Question Five: On Equity

890. Equity (ἐπιείκεια, benignity, moderation; billijkheid) 1) in the general sense is natural justice, especially where it is opposed to human law, which it supplies or corrects; and thus it is not distinguished from justice, and it produces rights and offices strictly so called;

in the strict sense it is a) either a benign interpretation and observance of law, which against the words of the law follows the habitual mind of the legislator, and the moral virtue inclining to acting thus; this is customarily called by the Greek name epikeia, as was explained in the treatise on Laws (I, n. 296). Thus the ancients and scholastics understand it especially, for example, St. Thomas, q. 120;

b) or a fitting moderation of right properly so called, which says a certain remission of right, and the virtue disposing to this; as if a creditor grants delay to a debtor, while it does not harm himself much, but helps the other, or if a master receives extraordinary profit from the labors of workers and therefore gives to them beyond the wage (n. 554). Thus the moderns more often understand it, but the sense was not unknown to the ancients, as is clear from St. Thomas, q. 80, ad 3.

These two equities differ: the first is in debtors, who must render right or observe law; the other is in creditors, who can exact right.

891. Epikeia, or equity inclining to benign observance of law, pertains to legal justice, of which it is a subjective part or species. - It can be defined, conformably to the sayings of Aristotle, Eth. V, c. 10, n. 6: the virtue directive of law, where it fails because of the universal; as St. Thomas shows, q. 120, a. 1:

"Because human acts, concerning which laws are given, consist in singular contingents, which can vary in infinite ways, it was not possible that some rule of law be established (or enunciated) which would fail in no case. But legislators attend to that which happens in the greater number of cases, making laws according to this; which law nevertheless in some cases it is against the equity of justice to observe, and against the common good which the law intends. Thus the law established that deposits be returned, because this is just in the greater number of cases. Yet it sometimes happens that this is harmful, for instance if a madman deposited a sword and asks it back while he is in madness; or if someone asks back a deposit for attacking the fatherland. Therefore in these and similar cases, it is evil to follow the positive law; but it is good, the words of the law having been passed over, to follow that which the account of justice and common utility demands. And to this epikeia is ordered, which among us is called equity. Hence it is clear that epikeia is a virtue."

Therefore 1. the object of this virtue is the common good, but to be sought in a special way beyond the common rules and words of the law in particular cases, in which the law itself would tend to evil because of its universality; which furnishes a special difficulty, for in this matter sometimes even the learned themselves, led by zeal for the law, stick fast when they follow its words too scrupulously; hence it needs a special virtue.

The cause of epikeia is not a defect of law, but its generality, which is adapted to most cases, yet can fail in a few.

It pertains to legal justice. For legal justice regards the common good to be procured; but this can be procured either according to the words of the law, or according to the higher and habitual intention of the legislator. In the first case there is legal justice more strictly so called; in the other, there is epikeia or equity. Therefore this is a species of legal justice. But since the intention of the legislator must especially be regarded, therefore epikeia is the stronger part of legal justice (a. 2, and ad 1).

892. Equity inclining the will to moderate use of right is a virtue annexed to particular justice or a potential part. - It can be defined: the virtue inclining to the humane use of right conformably to right reason.

It is a special virtue because it regards a special account of good or honesty, which consists in a certain remission of right and humane use, insofar as it is worthy of man that he thus act more mildly toward another man for the right way of living together and the fitting conversation of men among themselves. Hence in this account it has a certain affinity with affability.

It is annexed to justice, from which on the one hand it falls short, since there is not in another a right or strict debt founded in law or convention; but with which on the other hand it agrees, because it renders to another some debt of mere honesty, insofar as in the other there is as it were the beginning of a right, or some imperfect title of decency, which in some way demands a benign and mitigated use of right. Hence equity of itself obliges only under light obligation and not with grave inconvenience; and St. Thomas notes that it "has little of the account of debt" (q. 80).

Hence equity mediates between charity and justice, and is a certain mitigation and perfection of justice: justice, says St. Cyprian, tempered by the sweetness of mercy. Of it Aristotle says, Eth. V, c. 10: "He who does not too greatly press the highest right, nor to the worse part, but rather concedes from his own right, even if he could rely upon the aids of law, he is equitable and good; and this habit is called equity."

893.

893. Remarks. - 1. Equity accepted in either sense, since it pertains to justice, is subjected in the will; and it is the execution of the virtue gnome, which is annexed to prudence and is in reason, so that it may be able to judge well how in unusual cases one must act beyond the common rules, and it directs equity. From this is understood the excellence of equity, since it is directed not by common prudence but by a higher prudence.

893.

The adage, The highest right is the highest injury, is to be understood either a) of positive right which is pressed while it is opposed to natural justice; or b) of an interpretation of law which is wholly pressed after every epikeia has been rejected; but not c) of the use of right, only that equity being passed over which is a potential part of justice: for the omission of an imperfect debt cannot be the highest injury.