Article II. Formulation and Arguments of the Conclusion

Equity is a special virtue, intermediate between justice and charity and a potential part of justice, by which the soul is inclined to the humane use of right.

481. I. State of the question. 1. THE INTENTION OF THE THESIS looks to this: that the thing subjected to the most customary word equity be proposed distinctly. We judge that we discharge this care when, by the formula set forth above, we call equity a special virtue, assign its place among the virtues, and at the same time declare its formal moral goodness and subject.

2. THE TERMS ARE EXPLAINED.

Equity, according to the usage which is more frequent today,

Is a special virtue, namely, in that manner in which justice is such (no. 26). For in the corollary we shall say that it consists of three species.

Intermediate between justice and charity, insofar as it is composed of the imperfect rationale of each and is placed between the two as a certain consummation of the former and beginning of the latter.

And of justice, I mean the cardinal virtue,

A potential part, which therefore, agreeing more with justice than with charity, nevertheless falls short of the rationale of justice, so that in dialectical order it is ascribed to justice as to the more principal virtue;

By which the soul, namely the will, in which faculty equity resides,

Is inclined: Here we undertake to describe the formal moral goodness of this virtue.

To the humane, that is, that which is worthy of man, after regard has been had to the terminus of right, who is another man: that man, I say, who is bound by the duty of justice.

Use of right: by these words we indicate at the same time that the subject of this virtue is man as creditor, not as debtor; that is, man insofar as he possesses rights, not insofar as he is bound by a debt of justice.

482. II. Proof. Equity is a special virtue, intermediate between justice and charity and a potential part of justice, by which the soul is inclined to the humane use of right.

The argumentation, since it concerns the genuine rationale of the word, is contained wholly in a dialectical analysis of common usage. It seems capable of being brought forth thus.

Equity is commonly understood:

a) To be a certain mitigation of strict right, a softening of the summit of right, a moderate use; or a certain prestation which, without a legal or conventional indication, is nevertheless highly congruous.

The Philosopher testifies to this at the end of bk. 5 of the Ethics, chap. 10, writing thus: “He who does not press the utmost right—his own—excessively (ἀκριβοδίκαιος), nor toward the worse part, but rather yields something of his right, even though he could rely upon the aid of the law, is equitable and good; and this habit is called equity.” The dictionaries testify to it: “This word sometimes signifies,” says the Dictionary of the French Academy, under Équité, “justice exercised not according to the rigor of the law but with a reasonable moderation and softening.” Freund, in the Grand dictionnaire [Great Dictionary], renders the word thus: “A manner of acting that is upright, lawful, affable; equity, moderation ... which allows itself to be guided by the sense of duty, while iustitia, justice, grants only that which is owed according to the terms of the law.”

b) To pertain to the one who holds a right actively. Thus, the subject who omits the law by epikeia is not called equitable so much as the ruler or judge who, when opportune, does not exact a penalty, for example; and likewise he who of his own accord remits something of his right, as when the master of a business does not retain a great profit wholly for himself but communicates it to the workers.

c) To be akin to justice and charity. To justice: for where do men introduce discourse concerning equity except in defining rights and in declaring laws and agreements? Who appeals to equity except one who knows that, from the rigor of right, he will lose his case?—To charity: for it is celebrated as such a manner of using right that no one is offended, as a certain mitigation by which the prestation of a debt is rendered smoother, and thus an easy conjunction of minds is prepared.

d) Yet to be nearer justice than charity. For while charity rests upon a certain unity of persons and is prior toward oneself than toward other equals, someone acquires the praise of equity, on the contrary, not from the rationale of acting toward himself but from the manner in which he treats others. One who has recourse to the protection of equity judges that in himself there is a certain cause, or an almost juridical title, why something should be conceded or assigned to him. And, if we attend carefully to the matter, furnishing that which is equitable is said to be congruous because it appears fitted to the personality of another. Recall the most customary examples. A certain delay conceded to a debtor is called equitable when it does not harm the creditor but frees the debtor from great distress. What else is had here except a certain imperfect right of necessity? A certain sharing of extraordinary profit between the master and the worker is called equitable. Why, unless because there is in the worker a quasi-right to the fruits gathered from labor?

e) Nevertheless, to depart from the perfect rationale of justice. For justice renders a right. But one who appeals to equity confesses that right does not favor him. And all perceive that what is merely equitable is owed less than what is just.

But: These things show that our conclusion concerning the essence of equity is correct.

Therefore: The conclusion follows.

To the minor: From these things we have that, in common usage, equity is placed between justice and charity (c); that it is referred rather to justice, although it differs somewhat from it, so that it is a potential part of justice (d and e); and that through it the soul is inclined to the humane use of right (a and b).

It remains to demonstrate that it is a special virtue. And already the magnificent praises with which it is heaped are an unambiguous indication of a peculiar moral goodness. The same is briefly effected thus:

A special virtue is had where it is proved that there is a moral goodness which is proper and joined with difficulty. But: To use one's right in a manner which is congruous with the person of another and prepares friendship—what is more morally good and more consonant with the right order by which observance of persons is commanded and their society recommended? What is more morally good also—to prove the same thing under, as it were, another name—than to satisfy even the less perfect titles of some natural debt? Moreover, that this moral goodness is proper to equity is established by the fact that it pertains to the peculiar order by which a special matter—I mean the use of rights—is directed toward the right intercourse of men among themselves.—That a difficulty to be overcome is not absent is evident in two ways: both because it is a question of moderating the use of a right, that is, a faculty, which, because it is for our good, men are accustomed to abuse insolently; and because the prestation yields to the advantage of another, toward procuring which we are not so inclined, false self-love resisting.

483. III. Difficulties.

1. EQUITY IS NOT A VIRTUE. For no virtue is contrary to a virtue. But: Equity is contrary to justice, since it wills something to be taken away from the rights which justice protects. Therefore.

Reply. I deny the assertion. To its confirmation: I concede the major; I deny

the minor, and distinguish its rationale. Equity wills something to be taken away from rights, and so forth, I deny; it wills them to be exercised moderately and, at most, something of them to be remitted voluntarily, I concede.

That there is no contrariety is already evident from the disparity of the subjects. The subject of justice is the debtor; the subject of equity, the creditor. The latter, insofar as he presses his right, does not exercise the virtue of justice; nor, insofar as he remits something of his right, does he therefore observe justice less. The debtor, on the contrary, whose part it is to exercise justice, does not exercise the virtue of equity while he asks for a remission.

2. IT IS NOT A SPECIAL VIRTUE. For this is the manifest position of the Philosopher writing in bk. 5 of the Ethics, chap. 10: “Equity is a certain justice, not some other habit.”

Reply. I deny the assertion and distinguish the rationale. The Philosopher there treats principally of epikeia, which in reality, as we shall see, is not separated from legal justice. But if you repeat the same thing, saying that the present rationale of equity is also touched upon, the reply is ready: equity is not another habit insofar as, at least as a potential part of justice, it is referred to no other virtue than justice.

3. IT IS NOT A POTENTIAL PART OF JUSTICE. For:

a) It appears to pertain to friendship. For it belongs to friends not to weigh their mutual rights strictly.

Reply. I distinguish the assertion. It appears to pertain to friendship taken broadly, which is a certain affability and a potential part of justice,¹ I concede, or let it pass.—To friendship taken strictly, I deny. Thus says St. Thomas, II–II, q. 80, ad 2.

¹ Concerning this, the Philosopher, bk. 4 of the Ethics, chap. 6.

And in very truth, although equity imitates friendship in certain things, it is nevertheless moved by another intention. For no special affection toward the person directs equity, since it is prepared to furnish the same things to all, known and unknown, in whom it discovers the imperfect title of which there was discourse.

b) It appears to be a part of temperance. For temperance imposes a measure upon appetite. But what else is discerned here except that some measure must be had in action and the appetite for one's own thing must be restrained?

Reply. I deny the assertion. I distinguish the rationale. Temperance imposes upon appetite a measure to be commensurated with the agent, I concede; to be commensurated with other men, I deny. For temperance orders man in himself. I distinguish the minor conversely. But here this measure is an accommodation of the action to the agent, I deny; of the action to others, I concede.

For the titles which are in them are regarded. Indeed, the very name of equity indicates equality and consequently two distinct supposits, since no one is made equal to himself.