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Chapter 3 - (Part 1)

The Second Question:
'How Can I Eliminate Uncertainty About The Lawfulness
Of An Action, And Form A Conscience If My Doubt Concerns The Intrinsic Unlawfulness Of The Action?'

531. As long as we are uncertain whether our action is lawful or unlawful, we cannot do it. This proposition follows from the principle that we are obliged to preserve due order in the objects of our esteem and affection. Indeed moral good is truly the only good, the true good, the essential, perfect good; and the best of all objects is the moral object. As a result, we have to say that whatever the cost we must never expose ourselves to the danger of losing what is morally good for the sake of attaining some other good which relative to moral good is false, illusory and truly evil. Only when moral probity has been safeguarded have we the right to act.

532. We read in the psalms:

and in the book of Wisdom:

The sacred author insists that this wisdom, which is uprightness and virtue, went before him, that is, he considered innocence as the chief characteristic of all his actions, and did nothing before finding wisdom in accord with what he intended. An abundance of other good things followed from this way of acting.(346)

533. I cannot posit any action if I am uncertain about its rectitude. Before acting, therefore, I must have formed for myself a conscience declaring that in acting I neither sin nor expose myself to the danger of sinning. We must now ask how such a conscience can be formed, and how uncertainty eliminated.
Here we have to deal with the famous teaching on reflective principles, a matter of great importance scientifically speaking. As I have noted, this teaching indicated a great step forward by the human spirit as it advanced from a lower to a higher level of reflection. It is not surprising that such progress produced a kind of moral-scientific crisis in mankind, so that the names MEDINA and TIRILLO ought to stand in any philosophical history of moral sciences as marking the beginning of a new scientific epoch. However, this has not been done; and as moralists, Medina and Tirillo are no more than two amongst many.(347)

534. This extremely important teaching on reflective principles aims at making us certain of the morality of an action where first we were uncertain. We must consider the problem carefully. It can be expressed as follows: 'Is it possible for one who hesitates between two opinions, and does not know whether a proposed action is lawful or not, to reassure and persuade himself completely through a reflective principle that his action is certainly lawful?'
We cannot answer such a serious question without first indicating some undoubted, evident truths which will serve as the starting point for what we have to say.

535. First, it is certain that if I doubt whether I sin in doing an action, I can always lawfully examine my doubt to see 'if it has been produced by valid or invalid reasons, and is therefore reasonable or unreasonable.' And we have already proposed the question in this form.

Second, it is equally certain that I can and must abandon my doubt if a reflective examination shows that I have no valid motive for it, and that it arises from useless fear or false reasoning. And having abandoned my doubt, I can freely do the action because my new reflection has changed my doubt about it into certainty.

Third, it is clear I cannot do the action without sinning if my reflection resolves the doubt by showing that the action is certainly unlawful.

Fourth, it is also clear that I cannot lawfully act if further reflection simply confirms my spirit in its doubt without clarifying the situation.

536. An unassailable conclusion from these simple principles is: 'Any reflective principle which is able to change my state of spirit from doubt to certainty about the morality of an action must render my doubt insubsistent and baseless because founded on a false, useless presupposition of my own.'

The problem has now been stated much more clearly, as far as I can see. It is easy to understand that reflective principles will be available to remove uncertainty of spirit if we can find 'reflective principles capable of enabling me to see that my doubt about the sinfulness of my own action is useless and insubsistent,' that is, founded on motives that cannot reasonably bring me to such uncertainty.
Do such principles really exist? Let us first be clear that there are cases 'in which even to suppose their existence would imply contradiction.'

537. We note that the motive for my doubt about the lawfulness of a given action may have two sources, that is, the intrinsic nature of the action itself or some exterior cause.

538. But it is clear that I can resolve my doubt in the first case only if I show that the intrinsic nature of my action does not contain the blameworthiness that I presupposed or feared. In the second case, I must show that the exterior cause making me doubtful about the action's lawfulness has no power to produce this effect in me. In other words, my reflection must resolve the doubt at its foundations, either in the very nature of the action or outside it.

539. An evident, beautiful corollary of this principle can, I think, be stated thus: 'Where doubt falls on the intrinsic lawfulness of an action, none of the principles concerned with causes of the doubt exterior to the action can resolve it.'

540. Laws are causes exterior to the action. Principles drawn from the state of laws cannot therefore resolve a doubt intrinsic to the action.

541. The following principles, proposed by noted moralists, are extrinsic to actions:

1. A doubtful law does not oblige; or, an uncertain law does not produce a certain obligation.

2. A person's actual condition is presumed better than its opposite. If he is presently acting freely, freedom must maintain its right against the law; if he is presently following the law, the law rightly prevails.

These two principles can be reduced to a single principle because actual freedom(348) would not exist if the law were certain and therefore restricted freedom.
These principles, although applicable in other cases, are certainly not applicable where doubt falls on the intrinsic malice of an action. They presuppose a law distinct from the action; but law, considered as extrinsic to an action, prohibits and hence renders unlawful an action not evil in itself (which is contrary to our hypothesis).

542. When I say 'Law which is certain obliges; law which is uncertain does not oblige', I mean 'Law which is certain makes an action unlawful for me; uncertain law does not render it unlawful, but leaves it lawful for me.' The subject of discussion therefore are actions which can sometimes be lawful and sometimes unlawful. We are not discussing actions unlawful in themselves; we are presuming that the actions are lawful when not forbidden by some law whose existence is doubted, but unlawful when forbidden by the law. In this case the law is a principle completely distinct from and extraneous to the action, giving the action a quality it does not of itself possess. This principle, therefore, will be valid only for those actions which, although lawful in themselves, may be rendered unlawful by some law. It will be valid only in the case of a positive, external law. But when the doubt falls on the intrinsic evil of an action, and not in relationship to knowledge of a law which renders a good action immoral by forbidding it, this principle has no force. The very enunciation of such a principle shows that the action is certainly moral in itself.

543. The same can be said about the second principle, or rather about the second way of stating the same principle. We ask whether freedom or the law holds sway. If we say 'freedom', there is no obligation to stand by the law. This is clear. But we are presupposing that freedom holds sway antecedently to the law, and this can be true only in the case of actions moral in themselves, and in the case of positive laws. Our concern, on the contrary, is not with a law prohibiting an action, but with the intrinsic morality of an action. We want to know whether freedom, prescinding from the law, holds sway or not. If in fact the action is intrinsically evil, freedom cannot hold sway even in the absence of any contrary positive law. In moral matters, freedom means simply freedom to act lawfully, and acting lawfully means doing what is lawful. The presupposition in our present case is that the action is lawful until the law renders it otherwise. If, however, we doubt whether the action is unlawful independently of a law distinct from it, our presupposition is no longer valid. The intrinsic lawfulness of the action, and hence the possession of freedom, is now uncertain. The principle of possession is no longer applicable.

544. It follows that I cannot act as long as I doubt whether I am free. If I were to act in such a case, I would be in danger of using a right I do not possess. Uncertain freedom is not freedom; the uncertainty destroys the freedom to act if I am uncertain whether in acting I may not be exceeding the limit of my right. This must be granted by every upholder of reflective principles, each of whom in recent times has reaffirmed the proposition: 'A person in practical doubt about any action must, before acting, definitely resolve the doubt about the morality of that action by means of a CERTAIN or reflective principle.'(349) All modern defenders of reflective principles are also agreed in deploring the laxity arising from their predecessors' support of the principle 'He who acts probably, acts prudently.'(350) A reflective principle which leaves in doubt both my freedom to act and the blameworthiness of my action is definitely not one of these certain principles capable of eliminating doubt about the morality of an action. And as long as doubt remains, it is not lawful for me to act.

545. Some, however, may be hesitant about accepting what we have said so far. Their objection would be: 'In speaking about intrinsically evil actions can you indicate which they are? Is weak, fallacious reason capable of knowing the internal malice of actions in such a way as to produce obligation in human beings?' We are dealing obviously with the celebrated controversy between Father Giovan Vincenzo Patuzzi and the famous bishop of Sant'Agata de'Goti [St. Alphonsus de Liguori] about the promulgation of the natural law.

546. Patuzzi maintained that the natural law obliges us independently of the divine positive law because it is sufficiently promulgated by the light of reason. Liguori denied this and concluded - arguing that a doubtfully promulgated law is doubtful and does not therefore oblige - that it cannot oblige without the addition of the divine law. 'Natural reason arising from the nature of the human being,' says the Saint, 'is obscure, deceitful and fallible. This is especially true in the present condition of human nature corrupted by sin which blinds our understanding. Natural reason springing from human nature cannot be the rule for human moral actions. God must illuminate us with a particular, certain and infallible light if we are to be sure of what we must do and what we must avoid. He impresses this light upon us, and promulgates it as his law.'(351) This particular light of which St. Alphonsus speaks is different from natural reason, and can only be the light of revelation and the internal light of grace. If St. Alphonsus were referring to natural reason itself as the particular light, his argument would have been inconclusive, and would have simply stated that 'natural reason does not oblige without the particular light of natural reason.'

547. In some places, St. Alphonsus seems to maintain that even in the state of pure nature human beings would have no moral obligation! 'I reply that if God had not raised this (natural) law to be his law, human beings in another state, that is, in the state of pure nature (which was certainly a possibility, as the Church affirmed against Baius, who denied it), would have remained without any strictly obliging law. But in such a hypothesis would we not be obliged to live according to the law of human nature? This is not the case, because natural law, unsustained by authority, could never have been a law of obligation for human beings, as we showed above; we would have remained without law. I find it impossible to maintain that in the state of pure nature we would have had to obey reason and its natural dictates. As Finetti says so well, reason is a faculty proper to human beings, and obeying it would make them simultaneously subjects and superiors to themselves.(352) Therefore, the natural law, which results from human nature, can never impose true obligation on us. Finetti himself says several times that the natural law originating from nature is not true law. If therefore the law of nature is not true law, it cannot induce true obligation.'(353)

548. In my opinion, this is definitely erroneous.
Certainly, there is no difficulty in admitting that natural law, prescinding from every supernatural revelation, is not positive law. We call it natural law precisely because it is not positive, that is, not promulgated with external signs but through the internal light of reason which shows and induces in the nature of perceived beings the esteem proper to each of them.
We could also admit that natural law without positive revelation does not merit the title 'law' if the meaning of this word is restricted to external, positive law alone, and has no significant reference to obligatory principles in general (cf. 143).

Again, St. Alphonsus could mean that natural law is not always known through a manifestation of the divine will, and that what is known as obligatory by the simple light of reason can be distinguished conceptually from that which is willed by God. This could be granted to those who take the will of God as a principle of arbitrary divine decrees without realising that the word God not only signifies an omnipotent being as efficient cause of the universe, but also eternal, subsistent truth.
It could also mean that transgressors of the natural law would be punished (in the supposed state of pure nature) by natural penalties, or at most by penalties much less severe than those destined for offenders against God when he is known as legislator in the supernatural order. In scriptural language this second kind of punishment is rightly called loss of one's own soul. This also could be granted.

549. But outside these qualifications it is certainly an extremely serious error to maintain that the natural law contains no intrinsic obligating force independently of a positive revelation.

550. It would also be an extremely grave error to imply that natural law shows no trace of the divine, if this meant that it is not a manifestation of the will of God as nature but only as decision, or that it is not a manifestation of God as eternal truth and unchangeable order but only as free will. In this case natural law would not be a participation in eternal law, as the Fathers rightly call it.
It is an error to deny, in opposition to the constant teaching of the Fathers, the qualities and divine authority proper to the principles of natural law. As I have shown in several places, natural law is reduced in its entirety to the respect given to truth, to the acknowledgement of being. And truth and being are immutable and eternal. Ideal being or truth, the supreme principle of both natural and positive law, is infinitely superior to human beings and to all natures. It is universal, and as necessary as God himself, because it is truly an appurtenance of God himself.

551. It is also erroneous to say that without the addition of a positive law, TRUTH, to which all law is reduced, contains no obligation requiring our esteem, love and obedience. Finetti's argument attempting to prove that no obligation exists where there is no superior, and that natural reason is not superior to human beings, is absurd and contradictory.(354) In the first place it is false (this needs repeating) that there is in us no light superior to us. Reason (as a faculty) is indeed an element in human nature, but we are not the the light of reason or truth which shines before us; rather, we are commanded by it.(355) On the other hand, if some superior has to show us his will in order for us to be truly under obligation, what obliges us to conform to this will? We could simply try to explain that this is the will of a superior, and it is of course true that we must respect and obey the will of the superior. But it is only the light of reason that tells us that the superior merits respect and that his will must be an inviolable law for us. If we do not first believe in and obey the light of reason, we cannot believe in or obey any superior, not even God. We cannot respect the positive law if we do not first respect the rational law; we submit to the positive law only because it draws its force from a preceding dictate of the rational law.

552. Nevertheless, the saintly bishop would certainly not wish to sustain the consequences of his principles relative to the natural law in so far as they deny obligation to the natural law separated from revelation. As a result he is often inconsistent in what he says. For instance, there is certainly inconsistency in speaking of natural law which does not oblige. A law which does not induce obligation is both law and not law; law and obligation are interdependent.

553. Again, as St. Alphonsus acknowledges, there are indeed intrinsically good and evil actions. Given the existence of human beings and the present order, therefore, the natural law could not be other than it is.(356) But why are some actions intrinsically good and others intrinsically evil? Is it because God had necessarily to command or permit the former, and forbid the latter? Given human nature and the present order of things, why is the natural law, as willed by God, not arbitrary? But if the law does not depend upon God's arbitrary will, it can spring only from the intrinsic order of beings which of its nature requires respect and observance by us because it is the truth rooted in divine nature and shining per se before the reason, obliging its consent. As St. Alphonsus himself acknowledges, an obligation, if it does not come from an arbitrary decree of God, must arise from a principle of reason, that is, from the natural order itself which, while it is conceived mentally, manifests itself as requiring the service of our will.

554. St. Alphonsus also quotes St. Thomas: 'Human reason is not of itself the rule of things, but the principles NATURALLY inserted in reason are so many general rules and measures of all that is to be done by us.'(357) These words express exactly what we are saying, that is, obligation does not come from reason as a human faculty, but from the light inherent in reason by nature - a light which, as we have shown, takes the name and form of principles as a result of its various applications.(358) Without this light, reason itself would not be. But the text from Aquinas certainly does not prove that the natural light of human reason needs another light of revelation or grace in order to induce obligation.

On the contrary, it shows clearly that this light, that is, the natural principles known per se, 'are rules and measures of everything to be done by us'. St. Alphonsus' attempt to use these words to support his own opinion is therefore misguided. He says: 'The rule of moral actions is not the natural law that springs from human nature or human reason and is dictated to us by nature. It is the law impressed by God in the human heart. God, in creating angelic and human nature, gave these creatures a law suitable for each nature. The law, therefore, does not originate from the nature itself, independently of the will of God, but arises from the will of God who has given to human beings and angels laws in keeping with their natures.'(359)

As I have said, this comment is irrelevant. The principles of law impressed in human reason are precisely the essential constitutents of human reason which sees order amongst natures and immediately knows that it is to be safeguarded, not destroyed. The law comes both from natures and at the same time from the will of God who has made and ordered natures, giving to reason the light to know the order of the natures he has created. This order is indubitably eternal, and the natural law is certainly of itself 'a participation in the eternal law', as St. Thomas elegantly defines it.(360) Indeed it does not differ essentially from the eternal law itself.(361) It therefore obliges of itself alone, without the addition of any other law.

The question 'Does the natural law oblige?' (without any other external revelation, or the help of interior grace) is solved affirmatively by saying, as St. Alphonsus does, that it obliges because it is impressed by God. This question does not ask: 'Why does the natural law oblige?', but 'Does it oblige?' It is one thing to ask: 'Does the natural law oblige of itself?', and another to ask: 'Does this obligation come from human nature or is it impressed divinely?' Let us grant, with St. Alphonsus, that it is divinely impressed (although there is a certain ambiguity even here); we still conclude that for this very reason 'the natural law obliges without the addition of any other particular light different from the law.' It even obliges those who have no knowledge of positive revelation, and those who might have been created in a state of pure nature. It obliges because truth, the law from the hand of God himself, or rather an appurtenance of God himself, is written into natural reason. St. Alphonsus, in trying to prove that the natural law obliges only because it comes from God, unwittingly changes the whole question and, at the same time, concedes to his adversaries all they want because he grants that 'the natural law obliges of itself alone', thus contradicting what he had formerly said relative to the hypothesis that human beings had been constituted in a state of pure nature.

555. According to St. Alphonsus himself, therefore, there are intrinsically good and intrinsically evil actions; the moral law is not abitrarily imposed by God, but depends upon his eternal reason and the exigency, resplendent in that reason, of created natures; God has impressed in us the moral rules of life which together form the natural law; the natural law obliges us because of its relationship with the divine nature. But if this is so, why is the natural law ineffective and without authority for us?

556. St. Alphonsus maintains that if we are speaking about 'the true, natural law itself, we agree. It is certain that we are bound to live according to the natural law which, without doubt, is divine law and depends upon the divine will. According to St. Thomas, the natural law made known to us by the light God impresses upon us is the divine law according to which we must order our actions. But he' (St. Alphonsus is referring to Fr. Patuzzi, his opponent) 'is mistaken if in speaking about reason he means the human dictate coming from natural reason by way of the mind . . . Natural reason as it originates in human nature is (as we have said) obscure, ambiguous and fallible.'] (362)

These words are unintelligible unless they mean: 'Human dictates have no force without relationship to the light impressed on us by God. Without this light, they are obscure, ambiguous and fallible.' And the Saint seems to say this shortly afterwards.(363) If this is his meaning, then all agree that the natural dictate obliges per se without need of any other light. It would in fact be strange to suppose that God had impressed in us a light of justice which either did not enlighten us in any way or had need of some other light to enlighten us.

What is 'the human dictate which comes from natural reason by way of the mind'? What is the mind? What is reason? The 'human dictate' is only the intuition of the very light impressed upon us by God. If it were not, it could not be a dictate; the mind, the reason, is simply our faculty for intuiting that light. If reason errs in consulting the light that illumines it, it loses all its authority - no one doubts this.

But it is not always mistaken. Principles are present to it about which reason cannot err: for instance, it is impossible to prefer a lie to the truth; it is impossible, as Saint Augustine says, to prefer an irrational to a rational being; it is impossible to prefer to do evil rather than good to another human being. These and other dictates of human reason are perfectly clear to us independently of divine revelation. If they are clear, as St. Alphonsus himself confesses, they oblige. But the only explanation given by him in arguing that the natural law does not oblige is that reason manifests it to us obscurely. If, therefore, reason does manifest the natural law clearly and evidently, it does indeed oblige. Moreover, if the natural law were in no way evident, we would not know that respect is due to a superior, that we have to obey the positive laws that express his will, and that we have to keep the divine law (cf. 175-187). It is certain, therefore, that at least some part of the natural law is evident.

It seems utterly clear therefore: 1. that the natural law obliges per se without the addition of any special light to the light already impressed in our rational nature by God; 2. that this law is extremely clear in its principal points, and is proposed by our reason with complete certainty; 3. that we have a true moral obligation, at least in these evident points of the natural law, in such a way that there can be no discussion about the non-promulgation of this law; 4. that in St. Alphonsus' hypothesis about human creation in a state of pure nature, free from the darkness of sin, human beings would have known the natural law fully and certainly in all the consequences they could have drawn from it. In such a condition, we would have found ourselves fully bound to conform to this law.

But does the natural law oblige us when our imperfect reason leaves us in doubt about it?

557. The problem has now been reduced to its minimum terms.
First we note that in considering St. Alphonsus' order of ideas we can see clearly that he focused his attention on remote, uncertain and doubtful consequences of natural principles and then, from the obscurity of such consequences, generalised about the natural law in its entirety. The obscurity and uncertainty he presupposed in the law enabled him to deduce as a consequence that it has no obligating force because it is not sufficiently promulgated by human reason alone without the addition of an extraordinary light from divine revelation.

We then observed that the natural law is not entirely obscure. At least its supreme principles are very clear, and even clearer than the divine positive law which is itself founded on a principle of natural reason. And we proved at length the clarity of the natural law on the authority of scripture.
Nevertheless, we granted that the dictate of the natural law remained doubtful in some of its remote conclusions. We now have to see, as we said above, whether St. Alphonsus is right in maintaining that the law is not sufficiently promulgated in this case, and does not oblige us.

558. We have already seen that no fault or sin is present if through mental limitation, and without any wish on our part, we fail to draw certain remote conclusions from the natural law and, without knowing them in any way, act contrary to them. As we showed, the notion of fault and sin are absent if the two elements of knowledge and will are lacking (cf. 74). But we are not at the moment dealing with totally unknown dictates of the natural law; the real object of our present discussion is the case in which we are doubtful about a dictate of the natural law and in particular about whether an action is intrinsically lawful or unlawful.

In this case, speaking of the natural law as insufficiently promulgated and hence as not obligating entails an invalid application to the natural law of an argument applicable to positive law. In the case of positive law, the law itself and the action to which the law applies are different things. The action, which is not blameworthy of itself, becomes such from outside, that is, from the positive decision of the legislator: the law is external to and distinct from the action under consideration. An intrinsically evil action, however, is forbidden of its very nature because of the disorder and malice that it bears deep within itself. This disorder is an obligating principle to which the word 'law' is applied through a mental abstraction that considers the exigency and obligating force of the action as separate from the action itself (cf. 46-48). In this case, the action is not rendered evil by prohibition from some external law, but is evil in its mere existence.

In matters forbidden by positive law, the law must exist if evil is to be present; in intrinsically evil matters, evil exists along with the action. The action and disorder exist together; and the natural law prohibiting the action is one with the disorder itself. The concept of disorder is then formulated in an imperative which expresses the concept in the form of law. But no external promulgation of the law is necessary to tell us such actions are forbidden; it is sufficient for them to be present to our minds for us to know that we must avoid them.(364)

559. It may be urged that we should be certain of the intrinsic immorality of actions before we need to avoid them. But as we have seen, all theologians, including Liguori himself, agree that the danger of moral evil, as well as its certainty, is to be avoided. There is a real difference between an action which I know with certainty to be lawful, although I doubt whether the external law forbids it, and an action about whose lawfulness I am in doubt. In the first case, my doubt does not fall on the morality of the action, but on the existence of the law; in the second case, my doubt falls properly speaking on the morality of the action. And it is the morality or immorality of our actions which constitutes the natural law itself. Here the law does not precede, but follows upon, the quality of the actions; a law exists when the morality of the action or actions has been formulated. In the second case, we have what the theologians call practical doubt which renders action unlawful; in the first case, we have what the theologians call speculative doubt, with which it is lawful to act (cf. 465).

560. We can now state the teaching in exact terms and conclude: when the judgment of conscience remains suspended and unformed because there is doubt about the morality of an action, as happens in the second case, it is unlawful to act except by following the safest path and avoiding any danger of committing an intrinsically evil action.

561. Liguori, whose heart was set on the truth and on the salvation of souls, could not rest altogether content with his teaching. This can be seen clearly not only in the corrections he felt necessary as he matured,(365) but also in the incomplete, not altogether coherent, condition of his final teaching.

562. After laying down several general principles, he either does not apply them universally or offers many exceptions in particular cases. This alone is sufficient to prove that the theory is deficient and unable to embrace all cases. For example, he establishes the principle: 'Because obligation imposed by the law has to be certain, it is not sufficient that the promulgation of the law be probable. But granted the certainty of the obligation, the law and its promulgation must also be certain.'(366) According to this principle, obligation would exist only when both the law and its promulgation were certain.

But the Saint could not stomach this consequence, and substitutes other principles that cannot in any way be made to harmonise with his starting point. 'First, I affirm that we have to follow the opinion in favour of the law when it is certainly more probable. The chief reason for this is our obligation, when we have moral doubts, to follow the truth. If we cannot find the truth clearly we must at least follow the opinion nearest the truth which is, of course, the opinion we think more probable. The truth itself obliges us to follow the opinion in favour of the law when this opinion is nearest the truth.

'Second, when the opinion in favour of freedom is equally as probable as the opinion in favour of the law, we cannot follow it on the ground that it is probable. Probability alone is not sufficient for us to be able to act lawfully. We need moral certainty about the probity of our action, as all probabilists will unhesitatingly agree.'(367) And he says elsewhere also that the law obliges even if it is probably promulgated.(368)

It is clear that this teaching is inaccurate and riddled with contradictions.

563. First, St. Alphonsus asserts the principle that an uncertain law cannot produce a certain obligation, but then goes on to say that if the law is probable, it obliges. Again he first establishes that the promulgation of the law has to be certain, and then draws the conclusion that the law, if it is probable, obliges. Another principle is that certain truth has to be followed, but this is substituted by the assertion that when the truth cannot clearly be found, we must at least follow the opinion nearest the truth, that is, the opinion that seems to us the more probable. Again, one principle states that if the opinion in favour of the law is equally probable with that in favour of freedom, we must follow the law because an equally probable as well as a probable law obliges.

But then we find that if the opinion in favour of the law is equally probable with that in favour of freedom, doubt is present and the law does not oblige.(369) Finally, St. Alphonsus lays down that we cannot follow the opinion in favour of freedom if it is equally probable with that in favour of the law, but immediately goes on to deny that the law is probable if freedom is equally probable. In a word, in order to be probable the opinion in favour of the law has to be more probable than the opinion in favour of freedom. These are all absurd contradictions when understood according to the strict sense of the words used.

It is clear that the law and its promulgation have to be certain in order to oblige: it is not sufficent for them to be probable.

It is clear that if truth is necessary, it is not sufficient to be near truth; what is near truth is not truth.

It is clear that if it is sufficient to follow a probable opinion, we cannot require a more probable opinion.

It is clear that if we suppose that two opinions in favour of the law and of freedom are equally probable and then go on to claim that we must follow the law, it is contradictory to add that in the same case no doubt exists and that consequently the law does not oblige.

It is clear that if we say the law can sometimes be as probable as freedom in a given case, it is contradictory to add that the law, in order to be probable, must be more probable than freedom in the same case.

In each of these assertions one half of the proposition is at odds with the other. It is impossible to accept both, although St. Alphonsus is forced to do so because of the defective principles from which he sets out.

564. It would be possible to illustrate other departures from principle in St. Alphonsus. Often, in particular cases, he states the opposite of what his principles seem to require. Sometimes he is unaware of this; sometimes, although aware of the difficulty, he is content to say that these are exceptions to the rule he has given, as for instance in the case of the validity of the sacraments, the choice of religion and the danger of harming our neighbour. But it is certain that principles must be universal. Principles allowing exceptions are not true, complete principles. However, I do not wish to insist on this difficulty in St. Alphonsus which I shall have the opportunity of discussing elsewhere.

565. I want to insist, with further proof of the solution I have adopted, that when 'there is doubt about the intrinsic unlawfulness of an action, no reflective principle can prove it lawful without showing with certainty that the action is not intrinsically unlawful, and consequently without dissolving the doubt directly.'
If I doubt that an action is intrinsically unlawful, what reflective principle can authorise me to act as long as this doubt remains? There is an obvious contradiction in maintaining that my doubt about the intrinsic unlawfulness of an action can be resolved by the principle 'What is doubtfully unlawful is not unlawful.' The simple affirmation of the principle demonstrates its obvious contradiction.

566. The contradiction can be avoided only by taking a different approach and arguing correctly as follows.

567. In his great wisdom St. Alphonsus softened and tempered the mistaken principle by introducing many ad hoc exceptions. This however was not the case with a number of other moralists. In particular, one very sharp mind tried, prior to Alphonsus, to subject the most unyielding cases to the same principle. Fr. Segneri, well known for his acute arguments, requires our utmost respect, and it is in this spirit that we shall consider what he says.

568. According to Segneri, it is calumny to maintain that probabilists affirm the universal lawfulness of following probable opinion. 'This is not the case. The same reason which makes the probable opinion lawful for some renders it unlawful for others. The chief reason in its favour is that noted at the start: if it is not certain that the law places us under an obligation to do something onerous, such as give alms, make a legacy, undertake more rigorous fasts,(370) it is not just that we should have the same duty to carry out this obligation as we would if the law were certain.(371) The same reason proves that some persons cannot follow a less probable opinion because certain law forbids them to do so.'(372)

We notice that this brilliant man, who sees that exceptions would ruin the authority of the principle, feels the need to defend his view by excluding exceptions, and wishes to show that 'the same reason which makes it (the probable opinion) lawful for some renders it unlawful for others.' But how does he demonstrate this?

His argument runs as follows:

This is an attractive-looking argument, but careful examination will show that it has no internal force whatsoever. It presupposes the existence of less probable, but nevertheless probable, opinions condemned by a certain law. But this is absurd. What kind of probable lawfulness is enjoyed by an action which is certainly forbidden? The argument has changed: it is no longer true that the less probable opinion can sometimes be followed, and sometimes not. According to Segneri's argument, it has either to be followed in all cases or not at all, because an opinion opposed to certain law is no longer probable, but certainly erroneous.

569. But what law is Segneri speaking about? He cannot intend to speak about any certain natural law. If an action were certainly condemned by natural law it would not have even a relative and hypothetical probability in its favour. He must intend speaking, therefore, about positive law, and must mean: 'A less probable opinion in natural law cannot be followed if a positive law forbids it.'
In the first place I repeat that if a positive law forbids the action, the question is resolved on the ground that the probability which once existed no longer does so. In the second place, why has the positive law forbidden this action which according to natural law was probably unlawful? What is positive law? Where does it get its force if not from natural law?(373)

We are dealing with cases in which the human legislator sees that doubtfully lawful actions would be harmful to the public good and decides to forbid them under human sanctions. But in forbidding them, he has not changed their nature; he has simply decided that they cannot be done. The positive law intervenes therefore to declare solemnly that it is not lawful to carry out actions which are supposedly doubtful. Relative to such laws, therefore, we have to conclude that the weight of public authority has declared the probabilists' opinion mistaken at least in this matter. Positive laws, and certainly those cited by Segneri, have condemned this teaching of probabilists by condemning the actions they defend.

570. Other examples given by Segneri support this criticism: 'Without doubt, a judge cannot follow a less probable opinion because he is faced with a certain, contrary law established by the state. The state puts the scales of justice in his hands so that after he has weighed the case he may let them settle of their own accord. Moreover, it is certain that the litigants themselves have legislated for him by offering witnesses, arguments and proofs to show that they are probably in the right. But what is the point of such information if he could value it as though it did not exist? And again the law says: 'Laws always presume in the judge's favour.'(374) But a similiar presumption would be unjust if he were not always bound to follow the better-founded amongst two contrary judgments.'(375) There is confusion here between probability relative to the parties in a case, and probability relative to the probity of the judge's action in passing sentence. The question under discussion is concerned only with the second difficulty: 'Is it possible for a person to act while he doubts about the intrinsic morality of his action?' The example proffered by Segneri is irrelevant.

571. In fact, his argument presupposes as probable (although less probable than its contrary) that 'the judge can find in favour of the party less favoured in the balance of justice.' But this probable opinion cannot be followed, says Segneri, because it is opposed by a certain law established by the state - and he cites instances in the law of Justinian.(376) But has it been established by the state, or by the nature of things? Does this mean that the scales of justice could be tipped in the less favourable direction if the Justinian Codex had perished in the Dark Ages along with the works of so many other authors? Is a positive law needed for us to know that it is unlawful and unjust to favour the side with the less favourable arguments? I cannot bring myself to think that until the formation of positive laws, judges could for centuries have passed sentence against parties with more favourable arguments and ruled for those with less favourable arguments. Segneri could never have meant this.

He does in fact feel the weakness of his position and goes on to add reasons drawn from the intimate nature of things, not from the existence of positive law. These reasons, such as the motive for establishing judges and enhancing the trust shown by the litigating parties, provide a foundation for the positive law itself but show that even without it the judge must favour the party on whose side the scales of justice incline of their own accord. In other words, the intrinsic probity of the action requires that the judge act in this way. In saying: 'It is certain that the litigants themselves have legislated for the judge', Segneri is using rhetoric. The litigants do not legislate for the judge, nor can they forbid him to do what his own judgment allows him to do. The judge cannot find in favour of the less probable party, even though there is a real doubt about the matter, without exposing himself to the danger of committing an injustice (something intrinsically unlawful) by exchanging the more probable for the less probable side. He must not only act justly when he sees clearly where justice lies, but also avoid the least danger of offending justice. Doing the contrary would imply dis-esteem and lack of love for the virtue of justice which has to be cultivated and safeguarded without limit, whatever the cost.

572. But then Segneri offers another example: 'If the government makes war it cannot follow the less probable opinion in raising taxes and similar matters because of the existence of the certain law of commutative justice which demands that it attribute to the citizenry the same right which it seeks from them. The government wants the people, when they doubt, to tip the balance of reason in its own favour and bear patiently all the burdens it prescribes for the prosecution of the war; the people want the government, when in doubt, to tip the balance of reason in their favour by burdening them as little as possible: "Where both sides have equal reason, equal rights are indicated."(377) And, we must add, the government is not only the higher, but the supreme judge. Hence while "the presumptions of law are always in the judge's favour, they always presume" much more "in the government's favour". If, however, in order to establish presumption in favour of the judge, the judge himself is always bound to pass sentence in favour of the more probable party in controversies before the tribunal, the government is a fortiori bound to do the same in the much graver disputes concerning its own rights. We can appeal against the judge, but not against the government.'(378)

First, the final reason ('The presumption is in favour of the government') is very weak. And the same may be said of 'The presumption is in favour of the judge'. If the government could lawfully use even the less probable opinion, it would never lose the right of presumption in its favour, but always act morally and lawfully. In this case, we would constantly have to presume good, not evil of it. To say that the government would lose the presumption in its favour if it were to follow the less probable opinion indicates an implicit confession that the government cannot in any way follow the less favourable opinion when there is danger of damaging others (danger, that is, of something intrinsically evil) who as a people would resent this and believe their rights to be offended; common sense also condemns it.

573. But how does Fr. Segneri know that the government wishes the presumption to be in its own favour, and that the people are prepared to grant this provided the government keeps to the more probable opinion in burdening its citizens? I doubt that he has found it in Roman law, or amongst the dictates of natural equity. Such a presumption has never been the subject of positive law as far as I know, but even if it were it would need support based on the very nature of things. Presumption in favour of the government originates from public persuasion, which is neither created nor imposed upon anyone by decree. But if reason and the nature of things provide a certain law which obliges the government to act considerately towards its citizens, as Segneri affirms, can he also affirm that there is any opinion with some degree of probability which disobliges the government from care and circumspection in burdening the people? But if this is not even amongst the less probable opinions, it must be altogether false and wrong. Segneri's example provides no support for his theory.

574. Again, although Segneri mentions more probable opinions, he makes no mention at all of opinions more favourable to the people.
A burden laid upon the people could more probably be just; it could less probably but still probably be unjust. Would the people be happy if in our present case the government were to follow the more probable opinion? Would they not prefer the government to forget more or less probable opinions for the sake of choosing to avoid the opinion in which there is danger, however slight, of offending against justice (all things being considered), that is, the opinion which would burden the people excessively. This is the reasonable way of acting which would enable the government to say with Samuel: 'Testify against me before the Lord and before his anointed.'(379)

575. Moreover, the principal reason impelling the government to use every care in not burdening the people unjustly is not in order that the citizens may presume in favour of the government. The government's sacred and inalienable responsibility when faced with an intrinsically evil action is to avoid all danger of evil and every taint of injustice. And, we have to repeat, it is intrinsically evil to injure a people by requiring from them more than the laws of equity and justice demand. If, therefore, all things being considered, it is feared that a tax or fiscal obligation is unjust, a just government cannot in any way impose it.

576. Segneri offers as his third example the distribution of care-of-soul benefices by a bishop. 'He cannot follow the less probable opinion because there is a contrary, certain law which obliges him to choose the most worthy candidate, all things being considered, especially when the most worthy candidate is in direct competition with one less worthy and is obviously superior to him. A natural, certain law relevant to vacant churches also dictates this: the flock does not exist for the benefit of the shepherd, but the shepherd for the flock.' But if both positive and natural law are certain on this point, probable opinions can be disregarded.

577. Moreover, if it is certain according to natural law that a bishop must confer care-of-soul benefices on the most worthy candidate, the source of this law can only be the principle 'In the case of intrinsically evil actions, the safest choice is to be made.' What is at stake, of course, is harm to souls. If the bishop were to choose as beneficiary the less worthy candidate, he would expose himself to the danger of harming his flock by giving it a worthy, but not the most worthy person available. But depriving those souls of the best available pastor is an action containing an intrinsic evil, the very suspicion or shadow of which must be avoided. It is clear, therefore, that this example also proves and confirms the principle we wish to establish.

578. Fr. Segneri's fourth and last example is equally unhappy. 'A doctor cannot follow the less probable opinion in treating his patients because of the certain law of charity which demands the greatest possible caution in safeguarding their lives. This obligation is strengthened by the patient's desire to be cured (that is why he calls the doctor), and by the fee paid for treatment. The patient wants to receive the best possible attention.'

Segneri again confuses the more or less probable opinion about the efficacy of the medicine with the probable opinion about the morality of an action in this case. The problem of so-called probable conscience is concerned solely with the second, not the first probability. Here, too, it is clear that the opinion dispensing the doctor from employing what are thought to be the best medicines is altogether false, not simply less probable.

579. But the example does support our argument. If the doctor gives the less suitable treatment to his patient, he exposes himself to damaging the sick person, or depriving the patient of his due. But this would be intrinsically immoral. Even if the sick person did not suffer as a result, the doctor would not be free from fault. Against all charity and faith he has chosen the less secure method, and inflicted probable, if not certain harm on his patient. This is sufficient for the act to be imputed to him as blame.

580. But Segneri goes on: 'In all these cases we are dealing with law that is certain. Hence the principle "An uncertain law does not oblige" remains unshaken.' But no one is attacking this principle which may indeed be true. What we are insisting is that an action whose intrinsic morality is doubtful can never be rendered lawful by such a principle without certainty that the action has no intrinsic evil. This principle does in fact support my supposition: 'It is most certain in natural law that I cannot expose myself to the slightest doubt I may have about doing something intrinsically evil.'

Clearer and stronger light will be thrown on the subject, however, if we explain the nature of intrinsically evil actions. This we shall do immediately.

Notes

(344) Ps 118: [4 (Douai)].

(345) Wis 7: [8-10].

(346) 'Now all good things came to me together with her, and I rejoiced in all these: for THIS WISDOM WENT BEFORE ME' (Wis 7: [11-12]).

(347) A grave objection against the adversaries of probabilism is the facility with which, according to them, the question can be solved. Ignatius Camargo (Praef.) maintains: 'This difficulty requires no study on the one hand, and a certain degree of cunning on the other; it requires no study . . . to attain the truth provided that the question is regarded with a straightforward and simple spirit; it requires a certain degree of cunning to convince others entangled in the specious, inextricable bonds of probabilism.' Patuzzi (Trattato della Regola prossima delle azioni umane nella scelta delle opinioni, t. 1, p. 1, c. 1) agrees wholeheartedly with this opinion. But if a question, difficult in itself, is said to be very easy, we can affirm without rash judgment that it has not been understood. However, probabilists are emphatic about the difficulties it presents. Esparza calls it 'the most difficult and complicated amongst all moral questions, whether speculative or practical'; Cardenas speaks of it as 'an obscure and extremely metaphysical matter that calls for much mental reflection.' Tirillo does not hesitate to declare it an impenetrable mystery to all except the finest intelligences.

These affirmations show that the knot of the matter was well taken by the probabilists. We cannot conclude, however, that they unravelled it. It is one thing to see the difficulty of a question, and another to solve it. Usually, the person who takes the first step by proposing a new, difficult question is not the one who solves it. Often centuries elapse before the solution, the second step, is reached. Very frequently important questions arise in one century, only to be solved in future centuries. Progress is made, but only at the cost of many errors, repeated efforts and false or imperfect solutions before a true or complete answer is given. But let us do justice to the probabilists by acknowledging their scientific merit in proposing such a new, important question to the world.

(348) Some theologians have found fault with the use of the word freedom in questions about probable opinion. This is an unreasonable objection because the use of the word has been authenticated by scripture. St. Paul says: 'But if someone says to you, "This has been offered in sacrifice," then out of consideration for the man who informed you, and for conscience' sake - I mean his conscience, not yours - do not eat it. For why should my LIBERTY be determined by another man's scruples?' (1 Cor 10: 28-29). Here, in contradistinction to liberty or freedom, conscience is used for consciousness of the law that forms the bond of conscience (cf. 1 Cor 7: 37; Jas 2: 2).

(349) Liguori, De Consc., c. 2, n. 24.

(350) 'Probability is not sufficient for lawful action; moral certainty about the uprightness of the action is also needed, as St. Paul says (Rom. 14: 23): "For whatever does not proceed from faith is sin." He says: from faith meaning from a SURE dictate of conscience which persuades us in our conscience that we are acting rightly. This is the explanation of from faith given by Sts. Chrysostom, Ambrose and others together with St. Thomas (De Verit., q. 17, 3). For this reason I noted in the dissertation mentioned previously the falsity of the probabilists' tag: "Acting probably means acting prudently"' (Liguori, De Conscientia, morale systema, etc., n. 55).

(351) Appendice alla IV Apologia, n. 3.

(352) Finetti's false reasoning is a consequence of the subjectivism which has ruined a great part of modern philosophy. I have shown that although the reason 'is a faculty proper to human beings', the light of reason is not something pertaining to, but distinct from human beings, infinitely superior to them, and wholly divine. This light is the source of moral obligation imposed upon human beings. We are not simultaneously 'subject to and superior to ourselves', but subject to the light shining before us that 'enlightens every man coming into the world', a light other than ourselves (cf. PE, 13-19).

(353) Appendice alla IV Apologia, n. 12.

(354) 'Reason lacks the authority proper to a superior, and can therefore only stimulate but not oblige action or limit freedom. It seems perfectly clear that only a superior can impose obligation. No one would say that reason is superior to human beings since freedom is a faculty proper to us' (De principiis univ. nat. et gent. t. 2, c. 10, c. 6). What incredible confusion between reason, in which an eternal light shines, and freedom, which has to conform to that light!

(355) Church tradition distinguishes the power of reason from the principle illuminating it, as a lamp is distinguished from the light which makes it shine. 'A lamp,' says one writer,'does not shine of itself but receives its light from elsewhere. So the interior intellect sees what is right only in your light' (Remigius Antisoderensis in Ps 17, t. 16 of the Biblioteca Maxima).

(356) 'Actions commanded or forbidden by the divine, natural law are intrinsically good or evil because they are necessarily commanded or forbidden by God. Let me explain: human existence first depends upon the will of God the Creator. But granted that God wanted us to exist, he must necessarily have given us laws suitable to our nature. God created us as rational beings so that we might serve him on earth and thus merit eternal life. Necessarily, therefore, he had to give us the rule according to which we might serve him - a rule in conformity with his divine holiness and adapted to human nature. Because the law is necessarily in conformity with the holiness of God, it is not arbitrary, but intrinsically just. Hence our actions are intrinsically good or evil in so far as they conform to, or differ from, what is prescribed by divine law' (Appendice alla IV Apologia, n. 10).

(357) S.T., I-II, q. 91, art. 3, ad 2.

(358) OT, 558 ss.

(359) Appendice alla IV Apologia, n. 9.

(360) 'The participation of the eternal law in a rational nature' (S.T., I-II, q. 91, art. 2).

(361) St. Thomas puts the following difficulty: if there is an eternal law, the natural law appears useless. He replies: 'This would be true if the natural law were different from the eternal law, but in fact it is only a participation in the eternal law' (S.T., I-II, q. 91, art. 2, ad 1).

(362) Appendice alla IV, n. 3

(363) 'Because our reason is so ambiguous and subject to error, it cannot oblige our adhesion WITHOUT the support of divine law' (Append. all'Apolog. IV, n. 9). If by divine law Liguori means the natural law itself (which as he says is 'certainly divine law'), the passage would show: 1. that the natural law obliges of itself because it is divine; 2. that it has to be well understood and interpreted, and clearly known by us if it is to oblige. We shall show that the natural law obliges even when its dictate seems obscure and doubtful.

(364) Patuzzi objected to Liguori that favouring human freedom in doubt about the natural law entails favouring the flesh. Liguori answered: 'It cannot be denied that disorder and sin are present when we choose vice and the flesh. But following vice and the flesh when this is equivalent to licence is one thing: it is quite different from following lawful freedom permitted by God when we see no law prohibiting it' (Append. alla IV Apol., n. 4, 19). This passage shows that the Saint always supposes that freedom remains lawful if positive law is removed. But this is precisely what does not happen in the case of intrinsically evil actions which contain in themselves their prohibiting law.

(365) Liguori's fourth Italian Apologia begins: 'I am accused of being a probabilist. I want to repeat in this short work that I am not a probabilist, and do not follow probabilist teachings which, in fact, I reject. It is true that in my first books on morals, written when I was still young, I sometimes accepted rather more liberal opinions than I should. But further reflection allowed me to repudiate them, which I did even in print.' The Saint says the same thing in the declaration first published in Regola de' costumi, Naples 1780, and reprinted by Fr. Jacopo Basso, CSSR, in his Riflessioni critiche on the booklet Pedante by Fr. Andrea Tingello. In the last editions of his moral works, St. Alphonsus corrected 120 statements.

(366) Append. alla IV Apologia, n. 20.

(367) Apolog. IV, n. 3.

(368) 'Thirdly, a strict, rigorous doubt is present when two opinions are equally probable, because the opinion in favour of freedom is of equal weight with that in favour of the law (although any less certain opinion cannot of itself be followed because probability alone is not sufficient ground for acting lawfully). In this case we suspend our judgment about the existence or non-existence of the law, and consequently ignore the existence of the law forbidding the action because the law cannot be said to be sufficiently promulgated. What has been sufficiently promulgated is doubt about the existence of the law, not the law. And since the law is not promulgated, there can be no certain obligation to observe it' (Apolog. IV, n. 4).

(369) 'In conclusion, if the opinion in favour of the law were more probable, I would grant that the law is probably promulgated. But if the two opinions are of equal weight, the opinion in favour of the law is not even probable, as we have seen. But if the opinion in favour of the law is not even probable, how can the law be said to be probably promulgated? Only the doubt is promulgated, not the law' (Appendice all'Apolog. IV, n. 21).

(370) These examples are irrelevant because they are not concerned with cases where doubt falls on the intrinsic evil of actions.

(371) We do not want to maintain that a person carrying out an action which he knows with certainty is intrinsically unlawful has the same degree of culpability as another person who does the same action while doubting its lawfulness, as we showed (cf. 630, 631). The reason given here has been inserted oratorically in the middle of the argument without any regard to philosophical criteria.

(372) Letters on probabilism, Fr. Paolo Segneri, letter 1, pd8.

(373) St. Thomas says: 'Every law springing from human action shares in the notion of law in so far as it is derived from the law of nature' (S.T., I-II, q. 95, art. 2).

(374) Digest., bk. 47, t. 8, 1, pd2, 20; Decretal., bk. 1, t. 9, c. 6.

(375) Letters, 1, pd8, n. 41.

(376) VI Decretal., bk. 5, t. 12; Reg. juris, 12 and 45; Digest., bk. 22, t. 5, l. 21, pd3; Cod., bk. 3, t. 1, l. 14; et alia ap. Tiraqual, ad l. si unquam (Cod., bk. 8, t. 56, l. 8).

(377) Cod., bk. 37, t. 50, l. 19; Decretal., bk. 2, t. 30, c. 4.

(378) 'There can be no appeal against judgments in the Senate' (Dig., bk. 1, t. 11, l. 1).

(379) 1 Sam 12: 3.