The Origin and Use of Epikeia
© Copyright 2009, T. Stanfill Benns (This text may be downloaded or printed out for private reading, but it may not be uploaded to another Internet site or published, electronically or otherwise, without express written permission from the author.)
For the past 36 years, Traditionalist clergy so-called have operated chapels and Mass centers. They have celebrated the Sacred Mysteries, preached from their pulpits, absolved penitents from their sins, consecrated and ordained priests and bishops and have liberally distributed literature that passes for Catholic teaching. They have done all this despite the absence of the Roman Pontiff, the Head of the Mystical Body on earth, the man to whom alone Christ entrusted the keys of orders and jurisdiction and the universal governance of the Church. To operate without his guidance, Traditionalist have long relied upon two principles they claim allow them to function with a clear conscience in times such as these, when no authority exists to whom to appeal. These principles are known in legal circles as epikeia or equity and ecclesia supplet. Aristotle first proposed the principle of epikeia, which then was applied to Greek and Roman law. It is explained and retained by St. Thomas in his Summa Theologica. This principle was first applied to ecclesiastical law during the time of the Great Schism. Ecclesia supplet, actually a concession granted by the law, is found in Can. 209. This Canon provides jurisdiction in cases of common error or doubt, for the benefit of the faithful, whenever it is lacking. Both principles will be explained below. Of course the lawgiver would not wish us to yield, but rather to flee. This is equity as described by St. Thomas of Aquinas.
St. Thomas teaches in the Summa that epikeia or equity is part of the virtue of justice. He describes the use of epikeia as follows: “It was not possible to lay down rules of law that would apply to every single case. Legislators…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.”(St Thomas then goes on to give the examples of application in the use of epikeia, such as a madman who has deposited his sword with another and wishes to redeem it to do harm, or fight against his country. In another place, St. Thomas cites the example of citizens fleeing from an enemy. The gates of the city are ordered locked by the authorities, but the use of epikeia demands that they be opened for the welfare of these citizens.) “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.” However, “Epikeia does not set aside that which is just in itself, but that which is just as by law established.” (“Summa Theologica,” Pt. II-II, Q. 120, Art. 1).
So just what is meant by the principle of epikeia? Epikeia or equity “consists of the principles of natural justice so far as they are used to explain or correct a positive human law if this is not in harmony with…positive law in its literal interpretation. The law must be expounded… according to the intent of the lawgiver and the principles of natural justice,” (Catholic Encyclopedia, 1 Law, Concept of, V. Cathrein).
Manual of Christian Doctrine: “Q. What is human law? A. Human law is a rule promulgated by either Church or state authority… It comes from God inasmuch as He makes men sharers in His authority…It is divided into civil law and ecclesiastical law…[which] is that which has been established for the spiritual welfare of the faithful,” (A Seminary Professor, published 1926 by John Joseph McVey). Positive human law is that which obliges us to perform an obligatory act, such as yielding to pedestrians in a crosswalk. But if the pedestrian is a carjacker with a 357 Magnum, of course such a circumstance would justify violating the law.
In his treatise on human law, St. Thomas Aquinas treats those things which are beside the letter of the law, basically reiterating what was said above with the following qualifications: “Nevertheless, it must be noted, that if observance of the law according to the letter does not involve any sudden risk needing immediate remedy, it is not competent for everyone to expound what is useful and what is not useful…Those alone can do this who are in authority and who, on account of such like cases, have the power to dispense from the laws. If however, the peril be so sudden as not to allow of the delay involved by referring the matter to authority, the mere necessity brings with it a dispensation, since necessity knows no law…[But] if it be a matter of doubt, he must act according to the letter of the law, or consult those in power,” (Ibid, Pt. I-II, Q. 96, Art. 6). The Traditionalist Thuc-line bishop Moises Carmona invoked St. Thomas’ teaching on this necessity, which must accompany epikeia to justify his consecration by Bp. Thuc in 1982, (http://www.cmri.org/carmona.html). And yet there were none in “power” as the Church defines this power to consult.
Rev. Amleto Cicognani quotes ancient Roman law, stating, “In all things but especially in law (human law is meant) equity is to be regarded,” (“Canon Law”).
Revs. McHugh and Callan make it clear that epikeia applies only to human law. “All human law is subject to epikeia…Epikeia is at once lawful and dangerous…It is dangerous, for it rests on the judgment of the individual, which is prone to decide in his own favor to the detriment of common good as well as self. Epikeia by its very nature imposes certain limits on its use. Epikeia is not applicable to the Divine law; for the Divine Lawgiver foresaw all cases that could arise, and so excluded all exceptions…One may not excuse modern forms of cheating, because they were not thought of when the Decalogue was given. One may not omit baptism on the ground that Christ Himself would have excused from it, had He foreseen the circumstances. Epikeia is not applicable to those laws whose universal observance is demanded by the common good,” for example that the Church would not wish the laws governing diriment impediments to oblige, owing to serious inconvenience…” If there is a doubt that the lawgiver would not wish his law to be subject to epikeia, “One should investigate to the best of one’s ability and have recourse, if possible, to the legislator or his representative for a declaration or a dispensation. It is never lawful to use epikeia without reasonable certainty that the legislator would not wish the law to apply here and now…A person should not use epikeia except in necessity, when he is thrown on his own resources and must decide for himself. Even then, he must be sure that he acts from sincerity and disinterestedness,” (“Moral Theology: A Complete Course,” Vol. I, #s 411- 415).
Rev. H. J. Davis, S.J. agrees with McHugh and Callan concerning the use of epikeia: “Natural and Divine law do not admit of the use of epikeia, since the Divine Author of such law has foreseen every contingency,” (“Moral and Pastoral Theology,” Vol. I).
The Jesuits T. Lincoln Bouscaren and Adam Ellis have this to say concerning epikeia: “Epikeia is an interpretation exempting one from the law contrary to the clear words of the law and in accordance with the mind of the legislator. It is evidently a very exceptional thing. It may be used with prudent discretion and is justified only in a particular case where (a) the strict interpretation of the law would work a great hardship; (b) in view of the usual interpretation it may be prudently conjectured that, in this particular case, the legislator would not wish the law to be strictly applied. The general and habitual interpretation of a law contrary to its clear terms is not epikeia, but an evident abuse,” (“Canon Law: A Text and Commentary,” 1946, pgs. 33-34).
Revs. Prummer, Jone and Card. Cicognani all concur that invalidating and incapacitating laws are beyond the scope of epikeia.
Rev. Francis Miaskiewicz, in his Canon Law dissertation “Supplied Jurisdiction According to Canon 209” wrote: “The important point to bear in mind is that jurisdiction…is a juridical factor and that jurisdictional laws are at least equivalently invalidating or incapacitating laws…The required power of jurisdiction is necessary to posit validly a jurisdictional act. Those who have not that power, even should they possess all other qualifications, simply cannot validly act.” Were these men validly and licitly admitted to seminary for training, did they receive valid and licit tonsure and minor Orders, did they receive the requisite training? Are these men validly and licitly ordained? Were the bishops who ordained these men validly and licitly ordained and consecrated? Have they since lost their jurisdiction owing to heresy apostasy or schism under Can. 188 no. 4? Did they obtain a papal mandate? So not only do they not possess jurisdiction licitly, but neither were called, trained, ordained and/or consecrated licitly.
From “The History, Nature, and Use of Epikeia in Moral Theology,” by Father Lawrence Joseph Riley, Copyright 1948, The Catholic University of America Press, INC. Imprimatur: + Richardus Jacobus Cushing. D.D., 7 May, 1948:
• Epikeia may be used only with the greatest discretion; in the internal forum it may be applied to affirmative precepts and to negative precepts (ecclesiastical and civil), but very infrequently with regard to affirmative precepts, because the latter, binding semper but not pro semper, are more susceptible of interpretation than of epikeia.
• Epikeia is not to be identified with interpretation, dispensation, presumed permission, excusing cause, or popular acceptance of human law.
• Epikeia may not be applied to precepts of the natural law, nor to precepts of the divine positive law of the New Testament.
• It seems probable that the use of epikeia was not permissible in reference to precepts of the divine positive law of the Old Testament.
• Human invalidating laws sometimes cease to bind; but epikeia may not be applied to human invalidating laws.
Father Riley informs us on page 344:
“In short, it may be concluded that in regard to matters which touch the essence of the Sacraments, the use of epikeia is always excluded.”
Father Riley informs us on page 347:
“In regard to the essence of these Sacraments, what has been explained above of all the Sacraments is applicable to them – viz., that epikeia is never licit.”
Father Riley informs us on page 387.
“At most, epikeia can excuse the individual from the precept, but it can never confer the capacity to act. Epikeia cannot bestow upon him the power which he does not now possess, nor can epikeia restore the power which the law has withdrawn. For such bestowal or restoration of power a positive act is required.”
Father Riley informs us on pages 232 and 233:
“Intimately connected with this problem is the question of whether or not epikeia has any standing in the external forum. It would appear to be the rather general consensus of authorities today that it has not. Writing in Apollinaris, D’ Angelo points out that St. Thomas considers epikeia to be a merely moral element, and that modern writers believe it to have reference only to moral, and not to juridic matters…Van Hove contends that, since epikeia is not an act of jurisdiction, it has value only in the internal forum. …Hilling seems almost unwilling to give any standing to epikeia at all. Believing that it practically amounts to self-dispensation, which is in contradiction to law as a binding norm, he concludes at the most that it may be recognized in the internal forum.” Revs. Cicoganni, Bouscaren-Ellis, Woywod-Smith, Rev. Francis Miaskiewicz, Rev. Raymond Kearney — all these canonists warn of the great caution that must be used in applying epikeia, and the many dangers of abuse in attempting this application.
Canon 11: “Those laws only are to be considered invalidating or inhabilitating which explicitly or equivalently state that an action is null and void, or that a person is incapacitated from acting,” (A Practical Commentary on the Code of Canon Law, Revs. Callistus Smith and Stanislaus Woywod, O.F.M, 1925; the text of all Canon Law quotes is taken from this work.)
Canon 16: “No ignorance of invalidating or inhabilitating laws excuses from their observance, unless the law explicitly admits ignorance as an excuse. As a rule ignorance or error is not presumed when it concerns the law or its penalty…”
Can. 108: “…By divine institution, the sacred hierarchy of orders consists of bishops, priests and ministers; the hierarchy of jurisdiction consists of the Supreme Pontificate and the subordinate episcopate…”
Can. 109: “Persons who are received into the ecclesiastical hierarchy are not accepted by the consent or at the call of the people, or of the secular power, but are constituted in the degrees of the power of orders by sacred ordination. In the Supreme Pontificate, the person legitimately elected and freely accepting the election receives jurisdiction by the divine law itself; in all other degrees of jurisdiction by canonical appointment.”
Can. 196: “The Catholic Church possesses, by divine institution, the power of jurisdiction or government. This power is twofold: that of the external forum, and that of the internal forum, or forum of conscience. Finally the internal forum is subdivided into the sacramental and extra-sacramental forum.”
Can. 203: “The delegate who acts beyond his mandate” (the authorization given to priests by their local ordinary to posit jurisdictional acts) “either as to the matters or the persons over which he received power, acts invalidly…,” (This is an invalidating law.)
In addition, whenever epikeia is invoked (and Traditionalists are not always clear when this occurs), it involves the use of a probable opinion: that the legislator would not want his law to bind in a certain set of circumstances.
So according to what has been said above:
1. Epikeia applies only to positive human law.
2. Its use must involve something posing a sudden risk that needs immediate remedy.
3. Certain limits are imposed upon its use:
a.) In cases of doubt it must not be used. Instead, one must act according to the letter of the law and consult the proper authority.
b.) It cannot be applied to incapacitating and invalidating laws, or irritant laws, whose universal observance is demanded by the common good.
c.) It cannot be applied to laws originating from the Divine law, and the laws governing jurisdiction are demonstrably of Divine origin as shown above.
d.) It should be appealed to only in absolute necessity.
4. It must therefore be used with great prudence.
5. Great care should be taken to avoid acting out of self-interest or against the common good.
6. Habitual and general use of epikeia is an obvious abuse.
Rev. Jean-Marie Herve regarding the true status and import of Can. 879 §1: “The power of jurisdiction is required de fide, on the authority of the documents of the Magisterium (DZ 920)…This is proved from the constant practice of the Church, and it has been consecrated in the code (C. 872, 879). For as we have already seen, even in the early centuries, only those administered the sacrament of Penance who had jurisdiction, namely the Bishops and the priests who were appointed and delegated by them…In virtue of ordination itself, no one receives any diocese or parish to govern. Neither is it delegated, because neither the consecrating Bishop nor the Pope has this intention, but they confer jurisdiction in another manner…” (“Manual of Dogmatic Theology, The Sacraments, Vol. II).
Epikeia and the Western Schism
Walter Ullmann revealed that the principle of epikeia was used during the time of the Western Schsim to arrive at the conclusion that in the present crisis, an ecumenical council should be called to depose the papal claimants and resolve the schism. Speaking of epikeia and the Conciliarists, Ullmann said: “As a glance at Canon Law confirms, all these proposals (based on epikieia) however ingenious they may have been were, from the point of view of Canon Law, illegal,” (Origins of the Western Schism, 1948). Ullmann mentioned that there is a proper way to harmonize equity with the law that is used by theologians, but condemned what he called “this extra-legal, meta- juristic method of explaining canonistic enactments” known as epikeia. And this is the same abuse we are witnessing today. According to Ullmann, epikeia is an entirely Aristotelean concept, first expounded upon to any extent by the layman Marsilius of Padua in his “Defensor Pacis” in 1326. Conrad of Gelnhausen, one of the layman who promoted a move to end the Western Schism, used Marsilius’ reasoning, also that of John of Paris, to formulate his own theories for arriving at a solution to the schism. Unfortunately the church later condemned Marsilius and John of Paris for their heretical teachings.
Ullmann further stated that all the supporters of a General Council called to depose the claimants to the papacy without the authority of any one of these claimants invoked epikeia, “especially Jean Gerson, who made great use of this idea.” This group also was the first to espouse the error that a true pope could become a heretic, although “There was, it is true, great uneasiness about this interpretation,” Ullmann noted. (He goes on to say that several bishops and a patriarch did not advocate deposition except in the case of heresy.) All this, however, occurred long before Pope Paul IV issued Cum ex, meaning that the laity during the 14th and 15th centuries could not be considered as culpable for their errors as those promoting these same errors today.
In discussing “the qualities or dispositions of the perfect ruler,” Marsilius of Padua, even before the Western Schism began, was preparing the way by preaching a false use of epikeia. Marisilius also invoked the Aristotelian concept of “equity” (epikeia) as a means of serving justice when the existing positive laws prove unworkable, owing to their fallibility and deficiency. This is why the principle came to be used as a foundation stone for papal deposition. This concept of limiting the positive law (the non-prohibitive laws “on the books” at a given time) in order to employ “equity” became very important during the Conciliar Movement because it promised to provide the authority over the Pope that would allow the clergy and people to gain the ascendancy. Marsilius’ work also was later “sanitized” by Nicholas of Cusa, who used his writings to promote a primitive democracy. Later Robert Cardinal Bellarmine would expound on these same principles. The works of both writers were eventually adapted by Thomas Jefferson to formulate the democratic process for America.
According to the Catholic Encyclopedia, Marsilius, also Jean of Jandun taught that while God is the source of all power; nevertheless “It [said power] sprang immediately from the people who had in addition the power to legislate. Law was the expression of…the will of the people, who, by the voice of the majority, could enact, interpret, modify, suspend and abrogate it at will. In the Church, according to the Defensor Pacis,” the faithful have these two great powers, the elective and the legislative,” allowing them to nominate bishops and determine who may be ordained. “The Church…has no visible head…The ecclesiastical power comes directly from God and consists essentially in the power to consecrate the Body and Blood of Jesus Christ and remit sins, or rather to declare them remitted. All priests are possessed of equal authority and equal jurisdiction…” The author of this Catholic Encyclopedia article comments concerning these heretical doctrines: “Luther would have recognized his theories in these heretical assertions and the Gallicanists of later times would willingly have subscribed to such revolutionary declarations…Marsilius may well be reckoned one of the fathers of the Reformation.”
A bull issued by Pope John XXII on April 3, 1327, reproached the Emperor Louis of Bavaria, already excommunicated for favoring heresy, for cooperating with Marsilius in his errors and condemned Marsilius’ teachings. A commission appointed by the Pope specifically condemned five of the main theses of “Defensor Pacis,” including the ones denying the necessity of jurisdiction and the necessity of a visible head for the Church, (DZ 495-500). In the initial condemnation, Marsilius and Jean of Jandun are repeatedly referred to as “sons of Belial.” At the end of the condemnation, the Pope pronounces them “manifest and notorious archheretics,” (DZ 500).
So clearly the very arguments that precipitated Gallicanism have been revived today, using the very principles of epikeia appealed to by Traditionalists. And this despite the very considerable development of the doctrine on the primacy over the past seven centuries. Yet regardless of their mistaken beliefs, Catholics of the 14th and 15th centuries eventually restored a true pope to the throne despite these obstacles, unlike Catholics today. Ullmann noted that Gelnhausen, misapprehending the (then) less certain doctrines of the Church’s constitution reasoned much as Traditionalists reason now: “That the Church universal is superior to the pope follows from Boniface VIII in Unam Sanctam: nulla salus extra ecclesiam. The Church is constituted by the pope and the faithful. The pope is only a secondary head of the Church, Her primary and principal head being Christ, Himself…Christ still reigns over Christianity. The pope may die or be killed and Christianity lives. Even if there were no pope at all, the body and members of the Church would continue to exist,” (Ibid., Ullmann).
Ullmann commented on these statements as follows: “In short, the congregation of all Christians is superior to the pope. And every dispute must be admitted to a ‘superior’ for jurisdiction. This is in literal agreement with John of Paris…” John of Paris was deprived of his license to teach and preach for promoting his theories on the Eucharist. He died before his appeal could be heard in Rome. In the preface to his translation of John’s work, J.A. Watt noted that “keen interest is shown in him by the theologians and jurists of Gallicanism…John of Paris was pre-eminently one of ‘our forefathers’ from whom the Gallicans claimed to derive the liberties which assured the French Crown of its independence of any ecclesiastical authority in temporal affairs and the French church a high degree of autonomy of papal spiritual jurisdiction.” As has been mentioned elsewhere, Gallicanism was long ago condemned as a heresy by the Church, although it had not yet been formally condemned in John of Paris’ time.
As it was in the beginning, so it shall be in the end. The beginning of the Protestant Reformation, as the Catholic Encyclopedia author noted above, can be dated from the time Marsilius began circulating his work in 1325. It is even possible it helped promote and prolong the Great Schism, which did not officially begin until 1378. In any event, if it was the beginning of the Protestant Reformation, it also, then, was the beginning of what would culminate in the Great Apostasy. So Gallicanism seemingly spearheaded it all. Ullmann credited the publicists of the early 14th century with influencing the Cardinals, clergy and people in general by spreading erroneous and heretical ideas concerning the papacy and secular power. He castigated the canonists for accepting the points of view promulgated by the publicists, but noted that the canonists had little influence during this time period.
“The writings of the publicists had gained far greater currency and were therefore far better known to men of letters than the somewhat recondite disquisitions of canonists. The former set forth revolutionary theories in a demagogic form, whilst the latter’s views were known only to a limited circle of savants. The attacks against the papacy by the publicists were, for understandable reasons, answered by the Popes with counter-measures.” Ullmann includes among the publicists of these times William of Ockham, John of Paris, Michael of Cesena, as well as the 13th century writers Thus, Cardinal Hostiensis and Cardinal Johannes Monachus, who “taught that the Pope should be ruled by the College of Cardinals.” On the one hand, the Conclavists took the rights of the people championed by these men to new heights, by insisting laity could elect. But the usurpers elected then swung the pendulum in the opposite direction once they ascended the “throne”. The pope is untouchable, impeccable; the equivalent of a god. Even outright heresies or the specter of schism and harm to the Church cannot, will not remove them. Such was the attitude of the intransigent antipope Benedict XIII, deposed by the Council of Constance.
The same situation prevails today that existed in the time of the Western Schism. We see many of the publicist mentality out to promote themselves and their own strange agendas, which always amount, it seems, to some new way to circumvent the law. Certainly there is enough guilt to go around, since all of us have been guilty of the publicist attitude at one time or another. All the more reason, however, for a return to the Canons and teachings of the Church, that God’s will may be done on earth.