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Chapter 4

Solving A Doubt About The Extrinsic Unlawfulness Of An Action

655. Before continuing, it will be useful to summarise what we have said and see its connection with the present chapter.
The first question was: 'How must we act when we doubt about the unlawfulness of an action?', that is, when a conscience has not yet been formed about the lawfulness of our action. Our general reply followed the common opinion of theologians: 'No action may be performed unless a conscience has been formed about its lawfulness' (cf. 471, 472).

This pointed to a more practical question: 'How do we form this conscience?', and again we answered generally that: 'The cause of the doubt must be carefully examined. If investigation and counsel show the cause to be ineffective and baseless, the doubt is immediately dissolved and we can act freely' (cf. 537-544). If, however, we cannot dispel from our mind and spirit the doubt about the action's unlawfulness, but find it well founded, we cannot act for the very clear reason mentioned by St. Thomas: 'Anyone who neglects dangers, seems to spurn the harm that can be caused by the dangers.'(433)

Ater answering the question in general, we descended to particulars. We saw that for an action to be lawful, a doubt about its unlawfulness had to be resolved absolutely. This required careful examination to see whether the cause could in fact produce a true doubt about the unlawfulness. Next, in order to investigate some rules for carefully making the examination, we sought the causes which can render actions either really or apparently unlawful. This was the most difficult and important question we proposed.

Causes rendering actions unlawful, we said, are divided into two classes, which produce their effect either through an intrinsic disorder inherent in the action, or through some reason extrinsic to the action.(434) In the second case the action is lawful considered in itself; the unlawfulness comes from an external, accidental cause. If the doubtful unlawfulness is intrinsic to an action, the only way to remove the unlawfulness and the doubt is to show that the suspected intrinsic unlawfulness does not exist. But as long as we have a well founded doubt about the intrinsic evil of an action, we must follow the principle given initially: 'We must never expose ourselves to doing something unlawful.'

We concluded, therefore, that no reflective principle of any kind exists allowing us to perform lawfully an action whose intrinsic evil is justly doubted. Indeed, there are principles which can be called reflective, certain and evident, which indicate that what is doubtfully unlawful because of intrinsic unlawfulness is certainly unlawful (cf. 564-580).

These certain, evident principles are:

1. Moral evil must be avoided absolutely, totally and before every other evil. Every possibility of moral evil must be excluded by absolute will.

2. No human being may expose himself to harming an intelligent nature, and must therefore avoid every danger of doing so (a consequence of the first principle).

3. Likewise, no human being may expose himself to the danger of causing any harm to an intelligent nature (another consequence of the first principle).

These laws are certain, natural and immutable.

656. Consequently we must note that the question is not a matter of counsel, as some think,(435) but of duty.

657. Nor is it a matter of simple prudence, as others hold who seek, among various means available to obtain an end, only the means best suited to the end. We are dealing with justice, in which one path alone may be chosen; probability is insufficient - there must be certainty.
Whenever, therefore, the cause of unlawfulness is intrinsic to an action, the cause, even if doubtful, certainly and effectively renders the action unlawful. Conscience is formed on this reflective principle, and by means of it must judge the action unlawful.
This is the point our discussion had reached. We must now examine the extrinsic causes of the unlawfulness of actions. The question we will discuss is: do doubtful, uncertain, extrinsic causes bind us and render an action certainly unlawful?

658. There are two extrinsic causes that can render unlawful an action in itself lawful:

1. Positive law which forbids the action.
2. The physical connection between what is essentially moral and what is not moral.

659. When positive law forbids an action, the action is unlawful; when positive law commands an action, omission of the action is unlawful. There is no difficulty here.

660. We must explain rather how an action is rendered unlawful by means of its physical connection with what is essentially moral. To understand this, we must recall our proposition that the essence of morality consists in the practical acknowledgement of intelligent being; in our view, nothing else is essentially moral.
But this acknowledgement and practical esteem has a physical bond with human affections, which have a physical bond with external actions. Therefore, just as the acknowledgement is determined and required by the law, so are the affections(436) which are connected with the acknowledgement. In the same way the external actions are determined by the law because they are physical consequences of the affections.

661. If the human being were in a perfectly constituted state, without any disorder, the physical connection between affections and practical esteem, and between actions and affections, would be so reliable and effective that a just, upright practical esteem would be followed by spontaneous affections which in turn would be followed by spontaneous actions. We would recognise at once which affections belong to the just evaluation we make of things, and which actions belong to just affections. We would necessarily want the affections and their consequent actions to be whatever our esteem wanted them to be, because we would want everything to be ordered and all our faculties to serve the truth we mentally conceive.

662. But in our present disordered state this does not always happen. The emotions we feel do not obey the practical esteem, and our external actions do not always correspond exactly to our emotions. It is very often difficult to know what degree and kind of emotions, if any, should follow practical esteem, and what words and external actions should correspond to emotions and esteem. We remain uncertain and harbour many doubts about the uprightness of some external actions, because we do not clearly see their connection with the intimate moral disposition of our spirit, which consists precisely in our practical esteem. We must therefore ask: 'In this kind of doubt are we under any kind of moral obligation?'

663. I will deal with this question first, and then with the question of unlawfulness.
It is my opinion that when external actions inflict unjust harm on intelligent natures, the unlawfulness of the actions is no longer doubtful but certain, because it comes from an evil practical esteem. But if the acknowledgement, or practical esteem, is just and upright, a doubt whether an external action corresponds to it or not does not seem a valid cause for rendering unlawful an action which in itself is harmless and innocent.

I believe that such actions, even when they do not correspond by their nature to an upright practical esteem, can be material sins only, as long as they are not the effects of a sinful interior esteem. At most they are an imperfection or defect of our human condition, sometimes accompanied by venial offence. External, material actions do not have their own morality but receive it from the intention with which they are done, from the willed principle producing them. Hence, their morality, whether good or blameworthy, is entirely derivative, so that whatever real moral value or goodness they have comes from the goodness of the interior evaluation or esteem, and any blameworthiness from the malice of the interior esteem or evaluation. Thus, when the estimation is sound and unbiased, whatever else is human is never formal but only material sin, or at most venial sin.

664. This explains the difference between Mosaic and Christian law. Mosaic law, which sought to establish legal justice as a figure of true justice, tried hard to govern external actions by precepts (another purpose, of course, was to instruct the Hebrew nation about the relationship between external things and internal morality. This instruction was necessary for their progress, and they could never have gained it of themselves). Christian law, on the other hand, whose purpose is not figurative but true justice, that is, morality properly understood, summed up the whole law in the evaluative love of the two precepts of charity, and thus completely forsook the great mass of Mosaic commandments, which concerned external actions.

665. Consequently, a doubt whether an external action is obligatory because connected with an obligatory act - for example, whether the obligation to genuflect is connected with the spiritual act of adoration - is not a sufficient cause for making the action obligatory or its omission unlawful, provided the evaluative affection is entirely internal, as it must be. The non-correspondence of the external action, or even of our emotions, is a deficiency and imperfection of damaged nature, but not actual sin. We are not obliged to know this connection (this is very often impossible), but we are obliged to safeguard entirely and always the evaluative love, which the Fathers called the 'abbreviated word'(437) because it is truly the summing-up of the whole law, and the essence of morality.

666. The other external cause of the unlawfulness of an action is positive law. When the cause of doubt about unlawfulness has its roots in whether a positive law forbids the action, is the doubt about the action's unlawfulness sufficient to render the action certainly unlawful?

We must distinguish two very different cases. Doubt about the existence or binding force of a law arises either from the essential conditions of the law itself or solely from our lack of information about the law. On the one hand, I can have perfect knowledge of everything concerning the nature of the law, yet be doubtful about its existence or obligation. On the other hand, my imperfect knowledge of the nature of the law could cause me to doubt its existence and binding force. I will deal with each case separately, starting with the second.

667. The following are the cases when, because of the law's intrinsic defects, a doubt arises about its existence or binding force:

1. if the acts by which the law was formed are doubtful;
2. if the doubt is about some defect in the sense of the law so that, in a particular case, the law ceases or does not obligate;
3. if the exposition of the law is so defective that some cases are not seen to be clearly covered by it;
4. finally, if there is cause for doubting that a previously binding law continues to exist or bind.

668. Each case is different and can be subdivided, and all the subdivisions involve a doubt 'about the existence or binding force of a law'. Is it possible then, without examining each case individually, to give a safe answer to our question: 'How must conscience be formed when doubt about a positive law is the cause of doubt about the unlawfulness of an action'?

For myself I feel unable to reply; I could neither affirm nor deny that there is a general solution for so vast and complex a problem without first examining and solving each particular case and comparing the solutions. This is the only safe path to find a general solution, and in my opinion moralists have never taken it. Here, perhaps, lies the origin of so many differences of opinion: each thinker seeks a universal solution without using a rigorous method to obtain it by comparing the particular solutions. Whatever the explanation, I will attempt to answer the four questions individually, and then, by comparing the results, seek a general solution.

669. Positive law comes into existence by the following acts:

1. an act of will by the legislator;
2. the exposition of the law;
3. promulgation of the law;
If one of these acts is lacking, the law does not exist and therefore does not bind. But if we doubt about any of them, does the law still bind?

670. In the first place, if the will of the legislator is certain, neither the exposition nor the promulgation of the law can be doubted. Hence, when the promulgation is certain, no other indication is generally needed of the will of the legislator - the promulgation itself is the authentic proof.
But there could be proof that the law had been extorted from the legislator by violence, or fear, or deception - 'obreptitiously' or 'subreptitiously', in legal language. If the proof were certain, the law would not be law because the will of the legislator is lacking. But if, after full consideration of the case, a real, positive doubt remains about the will of the legislator, the law has no standing, because the legislator's will, which is the law, is unknown.

671. But we must be careful not to err. I said that if doubt about the will of the legislator is to be effective in removing the obligating force of the law, the doubt must still persist after full consideration of the case. Due weight must also be been given to whether the law has been correctly promulgated. Only after this can we establish for certain the principle that 'the will of the legislator must be known with practical certainty, or at least with sufficient probability to produce in us a reasonable, firm opinionative asssent.' Without the legislator's will, the law lacks the first of its essential constitutives; only the material part remains, without the obligating force which gives it vitality.

672. We turn now to consider doubt about the promulgation of a law. Authors who doubt whether promulgation belongs to the essence of law,(438) have evidently not understood how natural law, founded on the natural order, differs from positive law, founded on the will of a legislator. The natural order is per se an obligating principle, since the necessity to observe it is contained within it. Hence, St. Thomas says the common precepts of nature do not need promulgation:(439) of themselves they produce obligation in all those who have been informed about them.

673. On the other hand the will of the legislator does not oblige per se, but through the act of command by which it is communicated. The legislator could not wish his will to be done before he has communicated it. If he did, he would be acting absurdly. The act of command is itself the promulgation instituting the law. Thus Gratian correctly says: 'Laws are instituted when they are promulgated.'(440)

674. We must therefore distinguish being informed of a law from promulgation of the law. Once informed of the natural law, I am necessarily subject to obligation because the natural order is law per se. If, however, I am informed that the ruler has conceived, drafted and signed a law, I am not obliged by it until it has been intimated to me, that is, promulgated to the community for which it is made. The concept alone has no force of obligation, and cannot therefore be law. It becomes law by the declarative act called promulgation.(441) This declaration or promulgation is therefore necessarily intrinsic to positive law.

675. But we must also note that human legislators have clothed the act of intimation required by the nature of the matter in certain formalities and have declared that the law is promulgated and binding only when accompanied by them. For example, according to Roman legislation, a law had no force in the provinces unless promulgated in each of them. Moreover, the law did not apply until two months after its publication.(442) In some states a law must be registered in the senate before it has binding force. Thus, everything necessary for the promulgation of a law to be binding is also necessary for the existence of the law.

676. Consequently, if publication is for some reason doubtful, the law is also doubtful. If the law is doubtful, the act of command on the part of the legislator is doubtful, and carries no obligation. We must also bear in mind that if the law is to be binding, certainty, or at least sufficient probability, is required to persuade us reasonably and intimately of the correctness of the promulgation. Lacking this, no law has been constituted. Our conclusion therefore is: 'A law must be constituted in order to be valid.'

677. Clearly the same principle governing positive laws also governs every kind of mandate. A mandate, by which a person receives authority and power, must allow no reasonable exception to its necessary observance. It is not sufficient for a mandate to be probable or very probable. If it is to have binding force, it must be fully certain, as canon law explicitly lays down. To the following question (asked about a man pretending to be a delegate of the Apostolic See): 'When you are uncertain about the validity of another's apostolic mandate, must you execute the mandate?', the Pope replied: 'Unless you consider the mandate of the Apostolic See to be CERTAIN, you are not obliged to carry out what is commanded.'(443)

678. If on sound evidence we doubt whether a positive law opposes a higher law - for instance, the natural law, or positive divine law, or even a church law concerned with faith and morals - the doubt is solved by one of the ordinary rules applicable when laws clash.
The law that binds us in such a doubt is solely the higher law, because we must not expose ourselves to offending the greater law by observing the lesser. Nor can we say that we would certainly transgress the lesser law simply by doubt about not transgressing the greater. If it is doubtful that a positive law offends against a higher law, it is equally doubtful that it has binding force. The positive law, therefore, is doubtfully, not certainly transgressed, just as it doubtfully exists.

679. Nevertheless, we must do all we can without passion to solve the doubt before we set the law aside, and we must consider all the consequences of not obeying the law.

680. If, however, we have no doubt about a law clashing with a higher law, we may still doubt its usefulness.(444) In this case, we must presume in favour of the legislator whose responsibility it is to judge the usefulness of laws, as we said. We must act in the same way in all cases where judgment about the justice of a matter is the responsibility of the person in command, as, for instance, in judging the justice of a war.

681. Another weakness of positive laws is the obscurity of their exposition. It is extremely difficult to draft a law so that it covers all the cases envisaged by the legislator, and excludes all others. When there is doubt whether a case is included in the exposition of a law and it is not possible to consult the legislator, the existence of the law is doubtful and has no binding force. It is not sufficient for the law to probably cover the case. We must be certain that it does so, or at least that its probability must be great enough to produce complete opinionative assent. Thus, if a law forbids the eating of meat, and we are faced with an animal or food without being able to decide from the words of the law or from authoritative explanations whether it falls under the law, it is not forbidden by the law.

682. If, all things considered, doubt about the abrogation or cessation of a law (for any reason whatsoever) renders the actual existence of the law uncertain, then the law has lost its binding force. We cannot say that the law is in possession, and therefore that certainty is required to dispossess it, because from the moment we can firmly doubt its existence or actual obligation, the law is not truly in possession.(445)

683. From what has been said we can draw the following general conclusion:
'Every time the existence of a law is not CERTAIN, the law has no binding force. Doubt about its existence, however, must not come from our ignorance but from a defect in the law itself. This defect must be present either 1. in the acts by which the law is instituted; or 2. in its own content; or 3. in its exposition; or 4. it must come from one of the causes that make the law cease, so that the law is uncertain in itself, not relative to us. Hence:
'When we doubt the unlawfulness of an action solely because of a doubtful positive law, we can form our conscience by means of the reflective principle mentioned above, and act freely.'

684. We must remember that many positive laws are not only positive but also a mixture of positive and natural law, which they explain.

685. To solve any doubt in this case, we have to separate the positive from the natural element, applying to the natural element the rule we have given for natural laws, and to the positive, the rules above, which appertain solely to positive laws.

686. We can now understand the truth, and the limits, of many of those time-honoured rules used by scholars or in canon law to solve cases of doubtful obligation. For example:

1. 'A doubtful law does not oblige', 'An uncertain law does not impose a certain obligation', 'A doubtful law is not a law'. These principles, which all express the same thing, seem clear and evident, but are valid only for positive law. They do not cover uncertainty about the law relative to us, which comes from our ignorance. This uncertainty, strictly speaking, is not uncertainty about the law but our uncertainty about the law, a subject we shall discuss in a moment.

2. 'What is disadvantageous must be restricted, what is favourable, extended.'(446) This principle is developed from what has been said, and presupposes that a law is doubtful in itself. If a law does not in fact bind in its doubtful part, it cannot impose a burden on anyone.

3. 'A less strict interpretation is to be given where a penalty is attached.'(447) This rule is a specific case of the previous rule, and comes from the same principle that the doubtful part of a law does not oblige nor impose a burden.

687. All these rules were applied without dispute, and received the support of the Fathers. But they have to be applied strictly within the limits I have given, that is, when they refer to 'a positive law doubtful in itself.' Exceeding this limit has engendered new controversies, and good sense has reacted against it, despite the claim that the broader extension given to the question was due only to new conclusions reached by logical necessity.

688. I conclude by quoting two ancient authorities who support these rules.
Lactantius says: 'Only a very foolish person wants to obey commands whose truth or falsehood is doubted.'(448) This passage refers to the moral teachings of philosophers, but its meaning includes the truth expressed in the first of the rules above.
St. Gregory Nazianzen, replying to a claim that St. Paul prohibited the remarriage of widows after baptism, says: 'What argument do you use to support your claim? You must prove that the case is so, or if you cannot, do not condemn. If the matter is doubtful, humanity and gentleness must prevail.'(449) This principle is contained in the second rule above.

689. From all we have said it is clear that many theologians, in their praiseworthy effort to avoid a harmful laxism, were unjust to probabilism by condemning it totally. Probabilism, however, is partly true; if it were not, it would not have attracted the attention of so many moralists [App. no. 9]. The important thing is to distinguish the true from the false.

690. One cause of the confusion is the too extended meaning of the word 'opinion', the use of which does not determine the object of the opinion. Does a doubtful or probable opinion concern the unlawfulness of an action, the existence of the law, the application of the law or something else? The broad, indetermined meaning of 'probable opinion' is not fixed by accurate distinctions; instead it produces an incredible mixture of conclusions and a labyrinthine series of arguments which cannot be reconciled and from which it is totally impossible to extricate oneself.

691. Consequently, we deemed it necessary first to distinguish opinion about the unlawfulness of an action. We agreed with the majority of scholars that opinion in this case, whether probable or more probable, cannot be followed, because certainty, not opinion, is required. We also said that if the doubt or the probability of an action concerns the intrinsic unlawfulness of the action, no reflective principle can solve the doubt and remove the uncertainty; the doubt must be overcome by direct reasons, or the action omitted.

We then examined opinion about the existence of a positive law, and said that such opinion, whether doubtful, probable or more probable, has no binding force. Only a certain positive law can produce a certain obligation.
In this way we found the true part of probabilism, which we were able to separate from the rest of the system by asking: 'Which opinion in favour of freedom can be followed?', and defining this opinion as 'that whose object is the uncertainty of a law in itself, an uncertainty caused by an intrinsic defect in the law.'

692. We thus obtained our final conclusion: we are not obliged to follow an equally probable opinion in favour of the law, or a more probable opinion. As long as we have a firm doubt 'about the intrinsic defect of the law, the law neither exists nor obliges.' This is true even if the defect nullifying the law more probably does not exist - no amount of probability can bind us; we must know for certain that the defect does not exist.

693. To my mind, this teaching was always followed in practice by the truly great teachers. I quote for example the opinion of Benedict XIV advanced by probabilists as proof of their system: 'Where scholars vary greatly in their opinions, it is safe to follow the more favourable opinion.' Benedict expresses this opinion in his De Synodo Diocesana, bk. 7, c. 11, n. 3, where he discusses the question: 'Can viaticum be given to a dying person who out of devotion received communion in the morning?' It is clear that disagreement among scholars is a reason for concluding that church law is not certain about the refusal of viaticum to a person who out of devotion has received the Eucharist the same day. The Pope does not prescribe the observance of the more probable opinion in the matter. He allows complete freedom to choose the opinion that seems more pleasing, whether it is less probable or, because of the number and authority of scholars, more probable. The existence of the law remains seriously doubtful and therefore has no force of obligation. If the action is lawful, we are free to do it or omit it. If the action is good, doing it is laudable but not obligatory. If it seems better to omit it, it will be laudable but not obligatory to refrain from the action.

694. We have distinguished promulgation of positive law from information about the law (cf. 674). They produce different effects. Promulgation and innocent lack of information produce legal effects; information about promulgated law produces moral effects.

695. If the positive law is promulgated, the judge passes sentence as if it were known to all, because a term has to be established beyond which ignorance of the law cannot be pleaded. Without this term, anyone could excuse himself in this way from observance of the law. Hence, public order required that promulgation be made according to certain forms and fixed periods of time, based on the principle that 'everyone must be able to know the law', a natural condition of just promulgation. Later, the maxim was established that 'ignorance of the law does not excuse', in order to preclude false excuses and to pressure people into being well instructed about laws as the laws were promulgated. Thus, the need for instruction became a social duty.

696. We clearly see, therefore, that the principle 'Ignorance of the law does not excuse' appertains to external and purely legal rights (unless, as I have said, the ignorance is culpable), and was often inappropriately applied by moralists to settle questions in the forum of conscience.

697. Thus, the legal effects of a law legitimately promulgated but unknown are penalties and punitive factors, such as invalidation of contracts, disqualification of persons, and so on. They are decided by the legislator, as we see in impediments to marriage, irregularities, etc., and, despite ignorance, are real effects of the law although they do not necessarily presuppose fault.

698. We can omit the discussion of legal effects because they do not come within the scope of our question. Our concern is conscience, a purely moral question.

699. We asked: 'If through ignorance we doubt the lawfulness of an action, not in itself but because forbidden by a positive law, can we use the principle we have stated to judge the action lawful and form our conscience accordingly?'
In this state of mind, we must first of all take every care to remove the doubt and seek the truth 'with all the means in our power'. We must note, however, that because we are dealing with a law that does not oblige in serious difficulty, we are not obliged to carry out the examination if it imposes serious difficulty.
What is to be done however if, after making this examination, the matter is still not clear? What judgment of conscience should we make?

700. The ignorance which makes us doubtful whether an action under consideration, or its omission, is prohibited by a positive law must be classified as culpable and inculpable. I say culpable or inculpable and not vincible or invincible because ignorance could be invincible here and now but vincible and culpable when we neglected to inform ourselves. In our case the ignorance is considered invincible at present because everything possible had been done (unsuccessfully) to dispel it.

701. It is my opinion that when a definite doubt persists arising from ignorance we certainly know is culpable, we must first repent of negligence in knowing our duties.

702. If the law concerns the public good in such a way that the performance or omission of the doubtful action could apparently damage this good, we must follow the safer action. In this way we avoid defrauding the public (through our own fault) of what, as a result of the law, they may have a right to.

703. If the positive law in question, however, concerns our private good (such as the duty to hear Mass or to fast) rather than public order and good, it would be enough, in my opinion, to follow the more probable action. Hence, if the existence of the law is more probable, the law must be carried out; if the non-existence of the law is more probable, we can act. However, if the probability were equal for both sides, we would have to take the safer action, and fulfil as much of the law as we could.

704. The reason explaining this last opinion is as follows. If we know that we ourselves are responsible for our uncertainty about the prohibition of an action or its omission, we must do all we can to prevent our fault producing an effect contrary to the law, because we should not gain any advantage or right from the fault. Sorrow for our past negligence, or care taken to overcome the doubt is not enough; they are only a part of our duty, not the total amendment we must and can make.

If we are truly sorrow for our first fault, we will use every means in our power not to break the law. And the means available to us for avoiding this danger is to perform the safer action. In this way we avoid the possibility of doing something against the law, and fully redress the initial evil. It seems to me an obvious principle that if sorrow is sincere, 'anyone who has sinned culpably, must not only oppose the evil he has done but also all consequent evils, which he should prevent with all his might.'

705. Nor is it true to say that in such a case the infringement of the positive law would be only material. The infringement would be willed and therefore culpable, because its cause is culpable ignorance and an accommodating will which freely allows culpable ignorance to produce non-observance of the law.

706. It seems to me St. Thomas confirms this solution when he says: 'An erroneous conscience will not serve to absolve us if its sin is present in the error itself, as for example when it errs about the things it is required to know.'(450) Two sins are clearly distinguished here: ignorance ('if its sin is present in the error itself') and the action done in ignorance ('will not serve to absolve us'). This second sin can obviously be avoided by following the safer action. We are obliged to do this in order to nullify the first error which, although it cannot be nullified in itself, can at least be nullified in its consequences.(451)

707. It will be helpful to note that properly speaking the object of the sacrifices required by the Mosaic law for sins of ignorance(452) was not ignorance but the consequences or actual transgression of Mosaic positive laws due to ignorance. This shows that both the cause and the effect are imputed when the effect can be, but is not, avoided; and it can be avoided every time we suspect it.

708. It may be objected that if this reasoning applies whenever the existence of a law is of equal doubt as the non-existence of the law, it must also apply when the existence is less probable. If we do not execute the law, we willingly expose ourselves to the risk of falling short of what is commanded. The following reasons will show that in my opinion this is not true.

If I observe a positive law whenever my ignorance makes me uncertain about its existence (whatever the degree of probability of its existence), I will certainly bring upon myself more obligations than the law imposes. I am definitely not obliged to do that. On the other hand, if I observe the law every time its existence is more probable, and consider myself not obliged by it whenever it is less probable, there will be occasions when I will not be doing what the law commands, but also occasions when, out of respect for the legislator, I will be doing more, because I will be doing what is not commanded. It seems that equity would allow this balance between the duties I do not undertake and the non-duties I do undertake. In this way, I would make up fully for what I owe to the law and out of respect for the legislator's will. Moreover, this would seem a reasonable interpretation of the intention of a good legislator, who wishes his intention be carried out according to my ability, but does not intend me to burden myself more than the other members of the community for whom the law is made. If I had to observe a law every time I were uncertain about its existence (even if the existence were less probable), an uncertain law would oblige equally with a certain law, which is absurd.

709. I conclude with an observation that seems to me of the greatest practical importance. If the fault I committed by not informing myself at the appropriate time about the positive law were a minor fault and not seriously imputable, any resulting obligation to observe the law could only be minor. But this must be noted in conjunction with what is said in the next section about inculpable ignorance.

710. An insoluble doubt arising from inculpable ignorance concerns:

1. the existence of a law; or
2. some fact which is a necessary condition for the law's existence and obligation.

711. Doubt about the existence of a law can be present either before or after our action.

712. In the case of doubt after the action, it is clear that the law either determines a fixed time for its observance, or not.
If the law determines a period of time, as in the case of fasting for a fixed number of days, then clearly, once the period is completed, the law no longer exists.
If the law has no fixed period for its observance, what we did in the past was not sinful because we acted in good faith, without any doubt about the existence of the law. For any future action, the doubt must be solved by the rule which governs the case of doubt arising before action.

713. If this doubt remains, despite our every effort to resolve it, we can apply all I have said about uncertain positive law in itself. To oblige in conscience, positive law must be: 1. promulgated, and 2. known. If knowledge of the law is lacking, without our fault, the law does not exist for us, although it obliges others who do know it. The knowledge must be certain or so probable that it gives us a reasonable opinionative assent. But if a contrary doubt remains, the law has no force to oblige; it does not yet exist for us, even though greater probability supports the law. Here too, we can lawfully take as guide of our action the less probable opinion about the existence of the law.

714. Sometimes our doubt is not really about the existence of a positive law but about the existence of some fact which is a condition of the law's obligation. Perhaps there is no positive law whose obligating force is not conditioned by the verification of some fact.

The problem is: if I doubt and cannot verify the facts on which the obligation of a law depends, am I obliged to the safer action? We take for granted that the law contains no invalidating defect, and also that we know it fully - I simply doubt the truth of the facts conditioning the law, and am totally unable to solve the doubt. What am I to do?

715. These facts or conditions principally concern place, time, persons and actions. Some actions themselves constitute the title of obligation, for example, a vow; others do not, but are the object, or matter, or occasion of the law. A crime, for example, is the occasion by which a penal law comes into force.

716. These facts, or conditions, which actuate the law also give rise to another classification more directly concerned with our problem. Some facts, unless they are verified before the application of the law, would or could harm or disconcert third parties; other facts are such that even without their verification, the execution of the law neither harms nor troubles others, but rather produces good. Verification is needed if, for example, a person is accused of a crime, or claims some authority, dignity, merit or right to recompense. It is not needed relative to the time or place of an obligatory good work. For example, the time or place for fasting, which is always good, need not be verified.

717. It is clear therefore that I cannot apply a law as long as I lack certainty and reliability about the first kind of such facts. This solution is contained in what we have said about natural law. In the case of the second kind, I may or may not observe the law.

718. But if I may or may not, must I observe it?

We must distinguish: the fact is either 1. a circumstance prescribed in order that we may lawfully carry out some action, or 2. a circumstance that merely occasions the application of a positive law, activating the law or not. In the first case, we cannot use the freedom to act given by the law, unless the certainty of the circumstance is at least opinionative certainty, precisely because without this certainty the action is forbidden. For example, reception of Communion is permitted on condition that we are fasting from midnight [as the old law stated]. We must be certain that we have not broken our fast after midnight.(453)

719. However I must point out that in prescribing these circumstances and conditions, positive law does not always require the strictest interpretation. Approved custom and other indications must reveal the intention of the law or of the legislator. Sometimes a strict interpretation is clearly indicated by the law itself; often the nature of the case is such that the circumstances clearly belong to the substance of the precept. In this case we must strictly adhere to it. An example would be the death of the first spouse as a condition imposed by the law on anyone wishing to enter a second marriage.

720. If the fact is a circumstance which only occasions the application of the law, it either directly posits a title of obligation, as we saw in the case of a vow, or posits no title but only a determination and occasion for the application of the law, without being the title itself. For example, whether I know the day and place of a fast, whether midnight on Wednesday or Friday has passed, or whether someone has turned 21 years of age and is obliged to fast, and similar circumstances.

In the case of circumstances which constitute a true title of obligation, uncertainty about the title, in my opinion, removes the law. For example, I have no obligation to observe a vow I have not made; if I, without fault, doubt I have made the vow, the vow is null because the law is not yet in being, as St. Alphonsus and others teach.(454) We must note that in this case, the fact itself (the vow) furnishes the obligation of the law, which is true of any title whatever - it is not simply a fact occasioning the application of a law which already binds of itself.

721. The other circumstances, the doubt for example, the doubt whether Thursday midnight has passed with the consequence that I cannot eat meat, do not, as I have said, constitute a title of obligation. It is the law that obliges me to abstain from meat. I know that it will soon be Friday and that the law definitely holds. It is not a question of knowing whether there is an obligation or not, because the obligation is or will be certain; it is solely a question of knowing whether the obligation begins sooner rather than later. This circumstance does not make or remove an obligation; it only anticipates or delays it. In these circumstances, application of the rule of possession seems gratuitous and out of place. The rule applies to the external forum, and solely for things we own, as many respected theologians teach.(455)

722. I think we go too far in applying the rule of possession to every moral case, as Bolgeni does. We complicate the matter by speaking metaphorically. This must be avoided at all costs if we wish to proceed with precise ideas. To say that freedom possesses and has dominion, and similar things, means applying to freedom the words devised by civil laws and applied to quite different things, that is, to real possessions.

723. Furthermore, the words dominion and possession are sometimes applied with a false, culpable change of meaning. Dominion relative to freedom is made to consist 'in the physical power to do what we please'. Yet laws never give this meaning to dominion; they indicate something moral not physical. There is no dominion without right. In fact, dominion over a thing is only the right to use it as we please. Right is not founded in simple physical power but in justice. Hence it is totally mistaken to imagine some kind of freedom without any right but with dominion of its own. It is a mistake to couple a right with possession alone, because de facto possession can clearly exist without a right, and one must not be confused with the other. Once these ambiguities are removed, the universality claimed for the rule about possession collapses [App. no. 10].

To settle the question under discussion, it would seem necessary, if certainty is impossible, to follow what is more probable, but if the doubt is equal, to follow the safer course, from respect for the law. In my opinion we do not have to contend with the law as though its dominion became a burden by perhaps being initiated a few minutes early (I say 'perhaps' because it could indeed have begun already). The law is certain, the obligation is certain. But does it begin a little sooner or a little later? Here equity should be the rule. If it is more probable that the law is not yet in force, let freedom prevail; if it is more probable that it is in force, let the law prevail; if the doubt is equal, freedom should respectfully give way to the law.(456)

724. The same decision, it seems to me, should be made in the case of doubt about our having fulfilled the demands of the law. For example, have I heard Mass on a day which is certainly a feastday, or given the alms I had promised God to give? Hearing Mass or giving alms are facts which remove or occasion the application of the law, refining its actual obligating force. If I have heard Mass or given the money to the poor, the law no longer obliges me in any way; it obliges me only if I have not done those things.

As in the previous cases, therefore, we must distinguish here between a law's undoubted existence and its actual obligation, which alone we doubt. We are not asking about the law's existence but its obligation and actual binding force when we have good but uncertain reasons for believing we have fully satisfied all it requires. The meaning of 'the law possesses' is that the law obliges (otherwise the expression has no meaning). But we cannot assert that it obliges because this is precisely what we want to know; if the obligation is uncertain, possession is also uncertain - granted we can speak in this way.

It is my belief that only equity can be used in this kind of uncertainty, because we are dealing with an inculpable and insoluble doubt and with merely positive law. We conclude therefore that if what ought to be done is naturally divisible, we divide it 'proportionally to the doubt'. For example, we give £50 to the poor if there is equal probability of our having given or not given the £100 we bound ourselves to give. If it is not divisible, we should follow the more probable course and thus compensate the acts in favour of both the law and freedom: when we doubt, we should, out of respect for the law, follow the safer course.

Notes

(433) Quodl., 3, art. 9, ad 3.

(434) Here 'action' means a single action of logical, not material unity, so that the action can in fact be composed of a series of material actions. This logical unity is the object of the moral case under discussion, and therefore when we ask if such and such an action is intrinsically unlawful, our reply must be relative to the action as described in the question. But as we have seen, this action, depending on the different ways it is presented, can be either material or intellectual or moral. If the action, in its nature or the way it is proposed, is only a material or intellectual object, it clearly cannot be classed as intrinsically evil. But if it is a moral object, it can be intrinsically evil.

Moreover, the action can be a moral object because of some circumstance or relationship. For example, causing a person's death is in itself a material object, but relative to the will of the perpetrator it is a moral object. When a question presented for discussion, therefore, concerns an action, we must carefully consider what kind of action is meant, and what elements and circumstances govern it.

(435) Fr. Segneri's words cannot, therefore, be used against me. He says: 'For this reason St. Antoninus, Humbert, Nider and other important authors subscribe to the rule given by Albert the Great: "An uneducated brother or any person whatsoever can, in matters of counsel, safely follow any opinion, provided it is the opinion of some great teacher." However, this must exclude anything the Church has declared to the contrary. Hence, Nider, in order to explain himself better, uses the words of Bernard of Clairvaux, and adds (in cons. timor. cons. 3, p c. 12): "When opinions are found amongst the great teachers, and the Church has not determined which is correct, anyone may hold what opinion he wishes, provided judgment in the matter is founded on the statements of those he considers expert."

This was the ancient rule, and is the true rule to be followed perpetually; all other rules cause confusion. The basic reason for the rule is that in order to act correctly in all things it is sufficient to act prudently. And this is precisely how a person acts who follows truly probable opinions still in use. It may be objected that still greater prudence would be used by following the more probable opinion. And this is true. But it only proves that it is right to encourage, exhort and strengthen the person to act in this way. It does not show that it is right to command him.' (Lettere sulla Materia del Probabile, Lett. 1, n. 23). Nothing can be gainsaid about this argument of Fr. Segneri, provided all sides agree that we are dealing with matters of counsel only. With this proviso, the problem disappears. But we must respectfully question whether it is in fact 'a matter of counsel or of precept'. Consequently, while Fr. Segneri's observation is correct in itself, it has no value at all in solving a doubt 'about the unlawfulness of an action'.

(436) Acknowledgement is an act of the will and, if upright, allows and furthers the natural action of the acknowledged object upon us. This action gives rise to spontaneous affections, which in turn can be assented to by actual volitions. The affections are followed by external actions, which also can be assented to, and accompanied or preceded by, actual volitions, which are all virtually included in the first, general volition of the acknowledgement.

(437) 'What is therefore the word which embraces and sums up all that can be said? You shall love the Lord your God with all your heart, etc.' (St. Aug., Sermo. De disciplina christ., c. 3).

(438) G. A. Alasia says: 'Although promulgation is understood to be included in the definition of law, it does not belong to the essence of law. Many great thinkers have followed the opposite opinion, but we think that promulgation is more probably only a condition of law. Nevertheless it is an essential, necessary condition in order that the law may actually oblige' (De Lege generatim, Diss. 1, c. 2, n. 15). Alasia then falsely claims to confirm his opinion with the authority of St. Thomas. But Aquinas does not say that promulgation is only necessary for law 'in order that it actually oblige', but that it is necessary 'in order that it may have the force of obligation'.

Law can easily be conceived without its actually obliging but not without having the force of obligation. Hence, St. Thomas states that this force of obligation 'is proper to law'. His opinion is clearly that promulgation is 'of the nature of law', as can be seen from the objections in the article where he deals with the matter (S.T., I-II, q. 90, a. 4), beginning: 'It seems that promulgation does not belong to the nature of law'. Nor is it correct to say that he compares law to a standard. He says in fact that law does not become a standard of actions until it is promulgated.

(439) 'The first general precepts of the natural law . . . do not need promulgation' (S.T.,, I-II, c. 4, ad 1) [q. 100, art. 4, ad 1].

(440) Decr. Grat., p. 1, dist. 4, ad can. 3.

(441) 'Hence, if Titius certainly knows that a law has been drawn up and will be promulgated in three days by order of the government, he is not obliged by it until it is in fact promulgated. The law is a general precept enacted for the whole community and cannot therefore oblige an individual member independently of the community. But the community is not obliged unless the law is publicly announced and thus promulgated (Antoine, De Legib., cap. 2, quaest. 6).

(442) Constitutiones Authent. At the end of the Council of Trent, in the Bull beginning Sicut, Pius IV says: 'Common law establishes that new constitutions have no force except after a certain period of time.'

(443) Decretal., bk. 1, t. 29, c. 31.

(444) Everybody accepts the principle that 'the law never obliges anything unreasonable or harmful to the common good' (Antoine, De Legib., c. 5, q. 3).

(445) In some cases, positive laws do not oblige where serious harm may result, but in others they do. In treatises on law, the two cases must be distinguished. The serious harm we fear (granted it is serious and we have not imagined it as such through our own weakness), can apparently free us from observance of the law, even when the serious harm is doubtful. The goodwill of a legislator who dispenses us from the law because he does not wish us serious harm, clearly does not intend to expose us to the excessive danger of harming ourselves.

(446) Reg. jur., 15, in 6 Decretal., bk. 5, t. 12.

(447) Reg. jur., 49, ibid.

(448) Instit., 3, 27. And Lambertini, in Notif. 13, says: 'No bond must be imposed when no evident law imposes it.'

(449) Orat., 39.

(450) De verit., 17; De conscientia, 3, ad 4.

(451) We must distinguish harm, which I have already discussed, from scorn, which is a lack of respect for law. I said harm must be compensated proportionally to the doubt, but because lack of respect is indivisible, we must follow the safer way.

(452) The following are the places where the Mosaic law prescribes sacrifices for transgessions arising from ignorance: Lev 5. [17, 18], 'If anyone sin through ignorance . . . he shall offer . . . a ram without blemish' [Douai]; c. 4. [27, 28], 'If anyone of the people of the land shall sin through ignorance . . . he shall offer a she-goat without blemish' [Douai]; and Num 15. [27, 28], 'If one soul shall sin ignorantly . . . the priest shall pray for him'. Thus, if there was ignorance, but no resulting transgression of the law, external sacrifice was not enjoined.

(453) Some authors say that the law requiring fasting before reception of the Eucharist is prohibitive, not positive; the law prohibits anyone who has broken the fast. Hence they deduce that reception of the Eucharist, which is a free act, is always free as long as its prohibition by the law is not certain. A person who doubts about having fasted has no certain knowledge that the law forbids him to communicate, and therefore he may do so (Liguori, Th. M. De Consc., n. 38). This seems to me to be a subtle and feeble reason. If I do not know the law with certainty, I can never say my action is free; to know that an action is free, I must know what the action concerns. In the present case I truly do not know the action concerned because my doubt is precisely about the quality of the action. To communicate while fasting or not fasting are two different actions, and I have no doubt that one of them is either free from or bound by the law. In fact I know for certain that the first is free, and the second is bound and prohibited by the law.

The question therefore does not concern my knowing 'whether an action is certainly or doubtfully prohibited', but knowing 'whether the action I am about to do is free or prohibited'. This second case is very different from the first, and in my opinion must be solved in favour of the law in order not to expose oneself to doing an action certainly prohibited by the law. Indeed, it seems to me the Church desires each person to approach the Eucharist fasting, or else abstain from Communion. Anyone, therefore, who seriously doubts whether he is fasting cannot be disposed for Communion in the way the Church desires. If certainty is lacking about his right dispositions, he must abstain. Communion is always possible the next day.

(454) Th. M. De Consc., n. 28. We should note, however, that generally speaking there is an obligation to remember our vows, like all other obligations, in so far as human weakness permits.

(455) The case could be defined even by positive law, in which event the question would no longer be valid. Moreover, when we say that the principle is valid only in the external forum, it does not follow that we affirm all principles contained in canon law to be valid only for external forum. Many of these principles can decide cases of conscience. Bolgeni, in order to refute the teaching, expounds it far to generally. Cf. his dissertation, Del Possesso, n. 94.

(456) If we act otherwise, I do not think the sin would be equal to a sin committed with the certainty that the time has passed. But I do not see how we could completely excuse ourselves.