COLPA. – The term c. may be understood according to two sufficiently distinct, though not mutually contradictory, concepts: c. in the moral sense, and c. in the juridical sense. The latter, moreover, may be considered from the civil or the criminal standpoint.
I. MORAL GUILT
It consists essentially in an act of the free will opposed to the rational order. Since this order is founded entirely upon the divine essence, moral guilt is a free act contrary to divine law. Thus it is nothing other than sin (v. PECCATO). When the culpable act is not purely internal but mixed—that is, an external act whose origin lies in the free will of the agent—guilt resides formally in the act of the will: it gives the external act its morality. The latter, however, does not change the moral species of the internal act, though it does not fail to influence guilt in various ways, for example by further perverting the agent’s sensibility, causing scandal, producing damage entailing an obligation of compensation, etc.If moral guilt, by being a violation of divine law, constitutes sin, Catholic moralists rightly identify the two concepts; nevertheless, several great theologians of the sixteenth and seventeenth centuries considered it possible that there could be moral guilt which was not sin. It seemed to them that a man, while knowing the opposition 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 opposition between that act and a divine will. This would have been the case with atheists in good faith or with persons for whom the thought of God was entirely absent 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 were to be divided into philosophical and theological sins (Decr. S. O., 24 ag. 1690: Denz-U, 1290). With this decree, the mere possibility of philosophical sin does not yet seem to everyone to have been clearly condemned.
Moral guilt essentially presupposes: a) consciousness of the moral law and of the opposition between this law and the act of the will; b) 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; hence it cannot make guilty the will that assents to II. As for the second, one cannot in fact impute to a man, as deserving praise or blame, 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 which has a man as its author but lacks 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. ATTO UMANO).
Thus all causes that diminish the use of reason or weaken the will partially modify or entirely remove the culpability of the human act. For several years, moralists have studied with greater care the various causes mitigating responsibility, whether they are 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 an extremely useful complement to the study of moral and pastoral theology.
The object of the will may be willed directly or indirectly, in itself as an end or 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 raises 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 about the laws that concern him and to use the means necessary to observe them. These positive obligations are more serious the more important the subject of the law and the greater the moral or material harm resulting from its violation.
The division of ignorance into invisible (morally non-culpable) and visible (culpable) is based on these principles. The latter is more culpable the more serious the obligation to correct it and the more accessible to the agent the means of doing so. A distinction is therefore made between ignorance directly willed (ignorantia affectata) and ignorance that is not; the latter may be light, grave, or crass (v. IGNORANZA).
There is no doubt that 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, responsibility corresponds to the degree of negligence involved in obtaining adequate information and in using the means capable of producing the harmful effect and damage.
Here the moralist encounters the difficult problem of the “double effect.” Human actions are embedded in a highly 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) suffices to diversify the effects of an action. What will be the responsibility for these effects, generally not immediate, whether foreseen or unforeseen?
When one or more further consequences due to a foreign cause, necessary or free, are added to the consequences resulting directly and exclusively from the agent’s activity, responsibility depends upon the following conditions: the licit or illicit character of the principal action; the degree of connection between the action and the “double effect”; and the proportion between the good that immediately results from the action and the harm caused by the double effect. The double effect is not imputable to the agent if his action was licit, while the effect was accidental and not willed in itself, although foreseen; and if there was between the good resulting 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 compensate for damage caused by ignorance or negligence is founded upon the positive obligation mentioned above (knowledge of the law; use of the necessary means) and is proportionate to II. Although the effect was not willed in itself, indeed was not even foreseen, it is nevertheless imputable to the will of the agent who, 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, much more complex in the moral sphere than in purely juridical solutions. One need only think of the obligation of the confessor, physician, pharmacist, or engineer who, through a culpable lack of knowledge, has given false and harmful advice or has directly caused harm through his intervention.
II. LEGAL FAULT
The human legislator cannot penetrate the consciousness of his subjects; he knows it only through a spontaneous or coerced confession. He must therefore make up for this deficiency by analyzing external circumstances and by means of presumptions, e.g. “no one is considered ignorant of the law.” In order to fulfill his mission of safeguarding the rights of citizens and guaranteeing the security of social relations and public order, he must require compensation for damage even from one who is not at fault, and proportion punishments not only to the offender’s culpability, but above all to the extent of the damage caused to the social order. Hence the importance, in civil and criminal law, of the distinction between intent (in the broad sense) and fault (in the strict sense).Intent (v.), in the broad sense, indicates the will to perform an act prohibited by law and known to be such. An intentional crime (v. DELITTO) is therefore a violation of the law directly willed, whatever the motive for this will may be. Wickedness on the part of the offender is thus not necessary. In the strict sense, the word “intent” is used to signify every scheme aimed at deceiving a person in order to cause that person harm.
Fault, in the broad sense, always means moral fault, the free violation of the law. In the strict sense, this term means, in positive law, a harmful act contrary to the law, freely willed, but without the agent having willed the harm that was or could have been expected to arise from II. The cause of the unlawful harm is ignorance or inattention, lack of foresight, care, or diligence on the part of the perpetrator.
Legal fault also consists in incompetence in an art, trade, or office, and in violation of statutes and orders (contraventions). In the first case, the likelihood of harm is evident because of imprudence or negligence; in the second, there is an unlawful act tending to create harm or the danger of harm.
Fault is divided into civil fault and criminal fault; scholars, however, do not agree on the basis of this division. It is undoubtedly correct to say that criminal fault exists 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 may be indicated: according to C. Ferrini, civil fault exists when the right violated has a private character, that is, when it derives from a special legal relationship between two persons; criminal fault exists when the right violated results from the 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 requires compensation for the damage (v. DANNO); in the second, he imposes a punishment.
In civil law, contractual fault is also distinguished, consisting in the omission, delay, or imperfect fulfillment of an obligation arising from a freely concluded agreement between the parties (v. CONTRATTO). Jurists study this fault in treatises on obligations. Contractual fault exists in every act or omission attributable to its author which, by violating another’s right outside any agreement, gives rise to a right to compensation against the agent.
Evidently, in criminal law the notion of fault gives rise to more important problems; many of them, however, concern the concept of fault itself and therefore extend throughout the entire field of positive law.
Roman law supplied the theory of legal fault with certain important elements: first of all, an abstract and therefore general notion of fault: “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, in addition, an analysis of negligent offenses that would remain classical. It then supplied the elements of the famous distinction between gross fault (culpa lata; l. 223, D., de V. s., L. 16), slight fault, and very slight fault, and introduced the (subjective) criterion of the care that the good head of a household takes of his own interests.
The law determined the cases in which this was to be applied (D. 17, 2, 72). Finally, Roman law also recognized civil liability for the fault of another. According to C. Ferrini, however, it should be carefully noted that it did not distinguish between compensation for damage and the public character of punishment.
Like every primitive legal system, the law of the Germanic peoples considered private harm above all, without concern for the degree of the perpetrator’s responsibility. 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, 2ª ed., Torino 1892-93, cap. 1).
The solutions offered today by moral theologians and canonists concerning responsibility for the foreseen or unforeseen effects of our voluntary acts are the fruit of centuries of reworking, due above all to the decrees that prepared the way for the theologians of the thirteenth century.
To explain conflicting decisions in several decrees and in decrees of particular councils, some canonists distinguished the forum Dei (moral fault) from the forum criminale (legal fault). Others, who disliked this opposition, sought the solution in the contrast between the effects of lawful and unlawful acts. The author of an unlawful act was to be held responsible for all the harmful consequences of that act, even if they had been unforeseeable or if the agent had taken 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 gradually made its way, through discussions of vincible and invincible ignorance, toward modern “voluntarist” solutions. The theory of the “double effect,” which has such great importance in moral theology, also gradually developed (v. the discussion between A. Gemelli and A. Vermeersch, in Nov. rev. théol., 60 [1933], p. 500 ff).
The concept of legal fault and the principles governing it, especially in criminal law, are still the subject of lively discussion among jurists.
The common doctrine continues to admit that the foreseeability of harm constitutes an essential element of fault. Some followers of Stoppato (Evento punibile, Padova 1938), however, would unsuccessfully replace it with a more objective criterion, namely, the use of unlawful means in the voluntary act. The dispute also continues concerning the criterion that should determine the degree of fault: how can one define the care that a diligent man or a head of a household takes of his own interests? Why is this criterion applied, when it does not take account of the offender’s personal psychological conditions?
Another question is: why is fault punishable? Should the real reason be sought in the agent’s will or in the social harm? Finally, there is also discussion of whether joint participation in negligent offenses is possible.
The CIC clearly distinguishes intent from fault in criminal matters. “The imputability of the offense depends upon the offender’s intent or upon his fault in ignorance of the law or in omission of obligatory diligence” (can. 2199). The Code admits proof of ignorance of the law or of the penalty; the former diminishes imputability to the extent that it can be justified, while the latter mitigates the seriousness of the offense (can. 2202).
When the harm was foreseen, without having been directly intended, but was not prevented by the requisite precautions, some jurists think that we are dealing with dolus and not with c. The CIC regards it as grave c., proximate to dolus (can. 2203). The criterion of culpability differs according to whether the effect was foreseen or not; in the first case, the Code, following Roman law, requires “the precautions that every diligent man would have taken”; in the other case, the judge must assess the degree of culpability, taking the circumstances into account.
It is nevertheless important to note that one does not incur an ecclesiastical penalty, nor may one be subjected to one, unless there is grave moral c. on the part of the delinquent (can. 2218 § 2). It need only be pointed out that this constitutes an essential difference from state penal law. This moral concern is manifested in the fact that, in the same Book V of the code De delictis et poenis, the term c. is very often used in the moral rather than the juridical sense; this is almost invariably the case in the expression: “pro gravitate culpae”.
BIBLI: Moralists treat the question of direct and indirect voluntariness in the treatise: De actibus humanis. On responsibility for effects, the relevant discussions are those dealing with the “double effect”. In general, it will suffice to refer to the manuals of moral theology by A. Vermeersch, D. Prümmer, A. Pisetta-A. Gennaro, etc. On juridical c. in general, in civil and penal law, cf. E. Altavilla, s.v., in Nuovo Digesto Ital., III, pp. 320-25; C. Ferrini, G. Scaduto, D. Rubino, Illeciti, ibid., VI, pp. 657-708; V. also: E. Florian, Trattato di diritto penale, parte generale, I, Milano 1934, n. 367 sgg. Canonists should be consulted in the commentary on the CIC, can. 2199 sgg. See, for example, G. Michiels, De delictis et poenis, Lublino 1934, p. 101 sgg.; S. Kuttner, Kanonistische Schuldlehre von Gratian bis auf die Dekreten Gregors IX, Città del Vaticano 1935; O. Lottin, Psychologie et morale aux XIIe et XIIIe siècles, Lovanio 1946. Giuseppe Creusen