EPIKÉIA. – From ἐπαβέτα, that is, equity, benevolence, moderation. Its etymological equity (v.). But the two terms correspond to two different concepts. While epikeia has a special relation to moral science and the internal forum, equity instead belongs to the sphere of positive law and the external forum, as a higher form of justice, corrective of existing law and creative of a particular law. Some still confuse the two institutions, with the consequent interchange of the terms; but, at least in the field of moral theology and canon law, it is necessary to distinguish them.
Nevertheless, even once the distinction has been admitted, it is not easy to give a definition of epikeia that can be accepted by all, because its meanings in law and morality have varied according to periods and authors.
The doctrine of epikeia, equity (v.), is connected with Aristotle and St. Thomas, who speak not only of epikeia as a corrective act with respect to written law, but also of the virtue of epikeia, which thus embraces the entire field of ethics.
This virtue, which St. Thomas calls “vogare,” considered in terms of the practical direction it gives to the acting subject, belongs as a subspecies to the virtue of prudence; considered in its execution, it is rather a part of legal justice, or of justice in general, depending on whether the function of legal justice is understood to include only the interpretation of the words of the law or also that of the legislator’s mind—which is proper to epikeia.
For St. Thomas, epikeia is above all a norm of action valid for the internal forum, but the judge too must observe it in the external forum. It should be noted, however, that the epikeia of which St. Thomas speaks is not a benevolent interpretation of the law, arising for other reasons or within the competence of the judge, but an understanding of the observance of the law when this becomes harmful in an individual case.
The commentators on St. Thomas and moral theologians gradually interpreted his doctrine in a broader sense, including under the name of epikeia not only what the Angelic Doctor had understood by it, but also what jurists understood by the term “equity.” Suárez, for example, includes under the name of epikeia not only the extraordinary case, unforeseen by the legislator, in which, when the purpose of the law ceases to apply in the contrary sense, the obligation to observe it and the legislator’s power to demand it cease; but also other particular cases, which today are more commonly regarded as grounds excusing one from observing the law (v. INCONDIDO).
Furthermore, under the influence of the moral system of probabilism, the commentators on St. Thomas increasingly restricted the obligation to have recourse to the Superior, which the Angelic Doctor required before making use of epikeia, at least when the harmfulness of observing the law was doubtful.
The indeterminacy of these concepts has meant that considerable dispute has arisen concerning the nature of epikeia: for some it is a kind of dispensation (Suárez), for others a permission (Benedict XIV), and for still others, more numerous, an interpretation not of the words of the law but of the legislator’s mind.
Even today there is no uniform concept of epikeia among authors. It is commonly defined as the interpretation of the law in an individual case contrary to the clear words of the law, but in conformity with the legislator’s mind. Here too, as with equity, we are dealing with a presumption motivated by a spirit of higher justice. But whereas in equity recourse to this higher justice is made by the public authority, in epikeia it is made by the individual.
The entire value of epikeia is reduced to a subjective prudential judgment, by which one concludes that the law is not to be observed in the internal forum, in that particular case, because of special circumstances. This subjective judgment does not, however, alter the objective obligation imposed by the law; it merely renders its violation non-imputable in the internal forum.
When the scope or extent of epikeia is to be determined, there is still considerable disagreement among authors. Some continue to uphold Suárez’s doctrine, according to which epikeia must be applied whenever the universality of the law ceases to apply, either because the legislator lacks the power to legislate or because of a lack of will on his part, in the sense that, for whatever reason, it is presumed that he does not intend to impose an obligation in those particular cases (F. Maroto, A. Vermeersch, D. Prümmer, G. Michiels, etc.).
Many restrict the use of epikeia to the sole case in which, because of entirely extraordinary circumstances, it is to be presumed that the legislator did not intend to include the case within the terms of his law (D’Annibale, Chelodi, Coronata, etc.). All other cases are regarded as grounds excusing one from the law. Finally, other authors apply the name epikeia to these latter cases as well, but understand it in a broader sense (H. Noldin, Claeys-Bodunart, A. Van Hove, etc.), while reserving the name of epikeia in the strict sense for the first case.
Amid such diversity of opinions, one may, for purposes of orientation, distinguish between epikeia in the strict sense and epikeia in a broader sense. Those who use the term strictly understand by epikeia, according to St. Thomas’s conception, the extraordinary case or cases which, had the legislator been able to foresee them, he would have had to accept. In practice, it is nothing other than a presumed dispensation from the law. Therefore, before making use of it, if the circumstances permit, one is obliged to have recourse to the legislator, also in order to avoid dangerous illusions and to obtain at least an authentic declaration that the law is not binding or a dispensation.
Those who use the term in a broader sense include under the name of epikeia many other cases, concerning not only unforeseen exceptions that ought to be made, but also cases in which the law is difficult to execute, the legislator’s power is doubtful, the purpose of the law has ceased to apply in a negative but not contrary sense and this is accompanied by serious inconvenience, or there is moral impossibility. In all these cases, a person is said to make use of epikeia in the broader sense when, relying on the presumed will of the legislator, he concludes that in that particular case the legislator either could not have imposed the obligation to observe the law or, even if he could have done so, would not have wished to do so—at least if he were humane, understanding, and equitable, as a legislator ought to be. In all these cases, which often come down to serious inconvenience or moral impossibility, the use of a probable opinion is readily permitted, even with regard to recourse to the Superior.
In addition to disagreement concerning the concept and modalities of epikeia, disagreement also exists among authors when it comes to delimiting its forum of application.
For some, the application of epikeia is restricted to the internal forum, whereas in the external forum it is juridical equity that remedies the iniquitates legis (Koeniger, Hilling, Sagmüller, S. D’Angelo); for others, however, although rarely, epikeia may also find application in the external forum (D’Annibale, Maroto, Chelodi).
It nevertheless seems impossible to deny some reflection of epikeia in the external forum. It may, if nothing else, be invoked as proof of good faith and in order to request that an ecclesiastical penalty not be applied. It will then be the judge’s office, on the basis of equity, to rule in the external forum on the proper use of epikeia and on its consequences.
Moreover, the use of epikeia is not applicable to all laws. In divine laws, both natural and positive, recourse to it is not permitted, since it cannot be supposed that God, infinite wisdom, overlooked some case in which observance of the law would be impossible or harmful. Nevertheless, even here, when the formulations of the law are incomplete and imperfect, it is not impossible to construct an argument leading to a kind of epikeia. In this sense St. Thomas speaks of epikeia also with regard to divine law (Sum. Theol., 2³-2⁶, q. 51, n. 4).
Il Suárez ha sostenuto che pure nelle leggi irritanti ed inabilitanti non è consentito far uso di e.; ma le ragioni addotte non sembrano convincenti. Per cui comunemente si ammette che l'effetto anche irritante e inabitante della legge possa cessare quando insistere per l'applicazione della legge assorbitasse dai poteri del legislatore. In tal caso l'atto diventerebbe valido e la persona abile.
In pratica, pur trattandosi di leggi irritanti ed inabilitanti, viene ammesso l'uso dell'e. nel caso di impedimento di disparità di culto (can. 1070), quando un battezzato si trovasse tra non battezzati e non potesse sposarsi con una battezzata od ottenere la dispensa.
Non mancano autori che consentono l'uso di e. nel caso di sottrazione di giurisdizione per l'assoluzione del complice (can. 884). È controverso, se cessi la legge canonica di riservata facoltà di dispensa circa certi impedimenti matrimoniali in un caso urgente, fuori di quello previsto dal can. 1045, quando si tratti di impedimento da cui la Chiesa suole dispensare. Tuttavia, in simili casi, anche dopo l'uso dell'e., si deve ricorrere, possibilmente, alla dispensa o sanazione nella forma ordinaria.
DIBL.: V. la relativa bibliografia sotto la voce EQUITÀ: J. Haring, Die Lehre von der Epible, in Theologisch-probische Quartalschrift, 52 (1899), pp. 579-600; 796-810: H. Van den Berghe, Quænam leges epidiam admittant, in Collationes theologiae Lævanicae, 7 (1902), pp. 362-66; anon., L'épible, in L'ami du clergé, 25 (1903), pp. 161-69; E. Leroux, De e., in Revue ecclésiastique de Liège, 7 (1911-12), pp. 257-60; L. Godefroy, s. V. in D'ThC, V. coll. 358-61; E. Hugon, De e. et æquitate, in Angelicum, 5 (1923), pp. 359-67; A. Van Hove, De legibus, Malines 1930, pp. 274-304; M. Noguer, Una iusticia sui generis: la epique, in Razōa y fe, 99 (1932), pp. 460-75; V. GIUDICE, Privilegio, dispensa ed e. nel diritto canonico, in Scritti in memoria del prof. Fr. Innamorati, Perugia 1932, pp. 227-81; L. J. Riley, The history, nature and use of e. in moral theology, Washington 1948.