The application of the concept of Epikeia

Simply put, epikeia is the ethical concept that comes to the rescue of a moral agent when he/she is faced with what appears to be a conflict of choosing between ‘the letter of the law’ and ‘the spirit of the law.’

Oct 07, 2015

Simply put, epikeia is the ethical concept that comes to the rescue of a moral agent when he/she is faced with what appears to be a conflict of choosing between ‘the letter of the law’ and ‘the spirit of the law.’ For example, if/when I violate the prescribed speed limits in order to rush a sick friend of mine (who has just suffered a heart attack) to the hospital, it is epikeia that would justify my doing so.

In his Nicomachean Ethics (Book 6, Ch. 10), Aristotle says that the worldly reality is too rich and varied to be comprehended by a general law, with the result that, on occasion, the general law has to be corrected and improved in order to bring it into line with real life. This correction and improvement of the law in a minority of cases is done simply by the individual's ignoring what the law says, and by his contravening the letter of the law in order to observe the spirit, and above all, the true purpose of the law. For Aristotle, then, it is the law itself which is inherently weak and imperfect, precisely because it is universal and general in its formulations, and as such, may not, at times, cover particular cases. It was precisely this flexibility, inherent in the law, because of its universal and abstract character (as highlighted by Aristotle) which was recognized by St Thomas Aquinas when he wrote:

individual and concrete situations, and they are infinitely variable. Hence, it is impossible to establish a ruling of law which is never defective. Lawmakers consider what normally happens and draw upon that to frame a law; but in certain cases, the observance of that law would be against justice and against the common good which is what the law aims at .... In such cases .... it would be bad to follow the law laid down, but on the other hand, it would be good to ignore the wording of the law in order to do what is called for by justice and the common benefit. And this is what epikeia is for.

Mahoney, commenting on this concept, says:

What Thomas found so congenial about ‘the virtue which Aristotle terms epikeia’ was that it was so eminently reasonable. To act according to this virtue is not to abandon justice, nor is it opposed to severity in applying a law, nor indeed, is it to pass judgment on the law itself, or even to take it upon oneself to interpret the intention of the law-giver, in a matter considered doubtful. On the contrary, epikeia is, itself, an act of justice which, in fact, directs legal justice as a ‘kind of higher rule of human acts’ and which indicates when the wording of the law should not be followed in cases when, to do so would be wrong.

Epikeia, in the teaching of Aristotle and Thomas, is a virtue, and as such, it is a quality of human judgment to be cultivated. One needs to note that the context of Thomas’ remarks above is that of the general theme of the virtue of justice and its many parts and applications. Elsewhere in his Summa, in his formal treatise on law, he delivers the same judgment in terms which take us beyond epikeia as a form of justice to consider, in the light of exceptional cases, the whole purpose and function of law.

The tradition of Catholic moral theology has given ample room to epikeia. Following Aristotle, who should be considered the locus classicus in the matter (as we saw above), St Albert the Great, St Thomas Aquinas, Bl John Duns Scotus, Cajetan, Suarez, the Cursus Theologicus of the Salamanca Carmelites, St Alphonsus Liguori (the official patron of Catholic moral theologians) and many 20th century scholars, have offered important explanations. With reference to the divorced and remarried Catholics, quite a number of contemporary theologians and bishops have cited the concept of epikeia as a moral principle that could be useful in pastorally resolving the exceptional cases to which Pope John Paul II himself referred to in No: 84 of the Familiaris Consortio. Thus, Cardinal Kasper, for example, points out how the Catholic tradition recognizes this principle: “It recognizes the Thomistic understanding of the foundational cardinal virtue — prudence — which applies a general norm to the concrete situation (which, in Thomas Aquinas’ sense, has nothing to do with situation ethics)”. He goes on to write:

In short, in our current matter, there is no general solution for all cases. It is not a matter of the divorced and remarried. Rather, one must take seriously the uniqueness of every person and every situation and, case by case, carefully distinguish and decide. In that way, the path of conversion and penance, as the ancient Church frequently recognized, is not the path of the great masses, but rather, the path of particular Christians who are truly serious about the sacraments.

The traditional Catholic moral principle of epikeia, then, as a pastoral solution, has the positive point of admitting the impossibility of any human law/discipline to cover all the permutations and combinations of re-married cases, and thus, pointing towards a case-by-case solution. Negatively, in our contemporary society, it could also easily lead to subjective relativism if the pastor concerned is not properly trained in his basic pastoral moral theology. -- Vidyajyoti Journal of Theological Reflection

-- To be continued next week

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