Article — Marc, Institutiones Morales
Article II: On Epikeia
- DEFINITION. "Epikeia is the at least probable presumption that the legislator, in some circumstance of things, did not will to oblige" (H. Ap., II, 77).
In this it differs from simple interpretation, that the latter elucidates obscure words of the law; but epikeia declares the mind of the legislator against the open words of the law.
I. There is place for epikeia if the law would otherwise be rendered either harmful or too onerous (I, 201; cf. 98, 99, 175). For in the former case the Superior could not oblige, hence epikeia is necessary. In the latter case, it is justly and prudently presumed that the Superior did not wish to oblige, although by strict right he could have done so: wherefore epikeia is then lawful, even if not always necessary, as if the matter concerns private right, which one doubting can renounce. Thus he is excused from hearing Mass who fears a notable loss of goods (cf. 223, 248). Read Salmant., tr. XI, c. 5.
Nevertheless authors add that the Superior must be approached beforehand, if this can be done. See Noldin, I, n. 144; Gopfert, I, n. 96, where there are many useful things.
- II. Epikeia (defined broadly as above) has force not only in human laws, but also in natural laws, where the action can, from circumstances, be stripped of malice (I, 201).
Thus natural law dictates: You shall not commit theft; yet to escape death, it is lawful to take another's thing (cf. n. 129).
These things will be understood more fully from what is to be said concerning causes excusing from the law and concerning the cessation of law from within (n. 221, 256). Meanwhile it is useful to note that epikeia (or equity) is an act of a certain more sublime justice, better than strictly legal justice, which observes the words of the law (St. Thomas, 2.2, q. 120, a. 2, ad 2). Hence the adage of law: "In all causes, the reason of equity ought to be stronger than that of strict right," and that of Sacred Scripture: Do not be just overmuch (Eccles. 7:17); All your commandments are equity (Ps. 118:172). But equity is justice tempered by the sweetness of mercy, as St. Cyprian defines it (in Ferraris, v. Law, a. 5, n. 34).