Article III. Supplements to the Doctrine

484. There seem to be three species of equity. Just as we saw that right is threefold, to which three specifically distinct justices correspond, so there seem to be three moderations of right and equities. The first, among private persons, remits something of one's own right, so that one does not exact the debts of commutative justice beyond what is fitting. The second, likewise among private persons, permits without envy a distribution of common goods to be made not strictly equal, on account of some common advantage or on account of some private rationale of a person which it is fitting to observe. The third, finally, in the community itself, is exercised by those who act on its behalf, when they suitably temper the severity of the laws lest they be excessive in exacting the law or punishment. Yet this moderate exaction, because it pertains at the same time to the right rationale of discharging one's office, establishes in the magistrate a duty of commutative justice. That is, from commutative justice, by which they are bound toward society, the judge and the ruler ought to enforce the laws with congruous moderation.

485. Concerning the middle order which equity safeguards. Besides those things which are so joined with the good of the human person that they participate in its inviolability and constitute its rights strictly so called, there are other things which, on the one hand, are highly congruous with the person but, on the other, cannot be strictly exacted by him without greater detriment to the common good and the intercourse of men, which is the higher end toward which rights and duties are directed. Therefore, an inviolable faculty of doing or exacting those things is not conceded by nature; indeed, nature sanctions the contrary right of omitting those things, the use of which right remains valid, even if perhaps illicit. Yet if they are furnished, the matter is not one merely of grace and friendship, since there is a title in the other as such. Now, equity procures this middle order.

This fuller declaration of the province of equity appears to us at the same time to confirm the conclusion. For we could suspect this: that between those things which are owed strictly to others and those which are owed to them in no way, there are many things which are owed imperfectly from a certain beginning and adumbration of right, so that one comes by definite grades from justice to charity; and that there is a virtue which tends toward this moral goodness. Come then: this is the special praise of equity.

486. Other definitions or rationales of equity. Equity could no less rightly be defined: a more perfect justice which adjusts the use of rights to the imperfect titles and, as it were, inchoate rights which are in another. Indeed, this definition excels the former in that it is more consonant with the force proper to the word equity, which expresses a certain equality. Nevertheless, we did not give it in the conclusion, so that the conclusion would agree more with the common rationale by which equity is set forth as a certain quasi-temperance of one's own right.

It is also not inaptly called, with Andronicus, praised by St. Thomas, q. 80, ad 4, voluntary justification. Most elegant is this description of St. Cyprian: Justice tempered by the sweetness of mercy. Nor does the Abbot Panormitanus¹ badly add this other, speaking of a judge: Equity is a certain restraint and a certain temperament which for a cause departs from the common rules of right. Or, to hear John Andreas, it is “A reasonable measure containing mercy and rigor.” Therefore, it can also be regarded as the proper temperance of the one possessing a right.

¹ In chap. Ex parte tua 11, De transactionibus (I. 35), where, in no. 6, he adduces from John Andreas the passage of St. Cyprian.

487. The obligation of equity. The obligation of equity, since it is intermediate between the rigorous debt of justice and the spontaneous prestation of charity:

1. Does not induce a debt of restitution toward the one who complains that equity has been violated in his regard. For no right of his has been injured.

2. Nor, by its genus, does it oblige under grave sin. For if at any time the ease of the prestation and the notable disadvantage of one's neighbor give place to a grave offense against equity, the mortal guilt must be derived from the addition of violated charity.

Understand these things insofar as concerns the proper rationale of equity. For we saw (no. 484) that a magistrate who enforces a law against equity derogates from those things which he owes the state from commutative justice.

This is confirmed by St. Thomas, who, while he refers our rationale of equity to friendship, adds at the same time that it “has little of the rationale of a debt.” Cf. II–II, q. 80, sole article, corpus, ad 2 and ad 3.

You will perhaps wonder that only a light obligation is induced by a virtue which is placed between two virtues to which a grave necessity is of itself joined. But it is between the two in such a way that it participates in the attenuated rationale of both. For insofar as it is referred to justice, it is less, by its genus, to set aside a beginning of right than a perfect right. Compared with charity, however, the excessive rigor by which equity is violated does not proceed from an intention formally contrary to charity—I mean from some hatred of one's neighbor—but rather from an excessive affection for one's own right. Moreover, the remission of this right, since it is per se disadvantageous, has the appearance of an excuse which often removes the obligation of charity; for charity does not per se oblige with grave disadvantage. Add, finally, that these higher rationales are grasped with greater difficulty by many; and this obscurity also diminishes the guilt.

488. Comparison of equity and affability. Although St. Thomas, q. 80, ad 3, appears incidentally to refer our rationale of equity to affability, nevertheless we cannot make these two one. For affability, by which it comes about that in his conversation a man, as though by a middle habit between flattery and moroseness, approves in others only those things which are to be approved and avoids the useless offense of others, regards no title which is in another, but merely the moral goodness which shines forth of itself in this accommodation of manners to truth and merits. Cf. Aristotle, bk. 4 of the Ethics, chap. 6, and St. Thomas, on this book, lect. XIV.

*489. What equity is invoked in the Encyclical Rerum novarum.* This appears to us to be, at least sometimes, natural justice itself, as when it is said: “These things ... concern the proletarian: to render ... that which was freely and equitably agreed upon for labor.... This stands foremost: to furnish to each his just due. Indeed, in order that the measure of the wage may be established from equity, several causes must be considered.... Equity therefore commands that care for the proletarian be undertaken publicly.... It is equitable to permit to each his own faculty of acting.” (Pp. 20, 22, 38, 40 of the Desclée edition.)

490. The excellence of equity. The excellence of this virtue appears both from the higher prudence by which it is directed and from the spontaneous movement which it has. For it is observed with no human law commanding and no strict right compelling.

491. Concerning the saying, “The utmost right is the utmost injury.” a) That saying is most true when contrary positive right is opposed to the equity which was called natural justice. b) It is also true of a spurious interpretation of the law which rejects epikeia. c) It can be transferred only in a diminished sense to the violation of equity properly so called. For it cannot happen that the omission of an imperfect debt should become the utmost injury.

492. Concerning epikeia. 1. Epikeia, which formerly was called equity moderating the observance of the words of the law (II–II, q. 120, art. 2, ad 3), recommends such an interpretation of human law as, though contrary to the words of the law, is nevertheless plainly consonant with the mind of the legislator.

2. Its cause is not some defect of human law but its generality, which is adapted to most cases, yet in a few can fail in such a way that verbal observance becomes useless, indeed evil.

3. It does not concern the natural law. For this is not prescribed by those universal formulas by which, for our utility, we are accustomed to express it—“You shall not commit homicide,” and so forth—and which, like positive sanctions themselves, fail in certain particular circumstances. Rather, it is the very dictate of reason which, after all things have been weighed, must be delivered concerning individual actions. (Cf. Suarez, De legibus [On Laws], bk. 2, chap. 16.)

4. Its right use is: a) Necessary, if the law in a particular case becomes inequitable or more burdensome than is just. Then it would be evil to follow the positive law against common right. b) Merely licit, when it is prudently inferred that the legislator did not wish to oblige in some case. This is principally gathered from usage or the manner in which the law is commonly understood.

5. That interpretation is made according to higher principles by attending to the very ends of the law. Therefore, indications of this kind pertain to the part of prudence which is called gnome.

Deservedly, Lessius observes that the prudence which is required for epikeia is lacking in many, whether on account of the scruples by which it comes about that they are too greatly struck by the very words of the law, or on account of the weakness of their judgment.

6. Because legal justice, adequately considered, would not be a virtue unless it commanded such observance of the law as attended sufficiently to the very mind of the legislator, it is evident that the habit of epikeia is in reality the same as that justice whose nature and office we described at the beginning.