Section — Konings, Theologia Moralis
§ II. On Epikeia (Ἐπιείκεια)
- Epikeia is a benign, but equitable, interpretation of law, by which the law is not judged to extend itself to some case, although not excepted in the words of the law, since it is prudently believed either that the legislator did not foresee it or did not will to comprehend it under the law. Therefore it differs from interpretation properly so called, because the latter supposes words to be more obscure, the former clear.
One kind is authentic or public, which is made by the legislator himself, of which you have an example in the celebrated declaration of Benedict XIV on doubts respecting marriages in the Federated Provinces of Belgium,3 - another is doctrinal or private.
In order that there be place for epikeia, it is necessary that the law, if it had to be observed, would become harmful or too burdensome. Harmful: thus, for example, if a law forbids carrying arms, I shall be able to carry them, if I must go out and I am about to meet my enemy seeking me unto death. Too burdensome: hence although positive divine law forbade the loaves of proposition to be given to laymen, the High Priest rightly judged that he could give them to David, failing from weariness.
Quaer. Does epikeia have place if the Superior can easily be asked?
Resp. Affirmatively, if observance of the law would become harmful [n. 165. 2)]; otherwise in other cases. (K) p. 478.1
Notes to n. 146 - note sequence 1. (3) Conc. Pl. Balt. II, p. 314. Notes to n. 146 - note sequence 2. (1) S. Th. 2, 2, q. 120, art. 1. Appendix annotation (K), to n. 146. Query. p. 65. col. 2. You ask why in the use of epikeia, outside the case in which observance of the law would become harmful, the Superior must be approached, if he can easily be approached, but not in interpreting law? I respond, because, as I hand down in n. 140, there is place for interpretation where the words of the law are more obscure, but for epikeia where they are clear. Therefore, positing the case in which the more obscure words of the law admit with equal probability both the stricter and the milder signification, without consulting the Superior you will apply the principles of Probabilism; but if it were not lawful to apply these in this way, it would follow that Probabilism could not be reduced to practice, while the Superior can easily be asked about the sense of the more obscure words of the law. - But the matter stands otherwise in epikeia, since from what is equitable and good it conjectures the mind of the legislator contrary to his clear words. See St. Thomas, 1. 2. q. 96. a. 6 ad 2.