EPIKEIA. - From ἐπαβέτα, that is, equity, benignity, moderation. The etymological meaning coincides with that of equity (v.). But the two terms correspond to two different concepts. And while the former has a special relation to moral science and to the internal forum, equity, on the other hand, refers to the field of positive law and to the external forum, as a higher justice, corrective of existing law and creative of a particular law. There are those who still confuse the two institutions, with the consequent exchange of terms, but, at least in the field of moral theology and canon law, it is necessary to distinguish.
However, even granting the distinction, it is not easy to give a definition of epikéia that can be accepted by all, because the acceptations of it in law and in morals have varied according to times and authors.
The doctrine of epikéia, like that of equity (v.), links back to Aristotle and to St. Thomas, who not only speak of epikéia as a corrective act of the written law, but also of the virtue of epikéia, which therefore embraces the entire field of ethics.
This virtue, which St. Thomas calls «vogare», considered in the practical direction it imparts 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, according as the function of legal justice is taken to include only the interpretation of the words of the law or also of the mind of the legislator, which is proper to epikéia.
For St. Thomas, epikéia is first of all a norm of action valid for the internal forum, but the judge too must adhere to it in the external forum. It should be noted well, however, that the epikéia of which St. Thomas speaks is not a benign interpretation of the law, which rests on other grounds or falls within the competence of the judge, but is a restriction of the observance of the law, when this becomes harmful in the individual case.
The commentators of St. Thomas and the moralists have gradually interpreted his doctrine in a broader sense, including under the name of epikéia not only what the Angelic Doctor had intended, but also what jurists intended under the term «equity». Suarez, for example, under the name of epikéia includes not only the extraordinary case, unforeseen by the legislator, in which, the purpose of the law ceasing in the contrary sense, the obligation of its observance ceases along with the power of the legislator to exact it; but also other particular cases, which today are more commonly considered as causes excusing from the observance of the law (v. INCONDIDO).
Moreover, under the influence of the moral system of probabilism, the commentators of St. Thomas have increasingly restricted the obligation of recourse to the Superior that the Angelic Doctor required, before the use of epikéia, at least when the perniciousness of observing the law was doubtful.
The indeterminacy of the concepts has meant that there has been no little dispute over the nature of epikéia, which for some is a kind of dispensation (Suárez), for others instead a license (Benedict XIV), for others finally, more numerous, an interpretation not of the words of the law, but of the mind of the legislator.
Even today, among authors, there is no univocal concept of epikéia. It is commonly defined as: the interpretation of the law in the individual case contrary to the clear words of the law, but conformable to the mind of the legislator. Here too, as in equity, we are faced with a presumption, motivated by a spirit of higher justice. But while in equity recourse to this higher justice is made by the public power, in epikéia instead it is made by the individual.
The whole value of epikéia 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 determined case, because of special circumstances. This subjective judgment, however, does not change the objective obligation of the law, but only renders the violation of it non-imputable in the internal forum.
When it comes to deliberating the scope or extension of epikéia, there is much disagreement, even today, among authors. There is no lack of those who repeat the doctrine of Suárez, according to which epikéia must be applied whenever the universality of the law fails, either through defect of power in the legislator or through lack of will in him, in the sense that for any reason whatsoever he is presumed not to intend to oblige in those determined cases (F. Maroto, A. Vermeersch, D. Prümmer, G. Michiels, etc.).
Many restrict the use of epikéia to the sole case in which, through wholly extraordinary circumstances, it is to be presumed that the legislator did not wish to include the case within the terms of his law (D'Annibale, Chelodi, Coronata, etc.). All the other cases are considered by them as causes excusing from the law. Other authors finally apply to these latter cases the name of epikéia, but understood in a broader sense (H. Noldin, Claeys-Bodunart, A. Van Hove, etc.), while to the first case they reserve the name of epikéia in the strict sense.
Amid such diversity of opinions one may, in order to orient oneself, distinguish thus an epikéia in the strict sense and an epikéia in the broader sense. Whoever speaks strictly means by epikéia, according to the conception of St. Thomas, the case or the extraordinary cases which, if the legislator had been able to foresee them, he would have had to accept. In practice it is nothing other than a dispensation presumed from the law. Therefore, before availing oneself of it, if circumstances permit, it is dutiful to have recourse to the legislator, also in order to avoid dangerous illusions, so as to obtain at least an authentic declaration of non-obligatoriness or the dispensation.
Whoever speaks in the broader sense includes under the name of epikéia many other cases, which concern not only the dutiful unforeseen exceptions, but the cases of difficult execution of the law, of doubtful power of the legislator, of cessation of the purpose of the law, in a negative but not contrary sense, joined with grave inconvenience, of moral impossibility. In all these cases, the subject who, basing himself on the presumed will of the legislator, concludes that the legislator in that particular case either could not have obliged to the observance of the law, or, even being able, would not have wished to, at least if humane, understanding, equitable, as a legislator must be, is said to make use of epikéia in the broader sense. In all these cases, which often reduce to grave inconvenience, to moral impossibility, the use of the probable opinion is easily permitted, even with regard to recourse to the Superior.
Besides the concept and the modalities of epikéia, disagreement exists among authors also when it comes to delimiting the forum of its application.
For some, the application of epikéia is restricted to the internal forum, while in the external forum it is juridical equity that pursues the iniquitates legis (Koeniger, Hilling, Sagmüller, S. D'Angelo); for others instead, however rarely, epikéia can find its application also in the external forum (D'Annibale, Maroto, Chelodi).
It seems in any case that some reflection of epikéia in the external forum cannot be denied. I shall be able, if nothing else, to invoke epikéia as proof of good faith and to request the non-application of the ecclesiastical penalty. It will then be the office of the judge, on the basis of equity, to pronounce in the external forum on the right use of epikéia and on its consequences.
The use of epikéia moreover is not applicable to all laws. In the divine laws, whether natural or positive, it is not permitted to have recourse to it, since it cannot be thought that God, infinite wisdom, has overlooked some case of impossible or harmful observance of the law. Yet even here, when the formulas of the law are incomplete and imperfect, it is not impossible to make an argument that leads us to a kind of epikéia. In this sense St. Thomas speaks of epikéia also in connection with divine law (Sum. Theol., 2³-2⁶, q. 51, n. 4).
Suárez maintained that even in irritant and disqualifying laws it is not permitted to make use of epikeia; but the reasons adduced do not seem convincing. For which reason it is commonly admitted that even the irritant and disqualifying effect of the law can cease when insisting on the application of the law would be absorbed by the powers of the legislator. In that case the act would become valid and the person capable.
In practice, although these are invalidating and disqualifying laws, the use of epikeia is admitted in the case of the impediment of disparity of cult (can. 1070), when a baptized person finds himself among non-baptized persons and cannot marry a baptized woman or obtain a dispensation.
There is no lack of authors who allow the use of epikeia in the case of subtraction of jurisdiction for the absolution of an accomplice (can. 884). It is disputed whether the canonical law of reserved faculty of dispensation regarding certain matrimonial impediments ceases in an urgent case, outside of that provided for by can. 1045, when it is a matter of an impediment from which the Church is accustomed to dispense. However, in such cases, even after the use of epikeia, recourse must possibly be had to dispensation or sanatio in the ordinary form.
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. Del 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.