EQUITY. - One cannot speak of equity without speaking of the historical content contained in the *Ethica Nicomachea* and the *Ars rhetorica*.
Aristotle affirms that there is no opposition between equity and justice, but that equity is a concrete justice, that is, to use a common formula, the justice of the individual case. The function of equity is not to correct and complicate the law, which is the realization of justice but, by its nature, is universal and, being unable to foresee everything, must limit itself to disposing what happens in most cases; hence the deficiencies in the objective expression of justice, of which the law consists, deficiencies which are eliminated by equity, which, therefore, to use other Aristotelian terms, is that justice which is not included in the written law. To remain more closely adherent to Aristotle’s thought, it will be well to paraphrase his language. He observes that when the law speaks in universal terms, and in individual cases what falls outside the universal occurs, then it is right, to the extent that the legislator’s work is deficient, to correct the defect of the law; which he would do, if he were present, the legislator himself, who would thus legislate if he had foreseen: as the Lesbian rule, which adapts itself to the form of the stone and is by its essence mobile, so the concrete norm must follow the mobility of cases. In a passage of the *Ars rhetorica*, speaking of the office of equitable men, Aristotle says, among other things, that the office of the equitable man is to indulge the frailty of men, 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 the man has done but on what he intends to do. Equity is not only a force put at the service of the fulfillment of justice, to remedy the inevitable deficiencies of written law, but it also has a very high ethical and social significance.
Thus conceived by one of the greatest representatives of Greek philosophical speculation, equity was given a more splendid affirmation in Roman jurisprudence, which saw in it the informing principle of law: law is equitable insofar as it is not reduced to abstractions, more or less corresponding to universal principles, but expresses itself in forms that reveal, in the reality of life, the realization of practical principles suited to satisfy the manifold concrete exigencies that individual relationships bring to light. Law has reason to be insofar as it is adequate to all the aspects of the case under consideration. Therefore, natural wickedness must be transformed into acquired right or civil right to avoid a double standard, as Cicero affirms, who, after having spoken of equity, never had occasion to address this question, which is not possible to treat in a summary manner, but it is possible to use the properties of an individual, which is not possible to use the properties of an individual, which is not possible to use the properties of an individual.
On the same line of Aristotelian thought runs that of St. Thomas Aquinas, who, after observing that the matters about which laws are made consist in singular contingent things, which can vary in infinite ways and that, therefore, it was not possible to establish a rule that in no case fails, since laws are made with regard to what happens in most cases, affirms that to observe the law in some cases is contrary to the equality of justice and to the common good which the law intends, and why, in these cases, it is evil to follow the positive law, but good, disregarding the words of the law, to follow what the reason of justice and common utility demands. And to this end is ordered *epikeia*, which among us is called equity.
The profound Aristotelian intuition, which the Angelic Doctor made his own and transmitted to all subsequent doctrine, which, even when it speaks through the mouth of great theologians like Suárez, adds nothing substantially new, provides the necessary and sufficient, substantial and terminological elements to determine the concept and function of equity.
The juridical norm, as the objective expression of justice, has inherent in it the characters of universality and abstraction, which constitute the guarantee of the certainty of law, being the presuppositions of the objectivity of the norm as much as the particular concrete aspects of life. Given these characters, the norm is inadequate to satisfy all concrete interests, which present themselves in all their variety and multiplicity, precise in their unmistakable individuality.
Through the mediation of the principle of equity, the adequation of the abstract norm to the single concrete case is achieved, as it were a plastic adherence between the one and the other. Hence equity has been rightly called the justice of the individual case, to signify precisely that it constitutes the concrete mediation between the abstract principle of justice, expressed in the norm, and the exigencies of individual cases and concrete interests: through equity there is a recall to the concrete, that is, with reference to the individual case, of the principle of justice, which is one with the principle of legality that informs the norm. It has been observed that, if justice is called the system of abstract juridical evaluation judgments, the corresponding moment of the spirit is called, with equal propriety, equity: the system of concrete juridical evaluation judgments and the corresponding moment of the spirit. Equity is a specification of justice, an objectification of juridical values, a degradation of abstract juridical evaluations to concrete form and aspect; the principle of equity constitutes the concrete moment of the principle of the just. These contents and these terms substantially correspond to the concepts and terms of Aristotle recalled above.
Within this framework one remains when it is said that through equity there is accomplished an ascertainment of the substantial aptitude of the norm to satisfy the concrete interests in which the relationship, abstractly foreseen and regulated by it, is specified, and that equity has an integrative and corrective function with respect to the norm, according as the judgment of concrete evaluation, in which equity consists, brings to light the absence or inadequacy or even the incompatibility of the positive discipline with respect to the concrete case, so that equity, besides being a sentiment, is a living and operative force that acts in the moment of the interpretation and application of the norm to satisfy the insuppressible exigencies of the principle of concrete justice and to ensure that law does not reduce itself to rigid and forced abstractions but truly corresponds to the definition which the Roman jurist gave of it: *ars boni et aequi*.
Equity assumes a particular importance in canon law, even though the Aristotelian intuitions, which became as many Thomistic propositions and were jealously guarded by subsequent doctrine, retain their value. It has been rightly observed that between the canonistic conception and the civilistic conception of equity one can see reproduced, under a particular aspect, the spiritual contrast between systems of ecclesiastical origin and systems of lay origin, and it has also been noted that the fact that equity in canon law is properly *aequitas canonica* means that the *elementum correctum iuris* does not consist in abstract or arbitrary principles, but in the very principles that are at the base of the canonical system and constitute its specific structure (Del Giudice).
References to natural law and divine law when speaking of equity are extremely frequent and highly significant in canonistic doctrine. The principles of divine, natural, and positive law constitute the supreme criteria to which the system of canon law in all ages has been inspired and by which the entire Christian ethic is likewise permeated. The term *ius naturale*, while in secular legal systems it encompasses a concept that is extremely vague and uncertain—one that eludes concrete determination (hence the discredit into which the doctrine of natural law has fallen)—in canon law represents a well-defined concept, given the definition contained in Gratian’s Decree: *ius quod in lege et evangelio continetur*, and definitively consolidated in theological and canonistic schools. When canonists speak of natural law, they intend to refer to the supreme norm in which, ultimately, the entire canon law system is resolved.
It has been rightly said that in canon law this nature of the legal system is clearly manifested: that it resolves itself entirely into a single norm from which all other norms derive. The term “canon law” is used precisely to emphasize its unmistakable uniqueness, for it represents and expresses this legal system in its most proper aspect. Canon law is the means by which the supreme norm asserts its sovereignty over all its own determinations, which are the other norms. Canon law ensures the application of the norm in every case, since all the indications and prescriptions of particular norms are necessarily referred back to it, whether they coincide in application or not, or even when contradiction arises—since contradiction is eliminated and the supreme norm is realized. In this sense, canon law truly brings to light and makes explicit the supreme norm that each particular norm holds implicitly within itself, while at the same time revealing the true dimensions and contents of the legal system. Canon law is the technical, positive means by which the profound and universal content of the supreme norm is realized and applied at every moment. In short, as evidenced by the identification of its content with natural law—*quod in lege et evangelio continetur*—it is nothing other than the explicit expression of the supreme norm and thus of all the laws it contains and applies, the clear and textual affirmation of the sovereignty, universality, and inderogability of the fundamental norm. Canon law, rich as it is in all the contents of the supreme norm yet unified by the unity of the norm itself, is of absolute simplicity, removing the complications of normative systems and giving rise to a single requirement and a single norm, insofar as it responds to the essential, universal imperative of the entire legal system. It applies *secundum simplicitatem canonicam* to all cases of life and law. Hence the essentially dynamic nature that the canon law system derives from the society to which it pertains, and hence the fundamental role within this system of the mediating function 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 end of the canon law system that canon equity (*aequitas canonica*) comes into play. When the *periculum animarum* is at stake, the ecclesiastical judge not only has the power but also the duty to resort to II. Regarding the effective and meaningful expression with which Henry of Susa responded to those who, like Bulgarus and John of Bassano, did not look favorably upon spiritual opinions and canon equity—*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* is to say: whenever the very ordering of its object is at issue—in its profound and comprehensive unity, the establishment of Christian society, in which alone the *salus animarum* is achieved and the *periculum animarum* is overcome, that is, whenever it is a matter of realizing, asserting, or safeguarding the supreme norm in which the legal system is resolved. For *salus animarum* or *periculum animarum* are elliptical expressions, ways of grasping, through the overall effect of the entire legal system, the legal system itself in its totality (Capograssi).