Sunday, April 17, 2011

Epikeia, Law and Perversion of Law

The term epikeia is derived from the Greek word ἐπιείκεια, meaning "clemency" or "reasonableness". In its practical sense it describes moderation.  It is not a strictly Catholic term, although it has a distinct place in Catholic theology.  It is a concept that applies to any occasion which calls for the prudent exercise of moderation.

For the purposes of this article, we will discuss primarily the application of epikeia as it pertains to law, while being mindful to make a careful distinction between cases that are rightly called epikeia, and those which are not epikeia at all.

The type of cases which involve epikeia are those where the subject does not observe the law according to its letter, insofar the letter of the law in its practical application should prove contrary to the intention of the lawgiver, that is contrary to common good, in a particular set of circumstances.  In this way, epikeia is a moderation of the law.

The type of cases which do not involve epikeia are those in which a statute or ordinance of a claimed authority proposes itself to be the law, although it is manifest that either the claimed authority is in fact an unjust oppressor, the proposed law is in fact manifestly contrary to the common good (i.e. contrary to the natural rights of men, for example, the right to own private property), or both.


St. Thomas Aquinas, Summa Theologica, Secunda Secundae Partis, Q. 120: "[I]t was not possible to lay down rules of law that would apply to every single case. Legislators in framing laws attend to what commonly happens: although if the law be applied to certain cases it will frustrate the equality of justice and be injurious to the common good, which the law has in view. Thus the law requires deposits to be restored, because in the majority of cases this is just. Yet it happens sometimes to be injurious--for instance, if a madman were to put his sword in deposit, and demand its delivery while in a state of madness, or if a man were to seek the return of his deposit in order to fight against his country. On these and like cases it is bad to follow the law, and it is good to set aside the letter of the law and to follow the dictates of justice and the common good. This is the object of "epikeia" which we call equity. Therefore it is evident that "epikeia" is a virtue...

"'Epikeia' does not set aside that which is just in itself but that which is just as by law established. Nor is it opposed to severity, which follows the letter of the law when it ought to be followed. To follow the letter of the law when it ought not to be followed is sinful. Hence it is written in the Codex of Laws and Constitutions under Law v: "Without doubt he transgresses the law who by adhering to the letter of the law strives to defeat the intention of the lawgiver." [...]

"[H]ence, "epikeia" is by way of being a higher rule of human actions...

"As the Philosopher states, "epikeia is better than a certain," namely, legal, "justice," which observes the letter of the law: yet since it is itself a kind of justice, it is not better than all justice...

"It belongs to "epikeia" to moderate something, namely, the observance of the letter of the law. But modesty, which is reckoned a part of temperance, moderates man's outward life--for instance, in his deportment, dress or the like. Possibly also the term epikeia is applied in Greek by a similitude to all kinds of moderation."

Cases Not Involving Epikeia, But Still Involving Justice

We have just discussed that the letter of the law may be at times put aside when the practical application of it would be contrary to the common good, contrary to justice.  But are all "statutes", "rules" and "regulations" properly called law?  This question has been amply discussed in the article No power but from God: and those that are, are ordained of God.  For a concise recap of the concepts put forth therein, we quote again St. Thomas:

St. Thomas Aquinas, Summa, Prima Secundae Pars, Q. 105. Art. 1: "Objection 5. Further, as a kingdom is the best form of government, so is tyranny the most corrupt. But when the Lord appointed the king, He established a tyrannical law; for it is written (1 Samuel 8:11): "This will be the right of the king, that shall reign over you: He will take your sons," etc. Therefore the Law made unfitting provision with regard to the institution of rulers.

"Reply to Objection 5. That right was not given to the king by Divine institution: rather was it foretold that kings would usurp that right, by framing unjust laws, and by degenerating into tyrants who preyed on their subjects. This is clear from the context that follows: "And you shall be his slaves [Douay: 'servants']": which is significative of tyranny, since a tyrant rules his subjects as though they were his slaves. Hence Samuel spoke these words to deter them from asking for a king; since the narrative continues: "But the people would not hear the voice of Samuel."

St. Thomas Aquinas, Summa, Secunda Secundae Partis, Q. 92, Art. 1: "For if the intention of the lawgiver is fixed on true good, which is the common good regulated according to Divine justice, it follows that the effect of the law is to make men good simply.  If, however, the intention of the lawgiver is fixed on that which is not simply good, but useful or pleasurable to himself, or in opposition to Divine justice; then the law does not make men good simply, but in respect to that particular government. In this way good is found even in things that are bad of themselves: thus a man is called a good robber, because he works in a way that is adapted to his end."

St. Thomas Aquinas, Summa, Prima Secundae Partis, Q. 92. Art. 1: "A tyrannical law, through not being according to reason, is not a law, absolutely speaking, but rather a perversion of law [...] Since then every man is a part of the state, it is impossible that a man be good, unless he be well proportionate to the common good: nor can the whole be well consistent unless its parts be proportionate to it. Consequently the common good of the state cannot flourish, unless the citizens be virtuous, at least those whose business it is to govern."

St. Thomas Aquinas, Summa, Secunda Secundae Partis, Q. 42, Art. 2: "A tyrannical government is not just, because it is directed, not to the common good, but to the private good of the ruler, as the Philosopher states (Polit. iii, 5; Ethic. viii, 10). Consequently there is no sedition in disturbing a government of this kind, unless indeed the tyrant's rule be disturbed so inordinately, that his subjects suffer greater harm from the consequent disturbance than from the tyrant's government. Indeed it is the tyrant rather that is guilty of sedition, since he encourages discord and sedition among his subjects, that he may lord over them more securely; for this is tyranny, being conducive to the private good of the ruler, and to the injury of the multitude."

St. Thomas Aquinas, Summa, Secunda Secundae Partis, Q. 69, Art. 4: "Wherefore even as it is lawful to resist robbers, so is it lawful, in a like case, to resist wicked princes"

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