EQUITÀ. — One cannot speak of equity without referring to the classical Aristotelian theory contained in the Ethica Nicomachea and the Ars rethorica.
Aristotle affirms that there is no opposition between equity and justice, but that equity (epicheia) is a concrete form of justice, that is, to use a commonly employed formula, the justice of the individual case. The function of equity consists in correcting and completing the law; the law is the enactment of what is just, but it is, by its nature, universal and, since it cannot foresee everything, must limit itself to providing for what occurs in most cases. Hence the deficiencies of the objective expression of justice, which is embodied in the law—deficiencies eliminated by equity, which therefore, to use other Aristotelian terms, is that just element not included in the written law. To remain closer to Aristotle’s thought, it will be useful to paraphrase his language. He observes that when the law speaks in universal terms, and in individual cases something occurs that falls outside the universal rule, then it is right, in that part in which the legislator’s work is deficient, to correct the defect of the law; the legislator himself would do this if he were present, and would have legislated in this way had he foreseen the case. Just as the Lesbian rule follows the shape of the object and is essentially flexible, so the concrete norm must follow the variability of cases. In a passage of the Ars rethorica, speaking of the duty of equitable men, Aristotle says, among other things, that the duty of the equitable man is to show indulgence toward human frailty, to keep his eye not only on the law but also on the legislator, not on his words but on his intention, not on what a man has done but on what he proposes to do. For Aristotle, equity is not merely a force placed at the service of the fulfillment of justice, intended to remedy the inevitable deficiencies of written law; it also possesses an exceptionally high ethical and social significance.
Thus conceived by one of the greatest representatives of Greek philosophical speculation, equity found its most splendid affirmation in Roman jurisprudence, which saw in it the informing principle of law: law is equitable insofar as it does not consist of rules more or less corresponding to universal principles, but expresses itself in formulas that, in the reality of life, reveal themselves as the implementation of practical principles capable of satisfying the multiple concrete needs brought to light by individual relationships. Law has a reason for existing insofar as it is adequate to every aspect of the factual situation under consideration. Accordingly, aequitas naturalis must be transformed into aequitas constituta or civilis in order to avoid an ius iniquum, according to Cicero, who, after speaking of equity quae paribus in causis paria iura desiderat, points out that the distinctive characteristic of ius civile is that it is aequabile (neque enim aliter esset ius), that the lex is fons aequitatis, and that the iudicium must implement aequitas.
Thomistic thought proceeds along the same line as Aristotelian thought. St. Thomas, after observing that humani actus de quibus leges dantur, in singularibus contingentibus consistunt, quae infinitis modis variari possunt and that, therefore, non fuit possibile aliquam regulam institui, quae in nullo casu deficeret, since legislatores attendunt ad id quod in pluribus accidit, secundum hoc legem ferentes, affirms that in some cases observing the law est contra aequallitatem iustitiae et contra bonum commune quod lex intendit and therefore, in such cases, malum est sequi legem positam, bonum autem est, praetermissis verbis legis, sequi in quod poscit iustitiae ratio et communis utilitas. Et ad hoc ordinatur epikeia quae apud nos dicitur aequitas.
The profound Aristotelian insight, which Aquinas made his own and transmitted to all subsequent doctrine, which, even when speaking through the mouth of such eminent theologians as Suárez, adds nothing substantially new, provides the necessary and sufficient, substantive and terminological elements for determining the concept and function of equity.
The juridical norm, as the objective expression of justice, inherently possesses the characteristics of generality or universality and abstraction. These constitute the guarantee of legal certainty, since they are the presuppositions of the norm’s objectivity with respect to the concrete cases of life. Given these characteristics, the norm is inadequate to satisfy all the concrete interests that present themselves in the full richness of their manifold life, precise in their irreducible individuality.
Through the mediation of the principle of equity, the abstract norm is adapted to the individual, concrete case—one might almost say that there is a plastic adherence between the one and the other. Hence equity has rightly been called the justice of the individual case, precisely to signify that it constitutes the concrete mediation between the abstract principle of justice, expressed in the norm, and the requirements of individual cases and concrete interests. Through equity, the principle of justice—which is one and the same with the principle of juridicality informing the norm—is recalled in concrete terms, that is, with reference to the individual case. It has been observed that, if justice is called the system of judgments of abstract juridical evaluation, together with the corresponding moment of the spirit, then, with equal propriety, equity is called the system of judgments of concrete juridical evaluation, together with the corresponding moment of the spirit. Equity is a specification of justice, an objectification of juridical values, a reduction of abstract juridical evaluations to concrete form and aspect; the principle of equity constitutes the concrete moment of the principle of what is just. These concepts and terms correspond substantially to the Aristotelian concepts and terms recalled above.
We remain within the sphere of these concepts when it is said that, through equity, an assessment is made of the norm’s substantive capacity to satisfy the concrete interests in which the relationship abstractly envisaged and regulated by it is specified, and that equity has an integrative and corrective function with respect to the norm. This depends on whether the judgment of concrete evaluation, in which equity consists, brings to light the absence or inadequacy, or even the incompatibility, of the positive regulation with respect to the concrete case. Thus equity, besides being a sentiment, is a living and active force that operates at the moment of interpreting and applying the norm, in order to satisfy the irrepressible demands of the principle of concrete justice and to ensure that law does not reduce itself to rigid abstract formulas but truly corresponds to the definition given to it by the Roman jurist: art boni et aequi.
While preserving their value, the Aristotelian insights that became corresponding Thomistic propositions, jealously safeguarded by later doctrine, equity assumes a particular importance in the canonical order. It has rightly been observed that between the canonical and civil-law conception of aequitas one may see reproduced, under a particular aspect, the spiritual contrast between orders of ecclesiastical origin and orders of secular origin. It has likewise been noted that the fact that equity in canon law is properly aequitas canonica means that the elementum correctivum iuris does not consist in abstract or arbitrary principles, but in the very principles underlying the canonical system and constituting its specific structure (Del Giudice).
References to the ius naturale and to the divina lex when speaking of aequitas are extremely frequent in canonical doctrine and highly significant. The principles of divine, natural, and positive law constitute the supreme criteria that have inspired the system of canonical legislation in every age, and with which the whole of Christian ethics is likewise imbued. And while the term ius naturale, in secular legal systems, encompasses an exceedingly vague and uncertain concept that eludes concrete determination (hence the discredit into which the doctrine of natural law has fallen), in the canonical legal order it represents
a well-defined concept, given the definition contained in Gratian’s Decretum: ius quod in lege et evangelio continetur, which was subsequently consolidated definitively in the canonical and theological schools. When these schools speak of natural law, they intend to refer to the supreme norm in which, ultimately, the entire canonical legal order is resolved.
It has rightly been said that in canonical e. this nature of the legal order is clearly manifested: that everything is resolved into a norm from which all norms arise; that it is precisely here that e. is called canonical, as if to emphasize its unmistakable peculiarity, because it in fact represents and expresses this legal order in what is most proper to it; that canonical e. is the manner in which the supreme norm asserts its sovereignty over all the determinations of itself, which are the other norms; that canonical e. ensures the application of the norm in every case, since all the indications and prescriptions of particular norms are necessarily referred back to it, both when they coincide in application and when they do not coincide or contradict it, since the contradiction is eliminated and the supreme norm is put into effect; that in this sense canonical e. truly draws out and makes explicit the supreme norm, which every particular norm holds enclosed within itself, and at the same time makes evident and identifiable the true dimensions and true contents of the legal order; that canonical e. is the positive and, one might almost say, technical means by which the profound and universal content of the supreme norm is realized and applied at every moment; that, in short, as the identification of its content with natural law, quod in lege et evangelio continetur, bears witness, it is nothing other than the expression of the supreme norm and therefore of all the laws that it contains and applies, the explicit and textual affirmation of the sovereignty, universality, and inescapability of the fundamental norm; that canonical e., rich as it is in all the contents of the supreme norm, but univocal as it is in the univocity and unity of that norm itself, is characterized by an absolute simplicity, renewing the complications of normative systems and making room for a single requirement and a single norm, insofar as it responds to the essential and universal imperative of the entire legal order, applying secundum simplicitatem canonicam to all cases of life and law; hence its essentially dynamic nature, which the canonical legal order derives from the society to which it belongs; hence the fundamental position that the mediating function occupies in this legal order, exercised by the legislator, the superior, the judge, and the interpreter, between the concrete situation, the particular norm, and the supreme norm (Capograssi).
It is in consideration of the supreme purpose of the canonical legal order that aequitas canonica comes into operation. When the periculum animarum is at stake, the ecclesiastical judge has not only the power but also the duty to have recourse to II. With regard to the highly effective and significant expression with which Enrico da Susa replied to those who, like Bulgaro and Giovanni da Bassano, viewed the spirituales opiniones and aequitas canonica unfavorably—sed velint nolint hanc aequitatem de iure necesse habent sequi, ubicumque agitur de periculo animarum—it has been observed that to say ubicumque agitur de periculo animarum means saying: whenever the legal order itself is at issue in its object, in its profound and synthetic unity, the establishment of Christian society, in which alone the salus animarum is fulfilled and the periculum animarum overcome; that is, whenever it is a matter of realizing, enforcing, or safeguarding the supreme norm in which the legal order is resolved; for salus animarum or periculum animarum are holistic expressions, ways of speaking by which one seeks to grasp, through the overall effect of the entire legal order, the legal order itself in its totality (Capograssi).
Thus, even if the CIC contained no provision such as that of can. 20, according to which si certa de re dexit expressum praescriptum legis sive generalis sive particularis, norma sumenda est... a generalibus iuris principiis cum aequitate canonica servata, in conformity with what is read in c. 11, XI, 36: In his vero, super quibus ius non invenitur expressum, precedas, aequitate servata, semper in humaniorem partem declinando, recourse would nevertheless have to be had to canonical e. in order to make up for the legislator’s silence, since this principle is inherent in the canonical legal order, as the supreme norm through which that order is realized. And when, in order to make up for the legislator’s silence, the judge has recourse to that principle, which rises to the status of a formal source of law, he issues a judgment that formally is a judicial act in the strict sense, but substantially is a legislative act.
Given the intimate and inseparable connection between the principle of aequitas canonica and consideration of the solus animarum and the periculum animarum, understood in the aforesaid sense, the opposition between the canonical conception of aequitas and the civil-law conception appears most clearly, to such an extent that it may be said—as has been said—that canonical e. is the opposite of e. in civil legal systems: the former is the entire legal order, in its deepest positive requirements, being put into effect; the latter is at least a setting aside of the positive legal order and the making of room for other norms originating elsewhere (Capograssi). Nor could the fact that what are designated as legal definitions of aequitas in Roman law are substantially repeated by certain canonists lead one to think otherwise; this should not be misleading, since, as has generally been observed, the true concept of every institution and its scope, in medieval doctrine, usually stand in contrast to the definitions given of them (Ruffini). Now, the meaning and function that, properly and profoundly, are qualified as canonical within the canonical legal order are peculiar to this legal order and, as the preceding considerations demonstrate, find no parallel in any other legal order.
BIBLI: V. Scialoja, Del diritto positivo e dell'e., Camerino 1882; P. Viazzi, L'e. nella filosofia e nella storia, Milano 1892; J. Hering, Die Lehre von der Epithe, in Theologisch-probittische Quartalsdorff, 32 (1890), pp. 579-600, 796-810; B. Donati, Sul principio di e., in Annali della Facoltà di giurisprudenza della Università di Perugia, 1913, pp. 337-66; P. Gery, Methode d'intersezione, Parigi 1919, I, n. 19; II, n. 163; G. Maggiore, L'e. e il suo valore nel diritto, in Diritto internazionale di filosofia del diritto, 13 (1923), pp. 256-57; V. GIUDICE, Privilegio, dispensa ed epidicia nel diritto canonico, in Annali della Facoltà di giurisprudenza della Università di Perugia, 7-8 (1926), pp. 48-55; S. D'Angelo, De aequitate in Codice iuris canonici, in Periodica da re annali, canonica, liturgica, 16 (1927), pp. 210-211; id., De aequitate in Codice iuris canonici, Excursio ad can. 20, in Apollinaris, 1 (1928), pp. 365-83; E. Hugon, De epidicia et aequitate, in Angelicum, 3 (1928), pp. 349-67; V. CAUSA, Diritto ed equità, in Archivio giuridico, 117 (1930), pp. 87, 114, 224 sgg.; A. Giannini, L'equitò, ibid., 118 (1931), p. 45 sgg.; E. Wohlbaupter, Aequitas canonica, Faderborn 1931; P. Fedele, Generalia iuris principio cum aequitate canonica servata, in Studi ordinari, 10 (1936), pp. 31-111; C. Lefebvre, Les pouvoirs du juge en droit canonique, Parigi 1938, pp. 163-212; id., La théorie du domicile et l'équité canonique, in Ephemerides Theologiques 1-ocaniennes, 12 (1948), pp. 111-33; id., Equité canonique et consentement matrimonial, in Mélanges de science religieuse, 3 (1946), pp. 125-126; 135-56; id., Théorie des preuves et équité canonique, in Ephemerides iuris canonici, 3 (1946), pp. 282-312; G. Capograssi, La certezza del diritto nell'ordinamento canonico, ibid., 3 (1946), pp. 9-30. Il tema dell'e. canonica è diffusamente trattato nelle seguenti trattazioni generali: A. Van Hove, De legibus ecclesiastici, Malmes-Roma 1930, p. 274 sgg.; A. G. Cicognani-D. Staffa, Commentarium ad librum primum Codicis iuris canonici, I, ivi 1939, p. 297 sgg.; G. Michiels, Normae generales iuris canonici, I, Parigi-Tournai-Roma 1949, p. 557 sgg. Pio Fedele