Article V. On Epikeia or Equity

617. Notion. Epikeia or equity¹⁰⁸⁴ is a certain suitable moderation of strict law.

Explanation. Epikeia can be taken in a twofold sense, namely, insofar as it is joined to legal justice, or insofar as it pertains to a certain natural justice. In the first sense it is a certain benign interpretation of a law, not according to its words but according to the mind of the legislator.¹⁰⁸⁵

It is defined by Aristotle¹⁰⁸⁶ as "the correction of law where it fails on account of its universality." In ancient Roman law, equity or equitable law is distinguished from strict law.¹⁰⁸⁷ Concerning this epikeia or equity the Angelic Doctor says:¹⁰⁸⁸ "Epikeia properly corresponds to legal justice, and in a certain manner is contained under it, and in a certain manner exceeds it. For if legal justice is said to be that which obeys the law, whether as regards the words of the law or as regards the intention of the legislator, which is more important, then epikeia is the more excellent part of legal justice. But if legal justice is said to be only that which obeys the law according to the words of the law, then epikeia is not a part of legal justice, but is a part of justice commonly so called, divided against legal justice as exceeding it."

¹⁰⁸⁴ Billigkeit [equity].

¹⁰⁸⁵ Cf. what was said above, I, n. 231ff., in the tract on the interpretation of laws concerning this epikeia.

¹⁰⁸⁶ Ethics l. 5, c. 10, n. 6.

¹⁰⁸⁷ Cf. Voigt, Die Lehre vom ius naturale, aequum und ius gentium der Römer I, § 4.

¹⁰⁸⁸ S. theol. 2, 2, q. 120, a. 2 ad 1.

618. Epikeia or equity, insofar as it pertains to a certain natural justice, can be defined with St. Cyprian as justice tempered by the sweetness of mercy. St. Thomas reduces this virtue to affability or friendship.¹⁰⁸⁹ And in truth it has a great affinity with affability or friendship, which regards suitable intercourse among men. For equity remits something of strict law so that human intercourse may be suitable and pleasant. Concerning this equity Aristotle says:¹⁰⁹⁰ "He who does not excessively urge his highest [right], nor toward the worse part, but rather yields from his right, even though he could rely upon the aid of the law, is equitable and good; and this habit is called equity."

This equity is exercised, for example, by a master who gives workers something beyond the stipulated wage if he himself has received an extraordinary profit from the labors of the workers; likewise equity is exercised by a creditor who grants some delay in payment to a debtor who cannot pay at the fixed time without great distress. This virtue of equity stands, as it were, midway between justice and charity. It belongs indeed to charity not to urge one's highest right in some case, in favor of one's neighbor; but it pertains to some due of justice not excessively to burden one's neighbor by the strict exaction of a debt. This equity pertains more to justice than to charity; hence Aristotle says:¹⁰⁹¹ "Equity is a certain justice, not some other habit."

Since equity has little of the character of a due, its violation of itself is only a venial sin; and the very well-known adage, "The highest law is the highest injury," can be understood only in a diminished sense concerning the violation of this equity. For it cannot happen that the omission of an imperfect due becomes the highest injury.¹⁰⁹² This adage, however, is most true if it is understood of a supreme positive right which is opposed to natural justice, or also of a spurious interpretation of positive law which rejects every epikeia.

¹⁰⁸⁹ Ib., q. 80, a. un.

¹⁰⁹⁰ L.c.

¹⁰⁹¹ L.c.

¹⁰⁹² Cf. Vermeersch, Quaest. de iust. 21, n. 478ff., where the virtue of equity is discussed well and at length.

619. The virtue of equity, taken in either sense, has its subject in the will and is scarcely anything other than the execution of the virtue of gnome,¹⁰⁹³ which is a part of prudence and resides in reason. Gnome, therefore, furnishes direction to equity in the matter of justice. But gnome itself extends also to other matters.¹⁰⁹⁴ From this intimate conjunction with gnome there is also apparent the excellence of equity, which is directed not by common prudence but by a higher prudence.

¹⁰⁹³ Cf. above, I, n. 633; Cajetan, Comm. in 2, 2, q. 120, a. 2; S. theol. 2, 2, q. 80, a. un. ad 4.

¹⁰⁹⁴ S. theol., l.c.