Question Sixth. On the Interpretation of Law and Epikeia.

157. Definition. Interpretation is defined as the genuine explanation of a law. Interpretation must be made according to the mind of the legislator and the words of the law: for the whole of interpretation tends to this, that the will of the legislator, which he had when he established the law, be sought and determined. But the mind of the legislator is sought which is contained in the words of the law (with their context, object, end, and other circumstances considered); therefore a mind of the legislator which is contained in the words of the law in no way is not to be attended to.

158. Division of interpretation. a. By reason of the author it is divided into authentic, which is made by the legislator himself or by another to whom the legislator has given the power of interpreting; into usual, which is made by subjects through the manner in which they observe the law; into doctrinal, which is made by learned men according to the rules of genuine interpretation. Because law is to be interpreted according to the manner in which it is observed, the adage has arisen: custom is the best interpreter of laws.

b. By reason of the mode, interpretation is divided into comprehensive or declarative, which explains the law from the proper and customary signification of the words, as if it is said that under the name of son even an illegitimate son is understood; and extensive, which extends the law beyond the customary sense of the words, as if it is said that under the name of son even a grandson is understood.¹ This is not properly an interpretation of law, but rather an extension of law and a new legislation; therefore this interpretation also needs a new promulgation.

Authors do not agree whether comprehensive interpretation, in order to obtain the value of law, needs a new promulgation. The disagreement seems to arise from this, that not all define comprehensive interpretation in the same manner. Some call that interpretation alone comprehensive which exhibits the sense of a sufficiently clear law; but others also comprehend under this interpretation that which declares a law that is obscure and plainly doubtful² (n. 135, 3).

c. Comprehensive interpretation is distinguished into strict, by which the sense of the law is restricted to the proper signification of the words alone, as if the word son is understood only of one begotten; and broad, by which the sense of the law is extended as much as is permitted by the words and end of the law, as if the word son is taken even of an adopted son.

For sometimes it happens that the words of a law can be understood in a twofold sense, each of which is a proper sense, but one is broader than the other. Thus the term clerics, if it is taken strictly, signifies only those who have been initiated by clerical tonsure; but if the same term is taken broadly, it designates all ecclesiastical persons. Likewise the term religious strictly signifies only regulars, broadly all who exist in some congregation even of simple vows, and indeed also novices.

¹ Cf. Schmalzgrueber, Ius ecclesiast. Dissert. prooem. n. 373.

² Cf. Wernz I. n. 100.

159. On authentic and doctrinal interpretation. 1. Authentic interpretation has the force of law, because it proceeds from the same power as the law itself.

Of the Roman congregations only two have the power of interpreting laws authentically: the congregation of the council, which can interpret the disciplinary decrees of the Council of Trent, and the congregation of sacred rites, which can interpret liturgical laws authentically (n. 133).

2. Doctrinal interpretation does not have the force of law, because it does not proceed from legislative power, but it has that value which the weight of reasons and the authority of doctors procure for it; wherefore, where the consensus of doctors is had, the interpretation is morally certain; but where the doctors disagree concerning the sense of the law, the interpretation is held only as probable. Canonists hand down the rules of doctrinal interpretation.¹

¹ Laymann, De legibus c. 18. Reuter, De legibus n. 252-258. Wernz I. n. 127-133.

160. On epikeia. 1. Epikeia (equity) can be defined as a restrictive interpretation of law, by which it is judged that the law does not extend to some particular case on account of special circumstances, although it is clearly contained in the words of the law; as, if a law prohibits carrying arms at night, by epikeia he who is about to encounter an enemy seeking him for death can judge that it is licit for him to carry arms. The reason for admitting epikeia is that the legislator cannot foresee the most diverse circumstances in which men can be found, and if he did foresee them, he could not comprehend them by his law, which regards only things that happen commonly; and therefore he is rightly judged not to have wished to comprehend cases of this kind by his universal law.

Epikeia differs both from interpretation and from presumed dispensation from the law. For by interpretation it is declared that some case is not contained in the words of the law; and by presumed dispensation it is judged that a case is indeed contained in the law, but that the legislator would except it if he were asked; but through epikeia it is judged that this case, from the mind of the legislator, is not comprehended in the law; therefore by interpretation the words of the law are explained, but by epikeia the mind of the legislator is judged.

2. When it is lawful to use it. As often as on account of special circumstances it can prudently be judged that the legislator did not wish to comprehend some case by his law, it is lawful to employ epikeia; but specifically it is lawful to use it in a threefold case:

a. If observance of the law would be evil or pernicious, as if someone should leave a gravely sick person in order to hear Mass.

b. If observance of the law would be too difficult and burdensome, as if a sick person should fast.

c. If from the circumstances it can prudently be judged that the legislator in this case, in which the law is not too difficult, did not wish to oblige, even if he could have done so, because he is rightly presumed not to wish to oblige with all rigor and in every case in which he can.¹ Thus David, using epikeia, ate the loaves of proposition.²

The last case is that in which epikeia properly has place: for in the former cases the law ceases, because we judge that the legislator could not have comprehended them by his law; but in the last it ceases because from a certain equity we judge that the legislator did not wish to comprehend it, even if he could have done so. In the former cases it is lawful to use epikeia, even if the legislator is not asked, who could be approached, because it is established that he cannot oblige; but in the last case he must be asked, if he can be approached.

3. Although every human law of itself admits epikeia, nevertheless from the practice of the civil forum it is not always admitted in civil law. If, e.g., a parish priest, because of an urgent cause of death, joins two persons living in concubinage in marriage without a preceding civil marriage, where the law prescribes civil marriage, the parish priest, having used legitimate epikeia, acts rightly; nevertheless the civil judge would sometimes declare the parish priest guilty of having violated the civil law.

¹ Cf. Suarez, De legibus l. 6. c. 7. n. 11.

² 1 Reg. 21, 6.