Article I. Approach to the Disputation

478. Timeliness of the question. The disputation concerning the virtues joined to justice follows in order the consideration of justice properly so called. There are, moreover, two things from which it is evident how greatly it concerns us to acquire for ourselves a distinct notion of equity:

a) The perpetual use which men are accustomed to make of the word equity in their affairs and controversies, although, if they are asked concerning the essence of equity and the proper force of the word, they generally remain in great doubt;

b) The appeal to equity in the matter of the wage by those who, escaping by means of confused rationales the very thing under dispute, while they think that they have untied the knot, have been prevented by themselves from seeing the truth.

479. What the word equity signifies. As generally happens, no slight obscurity of the matter has arisen from the various things which are subjected to the same word. Therefore, it will be useful first to divide and explain these by words:

1. Sometimes equity signifies natural justice, insofar as, especially in former times, it was opposed to the civil law, which it supplied or corrected. Hence, at Rome, for example, the praetors gradually mitigated the harshness of the law through edicts derived from that equity; cases of strict right and of good faith were distinguished, and so forth. Equity thus understood produces rights and duties taken in the strictest sense, and does not demand a special inquiry, since it is the same as the genus of justice itself.

2. From this the word was transferred to designate that interpretation and observance of laws which follows the mind of the legislator against the words of the law and is more frequently called epikeia. And in this sense it was principally employed by the ancients and Scholastics. We shall discuss it in the scholium.

3. According to modern usage, equity is accustomed to designate a certain congruous moderation which, in one devoted to equity, expresses some remission of right and, in the one whom it benefits, a certain imperfect title to ask or expect this remission. Come then: the present question concerns the accurate explanation of equity in this sense.

480. Opinions. Since the Scholastics generally consider epikeia alone, and more recent authors are very meager in treating this argument, diverse opinions must not so much be overthrown as the mist must be dispelled, so that the occasion for appealing to equity inopportunely may be removed.