent man, although with fear of the opposite. More probable is that which rests on a graver foundation, but still with prudent fear of the opposite, so that the contrary is also judged probable. Most probable is that which rests on a most grave foundation, and for this reason the opposite is judged either tenuously or doubtfully probable.... An opinion or sentence morally certain is one which excludes every prudent fear of falsity, so that the opposite is reputed altogether improbable. Finally a safe opinion is one which withdraws from every danger of sinning; but the safer is one which withdraws more from such danger, although it may not rest on stronger reasons." L. l. c. But S. D. speaks more exactly about a most probable opinion, H. A. tr. 1. n. 65: "Unless we wish to confuse a most probable opinion with an absolutely certain opinion, it is necessary to say that the opinion contrary to the most probable is not tenuously probable, but doubtfully probable." The reason is that a most probable opinion "is within the limits of probability," and therefore "does not exclude every prudent fear." "But tenuous probability is not true probability, and therefore does not bring with it a prudent reason. But doubtful probability brings some prudent reason, although not altogether certain and stable." Cf. also Op. Mor. l. 1. n. 85. But lest there be quibbling about words, as far as concerns us, we recognize no opinions, as regards doctrine, within the limits of true probability except the probable opinion, the more probable, and the most probable. Below the probable there is only the non-probable, the improbable, of which there can indeed be various grades; above the most probable there is only the certain. The probable is immediately opposed, by an opposition of comparison, to the more probable; but mediately to the most probable; and likewise the most probable is immediately opposed to the more probable, but mediately to the probable, unless someone wishes really to confuse the most probable with the certain.

2. Various moral systems: Tutiorism: A moral system which establishes that in doubt the safer part is to be followed practically. One kind is absolute, and is Rigorism, which establishes that the safer part must always be followed. Another is mitigated, which establishes that the safer part must be followed unless the other part favoring liberty is most probable. Probabiliorism: It is a moral system which establishes that it is licit to follow an opinion favoring liberty only when it is more probable than the opposite favoring the law. Therefore according to this system a doubtful law obliges, against the most common opinion and against reason. Equiprobabilism: It is a moral system which establishes that it is not licit to follow the less safe opinion unless it is equally or almost equally probable as the opposite. It is indeed a right norm of acting, but not to the exclusion of probabilism, which is a moral system containing an altogether right norm of acting, embracing all the cases of a true probable opinion favoring liberty, when the question concerns merely the subjective honorableness of an action. Probabilism: It is a moral system which establishes that it is licit to follow a truly probable opinion favoring liberty, although the opposite in favor of the law is more probable, whether a little or much more probable, where nevertheless the question concerns only the liceity of a human action. The reason is that when there is a truly probable opinion against a law, the law is doubtful, and a doubtful law does not oblige. Laxism: It is a moral system which establishes that it is licit to follow an opinion even doubtfully and tenuously probable against the law. It was condemned by Innocent XI, proposition 3, condemned March 2, 1679.

With a practically probable conscience, which proximately directs the action really to be placed here and now, it is altogether unlawful to operate. - For only a subjectively certain conscience is the rule of morals. And in this sense that saying is consequently false: He who acts probably, acts prudently. L. 1. 1. n. 58. 69. 80. Therefore the whole question here concerns a speculatively probable conscience, which only remotely directs the action, stating the probable existence of a law: namely whether by means of some reasoning we can lawfully make the step from a speculatively probable conscience to a practically certain conscience, or, what is the same, whether, while a probable opinion stands concerning the honorableness of some action in general, we can form for ourselves a certain conscience concerning the honorableness of such an action in a particular and individual case, and thus licitly follow in practice a speculatively probable opinion. To resolve this question we establish the following propositions.

It is not licit practically to follow a tenuously probable opinion, the safer one being left aside. - The proposition is against lax probabilists. This is clear first from proposition 3 condemned by Innocent XI. Moreover, a tenuously probable opinion is an opinion resting on a slight motive; but a slight motive is a motive by no means sufficient to move a serious or prudent man to assent, and therefore it is not truly probable. Indeed that opinion is called truly probable which rests on such a motive that it is sufficient to move a prudent man to assent. But if such an opinion is insufficient to move a prudent man to judgment about the non-existence of the law, it is impossible to form for oneself a conscience concerning the liceity of the action. L. 1. 1. n. 40; E. M.

It is not licit to follow a probable opinion concerning the objective truth itself of the thing, where the question concerns an end to be obtained absolutely, the safer one being left aside. Proof. He who is absolutely bound to the end is bound to choose those means which in no way bring into danger the end to be obtained. But a probable opinion, since it can be false, brings the danger of frustrating the end to be obtained absolutely. For the objective truth or existence of the thing will certainly not be had if the opinion concerning it is probable but false. Therefore. L. 1. 1. n. 42. To be obtained absolutely, "namely when someone is bound from justice or charity to avoid damage which is present in the thing itself," Suarez apud S. Alph. Op. Mor. ed. Rome, 1757, l. c. n. 33, or the danger of it. Then indeed "in doubt the safer way is to be chosen." C. Illud 5 de Cler. exc. The case must likewise be added in which someone is bound to the safer thing from some special positive law or precept, or contract, or vow. Suarez tr. 3. d. 12. s. 5. n. 8, s. 6. n. 10; L. 1. 2. n. 10, l. 6. n. 918 p. ult.

You will resolve: It is not licit to follow a probable opinion, but we must altogether choose the safer one in all those things which are necessary with the necessity of means for salvation, where the fact itself, or the truth of the thing, alone is attended to. Hence we must embrace the safer religion. Prop. 4 condemned by Innocent XI; L. 1. 1. n. 43. In the conferral of the sacraments, the minister is bound to follow the safer opinion, unless necessity is present or the Church supplies; for here again the question concerns the truth of the thing. For sacraments would not be had unless those things were really placed which Christ instituted for their validity. Prop. 1 condemned by Innocent XI.

Unless necessity is present; "for in extreme necessity we can well use any opinion, not only probable, but even tenuously probable, for the value of the sacrament... provided the sacrament is conferred conditionally: because the condition sufficiently repairs the injury of the sacrament, if perhaps it is conferred invalidly, and on the other hand necessity is a sufficient and just cause for conferring the sacraments conditionally." L. 1. 1. n. 49. Unless the Church supplies; for "we can licitly use a probable opinion where the Church is presumed to supply, as can happen in the sacrament of matrimony to validate a contract only probably valid, if perhaps that contract is null because of an impediment which the Church removes by supplying, and in the sacrament of penance to supply the jurisdiction of the confessor, if perhaps it is lacking."

L. 1. 1. n. 50. A physician is bound to apply the safer medicines which can be had in the case; for here the question concerns the objective effect itself, that is, the health of the sick person, to be obtained absolutely. And certainly the physician is bound not only from charity, but also from justice, by reason of his office and tacit contract, to provide in the better way for the health of the sick person, from whom he receives a stipend. L. 1. 1. n. 44. A judge cannot judge according to the less probable opinion; for he is bound by divine and human precept to render to each his right. Prop. 2 condemned by Innocent XI; L. 1. 1. n. 47.

A hunter who probably judges that an object hidden in the woods is a man cannot strike, although he judges more probably that it is a beast. For on the one hand the neighbor has a certain right to his life; on the other hand greater probability does not make it so that, if it really is a man, he will not perish by the blow. L. 1. 1. n. 52, H. A. tr. 1. n. 33. When scandals and more grave evils threaten, the safer part is to be chosen, by which they may be avoided, so that the utility of all may be consulted. C. Illud 5 de Cler. exc. - Generally the safer things are to be chosen when, as regards charity, the danger of sinning formally must be avoided, and as regards justice, the damage must be avoided of him who is in certain possession of his certain right. E. M.

It is licit to follow the most probable opinion, and even the more probable, the safer being left aside, where the question concerns only the honorableness of the action. - The proposition is against rigid and mitigated tutiorists. The honorableness of the action, about which the question here concerns, is quite diverse from the effect itself of the action, or from the truth of the thing, about which in the preceding proposition. The honorableness of a human action depends on the dictate of conscience, which is the proximate rule of human acts; the effect of the action, or the truth of the thing, depends on the very fact of the action. The former is subjective, the latter objective. Proof of the 1st part from proposition 3 condemned by Alexander VIII in 1690: "It is not licit to follow an opinion even the most probable among probables"; the author of this proposition was John Sinnich (+ Oct. 8, 1666), a Louvain doctor and defender of Cornelius Jansen, whom other Jansenists followed. Hence it is clear that the rigid tutiorism of the Jansenists had already been reproved by the Church. And certainly no obligation is given of doing what is safer; for it suffices to do what is safe. Likewise no obligation is given always to forestall the danger of materially sinning, nor can it be given, for this would be morally impossible; only the obligation is present to avoid the danger of formally sinning.

Proof of the 2nd part. If it were not licit practically to follow an opinion in favor of liberty unless it is most probable, then either this most probable opinion is taken as morally certain, or, as the word sounds, as probable in the highest degree indeed, but not certain. In the first case mitigated tutiorism would fall back into condemned rigid tutiorism; in the other case it would fall into false doctrine against the Apostle saying that all that is not from faith, that is, from a certain persuasion of honorableness, is sin, Rom. 14:23. Thus among the milder rigorists are counted Antoine, De Consc. c. 4. q. 4, Gazzaniga, De Consc. prob. n. 140. 141, requiring for operating direct truth, or an opinion certainly and very probable, and much more probable, or more probable by many degrees, and far excelling. Proof of the 2nd part by the same reasons as the following proposition. - L. 1. 1. n. 40. 54; Suarez tr. 3. d. 12. s. 6. n. 8; E. M.

It is licit to follow a truly probable opinion, the safer being left aside, whether equally probable or even truly more probable, where the question concerns only the honorableness of the action, by forming for oneself a conscience not directly, but from reflex principles.

The proposition is against probabiliorists and equiprobabilists. The first part is proved. Probabiliorism and equiprobabilism are refuted.

Proof 1. The system of the probabiliorists and equiprobabilists is not practical. For it is very difficult even for the doctors themselves to establish which opinion is more probable, which notably more probable. What appears to one more probable or notably more probable appears to another less probable and notably less probable. Indeed, what to one and the same person previously appeared more probable, far more probable, afterwards, the matter having been weighed better, seems less probable and much less probable.

Proof 2. For either the probabiliorists and equiprobabilists say that it is licit to act from the immediate judgment of the more probable or notably more probable opinion; or they say that it is licit to act from a mediate judgment, namely by force of the principle: a doubtful law does not oblige; an uncertain law does not produce a certain obligation; the will without knowledge of the law cannot be bound by its obligation. The first cannot be said, for although the opinion is more probable or notably more probable, nevertheless it is not certain; and without a certain conscience it is not licit to act. But the other, as is clear, leads not into probabiliorism or into equiprobabilism, but into simple probabilism. For where there is true probability against the law, the law is already doubtful and uncertain, and knowledge of the law cannot be had.

Proof 3. For we would be bound to follow the more probable or notably more probable opinion insofar as these approach more closely to truth. But this is false; for an opinion simply probable can approach more closely to truth, and a sentence can be false which bore before itself a certain greater appearance of truth. Moreover, here the question does not concern speculative truth but practical truth; the question does not concern adhesion of the intellect simply to truth, but the obligation of the will, which is not bound by the obligation of the law unless the law is certain and knowledge of the law is had.

The second part is proved. Simple probabilism is proved.

Proof 1. The proposition established is clear from the authority of very many and very grave theologians, who not only hand it down, but also affirm it as common doctrine, such as Suarez, Lugo, Struggl, La-Croix, Pignatelli, Vasquez, Elbel, Castropalaus, Sporer, etc. Cf. these Instit. Mor. ed. 4. Hence S. Alph. in Dissert. de usu moderato opinionis probabilis in concursu probabilioris, 2nd ed., Naples 1755: "We undertake to prove the last, more benign, and most common opinion, namely that it is licit to use a probable opinion even in concurrence with a more probable one in favor of the law, whenever that opinion has a certain and grave foundation." And certainly, although many after the Jansenists defended probabiliorism, nevertheless by far the greater part of theologians embraced probabilism. But he who in practice follows a doctrine which very many and very grave theologians teach, and which the doctors commonly hand down, acts prudently; but he who acts prudently acts honorably. For this reason, in the Dissertation just cited, S. D. immediately adds: "Add to these especially the argument, namely that if the benign opinion had been false, it certainly would by no means have been commonly received everywhere by doctors as it truly was received; or at least the Church would not have tolerated it, permitting souls commonly to walk by this way of perdition, as the adversaries cry out, deceived by such blind guides." And, as the same S. Alph. has it l. 6. n. 460, par. Haec autem, "nor is it an obstacle that several opinions which are circulated are not condemned by the Church, and yet by others more commonly are reputed lax; for the Church does not condemn all opinions which regard particular cases, although it does not approve them; but opinions which regard the universality of consciences, the Church does not approve nor keep silent about, as S. Aug. said, Epist. 119: The Church of God tolerates many things, and yet those things which concern faith or good life, it neither approves nor keeps silent about." Cf. L. 1. 3. n. 669 toward the end, Hoc unum, etc.; Bouquillon Theol. Fund. de Consc. c. 2. a. 1. § 2.

Proof 2. He who in practice follows an opinion which stands within the bounds of right reason and prudence acts prudently, and consequently honorably. But he who in practice follows a truly probable opinion, the more probable and safer being left aside, follows an opinion which stands within the bounds of right reason and prudence. Therefore. - The major is clear of itself. For what is more honorable than to follow right reason and prudence, which is right reason concerning things to be done? And Benedict XIV, C. Apostolica Constitutio § 21, indeed hands down this rule of acting, namely that we should follow the opinion which reason persuades and authority confirms. Moreover, it is by no means consonant with right reason, and especially with divine goodness, to wish to oblige man to perform somehow that which remains prudently uncertain to man himself after diligent inquiry, whether it is required by the order or not; especially since doubts of this kind are very frequent because of the weakness of the human intellect itself. This would be to impose unbearable burdens. L. 58. 86; S. Th. 1. 2. q. 19. a. 10 ad 1. But the minor is clear from the very nature and definition of a truly probable opinion, which is not changed by the concurrence of another opinion, although more probable and safer. And this S. Alph. himself openly affirms in the definition of the more probable opinion; for he says that its contrary is judged probable. Cf. 112. Muzzarelli Dissert. de Regul. mor. opin., Rome 1807, p. 30 seq.; L. 1. 1. n. 79.

Proof 3. S. Alph. says this in his Op. Mor. Theol., 6th ed., Rome 1767: "There are two principles on which, relying, I defend the licit use of a probable opinion. The first, that a doubtful law, in the conflict of two equally probable opinions, does not oblige, because a doubtful law is not sufficiently promulgated. The other, that an uncertain law cannot introduce a certain obligation, because the obligation of law is posterior to liberty, with which man has been endowed by God." Each of these principles is explained and proved at length by S. D. l. 1. n. 66 seq., H. A. tr. 1. n. 37 seq. But when a truly probable opinion is present, although it is in concurrence with another more probable and safer one, each principle is still verified, namely that the law is uncertain if the question concerns its existence, or that it is doubtful if the question concerns its interpretation, because it is obscure; and therefore neither does the law have the power of actually obliging, since it has not been sufficiently or certainly promulgated; "for then the doubt whether the law exists is sufficiently promulgated, but the law is not promulgated," L. 1. 1. n. 70, Turin ed. 1846; nor is man, having certain possession of his liberty, bound to reckon himself despoiled of it because of an uncertain law: for antecedently to every law, each possesses his own liberty, since man must first be conceived as free, and then the law which is imposed on man. Therefore. L. 54 seq.

Now, that the law in that hypothesis is really doubtful or uncertain, so that it may prudently be regarded as such, whence that twofold axiom flows, is clear from the very nature of probability. For where true probability is present, greater probability does not of itself destroy the lesser; and this philosophers and theologians commonly affirm, and S. Alph. expressly hands down, H. A. tr. 1. n. 29 and l. 1. n. 40, where he says that the contrary of the more probable is also judged probable. The same S. D. explains this in this way in the Dissertation ed. 1755, n. 13: Greater probability does not destroy the lesser, "unless that lesser probability is drawn from the same principle, or unless the more probable opinion has in its favor so convincing an argument that the contrary seems truly improbable, or no longer gravely and certainly probable. But otherwise it must be said if the excess is not notable, and the opposed probability receives force from diverse principles, as almost always happens in the concurrence of opinions; for then the less probable opinion is by no means deprived of its grave probability." Indeed the probability or improbability of some opinion is not the same as its truth or falsity, so that one excludes the other; but it is a worthiness of meriting prudent assent, arising from grave motives, which, although greater or lesser, do not contradict one another if they are taken from diverse principles. But if they exhibit an argument so convincing that the opposite is judged improbable, we are already outside the case of greater or lesser probability, since then one opinion will be certain or probable, the other false or improbable.

Hence S. D. l. 6. n. 604, raising the question: "Whether a penitent can be absolved who wishes to follow an opinion contrary to that which the confessor holds," responds: "The common and to-be-followed opinion teaches that the confessor not only can, but is also bound under grave sin (where the question concerns grave matter, H. A. tr. 16. n. 118), to absolve a penitent who wishes to follow a probable opinion, although the opposite seems more probable to the confessor.... This common opinion standing, strengthened by so many authorities and reasons, I do not see how a confessor can with a safe conscience deny absolution to one wishing to follow an opinion which appears probable to the penitent himself, indeed perhaps more probable, if not directly at least reflexively, as probabilist authors commonly think, who by following a probable opinion in concurrence with a more probable one judge that they embrace an opinion reflexively more probable, as being confirmed by graver foundations and by the most common authority of doctors." S. D. has the same doctrine in his last work, H. A. tr. 16. n. 118; and to this opinion he adds no limits except the following: namely that "the opinion of the penitent have some probability, so that the confessor, although he does not hold it as solidly probable, nevertheless does not repute it altogether false... evidently erroneous." Cf. also l. 1. n. 87, where S. D. after Gerson says: "Theological doctors ought not to be quick to assert that some things are mortal sins where they are not most certain about the matter: Note, WHERE THEY ARE NOT MOST CERTAIN." Lugo Resp. Mor. l. 1. d. 26. n. 3; Pignatelli Cons. Can. tom. 8. cons. 15.

Proof 4. In order that law certainly oblige, it must be sufficiently promulgated, S. Th. 1. 2. q. 90. a. 4. But sufficient promulgation of law is not had if the law is not certain and manifest. Hence in canon law it is generally established: "In these things, concerning which the law is not found expressed, proceed, equity being preserved, always inclining toward the more humane part, according as you will see persons and causes, places and times, to require." C. Ex parte tua 11 de Transact. And in civil law it is decreed: "Whenever the interpretation of liberty is doubtful, response must be made according to liberty." L. 20 de R. I. "In a doubtful matter, to follow the more benign interpretation is no less just than safe." L. 192 de R. I. But the reason is that law imposes moral necessity, and therefore must necessarily bind the will. But it cannot necessarily bind the will except through knowledge. Therefore, knowledge of the law being excluded, the will remains morally free. S. Th. De Verit. q. 17. a. 3. Now if a most probable opinion is present against the law, it is evidently clear that knowledge of the law is lacking. For certainty and evidence cannot be had with the greatest opposite probability; indeed not even with simple probability. Hence S. Alph. says: "To constitute a doubtful law, true probability to the contrary suffices." L. 1. n. 57, ed. 1762. 1763.

Confirmation 5. By the authority of S. Thomas. Law is a certain rule and measure. In order that a rule direct and a measure measure, it must be applied to the thing which must be directed and measured. S. Th. 1. 2. q. 30. a. 4. Therefore law must reach the subjects whom it directs; but it reaches them through knowledge. S. Th. De Verit. q. 17. a. 3. Accordingly law must be certain and evident. Therefore, if the law is uncertain, namely if its existence is not established, if the law is doubtful, namely if the meaning of the law is obscure, the obligation of the law ceases; a precept does not bind except through knowledge. S. Th. l. c. Hence those axioms: An uncertain law cannot introduce a certain obligation; A doubtful law does not oblige. For the effect cannot surpass the cause. These things S. Thomas says altogether generally, nor does he distinguish between a law having against it a less probable, or equally probable, or more probable opinion. Therefore the whole question from the Angelic Doctor is this: whether a law having against it a more probable, equally probable, or less probable opinion can be said to reach man through knowledge, to bind him by means of knowledge, through knowledge, through the power of knowledge. But knowledge is not given if true probability is against it. Hence every question about mortal sin is determined dangerously unless the truth is had expressly. S. Th. Quodl. 9. a. 15. And S. Alph. l. 3 after n. 139, Epist. Resp.: "But in order that some action be affirmed absolutely to be a mortal sin, a probable opinion is not enough, nor even a more probable one; for the more probable does not exclude rational fear of erring; whence it does not bring about that the law does not remain doubtful, and that the opposite cannot be true, if it is truly probable."

Confirmation 6. Innocent III allowed a spouse suffering from impotence a three-year trial, C. Laudabilem 5 de Frig., and did not prescribe that it must first be seen whether potency was more probable, or at least equally probable. In the eighteenth century, when certain Indians in the Kingdom of Paraguay who had been converted to the faith had several wives, and questions arose concerning the validity of their marriages, Urban VIII responded to John de Lugo, afterwards Cardinal: "Where the opinions of doctors concur as probable on each side, those opinions are to be followed which, for the condition of places and barbarian men, are more favorable." Urban did not say that the more probable opinions were to be followed, nor did he say where equally probable opinions concur, but absolutely where probable opinions concur. Carden. Cris. Theol. Diss. 2. § 553. E. M. 119.

Nor indeed is it of any force, in order to overturn all the aforesaid things in almost one word, to object against them that probabilism has already been condemned by Innocent XI. For Innocent XI only commanded that liberty be given to the Fathers of the Society to defend probabiliorism and to refute probabilism, if they wished. Cf. E. M.; Wirceburg. De Actib. hum. c. 4.

You will resolve: Therefore it is false that where generally the discussion concerns speculative doubt about the liceity or illicitness of an action, in doubts the safer part must be chosen. And certainly in this Rule of Canon Law the question does not concern speculative doubt, in which by means of a reflex principle someone can form for himself a certain conscience, and thus choose a part altogether safe; but the question concerns either practical doubt, namely a practically doubtful conscience, with which it is not licit to act, or else the question concerns those cases in which the end must necessarily be obtained. But the question is above all about the external forum, in which often there is a special reason for following the safer course, in order to remove scandals, abuses, and offenses of the faithful; or about honorableness and the greater degree of merit, not about the necessity of salvation. L. 1. 1. n. 68. 79, H. A. tr. 1. n. 39; Struggl tr. 1. q. 5. n. 17.

63.^† - 1. Absolute tutiorism, or rigorism, according to which the safer part, that is, the part favoring the law, must always be followed ⁴.

⁴ Namely, these hold that the safer part must be followed unless it is certain that nothing favors the law against liberty; whence according to them it is not licit to act according to the most probable opinion favoring liberty. This doctrine was condemned in the third of the thirty propositions proscribed by Alexander VIII.

2. Mitigated tutiorism, according to which it is licit only to follow the most probable part favoring liberty.

3. Probabiliorism, according to which the opinion favoring the law must always be held, unless the opposite is notably more probable ⁵.

⁵ Since according to St. Alphonsus a notably more probable proposition has against itself only a slightly or doubtfully probable one, here rather mitigated tutiorism is being described.

4. Equiprobabilism, according to which it is not licit to follow the less safe opinion unless it is as probable as the opposite, or nearly as probable ⁶.

⁶ Some have called St. Alphonsus de Ligorio the author of this system. But this neither ought nor can be so understood, as though the holy man at some time receded from the common system of probabilism, which he himself also defended most keenly. See the Dissertation On the Moral System of St. Alphonsus, which was delivered at the Roman College in the solemn restoration of studies in the year 1863, and is available at Rome from Io. Bencivenga.

5. Probabilism, according to which it is licit to follow a less safe and also less probable opinion, provided that it enjoys true and solid probability.

6. Laxism, from which it is always lawful to follow opinions even slightly probable; but this system too was condemned, as will be clear below.

Hence, according to the various opinions concerning the value of probability, theologians have obtained various names, so that they are called either rigorists, or mitigated tutiorists, - probabiliorists, - equiprobabilists, - probabilists, - laxists.

339. 2. Mitigated Tutiorism teaches that it is licit to follow the less safe opinion favoring liberty, provided, however, that it is most probable. Thus some Louvain doctors, for example Steyart (+ 1701), Opstraet (+ 1720), and certain others, for example Henry of St. Ignatius (+ 1719), Cardinal Gerdil (+ 1802). - This system indeed has not been proscribed by the Church, but in our days it is deservedly rejected by all. For even according to it human life is made too hard, and unbearable burdens are bound upon the shoulders of the faithful, because, if a man is always bound to follow the safe opinion unless the other opinion is most probable, a way is opened to many anxieties. Besides, according to the opinion of St. Thomas and of almost all theologians, probable certitude, or certitude so called in the broad sense,⁹⁸ suffices for acting licitly. Moreover, if some opinion is manifestly more probable, it is now also morally certain, because then the reasons opposed to it are slight and therefore not to be attended to. For if truly grave reasons were opposed to this opinion, it would no longer remain manifestly more probable. Hence an opinion most probable is not always required for acting licitly.

⁹⁸ Cf. above n. 326.

82. • I. Strict Rigorism. This System was condemned, proposition 3 having been condemned by Alexander VIII: "It is not permitted to follow an opinion, either among probable opinions the most probable, or among probable opinions the most probable of all." This proposition is openly false; for if the opinion for liberty is most probable of all, the opinion for the law will be only slightly or doubtfully probable; but on account of a weak motive to despoil liberty of its own certain right is openly against natural right. Therefore the System is false.

84. • III. Mitigated Tutiorism. As such it did not live long. It is refuted by this argumentation. If the less safe opinion is notably more probable, the opposite for the law becomes slightly or doubtfully probable; but on account of a motive only slightly or doubtfully probable to despoil liberty of its own right is certainly against natural right; therefore . . . Besides, notable greater probability for some opinion founds probable certainty of it; but in human acts probable certainty must suffice; therefore . . . Recall what was said in n. 68 under 2.

Since the right formation of conscience is made by varied application of principles, it is not strange if the doctrine on this matter did not exist from the beginning perfect and complete, but was slowly elaborated.

I. Among the Fathers no definite system is found; nevertheless there are traces of principles which can serve for forming conscience.

Frequently they rather favored the safer part. Namely the safer is to be taken in choosing religion (Lact., De Div. Inst. III, 13), in avoiding danger of nullity in the administration of the sacraments (Aug., De B. c. Don. I, c. 3, n. 5), in admitting the whole truth of faith without regard to the empty opinions of heterodox persons (Greg. Naz., or. XXXVI, 7; Chrys., In II Cor., hom. XIII, 4; Aug., De util. cred. XI), in conforming oneself through all things to the divine law (Tertul., De spect. XX-XXI), in striving to inquire into truth (Aug., De Civ. Dei, l. XXII, 23), in certainly establishing necessary penance for sins and avoiding the uncertainty of penance at the end: "hold the certain and dismiss the uncertain," Augustine cries, serm. 393. He also inveighs against the Academics (l. III, n. 35-36) who say: "when each one does what seems probable to him, he neither sins nor errs," who understood probability as merely subjective and empty, which each one fashioned for himself.

Even outside these cases, they quite generally favored the safer part, both because of the rigorous penitential discipline of those times and because ignorance of law was regularly held by many as culpable (cf. Aug., ep. 194).

On the opposite side, however, certain more benign solutions are found, for sometimes they did not urge an uncertain obligation in practice.

Lactantius says that one must not care about the precepts of the philosophers, as being mere conjectures without solid foundation; on which occasion he writes: "It belongs to a most foolish man to wish to obey their precepts, concerning which it is doubted whether they are true or false; and therefore no one obeys, because no one wishes to labor toward what is uncertain" (De Div. Inst. III, 27).

Gregory Nazianzen, or. XXXIX, 19, replies to the rigorists who did not wish the baptized to be admitted to penance: "Either prove that the matter is so, or, if you cannot, do not condemn. But if the matter is doubtful, let humanity prevail."

Thus Jerome, in the question concerning bigamists to be ordained, permits an uncertain and less safe opinion to be embraced, "prejudging no one from following what he wishes" (Adv. Ruf. I, 32). And Theodoret repeats the same (P. G. LXXXIII, 136 B C).

Indeed Augustine in various questions: 1. whether it is licit on the Lord's Supper to receive the Eucharist after food, says: "we compel no one to eat before that Lord's supper, but neither do we dare to contradict anyone" (ep. 54); 2. whether it is licit to enter marriage with an infidel: "since," he says, "truly in the New Testament nothing is prescribed concerning this, and therefore either it has been believed to be licit, or it has been left as doubtful" (De fide et op. XIX, 35); 3. whether it is licit to eat food which has been found in an idol's temple, he replies: "Either it is certain to be idol-offering, or it is certain not to be, or it is unknown; if therefore it is certain to be, it is better rejected by Christian truth; but if it is known either not to be or is unknown, it is taken up for the use of necessity without any scruple of conscience" (ep. 47); 4. whether it is licit for a soldier to fight in a perhaps unjust war: "A just man," he says, "...can rightly fight,... for whom it is certain either that what is commanded is not against God's precept, or it is not certain whether it is, so that perhaps the injustice of commanding makes the king guilty, but the order of serving shows the soldier innocent" (c. Faust. man., l. 22, c. 75).

II. Among the Scholastics the question of the formation of conscience is explicitly proposed; and they especially insist on this, that conscience ought to be certain, so that to act in doubt is sin, for he who acts while remaining in doubt commits himself to risk and to danger of sinning. Thus St. Thomas, Quodl. VIII, 13; IV Sent. d. 21, q. 2, a. 3, ad 3; III, q. 83, a. 6, ad 2; before or after him, William of Auxerre (Sum. l. II, tr. 29, c. 1, q. 3), William of Paris (De coll. benef. a. 8; De legibus, c. 21), Alexander of Hales (Sum. II, q. 112, cas. 8; q. 121, m. 3, a. 1, ad 2), David Augustine (De hom. compositione, l. III, pr. 5, c. 19; pr. 6, c. 43), Henry of Ghent (Quodl. IV, 33), Scotus (in Sent., prol., q. 2, n. 15; l. III, d. 25, q. 1).

They generally did not know the use of a reflex principle in forming conscience, except in cases of epikeia and a few others: for it is admitted that one must also do that which seems rather illicit, both for a soldier in a war not certainly unjust, and for a religious when the superior commands what is not certainly illicit: this last is noted in the decree of Gratian and is handed down by St. Bernard, Alexander of Hales, St. Bonaventure, William Peraldus, Paludanus.

Hence in practice they rather often give safer solutions, as St. Thomas in Quodl. VIII, 13. There he asks "whether he who has several prebends sins," concerning which there were then contrary opinions; he replies that he who "is brought into a certain doubt from the contrariety of opinions,... if while such doubt remains he has several prebends, commits himself to danger, and thus without doubt sins." Thus he simply declares that a certain conscience is required and that it is not safe to act in practical doubt; without inquiring or seeming to suspect whether in the case the doubt perhaps could be solved by some indirect principle. Nevertheless they have several things which favor the more benign part. Thus the principle proposed by St. Thomas in Q. D. De Ver. 17, a. 3: "no one is bound by a precept except through knowledge of the precept"; for although there it is adduced to prove that an unknown law does not bind, nevertheless logically the same holds concerning an uncertain law. Besides this, sometimes he holds more benign opinions: thus he denies the necessity either of confessing merely aggravating circumstances (IV Sent. d. 16, q. 3, a. 2, sol. 5), or of confessing at once after a fall (d. 17, q. 3, a. 1, sol. 4), or of repeating an unformed confession (ibid. a. 4); without concluding, on account of the opposite opinions, that to act thus is to commit oneself to danger.

To the safer practice in the thirteenth century a certain corrective was added from the principle of probabiliorism. William of Auxerre seems to have explained this first rather clearly, says Prummer, Th. M. I, n. 345, when he wrote in the treatise on pollution: "That magisterial rule, that one doubting about something, whether it is illicit, and doing that thing while the doubt stands, sins, because he commits himself to danger, is to be understood of such doubt which is vehement, and more, or at least equally, induces the mind to believe that it is mortally illicit, as that it is licit. It is otherwise where the mind inclines more and judges that it is licit than that it is illicit, although it does not have in every way evident or fixed certitude, because not even this itself is required."

St. Albert the Great accepts the principle of probabiliorism (Sum. de creaturis, p. II, q. 70, a. 2), and his disciple Ulrich of Strasbourg; likewise Monaldus; but in the fourteenth and fifteenth centuries several do so, as Gerson (De consol. theol., l. IV, pr. 2 and 3), John of Dambach (De consol. theol., l. XIV, c. 8), Nider (Consol. tim. consc., p. 3, c. 11-16), Conradus (De contr.), Gabriel Biel (in IV, d. 15, q. 8, a. 3, dub. 2; and a. 16, q. 3, a. 3, dub. 6); likewise various summae: Tabiena, Trovamala, Angelica. Yet several continued to adhere to the safer part, as Dionysius the Carthusian, Bartholomaeus Fumus, and Adrian VI.

Another corrective is noted among others, when they prescribe to the confessor as a rule: to respect the opinions of the penitent, unless they are openly false. Thus Godfrey of Fontaines (Quodl. IX, a. 16), and Paludanus (in IV, d. 17, q. 2, a. 1, n. 5).

III. In canon law various principles are stated which can serve for forming conscience.

1. In doubt the safer part is to be chosen. Thus Eugenius III, decr. l. IV, t. 1, c. 3; Clement III, l. V, t. 12, c. 12; Innocent III, l. III, t. 43, c. 3; l. V, t. 12, c. 18; Honorius III, l. V, t. 12, c. 24. Moreover, it is invoked not as a universal principle, but in certain cases, when namely there is present danger of salvation, or irreverence, or scandal, in one word, of a greater evil; or also by way of an equitable principle in solving certain peculiar difficulties. But sometimes in the law solutions opposed to this saying are found, as was the license of attempting conjugal copulation for three years in doubt of impotence; and it is to be reconciled with other principles admitted in law, such as: In doubt the condition of the possessor is better, or Laws are to be interpreted more benignly.

2. In obscure matters we look at what is more like the truth. This was borrowed from Roman law, in which it is a rule for judges for establishing presumptions in certain doubts of fact. In canon law it is invoked as a rule in authentic interpretation of law (l. II, t. 9, c. 4), or as a norm prescribed to judges in interpreting facts, contracts, testaments (l. VI, reg. 45), or it also holds concerning some speculatively more probable opinion to be held; but it is not invoked in questions concerning a law to be observed or concerning uncertain obligation. St. Antoninus is recounted as the first who applied this to these matters (Sum. p. I, t. 20), and indeed for positive laws.

3. In doubt one must stand for that for which presumption stands. Thus l. II, t. 23. The principle holds in many doubts of fact, and is stated under various forms; in doubts regarding the existence of a fact: a fact is not presumed but must be proved; one must stand for that for which presumption stands; one must judge from things ordinarily occurring; in doubt concerning the conditions of a fact: no one is presumed evil unless it is proved; one must stand for the validity of the act; that is judged to have been rightly done which by law had to be done.

Yet it cannot validly be applied in doubts of law: for how can it be solved from presumption whether a contract entered under such a form is just or unjust, whether interest is licitly received from money loaned or not, whether abortion or embryology or vasectomy are ever licit, etc.? Hence we do not understand how some could write that this is the universal principle to which all the others are reduced.

4. A doubtful law does not bind. This is handed down under various forms, for example, in doubt of promulgation: "Unless you have been certain concerning the mandate of the Apostolic See, you will not be compelled to execute it," says Innocent III, decr. l. I, t. 29, c. 31; in doubt concerning the intention of a human legislator: "interpretation is to be made against him who could have stated the law more openly"; in doubt concerning the sense of the law: "laws are to be interpreted more benignly, so that their will may be preserved," and "in obscure matters the minimum is to be followed" (reg. 30). But since the body of law contains positive laws, it is not strange if the principle does not regard the natural law.

5. In doubt the condition of the possessor is better. Thus l. II, t. 19, c. 3; t. 26, c. 6; l. III, t. 4, c. 31; l. VI, reg. 65 and 11. It is invoked in doubts of fact for the matter of justice, when possession of the thing or of right or power is present, but not where possession is lacking; sometimes in speculative doubts of law, if from use a presumption can be taken for the force or extinction of a law; besides this in practical doubts whether the accused is to be condemned on account of a crime committed or to paying a debt: his condition is better until the crime or the obligation of paying is certainly demonstrated.

As we noted in n. 84, under the form of the principle of possession can be stated the faculty of neglecting slight reasons and negative doubt.

IV. From the sixteenth century there are well-defined systems. At the beginning several profess probabiliorism, especially from the Dominican school, as Sylvester Prierias and Cajetan; also outside this school, as John Major.

Cajetan explicitly posited the distinction between speculative and practical doubt (op. 31, resp. 13, dub. 7), from which distinction the question received notable progress, so that from this there came to be a broader use of the reflex principle for rendering practical judgment certain.

The Dominican school of Salamanca, with the masters Fr. de Victoria, Melchior Cano, and Dominic Soto as leaders, also stood generally, and with certain cases of the safer part excepted, for the more probable opinion; but at the same time it affirmed that he does not sin who, among truly probable opinions (equal ones), follows whichever he wishes; so that they approached equiprobabilism.

These things were the occasion of a certain longer and diverse evolution.

1. Probabilism arose from this. For Bartholomew de Medina was the first who in the year 1577 formally taught at Salamanca: "if an opinion is probable, it is licit to follow it, although the opposite is more probable." This position was soon accepted not only in Spain, but also in other regions. Thus the Preachers generally held it: Did. Alvarez, Lopez, Bannez, P. de Ledesma, V. Candidus, Gr. Martinez, John of St. Thomas, Arauxo, Barth. de Ledesma, etc., yet with a few excepted, as I. Martinez de Prado; likewise generally the theologians of the Society of Jesus, as is known to all; several Franciscans such as Reiffenstuel, Mastrius, and Herincx; also several Sorbonists and Louvain theologians, as Malderus, Wiggers, Sylvius; likewise the Carmelite theologians of Salamanca.

Yet certain persons continued to think otherwise, as Dr. Navarrus Azpicuelta, Ant. Corduba and Fabri from the Order of Friars Minor, Palacios, also P. Comitoli and A. Bianchi from the Society of Jesus, all probabiliorists; Perez, O.S.B., and Rebello, S.J., equiprobabilists; and Merenda, a tutiorist.

There was not one tendency of probabilists. Some, the moderate, said it was licit to follow a less probable opinion, provided the opposite was not notably more probable. Others, more benign, who are called pure or absolute probabilists, held licit every less probable opinion, provided it was probable in itself, even if the opposite was notably more probable. Hence probabilism gradually became more lax.

2. Laxism followed from this. For certain persons held it licit to act according to thin probabilities, or applied probabilism to cases in which, on account of danger of bringing in harm or frustrating an effect, one must act more safely. Thus, for example, John Sanchez, Bauny, Escobar, Tamburini, Moya, and others from the Society of Jesus; Leander, O.S.Tr.; Diana the Theatine; Caramuel, O.Cist.; etc.

Against those excesses of laxer probabilism a reaction arose, especially at Paris (in the year 1640) and at Louvain (in the year 1649), first in the universities, afterward among bishops and clergy, and among the Jansenists, whose leader was Pascal in the so-called Provincial Letters (1656-1657).

Hence Alexander VII condemned 45 laxer propositions, in the years 1665-66. But in the year 1677 four Louvain professors, M. Steyaert, Chr. Wolf or Lupus, Fr. van Viaene, and P. L. Ledrou, go to Rome so that they might obtain from Innocent XI the condemnation of lax propositions; and in fact he condemned 65 in the year 1679.

3. From this tutiorism was born. The safer practice which had mostly flourished in the middle age was now erected into a general system. Sinnich, a Louvain professor, in the book Saul Ex Rex is said to have defended this opinion: "it is not licit to follow an opinion even the most probable among the probable," which was condemned by Alexander VIII (in the year 1690).

Wherefore others taught a certain mitigated tutiorism, as Steyaert, van Opstraet, Henricus a S. Ignatio, Dens, Perin, Neesen; to whom there closely approached in France Habert, in Italy Fagnanus and Card. Gerdil.

4. Revived probabiliorism is also taught by many. Alexander VII had commended to the general chapter of the Order of Preachers held at Rome in 1656 that they fight against laxer opinions. This was done. Advancing further, the Preachers from this moment rather generally taught probabiliorism, as Mercorus, Gonet, Natalis Alexander, Contenson, Billuart, Cuniliati, Concina, Patuzzi, etc.; yet not all: thus Bancel, Ferre, and Larraga are probabilists.

But not only among the Dominicans; also in the French clergy many probabiliorists are found, with Bossuet as leader; and in Italy Berti, O.S.A., P. Ballerini, and Benedict XIV hold it. Indeed in the Society of Jesus itself it has defenders. Thyrsus Gonzalez had written the book The Foundation of Moral Theology concerning the Right Use of Probable Opinions, in which he strenuously defended probabiliorism. Since he could not easily publish it, Innocent XI ordered that the general Father of the Society command that he permit Gonzalez himself and other Fathers to write for the more probable opinion and to attack the view that it is licit to follow the less probable. But when Father Gonzalez himself was elected General of the Society, and since Innocent XI and afterward Clement XI favored the more probable opinion, several from the Society now taught probabiliorism, as Antoine, Elizalde, Estrix, Gisbert, Taberna, and others. In the year 1694 the book of Thyrsus Gonzalez was at last published, but it was attacked by the Jesuits Segneri and Rassler.

5. Equiprobabilism, which already before was held by several, was now proposed systematically by Rassler, De Ruvere, Mayr, Biner from the Society of Jesus; by Eusebius Amort, canon regular; by B. Schmier, O.S.B.; and by others.

St. Alphonsus de Liguori, who had been instructed in probabiliorism, when he had learned by experience that that system could not be applied in practice, first (in the year 1755) taught moderate probabilism, although nevertheless he did not specially defend that a less probable opinion could be chosen in practice when a certainly more probable one occurred; afterward (in the year 1762) he perfected and corrected his system with a twofold restriction, namely equality of probabilities and the principle of possession, so that, in order that a law bind, it must be more probable; in order that it cease to bind, it must be more probable that it has been removed or fulfilled. He was vehemently attacked by probabiliorists, especially by Patuzzi, O.P.

And so St. Alphonsus truly was an equiprobabilist, and those err who contend that he never abandoned pure probabilism. But they would err more who tried to bring him into the party of probabiliorism, or who held equiprobabilism as a logical evolution of probabiliorism, forgetful that the holy Doctor chiefly attacked probabiliorism and was sharply attacked by probabiliorists, and that he firmly and broadly defended that principle so hateful to all tutiorists and probabiliorists: A doubtful law does not bind.

That for any action to be honest a certain conscience concerning its honesty is required, all theologians admit; but by what manner such certainty can or ought to be had, when only probable reasons appear on this side and on that, this is what troubles them not a little. Namely, theologians ask to what side he can or ought to turn himself who, a doubt having arisen concerning the liceity of the action which he is about to place, and diligent inquiry having been made, has found it not certainly but only probably licit. Moreover, for solving this question they enter upon a twofold way; for some teach that certainty in this case can be had only directly; but others hold that it can, and therefore ought, to be obtained indirectly, namely by force of another principle; and therefore the former drive the agent to embrace the safer part, while the latter permit that indulgence be granted to liberty. The first are called either anti-probabilists, because they say probabilities in moral matters are of no use, or tutiorists, because they always incline to the safer part, or finally rigorists, because they impose more burden than is necessary or even accommodated to human shoulders. But the others are called by a certain generic name probabilists, because they hold that practical utility can be derived from probabilities.

But the patrons of each opinion, agreeing as to their substantial principle, admit various degrees: the former indeed in relation to the certainty which they will to have directly, and the latter in relation to the probability upon which they remotely rely; and therefore the first are split into absolute and mitigated tutiorists, and the second into probabiliorists, equiprobabilists, and probabilists simply. Wherefore there have properly been five systems: absolute tutiorism, mitigated tutiorism, probabiliorism, equiprobabilism, and probabilism. There is added laxism, which can scarcely be called a system, and scarcely merits the attention of a prudent man. Concerning each there will briefly be said something.

Absolute tutiorism requires certainty in every way, or absolute certainty, that the law either never existed, or has already fully ceased, before it permits anything to liberty; and therefore, even if you bring forward in favor of liberty a most probable opinion, you are bound to follow the law. For thus the patrons of this system argue: "Just as an opinion, whether less probable, or even less than probable, can be true, so on the other side, an opinion more probable, or even most probable, can be false. Therefore, as long as one remains within the limits of probability, the danger of erring is not fully obviated." Moreover, that this system is altogether to be rejected is clear both from the fact that it surpasses human strength, and from the condemnation made by Alexander VIII of the following proposition: "It is not licit to follow an opinion, even the most probable among the probable." Cf. Viva, on prop. 3, among the 31 condemned by Alexander VIII.

Mitigated tutiorism differs from the preceding system in this, that in place of absolute certainty it demands the greatest probability, and therefore only then permits the part favoring liberty to be followed when a most probable opinion stands for it. But although this system has not been positively condemned, nevertheless it is easily overthrown; for that most probable opinion which is required either makes the conscience certain or it does not: if the first, the aforesaid condemned proposition and the reason of the condemnation are urged; if the other, it would now become licit to act from a conscience not certain, which cannot be admitted.

Probabiliorism, as at least it is defended by those who wish to distinguish themselves from tutiorists and seek protection from reflex principles, teaches that it is licit to follow the less safe part, namely the part favoring liberty, provided you bring forward for it an opinion manifestly and solidly more probable; and therefore you are bound to follow the law not only when a lesser, even if solid, probability stands for liberty, but also when the opinion which favors it is equally probable as that which favors the law. The chief reason of this system is taken from this, that by following the more probable opinion, we much less incur the danger of sinning. But if reflex principles are admitted, the simple probabilist will avoid the danger of formally sinning as well as the probabiliorist; but if they are not admitted, one must finally come to absolute tutiorism.

Equiprobabilism holds that only then is it licit to follow the less safe part, namely the opinion favoring liberty, when the opinion which stands for the law is only equally or almost equally probable; but if this is certainly more probable, adherence must be given to it. The patrons of this system add that this is valid if that equal or almost equal probability regards the existence of the law; but if the doubt is concerned with the cessation of a certain law, then you are bound to follow the law, however much the opinion which favors liberty is equally probable as that which favors the law. But this addition pertains rather to the application of the system than to its substance, and there are many among simple probabilists who either suppose or explicitly admit this limitation. The principal foundation of equiprobabilism is taken from the authority of St. Alphonsus, which indeed is very grave; but by what right this opinion is attributed to him will be said below.

Probabilism indeed teaches that the safer part must always be followed when there is question of attaining some determinate end; but when there is question only of the licit and the illicit, it holds that someone can follow an opinion less safe and also less probable, provided it enjoys true and solid probability. Wherefore the probabilist seeks not two judgments, but only one; namely he asks whether the opinion which favors liberty is solidly probable, every comparison with that which favors the law having been left aside, and as soon as he knows that there is present in favor of liberty a solid probability, he is exempted from the law by force of a reflex principle. It must be noted that this system is called by some simple, and by others moderate probabilism, so that they may distinguish it both from equiprobabilism and from laxism; but since from the things said confusion of this sort is not possible, we shall abstain in this book from any added term.

Laxism, no distinction having been made between solid and slight probability, always exempts from the law as often as any opinion whatever is brought forward against it, even if it is only slightly probable. This system was condemned, as is clear from prop. 3, proscribed by Innocent XI, which reads thus: "Generally, when trusting in probability whether intrinsic or extrinsic, however slight, provided one does not depart from the boundaries of probability, we do something, we always act prudently." But the reason of the condemnation is open; for since slight probability is that which does not merit the assent of a prudent man, by force of it the law cannot be said to be uncertain. Cf. Bouquillon, n. 287 and seq.