The Life of Virtue – Epieikeia
The place where we see this difficulty most readily is in regard to moral action. St Thomas says that human acts are always singular and contingent, infinite in their possibilities. It is therefore impossible to frame a law which will cover all cases: ‘it is impossible to institute a legal rule that will not be inadequate in some situation’ (Summa theologiae II.II 120, 1). Legislators work with what generally happens but there will be cases where observing the law would be ‘against the equality of justice and the common good’, precisely the things laws are meant to establish and protect. Aquinas gives a couple of examples of situations where observing what the law requires would be bad: returning his sword to a lunatic, or his assets to an enemy. These are cases where following the law as it is given would be evil. The good, in such circumstances, is established and protected by ignoring the letter of the law (praetermissis verbis legis) in order to be faithful to ‘the meaning of justice and to common utility’.
The virtue that enables us to make such decisions well is, in Greek, epieikeia, in Latin aequitas, in English equity. This virtue teaches us when it would be vicious to follow the letter of the law (art.cit., ad 1). It does not mean that we have become judges over the law but we are obliged to make a judgement in the particular situation in which we find ourselves (art.cit., ad 2). This virtue is needed therefore for situations of doubt, exceptional situations (art.cit., ad 3). Aristotle says that equity is a part of justice taken as a general virtue and so is higher than legal justice (Nicomachean Ethics V.10). St Thomas says that equity is thus a higher rule of human acts (superior regula humanorum actuum) than are the positive laws enacted by parliaments and monarchs (Summa theologiae II.II 120, 2). Equity is needed to moderate law which becomes cruel if it is not somehow moderated. (It is a crucial point: elsewhere St Thomas says that justice alone is cruel and must always be tempered by mercy.)
The great virtue of prudence is entirely concerned with the application of universal principles to particular situations and circumstances. It has an ancillary virtue called gnome which seems to be the basis for equity: gnome brings a perspicacity of judgement across the whole of the moral life, enabling a person to know when a higher principle takes precedence over a lower one (Summa theologiae II.II 51,4). Some of this is common sense. In England one drives on the left hand side of the road but if there is a person lying there one does not continue to drive on that side (as the law requires) and may even decide in the circumstances to drive on the right hand side: it is the reasonable thing to do thus serving the spirit of the law while ignoring its letter. Some situations will, however, be much more complex.
Does what Aristotle and Aquinas say about equity, prudence, and gnome, mean that there are no exceptionless norms governing human action? Some moral philosophers and theologians think it does, that one cannot say murder, adultery, rape and cruelty are always evil since circumstances might arise where one of these would be the right course of action. But such a view is only possible where moral norms are understood as purely legal norms, where natural law for example is understood as if it were exactly the same as positive law. There are things that the virtuous person will never do and if such a thing appears as a possible course of action he or she will immediately reject it. This is because moral norms are about more than social good or utility, they are about the values and goods without which human beings cannot begin to flourish and against which one ought never to act no matter what the circumstances.
At the same time what Aristotle and Aquinas say about equity teaches us something very important about the limits of legislation.
