Whether "Epikeia" [*_Epieikeia_] Is a Virtue?
Objection 1: It seems that _epikeia_ is not a virtue. For no virtue
does away with another virtue. Yet _epikeia_ does away with another
virtue, since it sets aside that which is just according to law, and
seemingly is opposed to severity. Therefore _epikeia_ is not a virtue.
Obj. 2: Further, Augustine says (De Vera Relig. xxxi): "With regard
to these earthly laws, although men pass judgment on them when they
make them, yet, when once they are made and established, the judge
must pronounce judgment not on them but according to them." But
seemingly _epikeia_ pronounces judgment on the law, when it deems
that the law should not be observed in some particular case.
Therefore _epikeia_ is a vice rather than a virtue.
Obj. 3: Further, apparently it belongs to _epikeia_ to consider the
intention of the lawgiver, as the Philosopher states (Ethic. v, 10).
But it belongs to the sovereign alone to interpret the intention of
the lawgiver, wherefore the Emperor says in the _Codex of Laws and
Constitutions,_ under _Law_ i: "It is fitting and lawful that We
alone should interpret between equity and law." Therefore the act of
_epikeia_ is unlawful: and consequently _epikeia_ is not a virtue.
_On the contrary,_ The Philosopher (Ethic. v, 10) states it to be a
virtue.
_I answer that,_ As stated above (I-II, Q. 96, A. 6), when we were
treating of laws, since human actions, with which laws are concerned,
are composed of contingent singulars and are innumerable in their
diversity, it 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. In 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.
Reply Obj. 1: _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."
Reply Obj. 2: It would be passing judgment on a law to say that it
was not well made; but to say that the letter of the law is not to be
observed in some particular case is passing judgment not on the law,
but on some particular contingency.
Reply Obj. 3: Interpretation is admissible in doubtful cases where it
is not allowed to set aside the letter of the law without the
interpretation of the sovereign. But when the case is manifest there
is need, not of interpretation, but of execution.
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