Morals of the Church
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Section — Wouters, Manual of Moral Theology

§ II. On Interpretation Improperly So Called, or Epikeia

142.

I. Notion of epikeia. Epikeia (Greek epieikeia, equity) is a benign interpretation of the mind of the legislator, by which it is presumed that a general law does not include some particular case, although, strictly speaking, it could have included it in the law (St. Alphonsus, I, 201). I said: although it could have included it in the law. Therefore there is no place for epikeia properly so called if the observance of the law, because of special circumstances, becomes evil or morally impossible. Nevertheless the word "epikeia" is often taken more broadly, so that not rarely the latter cases too are referred to it (cf. St. Thomas, II-II, q. 120, a. 1; St. Alphonsus, loc. cit.); this will be clearer from what is to be said under III.

Epikeia differs from interpretation properly so called; for the latter follows the sense of the words, while epikeia follows the mind of the legislator.

Epikeia

143.

II. Laws which admit epikeia. 1. Natural law does not admit epikeia properly so called. Those things which are sometimes declared from epikeia, for example, the killing of an unjust aggressor, etc., should rather be called applications of the natural law rightly understood (n. 86).

  1. Whether divine positive law admits epikeia properly so called is disputed. Many deny it, because epikeia regards cases not foreseen. But the divine legislator foresaw all cases. Yet epikeia can also regard cases foreseen, although they have not been expressed in order to avoid prolixity.

  2. Human law, by the consent of all, admits epikeia properly so called. The reason is that such rigor cannot be presumed in the legislator that the law must be considered to extend to absolutely all cases to which, strictly speaking, he could have extended it. Nor is it clear, which is what many think, why this ought to be denied concerning an invalidating law. Nevertheless the common good entirely requires that, in such a law, epikeia not be admitted except in a wholly extraordinary case; this we shall explain more fully in its own place.

Epikeia

144.

III. Use of epikeia. 1. Taking the word "epikeia" in the broader sense, it is licit to use it: first, if the law cannot be observed without sin; hence a deposited sword must be retained if its owner is going to abuse it; second, if the observance of the law becomes morally impossible. Hence one is excused from hearing Mass who fears a notable loss of goods (St. Alphonsus, I, 201; St. Thomas, II-II, q. 120, a. 1); third, if the observance of the law is neither sinful nor morally impossible, so that the law indeed could have been extended to such a case, but it is prudently presumed that this is alien to the benign mind of the legislator. Hence, for example, "one is excused from the observance of a feast who otherwise is compelled to lose a great profit" (St. Alphonsus, loc. cit.). Moreover, only in the last case is there epikeia properly so called.

  1. In order that someone licitly use epikeia properly so called, the Superior, if this can conveniently be done, must be approached. The reason is that he could have included the case in the law, although it is presumed that he did not include it; hence, if possible, the truth should be inquired into (cf. St. Thomas, I-II, q. 96, a. 6, ad 2).

Question. What is the presumed license of acting against the law, and when is it licit to use a license of this sort?

Response I. The license about which the question is asked consists in this: that someone presumes that the legislator, in some case, does not urge the observance of the law, although, strictly speaking, he could urge it. Therefore it differs from epikeia, which presumes that such a case is not included in the law, while the license described presumes that the observance of the law is not urged, although the case is included in the law and there is no cause excusing from observance of itself.

Response II. In order that it be licit to use the aforesaid license, there is required: first, that there not be question of an act whose validity depends upon actual license, of which sort is, for example, the hearing of confessions; second, that the superior be prudently presumed to be going to grant the license if he were asked; third, that the license cannot conveniently be sought. The second and third conditions are required lest dependence upon superiors and observance of laws suffer detriment (St. Alphonsus, IV, 18).

Epikeia