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Chapter 3 - (Part 2)

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?'

581. We have to return to the supreme principle of morality, formulated and analysed by us,(380) if we wish to discover what constitutes the intrinsic guilt and evil of human actions. This principle, in setting out the essence of morality free from every other element, also indicates what offends against the essence of morality. But that which offends against the essence of morality must be essentially immoral. We could go so far as to establish the following definition: 'The intrinsic evil of actions is that quality by which they offend the very essence of morality, or (and it amounts to the same thing) offend the supreme principle of morality.'

582. The supreme principle is the first law from which all other laws are derived as consequences. Hence, 'an intrinsically evil action is that which is conceived not only as contrary to one of the lower, deduced laws, but as directly contrary to the first in the hierarchy of laws, and therefore to the principle and explanation of all others.'

583. This definition of the intrinsic evil of human actions may at first be difficult to understand, but it is true and such that it easily confirms the principle we have laid down: 'In dealing with intrinsically evil actions the smallest doubt about their morality must restrain us from acting.' It is surely evident that actions which could perhaps damage the essence of morality cannot be authorised by any reflective principle incapable of resolving the doubt in question.

584. We must analyse the intrinsic evil of human actions a little more carefully. As we have said, the supreme principle of morality consists in 'our acknowledging intelligent beings in the way that we know them.' According to this principle, knowledge must precede morality. Acknowledgement cannot be present where knowledge is lacking.

As we have often said, therefore, we have no duties towards any being of which we are altogether ignorant. In the same way, if we are ignorant, without any fault of our own, of some circumstance or relationship relevant to a being we know, we are free of the duties which would be present if we knew these circumstances and relationships. We have to insist upon this in order to avoid the absurdity of imagining that we could be under some obligation towards something unknown. As we have said, the different weight of moral duties incumbent upon various individuals depends upon and is derived from their different levels of ignorance and the limitations constituting personal characteristics - what we may call their moral 'identikit' in the natural order, and evident diversity of spirits in the supernatural order.

585. The second element necessary to the essence of morality, according to the same principle, is will. Practical acknowledgement, the principle of every moral act, is willed.

586. But this is still not sufficient to constitute the essence of morality which in the moral act requires, besides knowledge and will, a movement towards some intelligent being serving as the final object of the act. In other words, the act, in order to be moral, must have its beginning and end in a being endowed with intelligence. It is posited by an intelligent being and directed towards an intelligent being.(381)

587. The intelligent beings in which all morality must of its nature terminate are, for our present purpose, God and human beings. These are also the two beings to which it would seem our divine Master has, through the two precepts of charity, reduced all moral virtue.
It is therefore morally necessary, once we have mentally conceived the beings, to acknowledge God for what he is, and the human being for what he is. Viceversa, it is intrinsically evil to refuse to acknowledge God for what we know him to be, and the human being for what we know him to be. What is needed morally speaking, therefore, is that we avoid the least danger of willed disavowal of these beings. Such a willed danger already constitutes an injustice by which we do injury to one or other of them.
At this point, we could descend immediately to particular cases, but better progress will be made if we arrive at them step by step.

588. We have already seen that a stimulus to the formation of conscience is found in our evil will and the remorse which accompanies it (cf. 116, 117). Although this would seem to indicate that human waywardness serves to facilitate and hasten the moral development of humanity,(382) progress is made in this case only in so far as we form a conscience about our actions. Only moral goodness gives us the impetus needed to discover the more detailed formulas relative to our duties; negligence and malice impede and obstruct this work.

589. How does the upright person proceed as he gathers greater knowledge about his own particular duties? Let us examine first his duties related to God. To begin with, this person has a concept of God as the almighty Being, the creator and preserver of things, the wise and supremely good one. This concept will be confused to some extent in so far as the divine attributes are conceived more or less implicitly within one another, but the particular degree of clarity and light in the concept will not prevent its being true. When the upright person makes his first practical judgment in accordance with his concept, he will acknowledge the God whom he knows, and express his acknowledgement in a formula like this: 'I want to honour God as the supreme, infinitely powerful and wise Being which he is.' This practical judgment is a general decree of his will, generated necessarily within him and perfected in the depths of his spirit.

Let us imagine that an evil person acts in the same circumstances. He would not formulate such a decree, but would either act as though God did not exist, or form a contrary decree belittling God himself. In either case he would never deduce his other particular duties towards God because he would have failed to form that first, general decree in which all particular duties are contained. For such an evil person the religious part of moral science would not develop, but from the beginning remain stunted and sterile.

The upright person, however, who elicits the first practical judgment and general decree accepting God as the infinitely perfect and supreme Being that he truly is and upon whom all depends, sows in his heart the seed and root of the great branch of morals which has God as its object and which we call religion. Every particular duty towards God is contained in the first duty, supreme of its kind. Acts of reverence, love, adoration, thanksgiving and prayer are simply applications and consequences of the first decision with which the spirit decides to regard God and esteem him as he merits.

590. Another important question can now be formulated: 'Do these particular acts of reverence for God flow of themselves from the first practical judgment in such a way that they arise spontaneously, without need of other decrees, from the first interior decree with which the upright person resolves to give God all the esteem he deserves?'

If the first judgment is brought about emphatically with the practical force that causes us to act as a result of what we know, I am convinced that even our bodies would move instinctively to actuate that first decree externally; movements indicating reverence and external worship of the supreme Being would be forthcoming. These instinctive movements, with their roots in the first, universal, practical judgment, would however be natural tendencies of this most general acknowledgement rather than the fulfilment of particular duties, and would not, therefore, help to expand moral teaching about duties towards God.

591. This teaching develops only by the deduction of particular decrees and practical moral judgments from the first, universal decree. These particular moral judgments are the link between the first, universal, practical judgment and the particular actions honouring the divinity. When a person has decided to esteem God for the supreme Being he is, he soon tries to harmonise his affections and external operations, that is, all his powers, with this decree. His powers themselves are bound together in such a way that external actions result from affections, and affections proceed inevitably from the practical judgment.

592. The movement from the initial judgment is made as soon as the person realises and judges that some particular affections and acts are included in the first judgment. When he decides to take God as his supreme Good, he also decrees the affections and acts without which the decree of his will would be false and inconclusive. Human knowledge, in grasping the relationship between these particular, special acts and the initial general decree, formulates a judgment about each special, particular act seen as a consequence, effect and necessary expression of the first decree recognising God as Lord and infinite Good. By means of the judgments he brings to bear on his affections and special acts (judgments that determine the connection between affections or acts and the first practical judgment) he makes these particular affections and actions into duties for himself.

The piety of a good, upright person gives rise to many responsibilities towards God and to the great reverence God receives as the human spirit turns towards him internally by its affective acts, or externally in words and outward actions. All that the upright person does in this respect springs from his first general duty and the first decision by which he determines to execute the duty. But we need an example showing us how our acts of exterior worship towards the divine Majesty rise from our supreme, practical judgment by means of particular judgments. Through these judgments we affirm and establish for ourselves the connection between particular acts of worship and the supreme judgment of which we have spoken.

593. Bowing our head when we say God's name, and genuflecting, are considered acts of external worship, and are indeed such. How do they originate? Of itself, bowing is a sign that we wish to subject ourselves to the one before whom we bow; a genuflection is likewise a clear sign of adoration by which we show our desire to annihilate ourselves before the majesty and greatness of the one whom we adore. In order to be obliged to these acts, or to consider them as good, we must have:

1. decided to consider God as a supreme being - the universal, first judgment;

2. judged that in our decision to hold God as the great, supreme Being are contained all particular decisions about the particular affections of respect, adoration and self-abasement we offer in his sight, i.e. the particular second judgments by which we apply the first judgment and decide on the ontic connection linking the effects with the first judgment and enabling them to be contained in that judgment;

3. judged finally that the will and deliberation to carry out the external actions of bowing and genuflecting are contained in the decrees by which we decide to exercise these acts of respect, adoration and humility before God. In a word, by deciding on our internal acts, we implicitly decide on the consequent, spontaneous external acts - the more particular, third judgments which indicate the natural connection between external acts and internal affections.

In this way we activate the first, universal decree of our spirit in all our powers, and apply it through practical judgments to particular internal and external acts. These practical judgments, which always include ethical judgments, and thus contribute to the development of moral science and the discovery of new, more determined, moral formulas. But I must explain this in another way.

594. If I really want to honour God, I desire to find the means by which to do so and I want to know the special acts with which I can truly honour him. I ask myself therefore about the special internal affections and external actions through which to activate and best fulfil the reverence I owe the supreme being, and I decide which affections and actions are needed. So far I have only enunciated ethical judgments, found moral formulas, and decided how God is best honoured. But I now wish to make affective acts, to offer sacrifices and to put into practice all the external acts that render praise to God. I have now formed, in union with the ethical judgments, the practical judgments which were my aim in the formation of the ethical judgments themselves.

595. We have to note that as we come to know more explicitly the relationships between things and God, or the rise of new relationships, or changes in circumstances, so the first norm 'You must desire to appreciate God for the great Being he is' enables us to decide many questions that face us. Take, for example, the question of ritual both in divine worship and in ordinary human intercourse (decency, or common civility, as Monsignor Della Casa calls it). As society progresses, our external way of honouring God and human beings takes new forms dependent upon the various stages in which society finds itself; this is particularly true in the case of a society's state of intellectual culture. Tribunals even are instituted to decide difficult questions of ritual. The norm or supreme law governing such decisions is the first judgment or decision by which we resolve to esteem and honour the persons concerned. The grade of honour we give them will be in proportion to what we know of them, and we will want to know what external acts correspond to the honour they deserve. In other words, we have to choose only those external acts which are suitable for indicating the honour we wish to pay. We are trying to judge the connection between these external signs and the interior reverence to which the signs should conform.

596. The same can be said in general about all particular duties of affection, about what we say, and about how we act externally when we try to express and actuate, as it were, the supreme decision by which we decide to revere God as the great Being that he is. While these decisions vary according to relationships, circumstances, materials at hand, common opinions and customs, and according to the increase we experience in more particular fields of knowledge, our basic judgment is always concerned equally with the dynamic connection between the act about which we are judging and the first decision by which we take God as God. This first decision, therefore, is the supreme norm or decree of the other judgments which after all are simply an analysis of the initial decision.

597. I have discussed this matter at length because I want to remove any possible ambiguity in my use of the phrase 'an intrinsically evil action'.
For an action to be intrinsically evil, and hence included amongst those which we have to avoid even in the case of a slight probability of doubt, it is necessary:

1. that we effectively doubt about it. If we have no suspicion whatsoever about the act because of our lack of development, the act would not, of course, be known as evil either certainly or doubtfully, and would lie outside our present study.

2. that the doubt fall on the connection of our action with the first law(383) containing the essence of morality. In this case doubt about the action means doubt that in doing it or omitting it we are in danger of detracting from the essence of morality.

598. In a word, we have to distinguish carefully between the material and formal elements in moral goodness. We can never harm the latter, nor ever expose ourselves to the danger of harming it.

599. Because these important distinctions can never be sufficiently clarified, we need to sum up the whole matter once more and present it in a new way. Three objects, therefore, have to be distinguished in moral actions:

1. the physical object;
2. the intellectual object;
3. the moral object.

Let us take church law on abstinence as our example. Meat is simply the material object of this precept. But meat is also an intellectual object conceived in different ways. For example, one person may consider as meat an animal not normally thought of as such. In this case, the person concerned will have as part of his false or at least extraordinary opinion an intellective object different from the real object and the object understood by other people. The truly moral object, however, is neither meat nor the concept people have formed of it, but the legislator, mentally conceived as such, towards whom we desire to show due reverence by obeying his will through abstinence. When we abstain from meat, therefore, the objects we have called 'physical' and 'intellectual' are simply occasions for the moral object, which is reverence given to the legislator. They are not themselves objects forming morality, but mere conditions for morality. Taken together the physical and intellectual objects are called the material part of morality; the formal element is constituted by the truly moral object.

600. When our action is defective materially speaking, it is called 'material sin.' We must note, however, that such an expression does not mean sin at all. If we eat meat on a day of abstinence without realising that this is forbidden, we say that we sin materially but mean that we have offended against the physical and intellectual object without offending in any way against the moral object (respect for the legislator); in a word, we have not sinned [App. no. 6].

601. It will now be easier for us to determine accurately the kinds of action that are intrinsically evil. As we have said, they include all those actions which offend against the first law, the moral object of which is every intellective being, God and humans (cf. 586, 587). Every time that we refuse to respect God and human beings according to their superior nature, our action is intrinsically evil because it offends the moral object. As we know, God and human beings are, for us, essentially moral beings(384) in so far as they are intelligent beings presented by our mind to our will so that we may acknowledge them for what they are.

602. We can offend God and human beings by detracting from their dignity in our thoughts, affections and external works. Consequently intrinsically evil actions can be any one of these three kinds of actions. We must note, however, that although we can harm our neighbour, we can do no harm to God with our actions.

603. Intrinsically evil actions, therefore, are those with which:
1. we do some willed outrage, and
2. we do some willed harm to an intelligent nature [App. no. 7].

604. These kinds of actions must be avoided, therefore, both when they are certain and when they are doubtful. In our actions we have to shun every danger involving outrage or harm to natures which merit our respect and benevolence.

605. This principle is equally true whether the outrage or harm comes from our thoughts, affections or external actions. Every outrage and harm must be avoided absolutely. We must not leave ourselves open to such evil in any way, and even slight danger of such an evil must be shunned completely.

606. Intrinsic moral evils can therefore be opposed either to God or human beings. Other things which we refer to God are what I call God's appurtenances, that is:
1. truth, and
2. moral goodness or justice abstractly considered.

Truth, certainly, cannot appertain to the order of creatures; creatures can be true, but not truth.(385) The same must be said about goodness or justice: creatures can be good, but cannot be goodness. Hence all that is done in opposition to universal truth and goodness is done against God himself. Truth and goodness therefore must be loved even to the extent of avoiding all danger of acting against them.

607. According to this teaching, St. Thomas says that intellectual good is the truth not of contingent, but of universal, necessary things.(386) What is contingent is true, but not truth; universals are truth, because truth consists, as we have shown, in the ideas of things, which are universal and necessary.(387)

608. Goodness is that to which St. Augustine would have us turn our heart's affection even when we believe, mistakenly, that evil persons are good, and love them. He writes to Antoninus: 'You should love goodness itself. That is what we truly love when we love a person we believe good, whether he is good in fact or not. We have to avoid only one error in such a situation: we must not feel differently from that which truth requires us to feel about that person's good - the person himself however requires another approach. Beloved brother, you certainly make no mistake in believing and knowing that it is a great good to serve God willingly and chastely. And you profit by this when you love a person because you believe he shares this good, even though he may not be what you believe him to be.'(388)

609. We should therefore always be on the side of truth and goodness because these are essentially moral objects and everything opposed to them is intrinsic, formal evil. This is the principle governing all that St. Augustine and other theologians say against lying as opposed to truth.

610. This also explains what the gospel says about the sin against the Holy Spirit who is essential, personal goodness, manifested to us supernaturally.

611. It also explains what theologians and holy people say about willed rejection of interior inspirations(389) and about secret antipathies opposed to public promotion of moral good, especially supernatural good.

612. The other object of our moral duties is the human being, whose dignity we must respect in ourselves and others. In the first place we violate and damage ourselves when we refuse obedience to the truth and enslave ourselves to sensation.

613. In particular:

1. The first harm we can do ourselves consists in damaging our soul by exposing ourselves to the danger of formal sin.(390) All theologians, including St. Alphonsus, teach that we must flee the proximate occasions of sin. How do we explain this most certain truth? The reason, as we know, is that it does not suffice to flee what is certainly sin; we also have to avoid probable and doubtful sin. We cannot excuse ourselves by saying that the sin is doubtful if the law is doubtful, because it is certain that no one may lawfully expose himself to the danger of sinning. This is the very law we are upholding.

614. 2. The same must be said about a choice of religion. If in making our choice we do not keep to the safest path, we leave ourselves open to the danger 1. of offending God; 2. of offending ourselves. This is one of those points, therefore, at which St. Alphonsus completely abandons his own system in favour of very wise exceptions. He says: 'Hence we can conclude that it is not lawful in matters of faith, and in everything touching upon the means of eternal salvation to follow either the less probable opinion (according to the fourth proposition condemned by Innocent XI),(391) or the more probable. We are bound to hold the safer opinion and consequently to choose the safest religion, that is, the Catholic religion.' He adds: 'Because any other religion is false, even if one of them appears more probable to someone, he cannot accept it in place of the safer religion without placing in jeopardy his eternal salvation.'(392)

615. 3. The same danger makes it unlawful for a person to put his life at risk without necessity.

616. Moreover, St. Alphonsus makes exceptions of all cases in general where there is doubt about actual harm. 'We maintain that it is never lawful to follow a probable opinion, relevant to probability in actual fact, where harm could be done to another or to oneself. Such a probability does not remove harmful danger. If in fact the opinion were false, harm to one's neighbour or to oneself would not be avoided.'(393)

617. The Saint realises that here he is dealing with an intrinsic evil because the harm to our neighbour or ourself comes about ex opere operato (if I may use that expression), and not intentionally on our part. Knowing that this harm cannot be avoided on the basis of good intention, we effectively desire such harm if we desire to act when there is some probability of harming our neighbour. Wanting such an act in any way at all makes it an intrinsically evil moral object.

618. Hence, when there is danger of harming our neighbour, we have to follow the safest path. No reflective principle can disoblige us in such cases.
1. We apply this principle first to our thoughts. St. Thomas, along with the best theologians, teaches that we must not judge others when we have some doubt about their motives because we have to avoid any danger of harming them even in our thoughts. He says: 'My answer is that even if we think evil of someone with sufficient cause, we do them an injury by despising them. But we must not despise or harm another without some compelling cause. Therefore, unless there exist obvious indications of others' malice, we have to think well of them and interpret doubtful matters in the most favourable way.'(394)

619. 2. The principle can now be applied to our actions, and in the first place to actions that harm people spiritually. First, therefore, we must avoid giving scandal to little ones because our action, although good in itself, could at least put them in danger of falling. This alone makes our action, in these particular circumstances, intrinsically evil.(395)

620. 3. 'In conferring the sacraments,' says St. Alphonsus, 'a minister cannot make use of the probable or more probable opinion about their validity, but is obliged to keep to the safest opinion or to that which is morally certain. Innocent XI's condemnation of the first proposition makes this clear.'(396)

621. 4. Actions which cause bodily harm. According to St. Alphonsus 'if anyone when hunting doubts whether his target is an animal or a human being he cannot shoot, although he thinks it probable or more probable that it is an animal. If it were a human being, no probability or greater probability could save him from death.'(397)

622. 5. St. Alphonsus applies the same principle to doctors who prescribe medicines for their patients.(398)

623. 6. The same is true about a judge in the execution of his duty. It seems unbelievable that the following condemned proposition could have been taught by a Christian moralist: 'I think it probable that judges can pass judgment even in the light of less probable opinions.'(399) We conclude with St. Alphonsus: 'Universally speaking, therefore, it is never lawful to use a probable opinion about the probability of an actual fact where there is danger of harming or injuring one's neighbour.'(400)

624. 7. It is clear, therefore, that G. V. Bolgeni is wrong when he affirms that a doubtfully usurious contract can freely be drawn up.(401) If I doubt whether a contract is an act of usury, I also doubt whether I actually harm my neighbour with that contract. In such a case, I do much better to hold St. Thomas' view. He teaches in his brief work on usury that 'in doubt it is highly useful to examine the question from the point of view of truths known to be helpful to salvation, rather than from the point of view of what is unknown and could place human salvation in danger.' 'In modern times', he adds, 'serious controversies have arisen not only about natural sciences, but also in moral questions WHERE DIFFERENCES IN APPROACHES AND OPINION are dangerous, especially in cases of commutative justice, as the philosophers call it.'(402)

625. 8. St. Thomas' view on multiple holding of simple benefices without dispensation (that is, benefices not requiring the care of souls) depends upon the same principle. In doubt, he says, this must be rejected: 'By holding several benefices while remaining in a state of doubt, a person puts himself in danger and hence sins indubitably because he prefers a temporal benefice to his own salvation.'(403) And this is indeed a question of justice because 1, church temporalities can be enjoyed only according to the prescriptions of divine and ecclesiastical law; and 2, in holding several benefices without any right to them, I may leave others without, and hence harmed.(404)

626. We conclude therefore: in the case of probability about factual harm, intrinsic evil is always present in the moral object, and must therefore be excluded at all costs. I emphasise moral object because simple harm done to an intelligent being is a material object. When such harm is willed, however, it becomes an intrinsically evil moral object relative to those who will it. But we must avoid every risk of falling into such moral evil. The same argument is valid in the case of injury done to God or human beings. As soon as it is willed, it is a moral object, and we must avoid all danger of falling into it [App. no. 8].

627. At this point, we can ask if the intrinsic evil of which we are speaking is present in actions against chastity. And we must answer affirmatively, granted that we doubt whether the action contains the intrinsic evil present in unchastity. Ambrogio Stapf puts the matter well in his Etica Cristiana when he states that we must follow the safer path in matters of chastity, truth and charity.

628. This intrinsic evil is present:
1. In sins against nature. Such sins are an outrage against humanity, and indicate the degraded human condition in which, as the Apostle says of the Gentiles, people are held in subjection to 'base feeling'.(405) The victory obtained by fleeting sensation is an outrage and mockery of truth. Damage is also inflicted on human nature. Tertullian's words are greatly to the point: 'Disallowing birth is murder right from the beginning, whoever it is that takes the baby's life or interferes with the as yet unborn child who is already what he will be, a human being. All fruit is present in its seed.'(406)

629. 2. In the use of sex by married people outside marriage. In such cases, marital fidelity suffers harm, injury and violation.

630. 3. In simple fornication, that is, between unmarried persons. Here again, injury is inflicted upon human nature by people who subject themselves to sense rather than to reason. Reason requires intelligent beings to unite physical love with permanent and lasting friendship, to be confirmed on oath and publicised. This, in the state of natural society, constitutes marriage.

631. 4. In the case of polygamy, the evil relative to natural law is less, and could indeed be non-existent in those born outside the Christian dispensation (who may not realise that love united with friendship, the foundation of marriage, has of its nature to be between two partners only). In the age of the patriarchs this relationship, although present in natural law, was unknown because explicit spirituality was defective. As a result, polygamy was permitted, and no doubt existed about its lawfulness. But anyone who did doubt about it could not have practised it.(407)

632. All this must be affirmed irrespective of any positive law against fornication. Such law does not cause intrinsic guilt in the actions under discussion.

633. It is true, and I acknowledge openly, that some dispositions of canon law seem at first sight to militate aginst this theory.

1. In doubt about the impotence of a married person, the spouses are granted three years in which to see if the impotence is true and permanent. If it is, the marriage is annulled, that is, the union is declared never to have been a marriage. Nevertheless, in the three years during which the couple were not married, they were permitted to remain together. It would seem that while the couple were doubtful of their marriage, their actions in matters of chastity were also doubtful. Nevertheless, they were permitted to cohabitate.

2. A partner who doubts the validity of the marriage, cannot ask for intercourse, but is permitted to render the debt. Being forbidden to ask for intercourse would seem in keeping with the principle: 'In the case of a doubtful marriage, intercourse is not permitted.' But this would lead to a contrary conclusion from that established in the preceding case of doubtful impotence. On the other hand, being permitted intercourse would seem a consequence of the opposite principle: 'In the case of doubtful marriage, intercourse is permissible.' It is not sufficient to say that intercourse can be rendered for the sake of not depriving the other partner of the right, but cannot be asked. If the marriage is doubtful, the right to intercourse is doubtful for both partners. In this case, even the non-doubting partner has no certain right because the marriage is not certain, or at least has no right to force the doubtful partner to undertake a doubtfully lawful act.

It would be possible to bring forward similar cases(408) of positive law relative to marriage. Some of these laws seem to derive from a principle of natural law, others from the opposite principle.

634. For our purposes, it is enough to observe:

1. If positive laws such as these seem to decline a little from the rigorous law of chastity, they always do so solely in favour of marriage, that is, as a necessary proof for establishing that the marriage exists. These laws do not exist in other married cases.(409) But what is done in favour of marriage, and with marital devotion, does not harm human dignity. Consequently, the intrinsic evil associated with unchastity is not present.

2. That those who make use of what the law permits do not doubt the lawfulness of their action.

3. That the Church herself, in permitting such a diminution of the normal rigour of the law in a matter as delicate as this, desires that chastity should prevail, and would be happy if spouses doubtful of their impotence lived together as brother and sister in all chastity.(410)

635. We have established the principle that an action cannot be done lawfully if we doubt whether it causes undue harm to our neighbour. This principle also resolves another question: what is to be done when there is danger of both parties causing harm whether the action takes place or not?

We reply: the question must be solved according to rational law in favour of the least possible harm, or at least in favour of the solution where harm is divided equally amongst those who could suffer it - granted that no higher reason exists for favouring one party or the other when harm is inevitable. Let us consider some particular cases.

I

636. A deceased person leaves a legacy to John Smith. Two people bearing the name, John Smith, come forward to dispute the will, both of whom allege equal friendship, familiarity and service to the deceased. According to Roman law, the legacy is given to neither because the legatee is insufficiently determined by the will.(411) At this point, I do not want to decide the political end of these positive laws, which may indeed have been intended to make testators more careful in drawing up their wills.(412) I only wish to see how the question would be decided on the basis of rational law alone.

According to rational law, it seems clear that by depriving both John Smiths of the legacy, definite harm is being done to a person designated by the testator. Moreover, the maximum harm is being done by depriving him totally of what the testator wished him to have.

In the second place, it seems equally clear that by giving the whole legacy to one of the two John Smiths, without a solid motive in favour of either of them, the judge acts arbitrarily and therefore unjustly. In doing so, he exposes himself to the danger of depriving the true legatee of the whole legacy and thus inflicting maximum harm upon him.

Because it is certain that the will of the testator does not fall outside the ambit of the two John Smiths, but on one or the other of them, all that remains is to make the least harmful choice, the terms of which the two persons themselves should decide. That is, they can either 1. decide to cast lots for the legacy (in which case, the stake equals half the value of the legacy, with which each gambles) or 2. take half each (and this is more reasonable).

If the two John Smiths, although obliged in general by natural law, do not wish to compromise, the judge can decide to give each of them half the legacy. He cannot, however, lawfully let the matter be decided by lot because he cannot be responsible for putting in danger the certain right each has to half the legacy.
This is how we see the matter according to natural equity, although positive laws view it differently.

637. Nevertheless, these principles of equity we have proposed were recognised and followed in other cases by public laws, and affirmed by jurists.
Baldo, for example. says that when there is no proof on either side, some mutual decision must be reached.(413) Others say that in such a case, the judge cannot arrive at a decision, but must leave the parties to reach agreement.(414) Julianus the jurist states that if the arguments brought forward by the two parties leave the difficulty unresolved, the judge can divide the difference.(415) Antonio de Butrio and Peter of Ancharano reply that the judge himself must do this, and end the case by dividing the legacy if it is divisible.(416) Hence the laws themselves state that in certain cases the judge has to arbitrate,(417) not however in any 'arbitrary', absolute sense, but always on the basis of the equitable decision expected of an upright, prudent person.(418)

II

638. If a person is uncertain whether he has paid a definite debt, must he repay it?

If the doubt can be resolved by ascertaining whether the payment has been made or not, this must be done. But if nothing certain emerges, some say that the debt must be paid because a debt that is certain, requires certain payment.
I think there is an equivocation here, however. If I am doubtful about having paid a debt, it is false that the debt remains certain. The debt was certain at the beginning, but as soon as I doubt whether I have paid it, I necessarily doubt about the debt which is then uncertain for me. What must be done?

First, I must find the source of my doubt. If it has arisen solely from my own fault or serious negligence, it should not be allowed to cause possible harm to my creditor. It is fitting in this case that I should take the safest step and pay the debt.

639. If the doubt arises through no fault of mine, I then run the risk of harming myself if I pay, and harming the creditor if I do not pay. It seems altogether fitting that in this case I should pay 'proportionally to the doubt',(419) dividing the danger of harm in two as equity requires.

III

640. If a person doubts whether he is in debt, must he pay the debt?

It is always necessary to begin by making every effort to remove the doubt. If, however, it cannot be solved, some distinctions have to be made:

1. The difficulty may occur relative to the nature of the title to the debt, that is, the validity of the title itself may be in doubt. But if the title has not yet been established, no one can have any right and I do no harm to anyone by not paying.

641. 2. My difficulty is extraneous to the title, and arises from mere doubt about my having paid. The conclusion is the same as in the previous case.

642. 3. The doubt occurs about the existence of the title. I am uncertain if there is a title (although if there were, that title would be valid), and once more the doubt either arises from my own fault or not. In the first case, I must avoid the danger of causing harm to another through my own fault, and must therefore pay the debt in full - if my fault was the full cause of the doubt. In the second case, I must pay only 'proportionally to the doubt'.

IV

643. Must the possessor in good faith make restitution if he begins to doubt? St. Alphonsus replies: 'If the doubt is equally balanced for and against, it is the common opinion,(420) with few dissenting, that the possessor has no obligations, according to rule 65(421) where we read: "When the case favours both sides equally, the possessor is in the stronger position", and in rule 128: "When the plea favours both sides equally, the possessor must be considered to have the stronger case."'(422)

But has this rule of law been well applied? Surely there is a great difference between the pronouncement made by a judge in the external forum in favour of another, and the pronouncement to be made by individuals in their own cause in the forum of conscience?

644. As far as I can see, we need to distinguish with the utmost care:

1. the external, public forum,
2. the external, private forum of the sacrament of confession,
3. the internal forum of conscience, and finally,
4. the divine forum.

Here we want to speak solely about the external, public formum, in which a society's positive laws are made, and about the internal forum of conscience.

645. First, let us examine the determining factor for societal laws in the case where one person possesses something, and another person maintains that the object is his own and unlawfully possessed by the other. We have to consider the possible circumstances of the case.

Two people litigate about dominion over some property. One of them is the de facto possesor. Both go to the judge declaring that they are certain they have a right over the thing. Both want to be in the right: the defendant maintains he lawfully possesses the thing, the plaintiff maintains that the de facto possession is unlawful. On his part, the judge directs his attention to the plaintiff who, he says, has to prove, for the sake of the public good, that the present peaceful possession of the thing is unlawful. The judge acknowledges the distinction between de facto and de jure possession, and the possibility that the former may not be sustained by the latter. But because no one must be disturbed in his possession without cause, the plaintiff must prove his case. Until this is done adequately, the judge must pronounce in favour of the status quo, and prohibit any disturbance of possession. This is the simple interpretation of the juridical rule: When the case favours both sides equally, the possessor is in the better position.

646. It is now clear

1. that the judgment in favour of the actual possessor is summary,(423) temporary,(424) and preparatory to the principal judgment,(425) as the jurists say. The judgment is not concerned, properly speaking, with the right of the parties, but with a presumption of right. That is, it does not decide that the de facto possessor has the right to the thing, but presumes that he has it until the contrary has been proved.(426) When the jurists say that 'possession in good faith produces a definite right', they are speaking about the de facto possession which cannot be proved to be held in bad faith. In such a case, possession must be maintained in the external forum as indicating a definite right, until the contrary can be proved. Clearly, we are dealing with 'a definite right relative to positive law and subject to human judgment, but nothing more.'

647. 2. that the reason which serves as a foundation for the temporary judgment, if I may call it that, in favour of the possessor (the judgment made by applying the rule, when the case favours both sides equally, the possessor is in the better position), is the public good, peace in society, the defence of tranquil enjoyment of their possessions by individual citizens, discouragement of harmful litigation, and other political ends.(427) These are not matters belonging to the order of interior justice, nor to the forum of individual conscience.

648. 3. Nevertheless, I should add that if peaceful possession in good faith has been maintained for a very lengthy period, prescription equivalent to a proof of one's right would arise even in natural law provided there were no indications of weakness in the original title granting possession, but only ignorance of the title. The jurists' tag 'Better no title than a bad title' would be applicable here. If there is total ignorance about the original title, it must be taken for granted that it did exist, but has been forgotten after such a length of time. Later exceptions prove nothing unless one can show, as I said, the weakness of the original title.

649. But can the rule, the possessor is in the better position, be applied also in the forum of conscience? Are the circumstances the same?

A number of theologians think it is possible to apply the principle in this case, but I take my stand with those - and they are many - who find the circumstances present in the exterior, public forum to be non-existent in the forum of conscience. Lack of these circumstances changes the very nature of the case.

In the external forum the human judge has to judge 'in accordance with allegations and proofs'. He does not know everything about the case, nor is he aware of interior convictions. Two litigants present themselves before him, both of whom appear to believe totally in their contrary claims to possession or for dispossession. The forum of conscience is very different. The possessor in good faith has now become uncertain about the legitimacy of his possession; he doubts, and has reasons for doubting about his title. He begins to think that his possession may be a mere fact, and that the right to the possession may belong to the other party. Whether the thing is in his possession, or that of another, is a material accident that neither makes nor destroys the moral right.

As soon as I doubt the lawfulness of my possession, therefore, I am certainly obliged to examine with all available means whether my de facto possession is indeed my possession, or whether I ought to restore it because it belongs to someone else. God-fearing Tobit offers us a good example of such a case. He was blind, and hearing the bleating of a kid in his house, wanted to know if it had been stolen: 'It is not stolen, is it? Return it to the owners; for it is not right to eat what is stolen.'(428) But what is to be done if the doubt remains?

650. I can offer no simple answer. As far as I can see, the nature and circumstances of each doubt, which differ from those producing baseless, despicable fear, are to be examined carefully.
First, if the doubt is merely negative, in the sense that it arises from ignorance about the original title to possession and not from any positive indication that the possession is insecure, no obligation is present because there is in fact doubt (cf. 518-528).

651. The same must be said if peaceful possession has lasted for a considerable period, as we already noted. Forgetfulness of the primitive title after a long period can reasonably be attributed to the title's antiquity, unless there is some clear evidence to the contrary.(429)

652. Actual possession, however, may not have lasted for long, and there may exist positive motives for doubting the title to possession. In this case, the de facto possessor must try to clarify the matter, and if necessary consult the person whom he thinks may have the right to possession. Finally, he should come to some compromise with the other party 'proptionally to the doubt' on the basis of proof - not purely legal proof, but proof founded on thorough discernment, and on true love and study of truth. In moral matters each of us should be as careful or even more careful of the rights of others as of his own.(430)

653. St. Alphonsus seems to favour this opinion somewhat when qualifying his own decision: 'The first opinion says that the actual possessor must make restitution when general assent is totally against him. This must be understood when possession is weak through doubt or initial doubtful faith, and does not seem to allow any legitimate presumption in favour of the possessor' (I also admit a presumption of right found in natural law. If St. Alphonsus has this in mind, we agree). 'In this case, the possessor is not sustained by a probability, and general assent holds that the thing in question is the other person's.'(431)

V

654. What is to be done if the possessor in good faith culpably neglects to clarify the matter after some positive doubt has arisen about the justice of his possession, and then finds that he can no longer identify the true owner of the thing in question?

St. Alphonsus says: 'I think it more likely to be true that such a de facto possesor is obliged to restore something either to the owner (doubt), or to the poor if the ownership is uncertain. The reason is that the actual possessor has culpably deprived the owner of the hope that he could have of what belonged to him. That hope can be valued at a price, and hence some damage has already been inflicted on the owner who held that hope with certainty. Nevertheless, I do not think that restitution should be made according to the quantity of the doubt in such a way that equal reasons would give the contendants half each. Less, and perhaps much less, should be available because the owner's hope could never be said to equal half the value of the thing in question. Equal probability of reasons on the one hand, and on the other the certain right of possession which favoured and still favours the possessor, indicates that much less than half should be given to compensate the possession of the hope which is obviously less valuable than the actual possession of the thing itself.'(432)

The last reason would have some weight if the word 'possession' were not used in two different senses. If we speak about the possession of a hope (although such a phrase contains a certain impropriety), we are dealing with the possession of some right, a possession which is unexceptionally just. But the possession of the thing in question, to which the possession of hope is opposed, is certain in fact, and dubious by right. The doubt exists precisely because it is uncertain whether de facto possession of the thing is just or unlawful and vitiated. This is what has to be clarified.

Hence, if my doubt about the lawful possession is equal relative to the two parties in contention, I must, all things considered, pay half, as in the case of insoluble doubt. Only thus, in cases of culpable neglect, can I be said not to have harmed more than assisted, granted that the right could have been verified as much in the other's favour as in mine.

Notes

(380) PE, cf. 13 ss., and elsewhere.

(381) PE, 91-100.

(382) By 'the moral development of mankind' I do not mean 'the moral perfecting of mankind', but only the development of understanding in the moral sphere, which is brought about as we discover different moral formulas and show their natural, hierarchical relationship. For a long description of this cf. supra, Book 2

(383) The connection must be necessary so that in desiring the action and the first law together no one may be in contradiction with himself.

(384) The moral object is always:

(385) One of the proofs of the divinity of Jesus Christ used against the Arians by the Fathers of the Church (and an excellent proof, I think) lay in their noting that Jesus is called TRUTH in the scriptures. This term was never applied to human beings or to angels. The famous Vulgate MS of the Benedictine monastery of Cava, between Naples and Salerno (according to Cardinal Mai a 7th century document at the latest, which Leo XII was very careful to have re-copied) contains the following gloss at 1 John 5: 6. 'It is the Spirit who witnesses that Jesus is the TRUTH' (according to the Cardinal's reading): 'If he is TRUTH, how can he be a creature? A creature can only be true. Again, we do not read that any of the angels is truth.' The reader will remember as a direct consequence of our system that creatures can be said to be true, but not truth (cf. Saggio sull'Idillio e sulla nuova letteratura italiana in Opusc. Filosof., vol. 1, p. 303 ss.).

(386) St. Thomas, in teaching that no one must be thought guilty until he is proved guilty, answers the objection that in such a case we could offend against the truth: 'In such a judgment, we should rather tend to consider a person good unless there is some obvious contrary reason for not doing so. If in judging well of another we judge falsely, we are not committing evil with our understanding, just as we do not perfect our intellect through knowing the truth about individual contingent matters. In judging well of someone, our good affection is at issue, not our understanding' (S.T., II-II, q. 60, art. 4, ad 2). For the rest, we should not pass judgment when we doubt, but preserve our trust in, or supposition of, another's goodness until something has been proved for or against it. This trust or hypothetical credence is, I think, what St. Thomas has in mind when he speaks about judgment.

(387) Certainty, 1112 ss.

(388) Ep. 20, 2.

(389) St. John's words: 'The light shines in darkness, and the darkness did not comprehend it' (1: [5]) could refer to this kind of rejection, when inspiration calls us to abandon a sinful life.

(390) St. Thomas makes the same point in Quodlib., 8, art 13: 'Anyone placing himself at risk in matters relative to salvation, sins'; and in Quodlib., 9, art. 15: 'Anyone placing himself at risk or in danger of committing mortal sin, sins mortally.' In the canons we find: 'In matters relative to eternal salvation, the safer way is to be taken if serious remorse of conscience is to be avoided' (Clement., bk. 5, t. 11, c. 1, pd Item quia praeter ea). Scotus also declares: 'If there is an easier way, that is, one over which we have greater power and which is a more sure way of re-acquiring grace, we must take it. To attempt a more difficult and less sure way when the easy one is open is equivalent to endangering and despising our own salvation' (in 4 Distinc. 17, quaest. unica).

(391) The condemned proposition states: 'A non-believer following a less probable opinion will be excused.' Such was the extent to which moralists were prepared to go!

(392) Th. M. De Consc., 43.

(393) Th. M. De Consc., n. 42.

(394) S.T., II-II, q. 60, art. 4.

(395) We can never, therefore, place ourselves in a proximate occasion of sin, whatever the foreseeable temporal advantage.

(396) The proposition states: 'In conferring the sacraments it is not unlawful to use a probable opinion about the validity of the sacrament unless the law, custom, or grave danger of harm forbids this. Hence the probable opinion may be used, but not in conferring baptism and priestly or episcopal ordination.'

(397) Lig. Th. M. De Cons., n. 52.

(398) 'A doctor is bound to use safer remedies for the sick. He cannot use less probable remedies, and neglect the more probable or safer remedy. In the use of remedies, the more probable is what is safer for the health of the sick person' (Lig. Th. M. De Cons., n. 44).

(399) 'A judge is bound to judge according to the more probable opinion; a divine and human precept obliges him to grant each person his rights in accordance with the greater weight of reason in the person's favour' (Lig. Th. De Cons., n. 47).

(400) Lig. Th. M. De Cons., n. 52.

(401) Del Possesso, c. 15, 115-117.

(402) Opusc. 73, De Usuris, in proemio.

(403) Quodl., 8, q. 6, art. 13.

(404) We note that St. Thomas himself considered this question in its relationship to natural and divine law, as well as to positive law. He says: 'This is a theological question in so far as it depends on divine law or NATURAL LAW, and a canonical question in so far as it depends on positive law. Hence contrary opinions are found in this matter amongst theologians, and amongst canon lawyers' (Quod., 9, q. 7, art. 15).

(405) Rom 1: [28].

(406) Apolog. pro Christ., c. 9. St. Augustine says: 'Any woman who acts in such a way that she cannot conceive as many children as she can bear should realise that she is guilty of murder each time she so acts' (Serm. 244, de temp.). Plato had already written: 'I insist that homosexuality should stop. Men who have sexual relationships with other men are deliberately slaying the human race. They sow their seed upon rock where it can never put down roots' (De Legib., 8).

(407) Sexual pleasure resulting from fantasies is dealt with by St. Bonaventure, who says: 'In this case, the theologians maintain, he sins mortally. His consent, although not true, can be interpreted as such . . . Nevertheless, this is not altogether certain. Some deny that mortal sin has been committed, even though the danger of sin has been adverted, where negligence in rejecting bad thoughts is combined with displeasure at their presence. Nevertheless, the safer way is to be followed whatever the truth of the matter' (In Sent. 2, d. 24, p. 2, art. 2, q. 2). Note, however, that St. Bonaventure is discussing the case of a person in whom pleasurable sexual fantasy is combined with knowledge of the danger present in entertaining it. We say this to avoid occasioning scruples in tender souls.

(408) For example, the decision of Lucius III (Decretal., bk 4, t. 21, c. 2): 'No spouse doubting the death of a first partner, should deny the debt when asked by the present partner, although it cannot be required spontaneously by the one in doubt.'

(409) Decretal., bk. 2, t. 27, c. 26. 'Lest damage be done to the law of marriage.'

(410) 'If they both consent to remain together, let the man take her at least as a sister, even if she is not his wife' (Celestine III in his reply: Decretal., bk. 4, t. 15, c. 5).

(411) Dig., bk. 34, t. 4, l. 3, pd7, and t. 5, l. 10. See also: Dig., bk. 43, t. 17, l. 3, and Decretal., bk. 3, t. 5, c. 20. The laws found in canon law, which deprive both persons of a prebend if doubt cannot be resolved about the true holder (and similar cases) (Decr. Greg., bk. 3, t. 5, c. 20; Decr., p. 1, d. 39, c. 8) are not merely juridical, but principally political laws, that is, intended for the public good.

(412) It is certain that Roman laws do not always contain merely juridical decisions pertaining to commutative justice, but often include in addition a political element leading to a decision dependent upon advantage to society as a whole, even though damage could result to the rational right of individuals. The Institutes of Justinian, for instance, sometimes cite public benefit as their motive for deciding a case. For example, limits are set to the ill-treatment meted out by owners to their slaves not in order to defend the rights of the slaves, who have none, but for the public good: 'It is not in the interests of the good of the state' (this is the stated motive) 'that anyone should misuse his possessions' (Instit., bk. 1, tit. 8). Such a motive indicates the erroneous principles upon which a great part of Roman legislation is based. The motive presupposes that 'a person has the right to use badly what he possesses'. He is forbidden the bad use of his possessions only by the law providing for the public good. See also La Società ed il suo fine, bk. 1, c. 12.

(413) Cons. 352, in f., bk. 4. See also Boerio, Dec. 42, n. 39.

(414) The gloss in c. Licet causam, in ver. Uti possidetis, de probat. (Decretal., bk. 2, t. 19, c. 9). Likewise Matth. Matthesil, in opusc. electionis verioris opinionis (inter tractatus communes), n. 10.

(415) Cod., bk. 6, t. 24, l. 4.

(416) Cons., 110, Inter Cons. Anchar. incipien. Inter contraria (See also, Felinus in c. 1, n. 55, cf. second note, Super eod.; and Boer. decis. 155, n. 24. See also In tanto discrimine opinionum). Antonio de Butrio and Peter of Ancharano use the judgment of Solomom as an example. They observe that although Solomon had proposed the division of the child only as a test, that judgment nevertheless was based on a true principle: where the rights of the parties are equally doubtful, it is equitable to divide the thing in contention.

(417) Decretal., bk. 1, t. 29, c. 4, pd1; Dig., bk. 28, t. 8, l. 1, pd2.

(418) Baldo (in c. 2, pd Indices, n. 5. De pace juram. firma.) says that the will of the judge must be 'according to the mind of the law, of right and of reason, and finally according to equity.' Thus the best jurists explain how the judge's decision is never left wholly dependent upon his will, but has to be guided by laws. See Aret. in l. Videamus, pd Deferre n. 7, ff. de in litem. jur.; in Jas. in d. 1. Si sic legatum, n. 10. de l. 1; in Felinus, col. 7, circ. med. sup. eod; and in Menoch. de arbitr. Judic. bk. 1, q. 8.

(419) Layman (bk. 1, tr. 1. c. 2), Diana (p. 4, tr. 3, v. 35). Sporer (De Cons., c. 1, n. 83) and Taralusino, all cited by St. Alphonsus (Th. M. De Cons., n. 34), hold that one should pay proportionally to the doubt only when the creditor doubts whether he has been paid. If the creditor holds for certain that he has not been paid, the debtor must pay the whole sum.

(420) He cites Sanchez, in Dec., bk. 1, c. 10, n. 9.

(421) De Reg. jur in 6 Decretal., bk. 5, t. 12.

(422) Dig., bk. 50, t. 18; Th. M. De Cons., n. 35.

(423) Rota Divers. decis. 641, n. 8, p. 1.

(424) Cagnol., in C. In pari num 6 ff. de reg. jur., Caesar. de Grassis etc.

(425) Bk. Interim. Rota etc., Covarruvias.

(426) See Wig., exam. 3, De Consc., and Lugo, De Justitia, d. 17, n. 94.

(427) According to the law Aequissimum, pd de usufructu, the reason for the law about de facto possession is to prevent the use of armed violence on the part of litigants. And Prospero Fagnani (In Decret., bk. 1, c. 5) says: 'Moreover, in the interdict Uti possidedtis or Retinendae, the praetor safeguards the possessor from violent ejection on the part of the litigator (Dig., bk. 43, t. 17, leg. 1 in princip.), and issues his interdict when the de facto possessor is disturbed by someone (Cod., bk. 8, t. 6, l. 1 . . . Lap. allegat. 73, in q. n. 3, vers. Iste videtur, et n. 4, vers. Tertiam Probat.), or when two parties contend possession (Bartol. in dict. leg. 1, pd. Hujus autem interdicti; Anchar. cons. 274, ad declarationem in princ.).

(428) Tobit 2: [13]. Saintly Tobit was putting into practice, as everyone should, the divine teaching: 'Keep my commandments and live, keep my teachings as the APPLE of your eye' (Prov 7: [2]).

(429) This is prescription as understood in natural and civil law. When prescription is applied to chattels by positive law after a short period, the aim seems to be a political disposition relative to public good. It seeks 1. to eliminate difficulties as soon as possible; 2. to stimulate people to care for their own belongings. But if in such a case the law does not support the right in the person who holds it, it does not justify the other party if independently of the law he acts unjustly. Hence, as far as I can se, this short prescription alone gives no one any true right.

(430) Some moralists, not content with applying to conscience the rule, 'When the case favours both sides equally, the possessor is in the better position', which is valid only for the external forum, enlarge and extend it to every de facto possessor, even when more positive, valid reasons are opposed to this. St. Alphonsus says: 'The principal reason for this opinion is that a true right is acquired through possession in good faith' (Th. M. De Cons., n. 36). But this is false. Possession of something not free gives a legal presumption of right, but not the right itself. The possessor acquires only a merely legal and provisory right which entitles him not to be disturbed in his possession by force. This is true even to the extent that any betterment in what is held in good faith belongs to the true owner to whom an account must be rendered as soon as he is discovered and recognised as the owner.

(431) Th. M. De Cons., n. 36.

(432) Th. M. De Cons., n. 37.