Epikeia

157. Definition. Interpretation is defined as the genuine explanation of a law. Interpretation must be made according to the mind of the legislator and the words of the law: for the whole of interpretation tends to this, that the will of the legislator, which he had when he established the law, be sought and determined. But the mind of the legislator is sought which is contained in the words of the law (with their context, object, end, and other circumstances considered); therefore a mind of the legislator which is contained in the words of the law in no way is not to be attended to.

158. Division of interpretation. a. By reason of the author it is divided into authentic, which is made by the legislator himself or by another to whom the legislator has given the power of interpreting; into usual, which is made by subjects through the manner in which they observe the law; into doctrinal, which is made by learned men according to the rules of genuine interpretation. Because law is to be interpreted according to the manner in which it is observed, the adage has arisen: custom is the best interpreter of laws.

b. By reason of the mode, interpretation is divided into comprehensive or declarative, which explains the law from the proper and customary signification of the words, as if it is said that under the name of son even an illegitimate son is understood; and extensive, which extends the law beyond the customary sense of the words, as if it is said that under the name of son even a grandson is understood.¹ This is not properly an interpretation of law, but rather an extension of law and a new legislation; therefore this interpretation also needs a new promulgation.

Authors do not agree whether comprehensive interpretation, in order to obtain the value of law, needs a new promulgation. The disagreement seems to arise from this, that not all define comprehensive interpretation in the same manner. Some call that interpretation alone comprehensive which exhibits the sense of a sufficiently clear law; but others also comprehend under this interpretation that which declares a law that is obscure and plainly doubtful² (n. 135, 3).

c. Comprehensive interpretation is distinguished into strict, by which the sense of the law is restricted to the proper signification of the words alone, as if the word son is understood only of one begotten; and broad, by which the sense of the law is extended as much as is permitted by the words and end of the law, as if the word son is taken even of an adopted son.

For sometimes it happens that the words of a law can be understood in a twofold sense, each of which is a proper sense, but one is broader than the other. Thus the term clerics, if it is taken strictly, signifies only those who have been initiated by clerical tonsure; but if the same term is taken broadly, it designates all ecclesiastical persons. Likewise the term religious strictly signifies only regulars, broadly all who exist in some congregation even of simple vows, and indeed also novices.

¹ Cf. Schmalzgrueber, Ius ecclesiast. Dissert. prooem. n. 373.

² Cf. Wernz I. n. 100.

159. On authentic and doctrinal interpretation. 1. Authentic interpretation has the force of law, because it proceeds from the same power as the law itself.

Of the Roman congregations only two have the power of interpreting laws authentically: the congregation of the council, which can interpret the disciplinary decrees of the Council of Trent, and the congregation of sacred rites, which can interpret liturgical laws authentically (n. 133).

2. Doctrinal interpretation does not have the force of law, because it does not proceed from legislative power, but it has that value which the weight of reasons and the authority of doctors procure for it; wherefore, where the consensus of doctors is had, the interpretation is morally certain; but where the doctors disagree concerning the sense of the law, the interpretation is held only as probable. Canonists hand down the rules of doctrinal interpretation.¹

¹ Laymann, De legibus c. 18. Reuter, De legibus n. 252-258. Wernz I. n. 127-133.

160. On epikeia. 1. Epikeia (equity) can be defined as a restrictive interpretation of law, by which it is judged that the law does not extend to some particular case on account of special circumstances, although it is clearly contained in the words of the law; as, if a law prohibits carrying arms at night, by epikeia he who is about to encounter an enemy seeking him for death can judge that it is licit for him to carry arms. The reason for admitting epikeia is that the legislator cannot foresee the most diverse circumstances in which men can be found, and if he did foresee them, he could not comprehend them by his law, which regards only things that happen commonly; and therefore he is rightly judged not to have wished to comprehend cases of this kind by his universal law.

Epikeia differs both from interpretation and from presumed dispensation from the law. For by interpretation it is declared that some case is not contained in the words of the law; and by presumed dispensation it is judged that a case is indeed contained in the law, but that the legislator would except it if he were asked; but through epikeia it is judged that this case, from the mind of the legislator, is not comprehended in the law; therefore by interpretation the words of the law are explained, but by epikeia the mind of the legislator is judged.

2. When it is lawful to use it. As often as on account of special circumstances it can prudently be judged that the legislator did not wish to comprehend some case by his law, it is lawful to employ epikeia; but specifically it is lawful to use it in a threefold case:

a. If observance of the law would be evil or pernicious, as if someone should leave a gravely sick person in order to hear Mass.

b. If observance of the law would be too difficult and burdensome, as if a sick person should fast.

c. If from the circumstances it can prudently be judged that the legislator in this case, in which the law is not too difficult, did not wish to oblige, even if he could have done so, because he is rightly presumed not to wish to oblige with all rigor and in every case in which he can.¹ Thus David, using epikeia, ate the loaves of proposition.²

The last case is that in which epikeia properly has place: for in the former cases the law ceases, because we judge that the legislator could not have comprehended them by his law; but in the last it ceases because from a certain equity we judge that the legislator did not wish to comprehend it, even if he could have done so. In the former cases it is lawful to use epikeia, even if the legislator is not asked, who could be approached, because it is established that he cannot oblige; but in the last case he must be asked, if he can be approached.

3. Although every human law of itself admits epikeia, nevertheless from the practice of the civil forum it is not always admitted in civil law. If, e.g., a parish priest, because of an urgent cause of death, joins two persons living in concubinage in marriage without a preceding civil marriage, where the law prescribes civil marriage, the parish priest, having used legitimate epikeia, acts rightly; nevertheless the civil judge would sometimes declare the parish priest guilty of having violated the civil law.

¹ Cf. Suarez, De legibus l. 6. c. 7. n. 11.

² 1 Reg. 21, 6.

Many rules are given by canonists for the doctrinal interpretation of law. The following are the most important for our purpose in moral theology:

(a) The words of the law must be taken in their obvious and natural meaning. The lawgiver must be supposed to have wished to express himself as clearly as possible, and to have said what he meant. Sometimes, however, legal terms have a technical meaning which must be attended to. Thus, legitimate in ecclesiastical law is used of children who have been legitimatized as well as of those who were born in lawful wedlock.

(b) The mind of the legislator and the scope of the law must be attended to. This rule does not imply that we must try to get at the private intention and object which the lawgiver had in view in making the law. It means that we must consider the circumstances which gave rise to the law, the object which it was designed to attain as expressed in the law itself, especially in the narrative or historical portion of it. The whole law should be pondered, not merely an isolated section; and if there is question of interpreting an answer or rescript sent in reply to a question or petition, this latter must be carefully considered.

(c) Laws which impose some new burden or restriction receive a strict interpretation, those which confer a favour a wide interpretation. For the lawgiver is presumed to be benignant towards his subjects, and to have expressed himself with precision and strictness in the disagreeable task of laying burdens on his people. In such a law, then, the word clerk will only comprehend the lower ranks of the clergy, whereas it will comprehend dignitaries and religious in favourable matters.

(d) A law must not be extended from one case to another even if the same reason exist in the two cases, for the reason of the law is not the law. And so although parish priests are bound to offer Mass on holy days of obligation for their parishioners, this obligation must not be extended to a parish priest’s assistants, for such priests, though they have the care of souls, are not parish priests (Can. 475). If, however, anything unjust, inequitable, or absurd would follow from the application of this rule, then it must not be applied. And so, generally, where the law punishes the adultery of the husband, it must be applied to an adulterous wife; where power is granted to make a will, legacies may be left too. The less is contained in the greater (cf. Can. 18 ff.).

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.

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).

2. 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.

3. 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.

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.

2. 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).

Interpretation of the Law of Christ.-(a) Private interpretation (epieikeia or equity) is used in extraordinary cases, not foreseen by the lawgiver, and it declares that a particular case does not fall under the Law. This kind of interpretation applies only to human laws, since God foresees things not only universally, but also in particular (cfr. on Natural Law, 315). (b) Public interpretation of the Law of Christ is made by the Church, in virtue of the commission: “Teach all things whatsoever I have commanded” (Matt, xxviii. 20).

Interpretation.—Though laws are carefully framed as to language, doubts about their meaning will often arise—in ordinary cases, because of lack of understanding or changes of conditions, and in extraordinary cases, because from the circumstances the law seems inapplicable. Hence the need of explaining the law, which is done in ordinary cases by interpretation, in extraordinary cases by epieikeia (see 411 sqq.).

Epieikeia.—Since human laws regulate particular and contingent cases according to what usually happens, and since they must therefore be expressed in general terms, exceptional cases will occur that fall under the law, if we consider only the general wording of its text, but that do not fall under the law, if we consider the purpose of the lawgiver, who never foresaw the exceptional cases and would have made different provision for them, had he foreseen them. In such exceptional cases legalism insists on blind obedience to the law-books, but the higher justice of epieikeia or equity calls for obedience to the lawgiver himself as intending the common welfare and fair treatment of the rights of each person.

Epieikeia may be defined, therefore, as a moderation of the words of the law where in an extraordinary case, on account of their generality, they do not represent the mind of the lawgiver; which moderation must be made in the manner in which the lawgiver himself would have made it, had he thought of the case, or would make it now, were he consulted. Hence, epieikeia differs from the various causes that take away the obligation of a law, for it supposes the non-existence of obligation from the beginning and non-comprehension in the law.

Thus: (a) it is not revocation, desuetude, restrictive interpretation, or dispensation; (b) it is not cessation on account of impossibility; (c) it is not presumed permission or self-dispensation.

In its use epieikeia is at once lawful and dangerous.

(a) It is lawful, for it defends the common good, the judgment of conscience, the rights of individuals from subjection to a written document, and from oppression by the abuse of power;

(b) it is dangerous, for it rests on the judgment of the individual, which is prone to decide in his own favor to the detriment of the common good as well as of self.

Epieikeia by its very nature imposes certain limits on its use.

(a) It is based on the fact that a certain case is not comprehended in a law, because the legislator did not foresee it.

Hence, epieikeia is not applicable to the Divine Law; for the Divine Lawgiver foresaw all cases that could arise, and so excluded all exceptions (see 315). This is clear as regards the Ten Commandments and other precepts of the Natural Law, since they deal with what is intrinsically good or bad, and are unchangeable (see 307). But it applies also to the prescriptions of the Positive Law of God, and apparent cases of epieikeia, such as the eating of the loaves of proposition by David (I Kings, xxi. 6), can be explained by the cessation of law or divine dispensation. Examples: One may not excuse certain modern forms of cheating on the plea that they were not thought of when the Decalogue was given. One may not omit Baptism on the ground that Christ Himself would have excused from it, had He foreseen the circumstances.

(b) Epieikeia is based on the principle that the words of a law must be subordinated to the common good and justice. Hence, it is not applicable to those laws whose universal observance is demanded by the common good—that is, to irritant laws. Any hardship suffered by an individual through the effect of such laws is small in comparison with the injury that would be done to the common welfare if there were any cases not comprehended in such laws; for irritant laws are the norms for judging the validity of contracts and other acts, and public; security demands that they be uniform and certain. Example: One may not contract marriage with a diriment impediment, on the plea that the Church would not wish the impediments to oblige under the serious inconvenience that exists in one’s case.

The dangers of epieikeia also place limitations on its use.

(a) There is the danger that one may be wrong in judging that the lawgiver did not wish to include a case under his law. If this is not certain, one should investigate to the best of one’s ability, and have recourse, if possible, to the legislator or his representative for a declaration or dispensation. It is never lawful to use epieikeia without reasonable certainty that the legislator would not wish the law to apply here and now.

(b) There is the danger that one may be in bad faith in deciding that the common good or justice requires the use of epieikeia; the motive in reality may be self-interest or escape from obligation, Hence, a person should not use epieikeia except in necessity, when he is thrown on his own resources and must decide for himself; and, even then, he must be sure that he acts from sincerity and disinterestedness.

Cases in which the use of epieikeia is lawful are the following:

(a) Epieikeia in a wide sense—that is, a benign interpretation made by a private individual that a particular case is not comprehended in the intention of the lawgiver, because the latter had not the power to include it—may be used for all cases in which the opposite interpretation would set the law up in opposition to the common welfare or would work injustice to individuals. Example: The law that goods borrowed must be returned to their owners yields to epieikeia, if there is question of putting weapons into the hands of one who would use them against the public security or for the commission of murder;

(b) Epieikeia in a strict sense—that is, the judgment that a particular case is not included in the intention of the lawgiver, because the latter had not the wish to include it—may be used for all those cases in which the opposite interpretation would suppose in the lawgiver a severity that is not likely. “The rigor of the law may be extreme injustice” (Cicero, De Officiis, I, 10). Example: Titus has the opportunity to make a notable sum of money on a Sunday morning, but cannot make use of the opportunity without missing Mass that day. Caius on a fast day feels well, but is tired and will be not a little inconvenienced if he fasts. Both Titus and Caius may use epieikeia, for the Church does not wish to be unkind, nor, generally speaking, to have her laws oblige rigorously and for every case.

Though all human law is subject to epieikeia, the practice of the civil law does not always allow it. (a) Action on individual responsibility makes one guilty of technical violation. Example: Balbus, fearing that his house may be robbed or he himself assaulted, borrows a revolver and practises shooting. He had not time to get the necessary permit, but argued that necessity knows no law. But, if he is arrested, the court may hold him guilty of violating the law. (b) Action in a court of equity, however, will give relief for cases not provided for in law. Example: One may obtain an order from the court restraining a neighbor from injury, when the law itself gives only the right to recover damages for injury done.

The inconvenience caused to individuals from the fact that a law does not serve its purpose in a case before them, does not always justify the use of epieikeia.

(a) If the observance of the law would be detrimental to the purpose intended by the lawgiver, epieikeia might be used; for the lawgiver does not intend that his law should be an obstacle to what he has in view as its end. Example: Caius needs to read a book placed on the Index in order to defend the Faith against attacks, but he is unable to request the general faculty to read forbidden works. Obedience to the law in this case would defeat the purpose of the law, which is the protection of faith, and hence Caius may use epieikeia.

(b) If the observance of the law would be unnecessary, but not detrimental as regards the purpose of the lawgiver, epieikeia may not be used; else the law would lose its force through the judgments of individuals in their own favor, and the common welfare would suffer. Examples: Titus has an opportunity to read a book placed on the Index, but has not the time to apply for permission. The work was condemned as dangerous to faith; but Titus is strong in faith, and wishes only to study the literary qualities of the writer. Sempronius, a parish priest, is requested to officiate at a marriage immediately, without proclaiming the banns or seeking a dispensation from proclamation. The purpose of the law of banns is that impediments may be detected and invalid marriages avoided, and Sempronius is absolutely certain that there is no impediment in the case before him. Titus and Sempronius must observe the law, and the same must be said as regards every actual case in which there is the possibility of self-deception and peril to the common good. The theoretical case, in which neither of these inconveniences would be present, need not be considered.

Epieikeia.—The above-mentioned potential parts of justice are adjuncts of particular justice. There remains one more virtue to be noted, that of epieikeia or equity, which pertains to legal justice. This is a subjective part of justice, since it is the superior function of legal justice, guiding it to follow what is substantial right, and preserving it from the danger of mere legalism or over-strict interpretation or application of Written law (see 358). With this, the crowning virtue of justice, the enumeration of its parts is brought to a close.

The Virtue of Equity.—The virtues that have been so far treated in the present Article are forms of particular justice, and they have the status of adjuncts or potential parts. We shall conclude the list of virtues grouped with justice by discussing equity, which belongs to general (legal) justice and has the rank of a subjective part (see above, 1635, 1636, 1745, 1701, 1704).

Definition of Equity.—In law, equity is any court system of extraordinary justice in which the standard is natural honesty as declared by the conscience of the judge or by a body of rules and procedures that supplement or override the usual rules and procedures where these are too narrow or limited. Thus, in England and in the United States courts of equity are those that take care of defined special cases for which there is no remedy in the usual or common law courts (Robinson, Elementary Law, Sec.348). But as here taken equity is a moral virtue, and is of two kinds, particular equity which pertains to particular justice (natural equity) and general equity which belongs to legal justice (legal equity).

(a) Natural equity is a moral virtue that inclines one not to insist unnecessarily on one’s strict or legal rights when to do so will be unpleasant or burdensome to others. It is exemplified in the acts of an employer who freely grants a bonus to deserving employees in addition to the wage promised, and of a creditor who grants an extension of time to a hard-pressed debtor. This virtue partakes of both charity and justice; of charity, since it tempers justice with mercy; of justice, since it is really identical with the virtue of affability or friendliness mentioned above (2421). Its obligation as an act of justice is not grave, since the debt is not of a rigorous kind.

(b) Legal equity is a moral virtue that inclines one to justice beyond the common laws, or it is a correction of the law in that wherein the law by reason of its universality is manifestly deficient. The law is said to be deficient here when its application in a particular case would be prejudicial to the supreme purpose of law (i.e., to the common good or to equal justice). Some precepts of the natural law (e.g., the prohibitions against lying and adultery) cannot be deficient in this way and need no supervising equity. But other precepts of natural law, according to some (e.g., the command that a deposit be returned to the depositor), and also precepts of positive law are found to be unsuitable in exceptional cases. The reason for this defect in a good law lies in the nature of the case; for these laws must be made in view of what happens in the majority of cases, and accordingly they are couched in general terms and permit of exceptions which the lawgiver himself would allow (see on Epieikeia, 411 sqq).

The Greatness of Legal Equity.—(a) It is a distinct virtue, since it inclines the will to do good and avoid iniquity in a matter of special difficulty. It is not a transgression of law, since it upholds the spirit when the letter departs from the spirit, and prizes the lawgiver’s intention to do what is just and right above the lawgiver’s words.

(b) It is a subjective part of common justice, since all that is contained in the concept of justice belongs to equity. Thus, it differs from the potential and integral parts of justice so far treated in Articles 5 and 6.

(c) It pertains to the species, not of particular, but of general or legal justice; for equity extends to all the virtues and is concerned with the debt owed to the common good. Thus, per se its obligation is grave (see 1721).

(d) It is the higher part of legal justice. Just as prudence has two parts—good judgment (synesis), which settles ordinary cases of morals according to the usual rules of conduct, and acute judgment (gnome), which passes on moral problems that are out of the ordinary run—so legal justice has two acts, a lower which applies the law to usual cases, and a higher (equity) which applies more remote principles (viz., that the common good be not injured, nor injustice done) where the immediate principles of the law are clearly inadequate. Thus, if a madman demands from a depositary the return of his revolver in order to commit murder, the letter of the law would uphold the madman, but equity would decide against him; if the enemy are attacking a city and one cannot repel them except by disregarding an ordinance of the city, the law would forbid one to transgress the ordinance, while equity would command one to transgress it.

(e) Equity is, therefore, the noblest act of strict justice. For legal justice is preferred to particular justice (1703, 1715), and equity is the superior act of legal justice. In will and intention the common good and justice must take precedence over laws and statutes at all times; but in act the supreme ends of law are served, except in extraordinary cases, by obedience to law.

What is epikeia? - Epikeia is brought back to interpretation, which is a benign but equitable interpretation of law, by which a universal law, or when it speaks universally, is judged not to extend itself to such a particular case, although clearly comprehended in the words of the law, because of particular circumstances which were not either foreseen or in fact comprehended by the legislator. If, for example, a law prohibits carrying weapons at night, I can carry them if I must go out and I will be meeting my enemy seeking me to death.

Yet in order that there be place for epikeia, the law must not only cease negatively in the particular case, because namely the end of the law is then lacking; but it must cease contrarily, namely because observance of the law is rendered sinful, harmful, or too burdensome. Nor then is it necessary to ask the superior, although this can easily be done. For this is deduced from the very properties of law. For law must be honorable, useful, possible, just; and therefore it does not oblige with grave inconvenience, nor does it burden someone above the rest. And this pertains to epikeia. For epikeia is the directive virtue of laws, according as the notion of justice and common utility demands. Hence epikeia pertains to justice commonly so called, as a certain existing justice according to which legal justice is directed, as by a higher rule of human acts.

But there is also place for epikeia when, although the law in a particular case is not rendered sinful, harmful, or too burdensome, nevertheless from a certain equity and benignity it is judged, certainly or at least probably, that the legislator did not wish to include that case in the words of the law. For equity is preferred to rigor. L. 7 de In integrum restit.; L. 8 de Iudiciis C. And then, while doubt remains, since it almost falls back into dispensation, it is necessary of itself to approach the superior, if he can be consulted. But this will not be necessary when it is evidently established that the mind of the legislator was otherwise; for in manifest things there is no need of interpretation, but of execution. - L. 3 seq. de Legib.; L. 201; L. 201; S. Th. 1. 2. q. 96. a. 6, 2. 2. q. 60. a. 5 ad 2, q. 120, q. 147. a. 4; Suarez l. 2. c. 16; Struggl q. 4. n. 7. 8; Ithur. Cas. 53. n. 9-13; Schmalz. l. 1. t. 2. n. 44.

To n. 179, 834. - ON EPICHEIA

Epicheia or Equity, properly and strictly such, is a virtue, is one special virtue, and it is a subjective part of justice, commonly so called, corresponding to legal justice, in a certain way contained under it, and in a certain way exceeding it, and more noble than it and with it a most excellent virtue.

1. Epicheia or equity can be taken in multiple ways, by common and proper signification. Hence equity first is justice itself, whose office it is to establish equality or equity of things in human acts and contracts. And thus in L. 14 de Condictione indebiti it is said: "This is naturally equitable, that no one be made richer with another's detriment." And Reiffenstuel: Restitution in integrum is "an extraordinary remedy of law by which one gravely injured, from natural equity through the office of a judge, is reduced into that state or right in which he had been before the injury." L. 1, tit. 41, n. 3. Equity of this kind is called and is natural equity.

2. But equity proceeds further, namely by establishing a certain suitable measure generally in all laws, tempering the rigor and subtlety of laws according to various circumstances. Equity taken thus, by which it extends broadly, is commonly accustomed to be called epicheia; and it is treated in the treatise on laws when the question is raised concerning interpretation of law. But if it is taken restrictively, namely insofar as it determines a suitable measure in justice by moderating the rigor and subtlety of law, civil equity is had. And thus L. 22 de Donationibus, Modestinus moderates the rigor of law, defining: "that he who for the sake of donation promised money or something else does not owe interest from delay of payment of the money is of the highest equity." Ulpian tempers the subtlety of law in L. 29 § 6 Mandati vel contra, establishing: "If a surety, although freed by time alone, nevertheless paid the creditor, he will rightly have the action of mandate against the accused; for although, now freed, he paid, nevertheless he fulfilled faith and freed the debtor: therefore if he is prepared to defend the accused against the creditor, it is most equitable that by the judgment of mandate he recover what he paid." Equity of this kind, tempering law, is opposed to strict law, to which namely equity is neither mixed nor applied.

3. This civil equity, from its object, concerning the good and equitable, is said in the Law, as can be seen, e.g., L. 17 de Iniusto, rupto, irrito facto testamento. Indeed Ulpian defines Civil Law itself from the good and equitable, L. 1 de Iustitia et Iure, saying: "One about to devote work to law ought first to know whence the name of law descends. But it is named from justice: for, as Celsus elegantly defines, law is the art of the good and the equitable. On account of this someone deservedly calls us priests: for we cultivate justice and profess knowledge of the good and equitable, separating the equitable from the inequitable, discerning the licit from the illicit." Therefore, since law is the art of the good and equitable, the Rule of Law is easily understood, L. 90 de Diversis Regulis Iuris antiqui: "In all things indeed, but especially in Law, equity is to be considered." And this is civil equity.

4. Moreover epicheia or equity seems also to be called modesty. For where the Apostle says to Phil. 4:5: Let your modesty be known to all men, in the Greek there is epieikeia. For in the Greek text is read to epieikes hymon. - Likewise equity is contained either under epicheia or under friendship, insofar as, as some say, by it someone is rightly ordered to equals, as obedience to superiors, discipline to inferiors. St. Thomas, 2. 2, q. 80, single article ad 3.

5. Finally equity properly and strictly is had when in a particular case the observance of the law is omitted, following the intention of the legislator with the words of the law omitted. The law, e.g., is that no one climb the walls of the city. Yet, when the case occurs that otherwise the city would be lost, someone can climb the walls to save it.

6. Therefore equity imports equality or moderation in its concept and common acceptance. - Wherefore 1. insofar as it bears equality before itself, it is then used for justice itself, and is called natural equity. - Insofar as it bears moderation before itself, 2. it is also taken for modesty, but rarely; and more frequently 3. for benign interpretation of laws, and 4. for moderation in exacting and exercising one's own rights, and it is civil equity; and properly and strictly 5. for correction of law that is deficient on account of the universal, and it is epicheia simply such.

7. With the notion of equity declared, considered generally, let us now inquire step by step whether it is a virtue, and what sort of virtue it is. Epicheia or equity, insofar as it is justice itself, is a virtue, as is clear of itself, and is not a virtue distinct from justice itself. -

This is the equity of which Leo XIII speaks in the Encyclical Letter Rerum novarum, 15 May 1891, on the Condition of Workers, when he says: "Those things touch the proletarian and worker: that what has been freely and equitably agreed concerning work, he render integrally and faithfully. -

It is equitable to revere in them the dignity of person.... But among the greatest duties of masters that one stands forth: to furnish just things to each. Indeed, that the measure of wages be established from equity, several causes are to be considered. Equity commands that care be taken of the proletarian publicly, so that from that which he brings to the common utility he himself may receive something, so that, housed, clothed, safe, he may be able to endure life less painfully. - It is certain that neither the citizen nor the family is to be absorbed by the republic. It is equitable to permit each its own faculty of acting." And Cicero in 2 Offic. 22 at the end: "But what equity does it have, that he who had no field should have one; but he who had one should lose it?"

8. Epicheia, insofar as it establishes due measure according to the various circumstances of cases in the observance of laws, is also a virtue, and is the companion of all virtues. "The companions of virtue," says Aristotle, "are probity, equity, candor, good hope." Ethic. De virtutib. et vitiis c. 8, § 3. As regards direction, it pertains to prudence. And for various cases it is either Synesis or Gnome, which are two potential parts of prudence. Synesis is a virtue judging well about particular things to be done, according to common rules. Gnome is a virtue judging well concerning things to be done beyond common principles, and consequently imports a certain perspicacity of judgment. Hence it is also called eugnomosyne, as if good gnome. St. Thomas, 1. 2, q. 51, a. 4.; 2. 2, q. 80. But as regards execution, that virtue pertains to legal justice. "Those two," says St. Thomas, 2. 2, q. 80 ad 4, "are attributed to prudence according to direction, but to justice according to execution" ... "It must be said that epikeia is not joined to particular justice, but to legal justice, and seems to be the same as that which was called eugnomosyne." Wherefore it cannot simply be admitted what La-Croix says, l. 1, n. 829, namely that epicheia is an act of prudence.

9. Epicheia taken for civil equity in the exercise of one's own right, insofar as namely one exacts it not with the whole rigor of law, but with suitable moderation, by making some remission of right, is also a virtue; and as regards execution, it seems to be either generally charity, which is mixed with justice, or friendship or affability or humanity, from the fact that someone is called humane, as is said by Isidore, because he has love and the affection of pity concerning man, St. Thomas, 2. 2, q. 80 ad 2. Benignity also could not unfittingly be called it, since the same Isidore says that a benign man is one spontaneously prepared for doing good and sweet in speech. St. Thomas, l. c. ad 4. Mercy and truth have met each other: Justice and peace have kissed. Ps. 84:11. Yet, as from St. Thomas, so from Aristotle, it is justice, and not another virtue. Ethic. l. 5, c. 10, § 8.

10. Epicheia taken for modesty is likewise a virtue, which is part of temperance. "It must be said," says St. Thomas, 2. 2, q. 120, a. 2 ad 3, "that it pertains to epicheia to moderate something, namely the observance of the words of the law. But modesty, which is placed as part of temperance, moderates the exterior life of man, for instance in walking or clothing or other things of this kind." And thus the name of epicheia can be transferred by a certain similitude to all moderations.

11. Epicheia, in the last place properly and strictly such, which follows the intention of the legislator in those things in which it is not fitting to follow the words of the law, because this would be vicious, is likewise a virtue, and this is agreed among all. The Angelic Doctor, treating this question expressly in 2. 2, q. 120, raises the question concerning epicheia or equity, and in the first article treats the question: Whether epicheia is a virtue. And he responds: "It must be said that because human acts, concerning which laws are given, consist in singular contingents which can be varied in infinite ways, it was not possible for some rule of law to be instituted which would fail in no case; but legislators attend to that which happens in the greater number, making law according to this; yet to observe it in some cases is against the equality of justice and against the common good which the law intends.... Therefore in these and similar cases it is evil to follow the law; but it is good, with the words of the law omitted, to follow that which the reason of justice and common utility demands. And to this epicheia is ordered, which among us is called equity. Hence it is clear that epicheia is a virtue." Indeed, if that is a virtue which pursues the reason of justice and the common utility according to the words of the law, that is also necessarily a virtue which pursues the same equality of justice and the same common good according to the intention of the legislator. Hence it is said in L. 5 de Legibus et Constitutionibus Principum et Edictis in the Code: "There is no doubt that he commits against the law who, having embraced the words of the law, strives against the will of the law."

12. Given that equity, properly and strictly such, is a virtue, it is asked whether it is a general or some particular virtue. The most learned Lessius, in book 2, chapter 47, doubt 9, n. 65, of the work De Iustitia et Iure, says: "It is very probable that it is not one virtue distinct from the rest, or at least that such a virtue is not necessary. The reason is that equity has place in every genus of laws and in every matter of virtues, and does not regard one formal reason; but it looks to diverse reasons of the honorable in diverse matters, indeed in diverse cases concerning the same law."

13. This opinion of Lessius can be confirmed from the words of St. Thomas in 3 Dist. 33, q. 3, art. 4, qc. 6, sol. 5 ad 5, where he says that epicheia is somehow the same for every virtue, as also legal justice is. But the clear opinion of St. Thomas is to be taken from 2. 2, q. 80 and 120, where again he treats expressly of epicheia or equity. And thus Cajetan himself, on q. 80 at the end, says: "Note how much the Author, that is St. Thomas, advanced from the time when he wrote the last article of q. 3, dist. 33 in 3 Sent. For these differ from those as clear light from somewhat obscure. Wherefore, follow these." And indeed in fact the opinion of the holy Doctor in 2. 2 is so clear that the same Lessius, after asserting and proving his own opinion, then concedes that one virtue can be established, as St. Thomas establishes it l. c. And one virtue really must be established, 1 because although it has place in every genus of laws and in every matter, nevertheless in all cases and in all matters it always pursues one and the same reason of the honorable; which we have already heard from the Angelic Doctor, namely the equality of justice, lest one be overburdened before another, and the common good, not according to the words of the law and in cases commonly occurring, which pertains to legal justice, but in extraordinary cases and according to the intention of the legislator. Hence it is that equity corresponds to legal justice.

14. Wherefore, as legal justice, by reason of its own formal object, is one virtue, and at the same time a certain general virtue by reason of matter or material object, so likewise equity is a certain general virtue, because, as we have heard from Lessius, equity has place in every genus of laws and in every matter of virtues; and it is at the same time one special virtue, because, according to the Angelic Doctor, there is only one equity directive of laws, according as the reason of justice and common utility demand. Namely epicheia or equity has a special object, which of itself bears a peculiar difficulty, and therefore it is a virtue distinct from others.

15. And this is Aristotle's opinion; he says in V of the Ethics: "Equity is the direction of law, where it fails because of the universal." Equity is direction, because its act consists in this, that it makes a right work. But it is direction of positive law. Whether it is also direction of natural law is a matter controverted among the doctors. Cajetan affirms with others after St. Thomas in 2. 2, q. 120, a. 1. Several on the contrary deny it, adducing Suarez in chapter 16, l. 2, De Legibus. But, with the explanation applied which Suarez truly applies, there can be no controversy about this matter. For equity is the direction of law, yet of universal law and one deficient in some cases. But natural law can be regarded in two ways, as the same excellent doctor notes, n. 5 and 16. For it can be regarded according to itself, and insofar as it happens to be brought by some positive law. Natural law according to itself is nothing other than the dictate of right reason, which is to be brought concerning human actions, all their conditions having been weighed. But this dictate is not brought universally insofar as it can fail, but insofar as it is affected with those circumstances with which it never fails; otherwise it would not be a true dictate, and consequently neither necessary, nor right, nor containing a natural precept. And thus in the example brought by St. Thomas and Cajetan of epicheia, in not returning a deposit if someone asks it back for the attack on the fatherland, there truly is no epicheia in natural law considered according to itself. For that natural precept, as such, is nothing other than right reason, and right reason does not absolutely dictate that a deposit must be returned, but with the conditions understood which the reason of justice and charity requires. Suarez l. c. n. 7, 9. But if natural precepts are regarded as they have been constituted by positive law, then certainly epicheia has place, namely by reason of the universality by which the law is expressed, if nevertheless by reason of this universality the law fails in some case. And thus in the aforesaid example of St. Thomas, "the law established that deposits be returned." Yet if a madman deposited a sword and asks it back while he is in madness, "it would be evil to follow the law placed." But if, as Cajetan says l. c., "some things are so universally true that in no case do they fail, such as that one must not lie, that adultery must not be perpetrated, and things of this kind, in these, because they cannot fail, equity has no place."

16. Moreover equity is the direction of law where it fails because of the universal. Therefore direction of law does not pertain to equity unless it fails because of the universal. Therefore if law fails in some case because of a privilege, commanding something other than the common law, direction of the acts of the privilege does not pertain to equity. And it is similar if from any other cause whatever the law fails, e.g., if because of obscurity or ambiguity the sense fails, or whether it fails is doubted. For it is not the office of equity to derogate from law or to interpret law, but to direct law where it fails for the reason that it was placed universally. Cajetan l. c. Nor in Aristotle's definition is there question of any defect whatever of law because of the universal. For law can fail because of the universal in two ways, negatively or contrariwise. It fails negatively when a case occurs in which the reason of the law is not verified. Yet if the law is observed, nothing evil, nothing disordered, is committed; indeed a good and very laudable act is placed, as is clear concerning Our Lord Jesus Christ, who observed the law of circumcision in Himself, and likewise concerning Our Lady, the Blessed Virgin Mary, who observed the law of presentation in the temple. Therefore equity is not the direction of a law which because of the universal fails negatively. But the law fails contrariwise because of the universal when in a particular case it would lead to crooked things if it were observed, namely it would be acted inequitably, as in the case of returning a deposit for attacking the fatherland, and in other similar cases, in which to observe the law would be to deviate from the right. And this properly constitutes the matter of equity; and it is clear ostensively, as Cajetan says, from the reason of the virtue itself which is called equity. "For since it is a certain justice," as the Philosopher says, dikaiosyne tis, Eth. l. 5, c. 10, § 8, "and justice is necessary to man for this, that he be virtuous, it follows that its matter, as also of the other species of justice, is that operation which without its direction would not be right. But we see that exchanges would not be made rightly without commutative justice, nor distributions without distributive. Therefore those operations which would bend away from right by observing the universal law are the proper matter of equity, and on account of them alone direction is necessary. And on account of this it was deservedly called by the prince of Philosophers the direction of law. For law does not need direction except where it falls from rectitude, where it would lead away from the right." Cajetan l. c.

17. From this doctrine it is easily clear that interpretation of law and proper epicheia or equity must be altogether distinguished. For every epicheia is an interpretation of law, but not conversely is every interpretation of law epicheia. Often or always, as Suarez and Cajetan note, laws need interpretation because of ambiguity of words and because of obscurity of sense, or another similar cause. Interpretation of this kind is not epicheia. For that alone is epicheia by which we interpret a law in some particular case, because in it it fails because of the universal, so that it cannot justly be observed in that case. And in this sense Aristotle says epicheia is the amendment of legal justice, because it interprets the law as not to be observed in the case in which it would be a practical error to observe it, and against justice or natural equity.

But truly there can be other interpretations of law which do not regard amendment of the laws themselves, but only the explanation of their ambiguous or obscure sense; as e.g., when the law prohibits some contract, and a doubt arises whether the law merely prohibits that contract, or also invalidates it. Thus Suarez de Legib. l. 2, C. 16, n. 4. But from St. Thomas it would rather have to be said that epicheia simply is not interpretation of law. For, according to the Angelic Doctor, 2. 2, q. 120, a. 1 ad 3, interpretation has place in doubts, by consulting the prince; epicheia on the contrary has place in manifest things, by acting immediately in them. And again in 1. 2, q. 96, a. 6 ad 2, he says: "It must be said that he who follows the intention of the legislator does not interpret the law simply, but in the case in which it is manifest by the evidence of harm that the legislator intended something else. For if there is doubt, he ought either to act according to the words of the law or to consult the superior."

18. But must epicheia properly such be taken so restrictively that it has place only in the case in which it would be a sin to follow the law? Thus at first sight it would seem it must be said from St. Thomas, 2. 2, q. 120, a. 2, who seems to explain epicheia from cases in which it would be evil, as he says, to follow the law placed. And this is confirmed from the examples brought by the holy Doctor himself: restitution of a deposit which would be harmful if it were made to a madman, or if it were made for attacking the fatherland; and likewise if the gates of the city, which ought to remain closed, were not opened to citizens through whom the city would be preserved.

19. But St. Alphonsus, de legibus n. 201, extends epicheia also to the case in which the law is rendered too burdensome or too hard. "That place be given to epicheia," he says, "the law ought not only to cease in the particular case negatively, because namely the end of the law would then fail; but it ought to cease contrariwise, namely because the law is rendered damaging or too burdensome. Wherefore a deposited sword can be denied to the owner if he is going to abuse it. But it suffices if otherwise the law would be rendered too hard. Hence he is excused from hearing the sacred liturgy who fears a notable loss of goods. And he also is excused from the observance of a feast who otherwise is compelled to lose great gain."

20. Moral Theologians and Canonists commonly admit epicheia thus enlarged by St. Alphonsus. And it is truly not only not rejected by St. Thomas, but altogether admitted. For from St. Thomas its foundation is in this, that the reason of justice and common utility require it. Moreover the reason of justice demands this, that one not be overburdened before another, that one before another in the civil community or community not suffer damage. 2. 2, q. 120, a. 1. - Wherefore Scherer, who against the common opinion attacks epicheia, is rightly and deservedly reprehended. Wernz Ius Decretalium ed. 2, tom. 1, n. 48, note 19.

21. But to know more and more the intrinsic nature of epicheia, this question is moved here: Whether, in an occurring case of epicheia, someone can act freely, or ought first to recur to the Superior? And one must answer altogether negatively. Fittingly St. Thomas, 1. 2, q. 96, a. 6: "If there is sudden danger not allowing so much delay that one can recur to the Superior, necessity itself has dispensation annexed, because necessity is not subject to law." And in 2. 2, q. 120, a. 1 ad 3, he says it must be said "that interpretation has place in doubts, in which it is not licit without the determination of the prince to depart from the words of the law; but in manifest things there is no need of interpretation, but of execution."

22. Now it must be inspected what sort of virtue equity of this kind is. According to Aristotle, equity is not charity, nor is it a certain charity; but it is a certain justice, as is expressly said in V of the Ethics. And, according to St. Thomas, who altogether follows Aristotle, "epicheia is part of justice commonly so called, as existing as a certain justice." But how epicheia is a part of justice commonly so called, and what that justice commonly so called is, the same Angelic Doctor thus declares: "it must be said that epicheia properly corresponds to legal justice, and in a certain way is contained in it, and in a certain way exceeds it. For if legal justice is called that which obeys the law either as regards the words of the law, or as regards the intention of the legislator, which is stronger, thus epicheia is the stronger part of legal justice. But if legal justice is called only that which obeys the law according to the words of the law, thus epicheia is not part of legal justice, but is a part of justice commonly so called, divided against legal justice, as exceeding it." Therefore epicheia is nothing other than a certain justice, part of justice taken generally, not a potential part of justice, but a subjective part. For epicheia corresponds to legal justice, which is not a potential part of justice, but a subjective part. Hence the Angelic Doctor concludes, saying, Hence it is clear that epicheia is a subjective part of justice.

23. Wherefore the doctrine of Lessius does not seem true, or certainly that doctrine does not correspond to the doctrine of St. Thomas. For Lessius numbers epicheia or equity among the potential parts of justice, de Iust. et Iure l. 2, § 7. Others also number Epicheia among the potential parts of justice. They perhaps did this because the Angelic Doctor treats of epicheia at the end of the virtues annexed to justice. But the Angelic Doctor himself openly excludes it from the other virtues annexed to justice. For first, in question 80, single article, the holy Doctor gives the reason of the virtues annexed to justice and of the potential parts of justice and numbers them. Moreover, in the number of potential parts of justice the holy Doctor does not number epicheia also. But in the reason which he assigns of the potential parts of justice, or of those deficient from the perfect reason of justice, the holy Doctor altogether excludes epicheia. The reason of justice consists in this, that what is owed to another be rendered to him to equality. Therefore in two ways some virtue existing toward another falls short of the reason of justice. In one way indeed, insofar as it falls short of the reason of equality, and thus religion, piety, observance fall short, which cannot render debt to equality. In another way, there can be a defect from the reason of justice by reason of debt. But debt is twofold, legal debt and moral debt. Moral debt is what someone owes from the honorableness of virtue, and thus truth, gratitude, liberality, affability or friendship fall short. But legal debt is that to the rendering of which someone is bound by law. "And such debt justice properly attends, which is the principal virtue." Moreover epicheia attends legal debt, not indeed according to the words of the law, but according to the intention of the legislator. Moreover, in question 120, where St. Thomas expressly treats of epicheia, he expressly affirms: "Epicheia is a subjective part of justice," as we have already heard from the same Angelic Doctor.

24. Namely, it is evidently a subjective part of justice, of justice taken generally. But if epicheia is considered as part of legal justice, as St. Thomas says, it is its stronger part; for legal justice is directed according to epicheia. Hence epicheia is as it were a superior rule of human acts. By which reason it is also clear that epicheia is a more noble subjective part of justice taken generally, if it is considered as a co-distinguished part from legal justice. Epicheia, says the Philosopher, is better than a certain justice, namely legal justice. For since it itself is a certain justice, it is not better than every justice. St. Thomas, 2. 2, q. 120, a. 2.

25. It is the stronger part of legal justice, it is better than a certain justice; because legal justice inclines to the just according to common laws, but epicheia or equity inclines to the just beyond common laws. The former regards an inferior end, the latter a superior end. And thus in the law, lest foreigners climb the walls of the city, the proximate end is the security of the city from foreigners; but the end of equity, if a foreigner climbs to defend the city from enemies, is the safety of the city. But it is clear that the safety of the city is a higher end than security from foreigners, because that security is ordered to the safety of the city as to an end. And similarly in the law of deposits the proximate end is that to each one his own be returned; but the end of equity denying the deposit to a madman is useful, namely because in the aforesaid case that which is his own is not useful to him but harmful. Con-

But it is clear that the higher end is to give to someone his useful own, than his own; because something is given to someone as his own so that it may be useful, for it is given under the final reason of useful good. St. Thomas, 2. 2, q. 120, a. 2.; Cajetan in h. l.

26. Therefore epicheia or equity is related to legal justice as a superior rule of human acts, as St. Thomas expressly affirms, because it has a higher end, and to the intrinsic end of the law it adds another extrinsic end. And this is Aristotle's opinion, saying in V Ethics that the equitable is better than a certain just thing, and he speaks of the just according to common laws.

27. But as in laws, so also in acts and contracts epicheia or equity, for preserving equity itself or equality, is to be attended to, on account of the same reason, because namely it is morally impossible to foresee all things and to define all things in them. And therefore they need the interpretation, judgment, and sentence of a good and equitable judge. In Roman Law contracts were divided into contracts of good faith and of strict right. A contract of strict right is one in which only that is to be considered concerning which it was expressly agreed. A contract of good faith is one which is accepted not from the rigor of words, but from benign interpretation, from the good and equitable. Contracts of good faith are purchase, sale, lease, hire, deposit, partnership, and others which are numbered in the Institutes, title de Actionibus § 28, Actionum autem. They are called contracts of good faith, not because in them alone good faith must be observed, for this is required also in all other contracts of strict right, since it is not licit to celebrate them in bad faith; but because, since they are frequently accustomed to be made among citizens, many conditions are not usually placed in those contracts, which otherwise are placed in other contracts, but the contracting parties are remitted to the customs of the country and to other things which are usually understood in the said contracts. In contracts of strict right, on the contrary, several conditions are usually placed, according to which the judge is held to judge strictly. Cf. Ferraris v. Contractus in genere n. 12-18.; Reiffenstuel lib. 1, tit. 35. By more recent law, all contracts are esteemed to be of good faith, and receive interpretation from the good and equitable. Italian Code 1124, 1131, 1134.; French Code 1135, 1156, 1159.

28. Finally it is worth the effort to report what Aristotle has concerning epicheia, or concerning equity, in book V of the Ethics, chapter 10. "

1. It follows that we speak concerning equity and concerning the equitable good, peri de epieikeias kai tou epieikous, what relation equity has to justice, what relation the equitable good has to right. For to those looking more closely it seems neither altogether the same nor other in genus. And sometimes we praise the equitable good, and the man who is equitable and good. Indeed we even transfer this name to other things in praising, using it for good, when we say to epieikesteron, signifying something better. Sometimes to those following reason it seems absurd that the equitable good, since it is something diverse from right, is praiseworthy. For either right is not good, or the equitable good is not just, if indeed this is something diverse from right, or if each is good they are the same.

2. Therefore the whole question concerning the equitable good arises almost from these things which we have said. But all these things have themselves well in a certain way, nor is there anything of them which fights with itself. For the equitable good is a right better than a certain right; nor is it so better than right that it is some other genus. Therefore right and the equitable good are the same; and since both are good, the equitable good is better.

3. But the doubt has arisen from this, that although the equitable good is right, nevertheless it is not right established by law or legal right, but a correction of legal right.

4. The cause of this matter is that every law is general, but concerning certain matters one cannot command rightly universally and generally. Therefore in those matters in which it is necessary that the voice of the law be universal and general, but this is where it cannot be done sufficiently rightly, in these the law takes that which usually happens in the greater number; although it sufficiently understands that which is mistaken in this. Nor nevertheless on that account is this done less rightly. For it is not the fault of the law, nor of him who made the law, but of the nature of things. For such plainly is the matter of those things which fall into action.

5. Therefore when the law has spoken generally and afterward something happens beyond that universal genus, then it is fitting that, where the bearer of the law omitted something and erred in that he spoke absolutely, that which is lacking and omitted be corrected: which even the bearer of the law, if he were present there, would say in this way and would have made law concerning it if he had foreknown it.

6. Therefore since right is the equitable good, it is then better than a certain right, not than what is absolutely right, but than that which, on account of general declaration, is not without fault. Finally this is the nature of the equitable good, that it is a correction of law where something is lacking to it, on account of the fact that it speaks generally. For this is the cause why not all things are comprehended by law, because concerning some things law cannot be brought; so that therefore a decree of the people is needed.

7. For of an undefined thing the rule also is indefinite, as also the Lesbian rule of lead for construction; for it is bent to the figure of the stone, nor does the same rule remain; so also the decree of the people is adapted to matters.

8. Therefore what the equitable good, to epieikes, is, what right is, and finally by what right the equitable good is better, is clear from these things. From this it also appears who is an equitable and good man. For he who has taken counsel of this kind, so that he follows these things, since he is fit for doing those very things, and who does not press the highest right too much, nor toward the worse part, but rather concedes concerning his own right, even if he could rely on the help of law, he is equitable and good; and this habit is equity, epieikeia, which is a certain justice, not another habit." And in book 1, chapters 1 and 2 of the Magna Moralia: "After the things which we have handed down, it seems fitting that we discuss equity, hyper epieikeias, and what it is, and in what things, and concerning what sorts of things. But equity, and the equitable man, he epieikeia kai ho epieikes, is he who yields concerning his own right which belongs to him by laws: for he who in those things which the legislator cannot examine in particular and define exactly, for he speaks universally, yields concerning his own right and follows that which the legislator indeed would have willed to define even particularly but could not, he is an equitable man. Moreover he does not yield concerning every right simply; since he does not diminish those things which are just by nature and truly, but only those which the legislator left behind when he could not define. But right estimation of things, and the right estimator of things, He de eugnomosyne kai ho eugnomon, concerns the same things as equity, namely concerning just things which, omitted by the legislator, have not been sufficiently exactly defined, so that a judge may be found of those things which the legislator omits and certainly knows were passed over by the legislator, which nevertheless are just; he is the right estimator of things. Therefore right estimation of things is not without equity. Esti men oun ouk aneu epieikeias he eugnomosyne. For judging belongs to the right estimator, tou eugnomonos; but acting according to this judgment belongs to the equitable man, tou epieikous."

113. • Epikeia is a benign, but equitable, interpretation of law, by which the law is not considered to extend itself to some case, although not excepted in the words of the law, since it is prudently believed that the legislator either did not foresee it or did not wish to comprehend it. Thus, for example, if a law prohibits carrying arms at night, I can carry them if I must go out and I am going to meet my enemy seeking me unto death.

QUESTION. Whether Epikeia has place if the Superior can easily be questioned?

I answer affirmatively, if observance of the law would bring detriment; otherwise in other cases. - St. Thomas, 2.2, q. 120, art. 1.

307. Epikeia (epieikeia, equity) obtains place when it is judged that some particular case, although certainly comprehended in the general words of the law, is nevertheless exempt from the obligation of the law on account of special circumstances.

The legitimacy of epikeia, admitted by Roman law, is thus explained by St. Thomas:¹ "Because human acts, concerning which laws are given, consist in singular contingents, which can be varied in infinite ways, it was not possible for any rule of law to be instituted which would fail in no case; but legislators attend to that which happens in the greater number of cases, enacting the law according to this; yet to observe this law in some cases is against the equality of justice, and against the common good which the law intends... Therefore in these and similar cases it is evil to follow the law posited; but it is good, the words of the law being put aside, to follow that which the reason of justice and the common utility demand."

¹ St. Thomas, IIa IIae, q. 120, a. 1.

308. Yet rules must be observed in epikeia: (a) if someone, on account of special adjuncts, certainly or probably judges that the legislator did not will to comprehend such a case in the law, and moreover cannot easily approach the superior, he can with safe conscience omit the law; but, since no one ought to be judge in his own cause, this judgment is not to be left to the agent himself, but, insofar as it can be done, to a prudent and learned man.

(b) If, when there is only a probable judgment, he can easily approach the superior, he is generally held to have recourse to him; for it is disordered for a subject to put aside the words of the law, on account of some doubt, where the will of the legislator can be certainly established. - I said generally; for it is not necessary to have recourse to the legislator if the special case of which there is question has already been solved in this way by doctors and ecclesiastical judges.

Universal necessity of having a faculty

95. 1. Since the article permits only those to read or retain proscribed books who have obtained a legitimate faculty, it makes the same faculty universally necessary.

From this necessity no grade is excepted: since Cardinals themselves obtain the faculty for themselves; nor doctrine or science, as P. Hilgers proves broadly.¹ To declare immune as many as, for example, excel in all sciences or in some, would be a matter full of danger and confusion, and alien from ecclesiastical tradition, while the obedience of the more learned is especially salutary to themselves and to others.

Nor should you argue from the moral security which those doctors enjoy. Even if we have conceded this, this remains: that the law is not taken away because its reason has ceased negatively in only a particular case.

Nor should you bring forward inconvenience. For as long as there is an opportunity of seeking permission, an inconvenience by which you would be excused from the law cannot be alleged.

Moral necessity excuses from the law in a particular case

2. Yet actual exceptions from the law, if at any time, from an assumed office, a moral necessity presses you to read some condemned work, seem able to be admitted even without any faculty having been sought, provided, as is clear, proximate danger of sin is avoided.² In this necessity there can be: a judge, an advocate in a forensic controversy; a person to whom specially, from article 27, it belongs to make denunciation, for denouncing a certain book; an ecclesiastical superior, for examining and reprobating this book; a writer of a Catholic newspaper, for responding promptly; a youth who, for hearing lectures which he lawfully attends, or for making an examination in a philosophical matter or in letters, is compelled to use uncorrected texts; and, according to Hollweck,³ probably also a professor of moral theology, insofar as it is necessary that he know in some manner obscene books, for which a faculty is not conceded. For in these cases the license of reading is contained in the faculty itself of exercising such an office; or the end of the law can be said to cease contrarily and there is place for epikeia. For it ceases contrarily, as Lugo explains diffusely,⁴ when the common good itself demands that the bond of the law be removed in a particular case. Moreover it is for the republic that pious and Catholic men not be prohibited from exercising offices and duties. Cf. Hollweck, Génicot.⁵

What of grave utility?

The end of the law also ceases contrarily if grave utility has demanded that you do something prohibited in itself, and there is no opportunity of approaching the superior for license. They give the case of a disputation with a heretic, if, in order to convert him, it is necessary for you to show contradiction in a heretical author, and you have hope of fruit. Laymann, cited place, tract 1, chapter 15, n. 5.

But the reason of attacking heretics in general does not suffice, since the opportunity of asking license is at hand, and the common good requires that you not dispense yourself by your own private judgment. Cf. Lugo, cited place, n. 66; Arndt, pp. 259, 260, n. 185.

¹ Der Index, pp. 47-59.

² Yet they will do better, if it can be done, to obtain license; indeed Pennacchi, n. 61, seems to require this.

³ Cited work, pp. 32, 33, note 1.

⁴ De Fide, distinction 21, nn. 63-66.

⁵ Hollweck, cited work, pp. 32, 33, note 1; Génicot, cited work, I, 452, 4.

— I. Notion. The common good itself demands that provision be able to be made for accidental necessities by commands either particular or less stable. I call particular commands those which are given to one or to relatively few. Less stable commands also occur as needing to be given by accident even to some whole order of citizens, indeed to the whole state: for example, public prayers which are enjoined when a plague is raging.

Moreover, by particular commands many persons are by their nature to be ruled who are subject by age, by infirm mind, or by voluntary subjection, as are private households and lesser communities.

Commands of this kind are precepts.

In public society they occur because of an accidental cause. Wherefore not every public society has precepts, although every one has laws. Laws, as we have seen, can be temporal, although of themselves they are rather perpetual; with attention to their cause, or with attention to their subject, precepts are of themselves temporal or precarious.

— II. Division. Precepts can proceed from dominative power and from the power of jurisdiction. Those which are given from the former power necessarily cease by the death of the one commanding; for they are founded in the mutual relation of persons, which is removed by the death of either. But nothing of itself prevents precepts given from the power of jurisdiction from persevering after the death of the one commanding. Cf. Wernz, Ius Decr., I, 135. Positive law, therefore, must be approached.

The general chapters of exempt clerical religious institutes (c. 601, § 1) have legislative power by which they can prolong by their decrees any precepts whatsoever of Superiors: those also which have been given from dominative power. If therefore they establish that the precepts of Superiors remain in force until they have been revoked by a successor, those precepts, after the Superior has departed from his life or his office, will persevere insofar as they have been confirmed by jurisdiction or virtually assumed by a moral person which does not die. Cf. Wernz, l. c., note 235.

With respect to the persons to whom they are given, some precepts are given to individual persons, others to some class of persons, others to the community itself, whether dependently or independently of territory.

— I. Notions. 1. This is the difference between counsel and precept, that precept imports necessity, but counsel is placed in the option of him to whom it is given (St. Th. 1, 2, q. 118 art. 4).

2. But counsel is not given concerning the end, but concerning the means to the end (1, 2, q. 14 art. 2). For it denotes inquiry concerning things to be done, and reasons are taken from the end.

Therefore, because good, as such, has the character of an end, counsel properly is not given concerning an action as good, but concerning an action as useful for good. Yet the action itself which is good can be ordered to a greater good. And thus counsel concerning a good action can be given.

And so the object of counsel properly so called is an action as useful for the end; which action in itself can be indifferent or good.

3. By a broader usage, the object of counsel is said to be a good action which, with attention to its objective character, is not prescribed, or a good work not prescribed, better than its opposite or than its negation which is not evil. Cf. Passerini, De hominum statibus, on q. 184, n. 25-26; Palmieri, Op. th., IV, tr. 9, c. 1, n. 4.

Hence also good works, in circumstances where they are not prescribed, are called counsels in a qualified sense, while works which by their kind are not of some virtue but conduce to the perfect exercise of the virtues are counsels simply. Cf. Passerini, l. c., n. 56.

— II. Division. Counsels are distinguished into some general and some particular; and this in three ways: a) with attention to their power, insofar as some counsels are of general or universal utility for every exercise of the virtues, especially for obtaining charity, while others possess a utility circumscribed by a particular good ¹; b) with attention to their subject, some befit men of themselves, as the three evangelical counsels, others because of particular circumstances, as the counsel concerning marriage ²; c) with attention to their promulgation or intimation, some are contained in law (thus the evangelical counsels), others are proposed by particular speech.

¹ Suarez, Rel., tr. 7, l. 1, c. 8, n. 2; Molitor, O.S.B., Religiosi iuris capita selecta, c. 1, n. 1.

² Otherwise Suarez, l. c., n. 6; Passerini, l. c., n. 58.

— I. Under the name of precept come particular or less stable commands which provide for accidental necessities of society or of persons. Some precepts proceed from dominative power, others from the power of jurisdiction: the former necessarily fall with the death of the one commanding, unless they are prolonged by the power of jurisdiction. Precepts are given either to individual persons or to the community.

II. Counsel, by which a persuasive dictate is communicated, is made properly concerning a means, not concerning an end, and therefore strictly concerning an action not insofar as it is good, but insofar as it is useful either for good simply or for a better good. By a broader usage, the object of counsel is a good work not prescribed. Counsels are particular and they are general, with attention to their power, subject, or intimation.

156. Even epikeia properly so called cannot be employed in the natural law, because epikeia is a benign interpretation of law according to the mind of the legislator, where the law fails. Therefore where there is no deficient law, there epikeia cannot have place. A created legislator cannot foresee all singular cases and all circumstances, and therefore cannot establish a law which in all occurring cases is just and useful. Therefore in a case in which the law borne by him becomes unjust or harmful, it is licit to employ epikeia, that is, according to the presumed mind of the legislator it is licit to interpret the law or even to omit it. But all these things cannot happen in the natural law, since it is never deficient, but always fitting to human nature. Besides, a case not foreseen by the divine legislator of the natural law cannot occur, since He is omniscient. Below, n. 231, a fuller discussion will return concerning 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.

617. Notion. Epikeia or equity¹⁰⁸⁴ is a certain suitable moderation of strict law.

Explanation. Epikeia can be taken in a twofold sense, namely, insofar as it is joined to legal justice, or insofar as it pertains to a certain natural justice. In the first sense it is a certain benign interpretation of a law, not according to its words but according to the mind of the legislator.¹⁰⁸⁵

It is defined by Aristotle¹⁰⁸⁶ as "the correction of law where it fails on account of its universality." In ancient Roman law, equity or equitable law is distinguished from strict law.¹⁰⁸⁷ Concerning this epikeia or equity the Angelic Doctor says:¹⁰⁸⁸ "Epikeia properly corresponds to legal justice, and in a certain manner is contained under it, and in a certain manner exceeds it. For if legal justice is said to be that which obeys the law, whether as regards the words of the law or as regards the intention of the legislator, which is more important, then epikeia is the more excellent part of legal justice. But if legal justice is said to be only that which obeys the law according to the words of the law, then epikeia is not a part of legal justice, but is a part of justice commonly so called, divided against legal justice as exceeding it."

¹⁰⁸⁴ Billigkeit [equity].

¹⁰⁸⁵ Cf. what was said above, I, n. 231ff., in the tract on the interpretation of laws concerning this epikeia.

¹⁰⁸⁶ Ethics l. 5, c. 10, n. 6.

¹⁰⁸⁷ Cf. Voigt, Die Lehre vom ius naturale, aequum und ius gentium der Römer I, § 4.

¹⁰⁸⁸ S. theol. 2, 2, q. 120, a. 2 ad 1.

618. Epikeia or equity, insofar as it pertains to a certain natural justice, can be defined with St. Cyprian as justice tempered by the sweetness of mercy. St. Thomas reduces this virtue to affability or friendship.¹⁰⁸⁹ And in truth it has a great affinity with affability or friendship, which regards suitable intercourse among men. For equity remits something of strict law so that human intercourse may be suitable and pleasant. Concerning this equity Aristotle says:¹⁰⁹⁰ "He who does not excessively urge his highest [right], nor toward the worse part, but rather yields from his right, even though he could rely upon the aid of the law, is equitable and good; and this habit is called equity."

This equity is exercised, for example, by a master who gives workers something beyond the stipulated wage if he himself has received an extraordinary profit from the labors of the workers; likewise equity is exercised by a creditor who grants some delay in payment to a debtor who cannot pay at the fixed time without great distress. This virtue of equity stands, as it were, midway between justice and charity. It belongs indeed to charity not to urge one's highest right in some case, in favor of one's neighbor; but it pertains to some due of justice not excessively to burden one's neighbor by the strict exaction of a debt. This equity pertains more to justice than to charity; hence Aristotle says:¹⁰⁹¹ "Equity is a certain justice, not some other habit."

Since equity has little of the character of a due, its violation of itself is only a venial sin; and the very well-known adage, "The highest law is the highest injury," can be understood only in a diminished sense concerning the violation of this equity. For it cannot happen that the omission of an imperfect due becomes the highest injury.¹⁰⁹² This adage, however, is most true if it is understood of a supreme positive right which is opposed to natural justice, or also of a spurious interpretation of positive law which rejects every epikeia.

¹⁰⁸⁹ Ib., q. 80, a. un.

¹⁰⁹⁰ L.c.

¹⁰⁹¹ L.c.

¹⁰⁹² Cf. Vermeersch, Quaest. de iust. 21, n. 478ff., where the virtue of equity is discussed well and at length.

619. The virtue of equity, taken in either sense, has its subject in the will and is scarcely anything other than the execution of the virtue of gnome,¹⁰⁹³ which is a part of prudence and resides in reason. Gnome, therefore, furnishes direction to equity in the matter of justice. But gnome itself extends also to other matters.¹⁰⁹⁴ From this intimate conjunction with gnome there is also apparent the excellence of equity, which is directed not by common prudence but by a higher prudence.

¹⁰⁹³ Cf. above, I, n. 633; Cajetan, Comm. in 2, 2, q. 120, a. 2; S. theol. 2, 2, q. 80, a. un. ad 4.

¹⁰⁹⁴ S. theol., l.c.

173. DEFINITION. "Epikeia is the at least probable presumption that the legislator, in some circumstance of things, did not will to oblige" (H. Ap., II, 77).

In this it differs from simple interpretation, that the latter elucidates obscure words of the law; but epikeia declares the mind of the legislator against the open words of the law.

I. There is place for epikeia if the law would otherwise be rendered either harmful or too onerous (I, 201; cf. 98, 99, 175). For in the former case the Superior could not oblige, hence epikeia is necessary. In the latter case, it is justly and prudently presumed that the Superior did not wish to oblige, although by strict right he could have done so: wherefore epikeia is then lawful, even if not always necessary, as if the matter concerns private right, which one doubting can renounce. Thus he is excused from hearing Mass who fears a notable loss of goods (cf. 223, 248). Read Salmant., tr. XI, c. 5.

Nevertheless authors add that the Superior must be approached beforehand, if this can be done. See Noldin, I, n. 144; Gopfert, I, n. 96, where there are many useful things.

174. II. Epikeia (defined broadly as above) has force not only in human laws, but also in natural laws, where the action can, from circumstances, be stripped of malice (I, 201).

Thus natural law dictates: You shall not commit theft; yet to escape death, it is lawful to take another's thing (cf. n. 129).

These things will be understood more fully from what is to be said concerning causes excusing from the law and concerning the cessation of law from within (n. 221, 256). Meanwhile it is useful to note that epikeia (or equity) is an act of a certain more sublime justice, better than strictly legal justice, which observes the words of the law (St. Thomas, 2.2, q. 120, a. 2, ad 2). Hence the adage of law: "In all causes, the reason of equity ought to be stronger than that of strict right," and that of Sacred Scripture: Do not be just overmuch (Eccles. 7:17); All your commandments are equity (Ps. 118:172). But equity is justice tempered by the sweetness of mercy, as St. Cyprian defines it (in Ferraris, v. Law, a. 5, n. 34).

146. • Epikeia is a benign, but equitable, interpretation of law, by which the law is not judged to extend itself to some case, although not excepted in the words of the law, since it is prudently believed either that the legislator did not foresee it or did not will to comprehend it under the law. Therefore it differs from interpretation properly so called, because the latter supposes words to be more obscure, the former clear.

One kind is authentic or public, which is made by the legislator himself, of which you have an example in the celebrated declaration of Benedict XIV on doubts respecting marriages in the Federated Provinces of Belgium,³ - another is doctrinal or private.

In order that there be place for epikeia, it is necessary that the law, if it had to be observed, would become harmful or too burdensome. Harmful: thus, for example, if a law forbids carrying arms, I shall be able to carry them, if I must go out and I am about to meet my enemy seeking me unto death. Too burdensome: hence although positive divine law forbade the loaves of proposition to be given to laymen, the High Priest rightly judged that he could give them to David, failing from weariness.

Quaer. Does epikeia have place if the Superior can easily be asked?

Resp. Affirmatively, if observance of the law would become harmful [n. 165. 2)]; otherwise in other cases. (K) p. 478.¹

St. Thomas, I-II, q. 96, a. 6; q. 97, a. 3, ad 2; II-II, q. 60, a. 5, ad 2; q. 120.

293. In what way law is to be fulfilled. - The human legislator does not directly prescribe the internal mode of virtue, but the conservation of social order; whence he prescribes only the substance of the act commanded and is content with physical or external fulfillment, although he can intend the good of virtue. For the end of a precept does not fall under the precept; nor therefore, per se, does the (extrinsic) mode of fulfilling the precept, unless the mode is of the substance of the precept (intrinsic).

These things will be declared more where there is discussion of ecclesiastical law.

294. In what way law is to be interpreted. - But in order that it be rightly fulfilled as it ought, law often needs interpretation. Namely, human law cannot be so perfectly set forth that it excludes every doubt about its meaning, and therefore it often needs interpretation, either on account of the weakness of human talent, or on account of change of circumstances and morals.

Interpretation is a clearer determination of the mind or words of the legislator. By reason of value or efficacy it is twofold: authoritative, which is imposed with authority, and merely directive, which can also be made by private persons. But by reason of cause or author it is fourfold:

1. Authentic or legal, which is made authoritatively by the ruler of the community himself as such, who is deservedly judged to know the sense of the law better and therefore enjoys authority of interpreting: it is made by the legislator himself, or by his successor or superior, or also by another specially designated for this (as happens in France, by the Council of State), and it has the same force as the law itself.

In our country, art. 28 of the Belgian Constitution has force: "L'interpretation des lois par voie d'autorite n'appartient qu'au pouvoir legislatif."

2. Usual, which is made by general observance of the community, or by the use and custom of the people, which is therefore called the best interpreter of laws. Moreover one custom is antecedent to the law, and this can have force for detecting the sense of a law which is usually borne according to custom; another concomitant is the mode of observing the law, and this has force as a sign and witness for recognizing the mind of the legislator, because it displays the common sense of subjects, which, although it is not authentic, nevertheless has more force than doctrinal interpretation because several agree in it; another subsequent custom, given the conditions, can define or extend a preexisting obligation, just as it can introduce or remove it (as we said in n. 273): then it is authoritative. Nevertheless in present-day civil law the force of custom for interpreting law authoritatively is not admitted, just as neither for introducing or abrogating it.

3. Judicial, which is made authoritatively by judicial power in order to a special cause, namely, by applying law to a particular fact: it is authoritative as to the litigants; as to others it has only the private authority of the judge, so much the greater as he excels in greater knowledge and the interpretation is more often repeated, yet, other things being equal, greater than if it is given by a private doctor.

4. Doctrinal, which is not authoritative and therefore of itself not obligatory, but is supported by science and directive, and is made by private doctors or jurists according to the rules of critical art. It is so much greater as their number, excellence, and arguments are greater; but if all agree in the interpretation, it would be rash to spurn it.

295. How many kinds interpretation is.

By reason of character or of the mode by which it is made, interpretation is simply declarative or comprehensive, which merely declares the words and sense of the law and adds or subtracts nothing, whether it declares more or less clear things, or even elucidates more obscure things: this can be made by all, even private persons; or supplementary, which adds what is lacking to the sense and words of the law, and is either extensive, which adds an obligation previously not expressed or intended, and therefore needs promulgation, or restrictive, which removes either one: this, like the law itself, can be made by the authority of the legislator, and by custom when the consent of the legislator can be presumed.

296. Interpretation by epikeia. - Even a subject of the law, in rare particular cases, can make a certain quasi-restrictive interpretation and licitly act beyond the words of the law, when these, namely, would be harmful to the common good. For law obligates insofar as it is ordered to the common good, and does not obligate if it departs from this. But it happens that something is useful generally and in the greater number of cases, and in certain cases is harmful; but because the legislator cannot foresee all cases (nor can law enumerate all cases, because it would become more obscure), law is proposed according to that which happens in the greater number of cases, for the sake of the common good.

Therefore, in a case in which observance of the law is harmful to the common good, it is not to be observed; for the legislator is rightly judged not to have willed to include that case in the law, just as a law concerning the gates of a town to be closed would not be applied to a citizen who would be very useful for defending the city, and a law which prohibits carrying arms does not obligate him who is sought by an enemy for death.

A right judgment concerning the circumstances in which law does not obligate, and a moral virtue inclining (under the direction of prudence) to acting rightly according to such a prudent judgment (which pertains to legal justice), is called epikeia, that is, equity, kindness, moderation, which interprets and judges and applies laws according to the equitable and good, that is, according as the reason of justice and the common utility demand. "In theological usage it designates a certain explanation of law which is made from equity, a benign interpretation and prudent moderation of law beyond the rigor of the words, by which it is judged that the law does not extend to some particular case on account of its special circumstances, although the legislator's words, as they sound, contain even that case." It can be defined: an equitable and benign interpretation of law, or a prudent moderation and restriction, by which against the words or sense of the law we follow the habitual mind of the legislator.

1. Thus Leroux in Revue Ecclesiastique de Liege VII, n. 4 (January 1901).

It is twofold: one broadly so called does not exceed the limits of simple interpretation drawn from circumstances, and has place not only in positive law but also in natural law (for example, deposits are to be returned); another strictly so called contains an emendation of law and has place in human law alone. And this differs: a) from simple interpretation, which explains obscure words and inquires whether in this or that sense those words are to be taken, so that they comprehend these or those cases: this follows the literal sense of the law and the mind which the legislator had; that departs from the words and the clear literal sense of the law and follows the mind which the legislator would have had, or reasonably ought to have had, if he had foreseen the case; b) from simple cessation of the end: for by this the law ceases universally and indeed negatively or contradictorily because its end is lacking; but by epikeia it does not obligate in a particular case and indeed contrarily because the law is rendered harmful or too burdensome; c) from dispensation: for this is an act of jurisdiction by which the legislator dissolves the bond of the law in a special case to which otherwise the law would be applicable; but epikeia pronounces that such a case was never comprehended in the law, although it is comprehended in the words.

297. Epikeia strictly so called has place whenever the law is 1) harmful or evil, for example, if it cannot be observed without sin; or 2) so impeditious of good or very burdensome and too difficult that it could scarcely be imposed by an equitable legislator; or 3) not so burdensome and difficult that it could not be imposed, but nevertheless, the circumstances being inspected and especially the ordinary mode of commanding with moderation, it is presumed that such was not the mind of the legislator. But ordinarily it is not given in invalidating laws on account of the common good.

The interpretation of epikeia can be made by any private person if the cause is evident; if it is doubtful, the superior is to be approached, because it pertains to him to interpret what is useful or useless to the community, whence on account of such cases he has the power of dispensing: for it is disordered to pass beyond the words of the law where the will of the legislator can certainly be known, and in doubt concerning the liceity of an act, we must, insofar as we morally can, arrive at certitude (n. 213 and 214, 4). But if there is a cause which does not allow the delay of recourse to the superior and is sufficiently founded (so that there is positive doubt whether the law still obligates), necessity itself dispenses, which has no law: then, namely, it suffices that probably the law has ceased to obligate.

By present-day civil law, however, epikeia is admitted with difficulty, except in a case in which it would evidently harm the common good directly. Namely, the legislator restricts it to the least possible, and judges it better to observe the law, even if it is burdensome to one or another, on account of the example of others.

S. Th. II-II, q. 80 and 120; I-II, q. 96, a. 6.

890. Equity (ἐπιείκεια, benignity, moderation; billijkheid) 1) in the general sense is natural justice, especially where it is opposed to human law, which it supplies or corrects; and thus it is not distinguished from justice, and it produces rights and offices strictly so called;

2. in the strict sense it is a) either a benign interpretation and observance of law, which against the words of the law follows the habitual mind of the legislator, and the moral virtue inclining to acting thus; this is customarily called by the Greek name epikeia, as was explained in the treatise on Laws (I, n. 296). Thus the ancients and scholastics understand it especially, for example, St. Thomas, q. 120;

b) or a fitting moderation of right properly so called, which says a certain remission of right, and the virtue disposing to this; as if a creditor grants delay to a debtor, while it does not harm himself much, but helps the other, or if a master receives extraordinary profit from the labors of workers and therefore gives to them beyond the wage (n. 554). Thus the moderns more often understand it, but the sense was not unknown to the ancients, as is clear from St. Thomas, q. 80, ad 3.

These two equities differ: the first is in debtors, who must render right or observe law; the other is in creditors, who can exact right.

891. Epikeia, or equity inclining to benign observance of law, pertains to legal justice, of which it is a subjective part or species. - It can be defined, conformably to the sayings of Aristotle, Eth. V, c. 10, n. 6: the virtue directive of law, where it fails because of the universal; as St. Thomas shows, q. 120, a. 1:

"Because human acts, concerning which laws are given, consist in singular contingents, which can vary in infinite ways, it was not possible that some rule of law be established (or enunciated) which would fail in no case. But legislators attend to that which happens in the greater number of cases, making laws according to this; which law nevertheless in some cases it is against the equity of justice to observe, and against the common good which the law intends. Thus the law established that deposits be returned, because this is just in the greater number of cases. Yet it sometimes happens that this is harmful, for instance if a madman deposited a sword and asks it back while he is in madness; or if someone asks back a deposit for attacking the fatherland. Therefore in these and similar cases, it is evil to follow the positive law; but it is good, the words of the law having been passed over, to follow that which the account of justice and common utility demands. And to this epikeia is ordered, which among us is called equity. Hence it is clear that epikeia is a virtue."

Therefore 1. the object of this virtue is the common good, but to be sought in a special way beyond the common rules and words of the law in particular cases, in which the law itself would tend to evil because of its universality; which furnishes a special difficulty, for in this matter sometimes even the learned themselves, led by zeal for the law, stick fast when they follow its words too scrupulously; hence it needs a special virtue.

2. The cause of epikeia is not a defect of law, but its generality, which is adapted to most cases, yet can fail in a few.

3. It pertains to legal justice. For legal justice regards the common good to be procured; but this can be procured either according to the words of the law, or according to the higher and habitual intention of the legislator. In the first case there is legal justice more strictly so called; in the other, there is epikeia or equity. Therefore this is a species of legal justice. But since the intention of the legislator must especially be regarded, therefore epikeia is the stronger part of legal justice (a. 2, and ad 1).

892. Equity inclining the will to moderate use of right is a virtue annexed to particular justice or a potential part. - It can be defined: the virtue inclining to the humane use of right conformably to right reason.

It is a special virtue because it regards a special account of good or honesty, which consists in a certain remission of right and humane use, insofar as it is worthy of man that he thus act more mildly toward another man for the right way of living together and the fitting conversation of men among themselves. Hence in this account it has a certain affinity with affability.

It is annexed to justice, from which on the one hand it falls short, since there is not in another a right or strict debt founded in law or convention; but with which on the other hand it agrees, because it renders to another some debt of mere honesty, insofar as in the other there is as it were the beginning of a right, or some imperfect title of decency, which in some way demands a benign and mitigated use of right. Hence equity of itself obliges only under light obligation and not with grave inconvenience; and St. Thomas notes that it "has little of the account of debt" (q. 80).

Hence equity mediates between charity and justice, and is a certain mitigation and perfection of justice: justice, says St. Cyprian, tempered by the sweetness of mercy. Of it Aristotle says, Eth. V, c. 10: "He who does not too greatly press the highest right, nor to the worse part, but rather concedes from his own right, even if he could rely upon the aids of law, he is equitable and good; and this habit is called equity."

893. Remarks. - 1. Equity accepted in either sense, since it pertains to justice, is subjected in the will; and it is the execution of the virtue gnome, which is annexed to prudence and is in reason, so that it may be able to judge well how in unusual cases one must act beyond the common rules, and it directs equity. From this is understood the excellence of equity, since it is directed not by common prudence but by a higher prudence.

2. The adage, The highest right is the highest injury, is to be understood either a) of positive right which is pressed while it is opposed to natural justice; or b) of an interpretation of law which is wholly pressed after every epikeia has been rejected; but not c) of the use of right, only that equity being passed over which is a potential part of justice: for the omission of an imperfect debt cannot be the highest injury.

Interpretation of law is the explanation of the sense intended by the legislator, when this seems more obscure or ambiguous, and it is distinguished in many ways; for:

1st. By reason of the subject or cause, one kind is authentic, another usual, and another doctrinal, according as it is made either by the superior himself or by others who participate in his power, or by custom, or by learned men.

2nd. By reason of mode, it is either strict or broad. The former rigorously preserves the propriety of the words, as, for example, if by the word son there is understood only a generated person; the latter admits a more benign sense, as if the same word son is extended to an adopted person.

3rd. By reason of mode again, it is either comprehensive or extensive. The former takes the words as they sound, and explains them either broadly or strictly, as was just said; but the latter attaches another sense to the words beyond the natural one, for example, if under the name of father even a grandfather is understood, and under the name of death, perpetual prison.

But epikeia is the exception of a case on account of circumstances from which it is judged, certainly or at least probably, that the legislator did not wish that case to be comprehended under the law. Hence it differs from interpretation, because it does not treat of explaining an obscure law, but of not applying a law otherwise clear to some case in particular. - Cf. St. Thomas, 1-2, q. 96, art. 6, and 2-2, q. 120, art. 1. - St. Alphonsus, n. 201; and Hom. Ap. n. 77.

I say, 1st. § 1. The legislator, or his successor, and he to whom the power of interpreting has been committed by them, authentically interprets laws.

§ 2. An authentic interpretation, exhibited by way of law, has the same force as the law itself; and if it only declares the words of the law, certain in themselves, it does not need promulgation and has force backward; if it restricts or extends the law or explains a doubtful law, it is not retroactive and must be promulgated.

§ 3. But an interpretation given by way of a judicial sentence or of a rescript in a particular matter does not have the force of law and binds only the persons and affects the things for which it was given (Can. 17).

I say, 2nd. Usual interpretation likewise has the force of law, and approaches authentic interpretation, provided the custom is legitimate, public, and universal. The reason is that then the consent of the legislator is had; whence custom is said to be the best interpreter of laws.

I say, 3rd. Doctrinal interpretation does not have the force of law, since it does not proceed from legislative power; nevertheless it has more or less weight according to the number and authority of the Doctors, and especially according to their reasons. That doctrinal interpretation may be done rightly, the following rules are to be attended to.

1st. Ecclesiastical laws are to be understood according to the proper signification of the words considered in text and context; if this has remained doubtful and obscure, recourse is to be had to parallel places of the Code, if there are any, to the end and circumstances of the law, and to the mind of the legislator (Can. 18).

2nd. Laws which establish a penalty, or restrict the free exercise of rights, or contain an exception from the law, are subject to strict interpretation (Can. 19).

3rd. If an express prescription of law, whether general or particular, is lacking concerning a certain matter, the norm is to be taken, unless it concerns applying penalties, from laws made in similar matters; from general principles of right observed with canonical equity; from the style and practice of the Roman Curia; from the common and constant sentence of the doctors (Can. 20). But a favorable law demands an ample interpretation. - Cf. St. Alphonsus, n. 200. - Scav. n. 260. - Kenrick, n. 32.

Question 1. Must extension be made from case to case when the same adequate reason occurs?

Response. Affirmatively, and the reason is taken from that worn principle: Where the reason is the same, there the same disposition of the law runs. But the same adequate reason runs when, unless the law were extended, the legislator could be accused of injustice or imprudence; and therefore the case not expressed ought rather to be said to be comprehended in the law, than the law to be extended to it. But this is had in the following: 1st, in correlatives, as bridegroom and bride; 2nd, in those equated, as eggs and milk-foods in relation to the law of abstinence; 3rd, in connected things, as are Deacon and Subdeacon; 4th, in contained things, as are the power of making a testament and the power of making legacies. - Cf. St. Alphonsus, ibid. - Scav. n. 261.

But a negative response must be given if it concerns penalties; thus Can. 2219, § 3: It is not licit to extend a penalty from person to person or from case to case, although an equal, indeed graver, reason is present, yet saving the prescription of Can. 2231, according to which equally culpable participants are struck with the same penalty, although only one is named.

Question 2. What things are subject to strict interpretation?

Response. Laws which establish a penalty or restrict the free exercise of rights, or contain an exception from the law; in doubt, rescripts which refer to lawsuits, or injure rights acquired by others, or are opposed to a law for the advantage of private persons, or finally were obtained for obtaining an ecclesiastical benefice, receive strict interpretation. Cf. Can. 19, 50.

This is the virtue which, from natural reason, dictates something besides, or against, the law in a certain case, according to the mind of the legislator; from Aristotle 5 Eth. cap. 10. and in Cod. de legibus, et Constit. Principium, leg. 5. we have: There is no doubt that he transgresses the law who, embracing the words of the law, strives against the will of the law. Hence Epikeia is praiseworthy, which, looking to the mind of the law, does not observe the words. Laws, moreover, decree what happens for the most part, and in some case they leave room for Epikeia.

With D. Thom. this is a subjective part of Justice, not a potential one, and it ranges through all positive law and through all the acts of the virtues, insofar as they obey the laws.

Others, however, say that Epikeia is an accidental species of legal justice, and is not so much a special virtue, distinct extensively from legal justice. Thus Tanner. num. 56.

The interpretation of Epikeia in a case of doubt pertains to the Prince, as we have in Cod. leg. 1. tit. 14. de legibus, et Constit. Principum, whose first law is: Between equity and right, the interpretation interposed must and may be inspected by us alone. But where the matter is manifest, interpretation is not needed, but execution.