§ 2. On Epikeia

231. Notion. Epikeia (ἐπιείκεια = equity) is a benign and equitable interpretation, not of the law itself, but of the mind of the legislator, who is presumed in some extraordinary particular case to suspend the law that has been made,²³ from the strict observance of which something harmful or too burdensome would follow.

It is explained. "Because human acts, concerning which laws are given, consist in singular contingent things, which can be varied in infinite ways, it was not possible that some rule of law be established which would fail in no case; but legislators intend that which happens in the greater number of cases, making the law according to this, which nevertheless in some cases to observe is against the equality of justice and against the common good which the law intends: just as the law established that deposits should be returned, because this is just in the greater number of cases; nevertheless it sometimes happens that it is harmful, for example, if a madman deposited a sword and asks it back while he is in madness; or if someone asks back a deposit for the attacking of the fatherland. Therefore in these and similar cases it is evil to follow the established law; but it is good, the words of the law having been passed over, to follow that which the reason of justice and the common utility demand. And to this epikeia is ordered, which among us is called equity." Thus St. Thomas.²⁴ From what has been said it follows that epikeia is an act of legal justice, which induces man to observe laws necessary for the common good. For although epikeia does not observe the letter of the law, nevertheless it attains its spirit, which intends the good of subjects.²⁵

Epikeia differs from simple interpretation of law. For a) simple interpretation rightly illustrates an obscure law; but epikeia passes over a manifest law from the presupposed mind of the legislator; b) interpretation comprehends all cases of some law, but epikeia only a singular case. - How epikeia differs from dispensation of law will be said below, n. 238. Epikeia differs from presumed license, because by epikeia we judge that such an act is not comprehended under the law; but by presumed license we think that the superior would be going to dispense from the law if a petition were made.

Note. To employ epikeia rightly there is required exquisite judgment, mature prudence (which the ancients called gnomen), candor of soul, love of justice. For in epikeia a man constitutes himself arbiter of the law and, as it were, his own legislator. Wherefore epikeia is to be employed rarely. But commonly the more unlearned and inexperienced men are, the more boldly they employ epikeia. It is plain that such an abuse does not escape culpable transgression of the law.

²³ Epikeia is defined by Aristotle (Ethic. V, c. 10, n. 6): "Direction of the law, where it fails because of the universal." Cajetan gives a profound explanation of this definition (Com. in II-II, q. 120, a. 1). Below II, n. 617 discussion will return concerning the virtue of equity. Epikeia, or equity, concerning which there is discussion here, is not a virtue, but an act, and indeed one pertaining to legal justice.

²⁴ S. theol. II-II, q. 120, a. 1.

²⁵ Ibid. ad 1.

232. Rules for the use of epikeia.

1. Epikeia can have place "whenever the law would be rendered harmful or very burdensome and difficult to observe." Thus St. Alphonsus.²⁶

In the cases brought forward above by St. Thomas the law would become harmful, and there is a conflict between two laws, namely between the law commanding return of a deposit, and the law commanding the protection of the common good or of a great private good. Moreover in a conflict of two laws the more powerful law is to be observed. - The same is valid when a law would become very burdensome and too difficult to observe, provided, however, that there is question of positive laws and not of the natural law. For positive law is not wont to oblige with great inconvenience. Hence, for example, if a priest has labored through the whole day in the confessional or in the pulpit, so that he could not recite the Breviary, and now in the evening at the eleventh hour he is very tired, he can employ epikeia by interpreting the mind of the legislator, who did not will to exact the recitation of the Breviary after so great an exhaustion.

²⁶ Homo apost., de leg. n. 77.

233. 2. Epikeia cannot be licitly employed:

a) If the superior who is able to concede dispensation of the law can easily be approached.

The reason is obvious. For epikeia is full of dangers, since a man in his own cause is wont too quickly to incline to the more benign part and then presumes the mind of the legislator to be such as it really is not. But when dispensation of the legitimate superior has been conceded, then the danger of illusion is almost absent. Hence, in the case just cited, such a priest could not licitly employ epikeia if the bishop or regular superior having the faculty of dispensing could easily be approached to obtain a dispensation from recitation of the Breviary.

b) If there is question of a clear natural law, and more probably also if there is question of an invalidating law (ecclesiastical).²⁷

The reason for the first part is that a clear natural law always obliges, and indeed even with great inconvenience; because its object is good or evil in itself; nor is God, legislator of the natural law, to be said not to have foreseen some particular case and to have wished it exempt from the law. Hence, for example, it is not licit to employ epikeia for saying a lie or for permitting fornication, even if someone is situated in the greatest straits.²⁸ - But if there were question of a natural law not so clear because of special circumstances added, and especially if there were present a conflict of two laws, as in the examples adduced above by St. Thomas, it is licit to employ epikeia broadly so called.

The reason for the second part is that an invalidating law is wont to be made on account of a most urgent common good, and the legislator very strictly and accurately determines the conditions under which he recognizes the validity of the act. Therefore it cannot reasonably be said that his mind was that in this or that case, on account of the necessity of some private man,³⁰ the obligation would not urge. But epikeia is nothing other than a benign interpretation of the mind of the legislator. Hence, for example, in matrimonial impediments, which are invalidating laws, it is not licit by employing epikeia to declare that a marriage is valid which was entered into in great straits with some diriment impediment. - But the things which some authors³¹ heap together to prove the liceity of epikeia even in invalidating laws, and notably in diriment impediments of marriage, prove only that in great straits spouses can be left in good faith, even if the marriage is invalid because of a diriment impediment; or that the bishop or his delegate then has the faculty of dispensing. This indeed is most true and placed beyond doubt, since even the Sacred Penitentiary itself has more than once answered that putative spouses can be left in good faith.³² But a sign not at all obscure that even those authors do not much trust their own opinion can be perceived in this, that they themselves prescribe that such a marriage entered into with a diriment impediment by epikeia being employed is to be convalidated as soon as possible by means of Pontifical dispensation. But how one must act in practice when all things are ready for nuptials and unexpectedly a diriment impediment is detected, whose dispensation now cannot be obtained in time, will be said below in the treatise on marriage, when the so-called "perplexed case" will be solved.³³

²⁷ Cf. D'Annibale, Summula Theol. mor. I, n. 216; Suarez, De leg. l. 5, c. 23 and l. 3, c. 30, n. 13; Aertnys-Damen, l. c. I, n. 176.

²⁸ Lehmkuhl (Theol. mor. I, 195) rightly says: "To speak of epikeia in natural law logically implies a contradiction."

³⁰ Authors commonly admit epikeia in an ecclesiastical invalidating law on account of an urgent necessity of public order.

³¹ Especially Ballerini-Palmieri, Opus theol. I, de leg. n. 143 sqq.

³² Cf. below concerning the convalidation of invalid marriage III, 632.

³³ Cf. below III, n. 731.