Guilt

GUILT. - The term f. can be considered according to two fairly different concepts, although not in conflict with each other: f. in the moral sense, and f. in the juridical sense. The latter, moreover, can be considered from the civil aspect or from the penal aspect.

I. MORAL GUILT

It consists essentially in the act of the free will in opposition to the rational order. Since this order is entirely founded on the divine essence, moral guilt is a free act contrary to the divine law. Therefore it is nothing other than sin (v. SIN). When the guilty act is not purely internal but mixed, that is, an external act whose origin is found in the free will of the agent, the guilt resides formally in the act of the will: it is this that gives the external act its morality. The latter, on the other hand, does not change the moral species of the internal act, yet it is not without influence in various ways on the guilt, for example, by further perverting the agent's sensibility, causing scandal, producing damages with an obligation of restitution, etc.

If moral guilt, in being a violation of the divine law, constitutes sin, Catholic moralists rightly identify the two concepts; nevertheless several great theologians of the 16th and 17th centuries believed a moral guilt that was not sin to be possible. It seemed to them that a man, even while knowing the contrast between an act of the will and the rational order or the moral demands of human nature, might fail to perceive, either habitually or in a particular case, the contrast between this act and a divine will. Such would have been the case of atheists in good faith or of persons to whom the thought of God was absolutely foreign at the moment of the free act opposed to the rational order. One could therefore distinguish philosophical sin from theological sin.

Alexander VIII condemned the opinion according to which sins are to be divided into philosophical and theological (Decr. S. O., 24 Aug. 1690: Denz-U, 1290). By this decree the simple possibility of philosophical sin does not yet seem to all to be clearly condemned.

Moral guilt essentially supposes: a) the consciousness of the moral law and of the contrast between this law and the act of the will; b) the freedom of the will in choosing the object opposed to the moral law.

Where the first element is lacking, the object is not known as morally evil; therefore it cannot render guilty the will that adheres to it. As for the second, one cannot, in fact, impute to a man as deserving of praise or blame, of reward or punishment, an act of which he was the author only in the material or physical sense. Moralists call such an act: actus hominis, that is, an act whose author is a man, but which is devoid of the use of his properly human faculties; they oppose it to the actus humanus, which proceeds from man as man, that is, as an intelligent and free being (v. HUMAN ACT).

Therefore all causes that diminish the use of reason or weaken the will partially modify or totally remove the culpability of the human act. For several years moralists have studied with greater care the various causes of attenuation of responsibility, whether they be of a normal character (age, passions, ignorance, error, sleep) or of a pathological character (various forms of mental illness, morbid impulses, etc.). Sound notions of mental pathology are a most useful complement to the study of moral and pastoral theology.

The object of the will can be willed directly or indirectly, in itself as an end or a means (voluntarium directum), or through a more complex act of which it forms part as cause or condition (voluntarium indirectum; voluntarium in causa). The consequences of this division are of great importance, because the imputability of the foreseen or foreseeable effects of the human act gives rise to a difficult problem carefully studied by moralists. Indeed, if the effects foreseen and willed in themselves are imputable to the will, what is to be said of the others?

The obligation to observe the law creates in each person the obligation to inform himself of the laws that concern him and to use the means necessary to observe them. These positive obligations are all the more grave the more important the object of the law and the greater the moral or material harm of violating it.

On these principles is based the division of ignorance into invisible (morally not culpable) and visible (culpable). The latter is all the more culpable the graver was the obligation to correct it and the more accessible to the agent were the means of doing so. One therefore distinguishes ignorance directly willed (ignorantia affectata) or not; this will be light, grave, crass (v. IGNORANCE).

Without doubt, no one can be held responsible for the normally unforeseeable effects of his action. If, on the other hand, they were foreseeable and ought to have been avoided, the responsibility corresponds to the degree of negligence in procuring adequate information and in using the means capable of producing a bad effect and harm.

Here the difficult problem of "double effect" presents itself to the moralist. Human actions are inserted in a very complex network of necessary external influences or of the free actions of other men. Indeed, the mere complexity of the human person (body and soul, different parts with the repercussion of one upon the other) is enough to diversify the effects of an action. What will be the responsibility for these effects, generally not immediate, foreseen or unforeseen?

When to the consequences resulting directly and solely from the agent's activity there is added one or several others due to an extraneous cause, necessary or free, the responsibility depends on the following conditions: the lawful or unlawful character of the principal action; the degree of connection between the action and the "double effect"; the proportion between the good that results immediately from the action and the harm caused by the double effect. The double effect is not imputable to the agent if his action was lawful, while the effect was accidental and not willed in itself, although foreseen; if there was between the good that results from the action and the harm caused by the double effect such a proportion that the agent had no obligation to prevent the effect.

The obligation to make restitution for harm caused through ignorance or negligence has its foundation in the positive obligation mentioned above (knowledge of the law; use of the necessary means) and is proportionate to it. Although the effect was not willed in itself, indeed not even foreseen, it is nevertheless imputable to the will of the agent who has, as is supposed, freely neglected to acquire the knowledge or to use the means that would have prevented the harm. The harm is willed in its cause or in its conditions.

The application of this principle gives rise to very delicate problems, and much more complex in the moral field than in purely juridical solutions. It suffices to think of the obligation of the confessor, of the physician, of the pharmacist, of the engineer who, through culpable defect of knowledge, have given false and harmful advice or have directly caused harm by their intervention.

II. LEGAL GUILT

The human legislator cannot penetrate into the conscience of his subjects; he knows it only through a spontaneous or coerced confession; therefore he must make up for this deficiency by analyzing external circumstances and by presumptions, e.g. "no one is considered ignorant of the law." To fulfill his mission of safeguarding the rights of citizens and guaranteeing the security of social relations and public order, he must demand compensation for damage even from one who is not culpable, and proportion penalties not only to the culpability of the offender, but first of all to the extent of the damage caused to the social order. Hence the importance, in civil and criminal law, of the distinction between dolus (in the broad sense) and culpability (in the strict sense).

Dolus (v.), in the broad sense, indicates the will to perform an act prohibited by law and known as such. A dolose crime (v. DELITTO) is therefore a violation of the law directly willed, whatever the motive of that will may be. Maliciousness in the offender is therefore not necessary. In the strict sense, the word "dolus" is used to signify any machination aimed at deceiving a person in order to cause him harm.

Culpability, in the broad sense, always means moral culpability, the free violation of the law. In the strict sense, this term signifies, in positive law, a harmful act, contrary to law, freely willed, but without the agent having willed the damage that was bound or able to arise from it. The cause of the antijuridical damage is ignorance or inattention, the lack of foresight, care, or diligence on the part of the author.

Juridical culpability also consists in unskillfulness in one's art, trade, or function, and in the violation of statutes and orders (contraventions). In the first case the probability of damage is evident through improvidence or negligence; in the second there is an unlawful act that tends to create damage or danger of damage.

Culpability is divided into civil culpability and criminal culpability; however, scholars do not agree on the principle of this division. Without doubt, it is true to say that there is criminal culpability when the unlawful act is constituted by law as a crime (negligent crime) or is prohibited with a special sanction. But a more intrinsic criterion can be indicated: according to C. Ferrini there is civil culpability when the right violated has a private character, that is, when it arises from a special juridical relationship between two persons; one is faced with criminal culpability when the right violated results from the very fact that one is a citizen, a member of the social group (v. Illecito, in Nuovo Dig. Ital., VI, p. 662, n. 12). In the first case, the legislator demands compensation for the damage (v. DANNO); in the second, he inflicts a penalty.

In civil law a distinction is also made for contractual culpability in the omission, delay, or imperfection of the fulfillment of an obligation resulting from a free agreement between the parties (v. CONTRATTO). Jurists study this culpability in the treatise on obligations. There is contractual culpability in every act or omission imputable to its author which, violating the right of another outside of any agreement, gives rise against the agent to a right to compensation.

Evidently in criminal law the notion of culpability gives rise to more important problems; however, several of them refer to the very concept of culpability and therefore extend to the entire field of positive law.

Roman law furnished the theory of juridical culpability with some important elements: first of all an abstract, and therefore general, notion of culpability: "culpam autem esse quod cum a diligente praevideri poterit, non esset provisum aut tum denuntiatum esset, cum periculum evitari non possit" (l. 31, D. ad legem Aquiliam, IX, 2) and furthermore the analysis of negligent crimes that would remain classic. Then it supplied the elements of the famous distinction between grave culpability (culpa lata; l. 223, D., de v. s., L. 16), slight and very slight culpability, and introduced the (subjective) criterion of the care that the good father of a family takes of his interests.

The law determined the cases in which it was to be applied (D. 17, 2, 72). Finally, Roman law also knew civil liability for the culpability of others. But, according to C. Ferrini, it must be well noted that it did not make a distinction between compensation for damage and the public character of the penalty.

Like every primitive law, the law of the Germanic peoples considered first of all the private damage, without concerning itself with the degree of responsibility of the author. It exercised a certain influence on canon law in Germany and on the penitential books (v. PENITENZIALI, LIBRI). Later, it was in turn perfected under the influence of canon law and Roman law (A. Pertile, Storia del diritto italiano, V, 2nd ed., Turin 1892-93, ch. 1).

The solutions given today by moralists and canonists on the responsibility for the foreseen or unforeseen effects of our voluntary acts are the fruit of a centuries-long reworking due first of all to the decrees that prepared the way for the theologians of the 13th century.

To explain the conflicting decisions of several decrees and of decrees of particular councils, some canonists distinguished the forum Dei (moral culpability) and the forum criminale (juridical culpability). Others, to whom this opposition was displeasing, sought the solution in the contrast between the effects of licit and illicit acts. The author of an illicit act had to be held responsible for all the harmful consequences of that act, even if they had been unforeseeable or if the agent had used all the precautions required to avoid them (cf. I. Zeiger, De mutua inter theol. mor. et ius canon. habitudine, in Periodica, 21 [1942], p. 333-45).

The doctrine makes its way, through the discussions on vincible and invincible ignorance, toward modern "voluntaristic" solutions. Little by little the theory of "double effect" also develops, which has such great importance in moral theology (v. the discussion between A. Gemelli and A. Vermeersch, in Nov. rev. théol., 60 [1933], p. 500 ff.).

The concept of juridical culpability and the principles that govern it, especially in criminal law, are even today the object of lively discussions among jurists.

The common doctrine still admits that the foreseeability of damage constitutes an essential element of culpability. However, some followers of Stoppato (Evento punibile, Padua 1938) would wish, without success, to replace it with a more objective criterion, namely the use in the voluntary act of antijuridical means. The dispute also continues over the criterion that must determine the degree of culpability: how can one define the care that a diligent man or a father of a family takes of his interests? Why is this criterion applied, which does not consider the personal psychological conditions of the guilty party?

Another question: why is culpability punishable? Should the proper reason be sought in the will of the agent or in the social damage? Finally, there is also discussion about the possibility or not of complicity in negligent crimes.

The CIC clearly distinguishes dolus from culpability in penal matters. "The imputability of a crime depends on the dolus of the offender or on his culpability in ignorance of the law or in the omission of obligatory diligence" (can. 2199). The Code admits proof of ignorance of the law or of the penalty; the latter attenuates the gravity of the crime; the former diminishes imputability to the extent that it can be justified (can. 2202).

When the damage was foreseen, without having been directly willed, but was not prevented with the requisite precautions, some jurists think that we are dealing with dolus and not with c. The CIC sees in it a grave c., close to dolus (can. 2203). The criterion of culpability is different according to whether the effect was foreseen or not; in the first case, the Code, linking itself with Roman law, requires "the precautions that every diligent man would have used"; in the other case, the judge must evaluate the degree of culpability, taking the circumstances into account.

It is important to note, however, that one does not incur an ecclesiastical penalty, nor can it be inflicted, unless there is grave moral c. on the part of the offender (can. 2218 § 2). It should scarcely be noted that this constitutes an essential difference from state criminal law. This moral concern is manifested in the fact that in the same l. V of the code De delictis et poenis, the word c. is very often used in the moral sense and not in the juridical sense; this is almost always the case in the expression: "pro gravitate culpae".

Giuseppe Creusen