Section — Bucceroni, Institutions of Moral Theology
On Epicheia
Epicheia or Equity, properly and strictly such, is a virtue, is one special virtue, and it is a subjective part of justice, commonly so called, corresponding to legal justice, in a certain way contained under it, and in a certain way exceeding it, and more noble than it and with it a most excellent virtue.
Epicheia or equity can be taken in multiple ways, by common and proper signification. Hence equity first is justice itself, whose office it is to establish equality or equity of things in human acts and contracts. And thus in L. 14 de Condictione indebiti it is said: "This is naturally equitable, that no one be made richer with another's detriment." And Reiffenstuel: Restitution in integrum is "an extraordinary remedy of law by which one gravely injured, from natural equity through the office of a judge, is reduced into that state or right in which he had been before the injury." L. 1, tit. 41, n. 3. Equity of this kind is called and is natural equity.
But equity proceeds further, namely by establishing a certain suitable measure generally in all laws, tempering the rigor and subtlety of laws according to various circumstances. Equity taken thus, by which it extends broadly, is commonly accustomed to be called epicheia; and it is treated in the treatise on laws when the question is raised concerning interpretation of law. But if it is taken restrictively, namely insofar as it determines a suitable measure in justice by moderating the rigor and subtlety of law, civil equity is had. And thus L. 22 de Donationibus, Modestinus moderates the rigor of law, defining: "that he who for the sake of donation promised money or something else does not owe interest from delay of payment of the money is of the highest equity." Ulpian tempers the subtlety of law in L. 29 § 6 Mandati vel contra, establishing: "If a surety, although freed by time alone, nevertheless paid the creditor, he will rightly have the action of mandate against the accused; for although, now freed, he paid, nevertheless he fulfilled faith and freed the debtor: therefore if he is prepared to defend the accused against the creditor, it is most equitable that by the judgment of mandate he recover what he paid." Equity of this kind, tempering law, is opposed to strict law, to which namely equity is neither mixed nor applied.
This civil equity, from its object, concerning the good and equitable, is said in the Law, as can be seen, e.g., L. 17 de Iniusto, rupto, irrito facto testamento. Indeed Ulpian defines Civil Law itself from the good and equitable, L. 1 de Iustitia et Iure, saying: "One about to devote work to law ought first to know whence the name of law descends. But it is named from justice: for, as Celsus elegantly defines, law is the art of the good and the equitable. On account of this someone deservedly calls us priests: for we cultivate justice and profess knowledge of the good and equitable, separating the equitable from the inequitable, discerning the licit from the illicit." Therefore, since law is the art of the good and equitable, the Rule of Law is easily understood, L. 90 de Diversis Regulis Iuris antiqui: "In all things indeed, but especially in Law, equity is to be considered." And this is civil equity.
Moreover epicheia or equity seems also to be called modesty. For where the Apostle says to Phil. 4:5: Let your modesty be known to all men, in the Greek there is epieikeia. For in the Greek text is read to epieikes hymon. - Likewise equity is contained either under epicheia or under friendship, insofar as, as some say, by it someone is rightly ordered to equals, as obedience to superiors, discipline to inferiors. St. Thomas, 2. 2, q. 80, single article ad 3.
Finally equity properly and strictly is had when in a particular case the observance of the law is omitted, following the intention of the legislator with the words of the law omitted. The law, e.g., is that no one climb the walls of the city. Yet, when the case occurs that otherwise the city would be lost, someone can climb the walls to save it.
Therefore equity imports equality or moderation in its concept and common acceptance. - Wherefore 1. insofar as it bears equality before itself, it is then used for justice itself, and is called natural equity. - Insofar as it bears moderation before itself, 2. it is also taken for modesty, but rarely; and more frequently 3. for benign interpretation of laws, and 4. for moderation in exacting and exercising one's own rights, and it is civil equity; and properly and strictly 5. for correction of law that is deficient on account of the universal, and it is epicheia simply such.
With the notion of equity declared, considered generally, let us now inquire step by step whether it is a virtue, and what sort of virtue it is. Epicheia or equity, insofar as it is justice itself, is a virtue, as is clear of itself, and is not a virtue distinct from justice itself. -
This is the equity of which Leo XIII speaks in the Encyclical Letter Rerum novarum, 15 May 1891, on the Condition of Workers, when he says: "Those things touch the proletarian and worker: that what has been freely and equitably agreed concerning work, he render integrally and faithfully. -
It is equitable to revere in them the dignity of person.... But among the greatest duties of masters that one stands forth: to furnish just things to each. Indeed, that the measure of wages be established from equity, several causes are to be considered. Equity commands that care be taken of the proletarian publicly, so that from that which he brings to the common utility he himself may receive something, so that, housed, clothed, safe, he may be able to endure life less painfully. - It is certain that neither the citizen nor the family is to be absorbed by the republic. It is equitable to permit each its own faculty of acting." And Cicero in 2 Offic. 22 at the end: "But what equity does it have, that he who had no field should have one; but he who had one should lose it?"
- Epicheia, insofar as it establishes due measure according to the various circumstances of cases in the observance of laws, is also a virtue, and is the companion of all virtues. "The companions of virtue," says Aristotle, "are probity, equity, candor, good hope." Ethic. De virtutib. et vitiis c. 8, § 3. As regards direction, it pertains to prudence. And for various cases it is either Synesis or Gnome, which are two potential parts of prudence. Synesis is a virtue judging well about particular things to be done, according to common rules. Gnome is a virtue judging well concerning things to be done beyond common principles, and consequently imports a certain perspicacity of judgment. Hence it is also called eugnomosyne, as if good gnome. St. Thomas, 1. 2, q. 51, a. 4.; 2. 2, q. 80. But as regards execution, that virtue pertains to legal justice. "Those two," says St. Thomas, 2. 2, q. 80 ad 4, "are attributed to prudence according to direction, but to justice according to execution" ... "It must be said that epikeia is not joined to particular justice, but to legal justice, and seems to be the same as that which was called eugnomosyne." Wherefore it cannot simply be admitted what La-Croix says, l. 1, n. 829, namely that epicheia is an act of prudence.
Epicheia taken for civil equity in the exercise of one's own right, insofar as namely one exacts it not with the whole rigor of law, but with suitable moderation, by making some remission of right, is also a virtue; and as regards execution, it seems to be either generally charity, which is mixed with justice, or friendship or affability or humanity, from the fact that someone is called humane, as is said by Isidore, because he has love and the affection of pity concerning man, St. Thomas, 2. 2, q. 80 ad 2. Benignity also could not unfittingly be called it, since the same Isidore says that a benign man is one spontaneously prepared for doing good and sweet in speech. St. Thomas, l. c. ad 4. Mercy and truth have met each other: Justice and peace have kissed. Ps. 84:11. Yet, as from St. Thomas, so from Aristotle, it is justice, and not another virtue. Ethic. l. 5, c. 10, § 8.
Epicheia taken for modesty is likewise a virtue, which is part of temperance. "It must be said," says St. Thomas, 2. 2, q. 120, a. 2 ad 3, "that it pertains to epicheia to moderate something, namely the observance of the words of the law. But modesty, which is placed as part of temperance, moderates the exterior life of man, for instance in walking or clothing or other things of this kind." And thus the name of epicheia can be transferred by a certain similitude to all moderations.
- Epicheia, in the last place properly and strictly such, which follows the intention of the legislator in those things in which it is not fitting to follow the words of the law, because this would be vicious, is likewise a virtue, and this is agreed among all. The Angelic Doctor, treating this question expressly in 2. 2, q. 120, raises the question concerning epicheia or equity, and in the first article treats the question: Whether epicheia is a virtue. And he responds: "It must be said that because human acts, concerning which laws are given, consist in singular contingents which can be varied in infinite ways, it was not possible for some rule of law to be instituted which would fail in no case; but legislators attend to that which happens in the greater number, making law according to this; yet to observe it in some cases is against the equality of justice and against the common good which the law intends.... Therefore in these and similar cases it is evil to follow the law; but it is good, with the words of the law omitted, to follow that which the reason of justice and common utility demands. And to this epicheia is ordered, which among us is called equity. Hence it is clear that epicheia is a virtue." Indeed, if that is a virtue which pursues the reason of justice and the common utility according to the words of the law, that is also necessarily a virtue which pursues the same equality of justice and the same common good according to the intention of the legislator. Hence it is said in L. 5 de Legibus et Constitutionibus Principum et Edictis in the Code: "There is no doubt that he commits against the law who, having embraced the words of the law, strives against the will of the law."
Given that equity, properly and strictly such, is a virtue, it is asked whether it is a general or some particular virtue. The most learned Lessius, in book 2, chapter 47, doubt 9, n. 65, of the work De Iustitia et Iure, says: "It is very probable that it is not one virtue distinct from the rest, or at least that such a virtue is not necessary. The reason is that equity has place in every genus of laws and in every matter of virtues, and does not regard one formal reason; but it looks to diverse reasons of the honorable in diverse matters, indeed in diverse cases concerning the same law."
This opinion of Lessius can be confirmed from the words of St. Thomas in 3 Dist. 33, q. 3, art. 4, qc. 6, sol. 5 ad 5, where he says that epicheia is somehow the same for every virtue, as also legal justice is. But the clear opinion of St. Thomas is to be taken from 2. 2, q. 80 and 120, where again he treats expressly of epicheia or equity. And thus Cajetan himself, on q. 80 at the end, says: "Note how much the Author, that is St. Thomas, advanced from the time when he wrote the last article of q. 3, dist. 33 in 3 Sent. For these differ from those as clear light from somewhat obscure. Wherefore, follow these." And indeed in fact the opinion of the holy Doctor in 2. 2 is so clear that the same Lessius, after asserting and proving his own opinion, then concedes that one virtue can be established, as St. Thomas establishes it l. c. And one virtue really must be established, 1 because although it has place in every genus of laws and in every matter, nevertheless in all cases and in all matters it always pursues one and the same reason of the honorable; which we have already heard from the Angelic Doctor, namely the equality of justice, lest one be overburdened before another, and the common good, not according to the words of the law and in cases commonly occurring, which pertains to legal justice, but in extraordinary cases and according to the intention of the legislator. Hence it is that equity corresponds to legal justice.
Wherefore, as legal justice, by reason of its own formal object, is one virtue, and at the same time a certain general virtue by reason of matter or material object, so likewise equity is a certain general virtue, because, as we have heard from Lessius, equity has place in every genus of laws and in every matter of virtues; and it is at the same time one special virtue, because, according to the Angelic Doctor, there is only one equity directive of laws, according as the reason of justice and common utility demand. Namely epicheia or equity has a special object, which of itself bears a peculiar difficulty, and therefore it is a virtue distinct from others.
And this is Aristotle's opinion; he says in V of the Ethics: "Equity is the direction of law, where it fails because of the universal." Equity is direction, because its act consists in this, that it makes a right work. But it is direction of positive law. Whether it is also direction of natural law is a matter controverted among the doctors. Cajetan affirms with others after St. Thomas in 2. 2, q. 120, a. 1. Several on the contrary deny it, adducing Suarez in chapter 16, l. 2, De Legibus. But, with the explanation applied which Suarez truly applies, there can be no controversy about this matter. For equity is the direction of law, yet of universal law and one deficient in some cases. But natural law can be regarded in two ways, as the same excellent doctor notes, n. 5 and 16. For it can be regarded according to itself, and insofar as it happens to be brought by some positive law. Natural law according to itself is nothing other than the dictate of right reason, which is to be brought concerning human actions, all their conditions having been weighed. But this dictate is not brought universally insofar as it can fail, but insofar as it is affected with those circumstances with which it never fails; otherwise it would not be a true dictate, and consequently neither necessary, nor right, nor containing a natural precept. And thus in the example brought by St. Thomas and Cajetan of epicheia, in not returning a deposit if someone asks it back for the attack on the fatherland, there truly is no epicheia in natural law considered according to itself. For that natural precept, as such, is nothing other than right reason, and right reason does not absolutely dictate that a deposit must be returned, but with the conditions understood which the reason of justice and charity requires. Suarez l. c. n. 7, 9. But if natural precepts are regarded as they have been constituted by positive law, then certainly epicheia has place, namely by reason of the universality by which the law is expressed, if nevertheless by reason of this universality the law fails in some case. And thus in the aforesaid example of St. Thomas, "the law established that deposits be returned." Yet if a madman deposited a sword and asks it back while he is in madness, "it would be evil to follow the law placed." But if, as Cajetan says l. c., "some things are so universally true that in no case do they fail, such as that one must not lie, that adultery must not be perpetrated, and things of this kind, in these, because they cannot fail, equity has no place."
- Moreover equity is the direction of law where it fails because of the universal. Therefore direction of law does not pertain to equity unless it fails because of the universal. Therefore if law fails in some case because of a privilege, commanding something other than the common law, direction of the acts of the privilege does not pertain to equity. And it is similar if from any other cause whatever the law fails, e.g., if because of obscurity or ambiguity the sense fails, or whether it fails is doubted. For it is not the office of equity to derogate from law or to interpret law, but to direct law where it fails for the reason that it was placed universally. Cajetan l. c. Nor in Aristotle's definition is there question of any defect whatever of law because of the universal. For law can fail because of the universal in two ways, negatively or contrariwise. It fails negatively when a case occurs in which the reason of the law is not verified. Yet if the law is observed, nothing evil, nothing disordered, is committed; indeed a good and very laudable act is placed, as is clear concerning Our Lord Jesus Christ, who observed the law of circumcision in Himself, and likewise concerning Our Lady, the Blessed Virgin Mary, who observed the law of presentation in the temple. Therefore equity is not the direction of a law which because of the universal fails negatively. But the law fails contrariwise because of the universal when in a particular case it would lead to crooked things if it were observed, namely it would be acted inequitably, as in the case of returning a deposit for attacking the fatherland, and in other similar cases, in which to observe the law would be to deviate from the right. And this properly constitutes the matter of equity; and it is clear ostensively, as Cajetan says, from the reason of the virtue itself which is called equity. "For since it is a certain justice," as the Philosopher says, dikaiosyne tis, Eth. l. 5, c. 10, § 8, "and justice is necessary to man for this, that he be virtuous, it follows that its matter, as also of the other species of justice, is that operation which without its direction would not be right. But we see that exchanges would not be made rightly without commutative justice, nor distributions without distributive. Therefore those operations which would bend away from right by observing the universal law are the proper matter of equity, and on account of them alone direction is necessary. And on account of this it was deservedly called by the prince of Philosophers the direction of law. For law does not need direction except where it falls from rectitude, where it would lead away from the right." Cajetan l. c.
- From this doctrine it is easily clear that interpretation of law and proper epicheia or equity must be altogether distinguished. For every epicheia is an interpretation of law, but not conversely is every interpretation of law epicheia. Often or always, as Suarez and Cajetan note, laws need interpretation because of ambiguity of words and because of obscurity of sense, or another similar cause. Interpretation of this kind is not epicheia. For that alone is epicheia by which we interpret a law in some particular case, because in it it fails because of the universal, so that it cannot justly be observed in that case. And in this sense Aristotle says epicheia is the amendment of legal justice, because it interprets the law as not to be observed in the case in which it would be a practical error to observe it, and against justice or natural equity.
But truly there can be other interpretations of law which do not regard amendment of the laws themselves, but only the explanation of their ambiguous or obscure sense; as e.g., when the law prohibits some contract, and a doubt arises whether the law merely prohibits that contract, or also invalidates it. Thus Suarez de Legib. l. 2, C. 16, n. 4. But from St. Thomas it would rather have to be said that epicheia simply is not interpretation of law. For, according to the Angelic Doctor, 2. 2, q. 120, a. 1 ad 3, interpretation has place in doubts, by consulting the prince; epicheia on the contrary has place in manifest things, by acting immediately in them. And again in 1. 2, q. 96, a. 6 ad 2, he says: "It must be said that he who follows the intention of the legislator does not interpret the law simply, but in the case in which it is manifest by the evidence of harm that the legislator intended something else. For if there is doubt, he ought either to act according to the words of the law or to consult the superior."
But must epicheia properly such be taken so restrictively that it has place only in the case in which it would be a sin to follow the law? Thus at first sight it would seem it must be said from St. Thomas, 2. 2, q. 120, a. 2, who seems to explain epicheia from cases in which it would be evil, as he says, to follow the law placed. And this is confirmed from the examples brought by the holy Doctor himself: restitution of a deposit which would be harmful if it were made to a madman, or if it were made for attacking the fatherland; and likewise if the gates of the city, which ought to remain closed, were not opened to citizens through whom the city would be preserved.
But St. Alphonsus, de legibus n. 201, extends epicheia also to the case in which the law is rendered too burdensome or too hard. "That place be given to epicheia," he says, "the law ought not only to cease in the particular case negatively, because namely the end of the law would then fail; but it ought to cease contrariwise, namely because the law is rendered damaging or too burdensome. Wherefore a deposited sword can be denied to the owner if he is going to abuse it. But it suffices if otherwise the law would be rendered too hard. Hence he is excused from hearing the sacred liturgy who fears a notable loss of goods. And he also is excused from the observance of a feast who otherwise is compelled to lose great gain."
Moral Theologians and Canonists commonly admit epicheia thus enlarged by St. Alphonsus. And it is truly not only not rejected by St. Thomas, but altogether admitted. For from St. Thomas its foundation is in this, that the reason of justice and common utility require it. Moreover the reason of justice demands this, that one not be overburdened before another, that one before another in the civil community or community not suffer damage. 2. 2, q. 120, a. 1. - Wherefore Scherer, who against the common opinion attacks epicheia, is rightly and deservedly reprehended. Wernz Ius Decretalium ed. 2, tom. 1, n. 48, note 19.
But to know more and more the intrinsic nature of epicheia, this question is moved here: Whether, in an occurring case of epicheia, someone can act freely, or ought first to recur to the Superior? And one must answer altogether negatively. Fittingly St. Thomas, 1. 2, q. 96, a. 6: "If there is sudden danger not allowing so much delay that one can recur to the Superior, necessity itself has dispensation annexed, because necessity is not subject to law." And in 2. 2, q. 120, a. 1 ad 3, he says it must be said "that interpretation has place in doubts, in which it is not licit without the determination of the prince to depart from the words of the law; but in manifest things there is no need of interpretation, but of execution."
- Now it must be inspected what sort of virtue equity of this kind is. According to Aristotle, equity is not charity, nor is it a certain charity; but it is a certain justice, as is expressly said in V of the Ethics. And, according to St. Thomas, who altogether follows Aristotle, "epicheia is part of justice commonly so called, as existing as a certain justice." But how epicheia is a part of justice commonly so called, and what that justice commonly so called is, the same Angelic Doctor thus declares: "it must be said that epicheia properly corresponds to legal justice, and in a certain way is contained in it, and in a certain way exceeds it. For if legal justice is called that which obeys the law either as regards the words of the law, or as regards the intention of the legislator, which is stronger, thus epicheia is the stronger part of legal justice. But if legal justice is called only that which obeys the law according to the words of the law, thus epicheia is not part of legal justice, but is a part of justice commonly so called, divided against legal justice, as exceeding it." Therefore epicheia is nothing other than a certain justice, part of justice taken generally, not a potential part of justice, but a subjective part. For epicheia corresponds to legal justice, which is not a potential part of justice, but a subjective part. Hence the Angelic Doctor concludes, saying, Hence it is clear that epicheia is a subjective part of justice.
- Wherefore the doctrine of Lessius does not seem true, or certainly that doctrine does not correspond to the doctrine of St. Thomas. For Lessius numbers epicheia or equity among the potential parts of justice, de Iust. et Iure l. 2, § 7. Others also number Epicheia among the potential parts of justice. They perhaps did this because the Angelic Doctor treats of epicheia at the end of the virtues annexed to justice. But the Angelic Doctor himself openly excludes it from the other virtues annexed to justice. For first, in question 80, single article, the holy Doctor gives the reason of the virtues annexed to justice and of the potential parts of justice and numbers them. Moreover, in the number of potential parts of justice the holy Doctor does not number epicheia also. But in the reason which he assigns of the potential parts of justice, or of those deficient from the perfect reason of justice, the holy Doctor altogether excludes epicheia. The reason of justice consists in this, that what is owed to another be rendered to him to equality. Therefore in two ways some virtue existing toward another falls short of the reason of justice. In one way indeed, insofar as it falls short of the reason of equality, and thus religion, piety, observance fall short, which cannot render debt to equality. In another way, there can be a defect from the reason of justice by reason of debt. But debt is twofold, legal debt and moral debt. Moral debt is what someone owes from the honorableness of virtue, and thus truth, gratitude, liberality, affability or friendship fall short. But legal debt is that to the rendering of which someone is bound by law. "And such debt justice properly attends, which is the principal virtue." Moreover epicheia attends legal debt, not indeed according to the words of the law, but according to the intention of the legislator. Moreover, in question 120, where St. Thomas expressly treats of epicheia, he expressly affirms: "Epicheia is a subjective part of justice," as we have already heard from the same Angelic Doctor.
Namely, it is evidently a subjective part of justice, of justice taken generally. But if epicheia is considered as part of legal justice, as St. Thomas says, it is its stronger part; for legal justice is directed according to epicheia. Hence epicheia is as it were a superior rule of human acts. By which reason it is also clear that epicheia is a more noble subjective part of justice taken generally, if it is considered as a co-distinguished part from legal justice. Epicheia, says the Philosopher, is better than a certain justice, namely legal justice. For since it itself is a certain justice, it is not better than every justice. St. Thomas, 2. 2, q. 120, a. 2.
It is the stronger part of legal justice, it is better than a certain justice; because legal justice inclines to the just according to common laws, but epicheia or equity inclines to the just beyond common laws. The former regards an inferior end, the latter a superior end. And thus in the law, lest foreigners climb the walls of the city, the proximate end is the security of the city from foreigners; but the end of equity, if a foreigner climbs to defend the city from enemies, is the safety of the city. But it is clear that the safety of the city is a higher end than security from foreigners, because that security is ordered to the safety of the city as to an end. And similarly in the law of deposits the proximate end is that to each one his own be returned; but the end of equity denying the deposit to a madman is useful, namely because in the aforesaid case that which is his own is not useful to him but harmful. Con-
But it is clear that the higher end is to give to someone his useful own, than his own; because something is given to someone as his own so that it may be useful, for it is given under the final reason of useful good. St. Thomas, 2. 2, q. 120, a. 2.; Cajetan in h. l.
Therefore epicheia or equity is related to legal justice as a superior rule of human acts, as St. Thomas expressly affirms, because it has a higher end, and to the intrinsic end of the law it adds another extrinsic end. And this is Aristotle's opinion, saying in V Ethics that the equitable is better than a certain just thing, and he speaks of the just according to common laws.
But as in laws, so also in acts and contracts epicheia or equity, for preserving equity itself or equality, is to be attended to, on account of the same reason, because namely it is morally impossible to foresee all things and to define all things in them. And therefore they need the interpretation, judgment, and sentence of a good and equitable judge. In Roman Law contracts were divided into contracts of good faith and of strict right. A contract of strict right is one in which only that is to be considered concerning which it was expressly agreed. A contract of good faith is one which is accepted not from the rigor of words, but from benign interpretation, from the good and equitable. Contracts of good faith are purchase, sale, lease, hire, deposit, partnership, and others which are numbered in the Institutes, title de Actionibus § 28, Actionum autem. They are called contracts of good faith, not because in them alone good faith must be observed, for this is required also in all other contracts of strict right, since it is not licit to celebrate them in bad faith; but because, since they are frequently accustomed to be made among citizens, many conditions are not usually placed in those contracts, which otherwise are placed in other contracts, but the contracting parties are remitted to the customs of the country and to other things which are usually understood in the said contracts. In contracts of strict right, on the contrary, several conditions are usually placed, according to which the judge is held to judge strictly. Cf. Ferraris v. Contractus in genere n. 12-18.; Reiffenstuel lib. 1, tit. 35. By more recent law, all contracts are esteemed to be of good faith, and receive interpretation from the good and equitable. Italian Code 1124, 1131, 1134.; French Code 1135, 1156, 1159.
- Finally it is worth the effort to report what Aristotle has concerning epicheia, or concerning equity, in book V of the Ethics, chapter 10. "
It follows that we speak concerning equity and concerning the equitable good, peri de epieikeias kai tou epieikous, what relation equity has to justice, what relation the equitable good has to right. For to those looking more closely it seems neither altogether the same nor other in genus. And sometimes we praise the equitable good, and the man who is equitable and good. Indeed we even transfer this name to other things in praising, using it for good, when we say to epieikesteron, signifying something better. Sometimes to those following reason it seems absurd that the equitable good, since it is something diverse from right, is praiseworthy. For either right is not good, or the equitable good is not just, if indeed this is something diverse from right, or if each is good they are the same.
Therefore the whole question concerning the equitable good arises almost from these things which we have said. But all these things have themselves well in a certain way, nor is there anything of them which fights with itself. For the equitable good is a right better than a certain right; nor is it so better than right that it is some other genus. Therefore right and the equitable good are the same; and since both are good, the equitable good is better.
But the doubt has arisen from this, that although the equitable good is right, nevertheless it is not right established by law or legal right, but a correction of legal right.
The cause of this matter is that every law is general, but concerning certain matters one cannot command rightly universally and generally. Therefore in those matters in which it is necessary that the voice of the law be universal and general, but this is where it cannot be done sufficiently rightly, in these the law takes that which usually happens in the greater number; although it sufficiently understands that which is mistaken in this. Nor nevertheless on that account is this done less rightly. For it is not the fault of the law, nor of him who made the law, but of the nature of things. For such plainly is the matter of those things which fall into action.
Therefore when the law has spoken generally and afterward something happens beyond that universal genus, then it is fitting that, where the bearer of the law omitted something and erred in that he spoke absolutely, that which is lacking and omitted be corrected: which even the bearer of the law, if he were present there, would say in this way and would have made law concerning it if he had foreknown it.
Therefore since right is the equitable good, it is then better than a certain right, not than what is absolutely right, but than that which, on account of general declaration, is not without fault. Finally this is the nature of the equitable good, that it is a correction of law where something is lacking to it, on account of the fact that it speaks generally. For this is the cause why not all things are comprehended by law, because concerning some things law cannot be brought; so that therefore a decree of the people is needed.
For of an undefined thing the rule also is indefinite, as also the Lesbian rule of lead for construction; for it is bent to the figure of the stone, nor does the same rule remain; so also the decree of the people is adapted to matters.
- Therefore what the equitable good, to epieikes, is, what right is, and finally by what right the equitable good is better, is clear from these things. From this it also appears who is an equitable and good man. For he who has taken counsel of this kind, so that he follows these things, since he is fit for doing those very things, and who does not press the highest right too much, nor toward the worse part, but rather concedes concerning his own right, even if he could rely on the help of law, he is equitable and good; and this habit is equity, epieikeia, which is a certain justice, not another habit." And in book 1, chapters 1 and 2 of the Magna Moralia: "After the things which we have handed down, it seems fitting that we discuss equity, hyper epieikeias, and what it is, and in what things, and concerning what sorts of things. But equity, and the equitable man, he epieikeia kai ho epieikes, is he who yields concerning his own right which belongs to him by laws: for he who in those things which the legislator cannot examine in particular and define exactly, for he speaks universally, yields concerning his own right and follows that which the legislator indeed would have willed to define even particularly but could not, he is an equitable man. Moreover he does not yield concerning every right simply; since he does not diminish those things which are just by nature and truly, but only those which the legislator left behind when he could not define. But right estimation of things, and the right estimator of things, He de eugnomosyne kai ho eugnomon, concerns the same things as equity, namely concerning just things which, omitted by the legislator, have not been sufficiently exactly defined, so that a judge may be found of those things which the legislator omits and certainly knows were passed over by the legislator, which nevertheless are just; he is the right estimator of things. Therefore right estimation of things is not without equity. Esti men oun ouk aneu epieikeias he eugnomosyne. For judging belongs to the right estimator, tou eugnomonos; but acting according to this judgment belongs to the equitable man, tou epieikous."