Appendix 10. (723).
Anyone who reads carefully chapter 4 of Gian Vincenzo Bolgeni's Del Possesso will have little trouble finding many obvious contradictions.
1. The author defines dominion relative to freedom as 'the physical power to do what we please' (c. 4, n. 14), although, as everybody knows, physical power is simply a fact, not a right. A few pages later (n. 18) we read: 'dominion is quid juris, which is a clear contradiction.
2. Possession is defined as 'the free exercise of dominion' (n. 15), and we are told that possession or free exercise relative to freedom consists in not being bound by law: 'Law places an impediment to the exercise of freedom' (ibid.); possession therefore is not only a fact but also a right, because human freedom unimpeded by law has a right to act. However, we subsequently read that 'possession is quid facti, which again is an obvious contradiction.
3. We recall that dominion to act freely was defined as 'the physical power to do what we please'. This definition must be related to what Bolgeni says shortly afterwards: 'The dominion to act freely and the dominion exercised by the law can be impeded and bound by some extrinsic obstacle . . . Law places an impediment to the exercise of freedom' (n. 15). But if dominion is the physical power to act freely, I cannot see how law can be an obstacle to this power. Even after the moral law has been announced, 'my previous physical power to do what I please' still remains with me. Bolgeni himself says this when he writes: 'Laws are contrary to freedom in one case only, namely, when they oppose possession. They cannot oppose the dominion to act freely, because freedom subsists prior to all law, and can never be lacking or doubtful in its essence, that is, in its dominion' (c. 4, n. 17). If dominion, therefore, means physical power, it can be impeded by penalties but not by laws, force, or by right.
4. The words of Bolgeni just quoted indicate that in his opinion laws are never contrary to the dominion to act freely but only to possession; dominion is the physical power of freedom and as such will never be absent, whatever laws may be enacted. This allows us to understand his next words: 'If the law is probable, freedom becomes probable when . . . the law is cited as restricting freedom and removing the exercise of its dominion (which is its possession). It is not possible to have at the same time certainty in freedom and probability for the law; one necessarily destroys the other and both remain only probable.
Likewise, when freedom opposes the law, and freedom is probable, the law also becomes probable, since there can be no probability contrary to certainty, and vice versa' (n. 18). These are reasonable, unambiguous words. When he says that doubtful laws make freedom doubtful, we must clearly understand that they make doubtful not the essence of freedom, which does not change, nor the physical power or dominion to act freely, which cannot be opposed by laws, but the (legitimate) exercise of the dominion; in a word, they make the possession of freedom doubtful. But if this is true, how can Bolgeni go on to say exactly the opposite (n. 18)? 'Although the law and freedom may be probable in some questions, one of them always has certain possession. Problems do not affect the certainty of possession (which alone is involved, in Bolgeni's view) but only the certainty of dominion. Dominion is quid juris; possession is quid facti. We are not dealing with matters of fact but of right.'
Contradictory teachings like these are not expected in a man of such clarity of thought. The problem does indeed concern right, and for this very reason concerns possession and not dominion, according to the meaning given these words by Bolgeni. The essence of dominion, relative to freedom, consists in the physical power of freedom, a fact which can never be called into doubt nor opposed by the law, although the law can oppose possession. In his very example regarding the obligation to fast after 60 years of age, Bolgeni admits that possession by the law is certain until 60 years, but begins to be doubtful after that. He says: 'The question concerns solely whether the law continues in possession and therefore in the exercise of dominion and obligating force' (n. 18). It is incorrect to say that despite doubt, possession is certain. Granted doubt, possession itself is doubtful (this differs from the case of real possessions, where the possession is physical not moral), and therefore the principle of possession cannot be applied to solve moral cases in general.