Probabilitism and Jesuitic morality.
The inconclusiveness of legalism was converted into a most powerful poison by the Jesuits, with their probabilitism, of which precursors were not wanting in the Middle Ages, but it received definite form from the Dominican Bartolomeo Medina in 1577. From that time onward probabilitism began to be surrounded with a copious literature, which continually increased in the course of the seventeenth century, to decline in the century following. The opposition originated by the Jansenists, whose capital literary document, the Provinciales of Pascal also dates from the seventeenth century (1656), was the period of the greatest vigour of the doctrine. But if the most perfect and most Christian moral conscience dwelt in the Jansenists and in Pascal and if the absurd consequences to which probabilitism led became clearly evident in that polemic, yet it cannot be said that philosophically the error was finally superseded. Ere this could have happened, it would have been necessary, on the one hand to destroy all possibility of theological utilitarianism (which was impossible to carry out in a religious and transcendental Ethic, owing to its mystical and irrationalistic character) and on the other to destroy legalism. Pascal himself (and St. Augustine, to whom he appeals) was always confined in the legislative conception of morality; hence he speaks of the laws of "not slaying," which it was necessary to obey strictly, save in the cases established by God or when he gives particular orders to put certain persons to death. The Catholic Church, always astutely political, condemned without hesitation the extreme rigorists, who wish that the law should always be followed and the extreme latitudinarians, who think that any sort of reasons, however slight and improbable, suffice for not observing the law; allowing intermediate sects to discuss among themselves until they were out of breath, that is to say, the moderate rigorists, the probabiliorists or tutiorists, the equiprobabilitists and the probabilitists. Sant Alfonso dei Liguori adhered to these last, who were of opinion that it is always permissible to do what we wish, provided always that there be probable reasons, though less probable than those that militate in favour of the law. In his Dissertatio de usu moderato opinionis probabilis,[44] he thus exposed the principal argument of his thesis: Peto ab adversariis ut indicent (si possunt) tibinam legem hanc esse scriptam invenerint, quod teneamur inter opiniones probabiles probabiliores sequi? Haec lex quidem, prout universalis, deberet omnibus esse nota et certa: at quomodo ista lex certa dici potest, cum communis sententia doctorum, saltem longe major illorum pars, post tantum discrimen absolute asserant, hanc legem non adesse? Usque dum igitur de tali lege dubitatum, opinio quod adsit haec lex sequendi probabiliora, quamvis alicui videatur probabilior, nunquam tamen lex dici potest, sed appellanda erit mera opinio, utpote ex fallibili motivo deducta, quae vim nequaquam habet, ut lex, obligandi. This doctrine still retains in our day very firm supporters among the Jesuits (Cathrein,[45] Lehmkuhl,[46] etc.).
Critique of the concept of the licit.
But if the destruction of theological utilitarianism has been brought about by the criticism of the transcendental and by idealistic Ethic, that of legalism, with its expression as the licit, the permissible, or morally indifferent, appears in Fichte and in Schleiermacher. Kant did not treat the question explicitly and, as observed, we can deduce from certain of his utterances that he did not altogether abandon the concept of the licit.[47]
Fichte.
But Fichte, in a note to his Natural Rights, wrote: "A right is evidently something of which a man can avail himself or not; and is therefore the result of a law that is merely permissive. ... The permission is not expressly given by the law and is deduced by interpretation from its limitation. And the limitation of a law is shown by the fact of its being something conditioned. It is not absolutely apparent, therefore, that a permissive law which commands in an unconditioned manner and therefore extends to all, can be deduced from the moral law."[48]
Schleiermacher.
What was a mere mention in Fichte became an ample demonstration in the celebrated memoir of Schleiermacher, On the Concept of the Licit (1826), which resolutely drove the licit out of the field of Ethic, by demonstrating its altogether juridical nature: "The original seat of this concept cannot be the domain of Ethic, in which it is not admissible: it appertains to the domain of law and of positive law; and there is something originally licit in civil life, precisely in this sense that there is something half-way between what is commanded and what is forbidden, the proper object of law."[49]
Rosmini.
Rosmini, owing to having ignored this origin of the lawful, proceeded to divide human actions into four classes: the prohibited, the licit, the commanded, and the superogatory; the last three were all innocent, but the licit was simply innocent, while the commanded and the superogatory were also furnished with moral value. Hence arose grave errors in his Ethic and in his Philosophy of law and definitions that it is impossible to grasp, such as the following relating to superogatory actions: "The obligatory consists in preserving the moral order, but the superogatory consists in preserving the said order in a more excellent and perfect manner, with fuller, more frequent, and more ardent acts of the will. These second not only preserve the moral order, but augment it, almost creating a part of it themselves with their activity; they make themselves not only followers of the good, but authors of the good itself." Rosmini also considered that the posing of the question of probabilitism represented progress in Ethic; that is, upon "what man should do, if he found himself in doubt as to performing or omitting to perform an action." But the solution of the question that he gave on his account amounted (be it said to his honour) to the annihilation of legalism, since for him a doubtful law does not oblige when it is positive Rights, but it does oblige when it is moral law, that is, when there is a fear of offending against the supreme and necessary law, which wills absolutely to be always fulfilled.[50] In other terms, the true practical law is never (even when it appears to be so) positive law; and the concept of law, which always has a positive meaning, is extraneous to Ethic and to the Philosophy of the practical: a result to which Rosmini does not attain, or at least is not conscious of attaining.