Epieikeia

Epieikeia.—Since human laws regulate particular and contingent cases according to what usually happens, and since they must therefore be expressed in general terms, exceptional cases will occur that fall under the law, if we consider only the general wording of its text, but that do not fall under the law, if we consider the purpose of the lawgiver, who never foresaw the exceptional cases and would have made different provision for them, had he foreseen them. In such exceptional cases legalism insists on blind obedience to the law-books, but the higher justice of epieikeia or equity calls for obedience to the lawgiver himself as intending the common welfare and fair treatment of the rights of each person.

Epieikeia may be defined, therefore, as a moderation of the words of the law where in an extraordinary case, on account of their generality, they do not represent the mind of the lawgiver; which moderation must be made in the manner in which the lawgiver himself would have made it, had he thought of the case, or would make it now, were he consulted. Hence, epieikeia differs from the various causes that take away the obligation of a law, for it supposes the non-existence of obligation from the beginning and non-comprehension in the law.

Thus: (a) it is not revocation, desuetude, restrictive interpretation, or dispensation; (b) it is not cessation on account of impossibility; (c) it is not presumed permission or self-dispensation.

In its use epieikeia is at once lawful and dangerous.

(a) It is lawful, for it defends the common good, the judgment of conscience, the rights of individuals from subjection to a written document, and from oppression by the abuse of power;

(b) it is dangerous, for it rests on the judgment of the individual, which is prone to decide in his own favor to the detriment of the common good as well as of self.

Epieikeia by its very nature imposes certain limits on its use.

(a) It is based on the fact that a certain case is not comprehended in a law, because the legislator did not foresee it.

Hence, epieikeia is not applicable to the Divine Law; for the Divine Lawgiver foresaw all cases that could arise, and so excluded all exceptions (see 315). This is clear as regards the Ten Commandments and other precepts of the Natural Law, since they deal with what is intrinsically good or bad, and are unchangeable (see 307). But it applies also to the prescriptions of the Positive Law of God, and apparent cases of epieikeia, such as the eating of the loaves of proposition by David (I Kings, xxi. 6), can be explained by the cessation of law or divine dispensation. Examples: One may not excuse certain modern forms of cheating on the plea that they were not thought of when the Decalogue was given. One may not omit Baptism on the ground that Christ Himself would have excused from it, had He foreseen the circumstances.

(b) Epieikeia is based on the principle that the words of a law must be subordinated to the common good and justice. Hence, it is not applicable to those laws whose universal observance is demanded by the common good—that is, to irritant laws. Any hardship suffered by an individual through the effect of such laws is small in comparison with the injury that would be done to the common welfare if there were any cases not comprehended in such laws; for irritant laws are the norms for judging the validity of contracts and other acts, and public; security demands that they be uniform and certain. Example: One may not contract marriage with a diriment impediment, on the plea that the Church would not wish the impediments to oblige under the serious inconvenience that exists in one’s case.

The dangers of epieikeia also place limitations on its use.

(a) There is the danger that one may be wrong in judging that the lawgiver did not wish to include a case under his law. If this is not certain, one should investigate to the best of one’s ability, and have recourse, if possible, to the legislator or his representative for a declaration or dispensation. It is never lawful to use epieikeia without reasonable certainty that the legislator would not wish the law to apply here and now.

(b) There is the danger that one may be in bad faith in deciding that the common good or justice requires the use of epieikeia; the motive in reality may be self-interest or escape from obligation, Hence, a person should not use epieikeia except in necessity, when he is thrown on his own resources and must decide for himself; and, even then, he must be sure that he acts from sincerity and disinterestedness.

Cases in which the use of epieikeia is lawful are the following:

(a) Epieikeia in a wide sense—that is, a benign interpretation made by a private individual that a particular case is not comprehended in the intention of the lawgiver, because the latter had not the power to include it—may be used for all cases in which the opposite interpretation would set the law up in opposition to the common welfare or would work injustice to individuals. Example: The law that goods borrowed must be returned to their owners yields to epieikeia, if there is question of putting weapons into the hands of one who would use them against the public security or for the commission of murder;

(b) Epieikeia in a strict sense—that is, the judgment that a particular case is not included in the intention of the lawgiver, because the latter had not the wish to include it—may be used for all those cases in which the opposite interpretation would suppose in the lawgiver a severity that is not likely. “The rigor of the law may be extreme injustice” (Cicero, De Officiis, I, 10). Example: Titus has the opportunity to make a notable sum of money on a Sunday morning, but cannot make use of the opportunity without missing Mass that day. Caius on a fast day feels well, but is tired and will be not a little inconvenienced if he fasts. Both Titus and Caius may use epieikeia, for the Church does not wish to be unkind, nor, generally speaking, to have her laws oblige rigorously and for every case.

Though all human law is subject to epieikeia, the practice of the civil law does not always allow it. (a) Action on individual responsibility makes one guilty of technical violation. Example: Balbus, fearing that his house may be robbed or he himself assaulted, borrows a revolver and practises shooting. He had not time to get the necessary permit, but argued that necessity knows no law. But, if he is arrested, the court may hold him guilty of violating the law. (b) Action in a court of equity, however, will give relief for cases not provided for in law. Example: One may obtain an order from the court restraining a neighbor from injury, when the law itself gives only the right to recover damages for injury done.