A term derived from the Greek ἐπιείκεια, meaning reasonableness, has undergone a development in moral theology. According to most manuals of theology epikeia is a restrictive interpretation of positive law based on the benign will of the legislator who would not want to bind his subjects in certain circumstances. Recently, theologians have referred to the Thomistic notion of the virtue of epikeia. In a concrete situation the individual invoking a higher law acts against the letter of an imperfect positive law.
St. Thomas Aquinas, following Aristotle, speaks of epikeia as a virtue, which pertains to the virtue of legal justice (Summa theologiae 2a2ae, 120.1 ad 2). Human law is imperfect and admits of exceptions because, by its very nature, human law is based on the ordinary course of changing circumstances (ut in pluribus ). Epikeia safeguards the higher values of the natural law in the face of the imperfections of positive law.
Suárez follows St. Thomas, but under the influence of the medieval jurists, puts special emphasis on the mind of the legislator who would not want to bind his subject in certain circumstances. According to Suárez, epikeia may be used in three cases: (1) when the observance of the law would be sinful by reason of a higher law, epikeia is obligatory; (2) when compliance with the law demands heroism and effort out of proportion to the purpose of the law, epikeia may be used; (3) when particular circumstances unforeseen by the legislator would indicate that it was not his mind or intention to bind the subject, epikeia may be used.
Some modern theologians follow Suárez, but others restrict epikeia solely to the third instance wherein it is purely a question of the mind of the legislator (epikeia in the strict sense). In the first and second instances (epikeia in the wide sense) it is beyond the power of the legislator to bind his subjects. With regard to epikeia in the strict sense, the question of recourse to the legislator is discussed. The general tenor of the teaching is that in cases where there is probability, but no certainty, epikeia may not be used if recourse is possible.
Since 1940, there has been a tendency to revive the notion of epikeia as a virtue connected with legal or social justice. The need for the virtue of epikeia stems from the following conditions: (1) the imperfect nature of human law; (2) the possible tensions between the primary law for the Christian—the internal law of the Spirit—and that law's external expressions; (3) possible conflicts between society seeking the common good and the individual with his inalienable rights and individual good; (4) the imperfection of the human lawgiver. The rapidly changing circumstances of modern society only underscore the need for the virtue of epikeia. Epikeia is not just a way to escape from the obligations of law; it is the response to a higher law (the law of the Spirit or the natural law) against the letter of the positive law. At times, epikeia may demand more than the letter of the positive law.
Epikeia, per se, cannot be used with regard to the natural law, but only with regard to inadequate and imperfect expressions of the natural law. Epikeia can be used with regard to all positive laws, but less often with regard to irritating or invalidating laws. When epikeia is conceived as a virtue, there is no need for recourse to the superior.
See Also: laws, conflict of.
Bibliography: e. hamel, "La Vertu d'Épikie," Sciences ecclésiastiques 13 (1961) 35–56. l. j. riley, The History, Nature, and Use of Epikeia in Moral Theology (Washington 1948). r. egenter, "Über die Bedeutung der Epikie im sittlichen Leben," Philosophisches Jahrbuch der Görres-Gesellschaft 53 (1940) 115–127. j. fuchs, Situation und Entscheidung (Frankfurt 1952) 47–68. a. di marino, "L'Epikeia Christiana," Divus Thomas (Piacenza) 55 (1952) 396–424. p. hayoit, "L'Usage de l'epikie," Rev. Dioc. Tournai 10 (1955) 513–518. j. giers, "Epikie und Sittlichkeit: Gestalt und Gestaltwandel einer Tugend," Der Mensch unter Gottes Anruf und Ordnung: Festgabe für Theodor Muncker, ed. r. hauser and f. scholtz (Düsseldorf 1958) 51–67. w. schÖllgen, "Die Lehrpunkte von der Epikie und vom Kleineren Übel," Anima 15 (1960) 42–51. b. hÄring, The Law of Christ: Moral Theology for Priests and Laity, tr. e. g. kaiser (Westminster, Md. 1961—) 1:1.74, 247, 269, 281 ff.
[c. e. curran]