FORMAZZJONI U INFORMAZZJONI
MILL-KUMMISSJONI TEOLOĠIKA (7)
18 ta’ Ġunju 2012 – Tkompli r-riflessjoni dwar l-Epikeia
Il-Papa Benedittu XVI, meta kien għadu kardinal, kiteb artiklu awtorevoli fl-1998 biex
jintroduċi l-volum On the Pastoral Care of the Divorced and Remarried, ippubblikat
mil-Libreria Editrice Vaticana. Huwa jistqarr:
“Admittedly, it cannot be excluded that mistakes occur in marriage cases. In some
parts of the Church, well-functioning marriage tribunals still do not exist.
Occasionally, such cases last an excessive amount of time. Once in a while they
conclude with questionable decisions. Here it seems that the application of epikeia in
the internal forum is not automatically excluded from the outset . This is implied in the
1994 Letter of the Congregation for the Doctrine of the Faith, in which it was stated
that new canonical ways of demonstrating nullity should exclude ‘as far as possible’
every divergence from the truth verifiable in the judicial process (cf. n. 9). Some
theologians are of the opinion that the faithful ought to adhere strictly even in the
internal forum to juridical decisions which they believe to be false. Others maintain
that exceptions are possible here in the internal forum, because the juridical forum
does not deal with norms of divine law, but rather with norms of ecclesiastical law.
This question, however, demands further study and clarification. Admittedly, the
conditions for asserting an exception would need to be clarified very precisely, in
order to avoid arbitrariness and to safeguard the public character of marriage,
removing it from subjective decisions”.
Ħsibna li biex ikollna stampa aktar sħiħa tas-suġġett tkun ħaġa tajba li naqraw ukoll
il-preżentazzjoni tal-moralista Mons. Angel Rodríguez Luño. Fir-rigward tal-epikeia,
huwa ma jsegwix il-linja Aristotelika-Tomista, imma dik ta’ Platone u ta’ Suárez.
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Epikeia in Plato and Aristotle

epikeia is the d ilution of
justice

epikeia is a better form of
justice

epikeia as necessary for
com plex situations not
covered by the law

epikeia supplem ents the
law in concrete situations
/ extraord inary
circu m stances

only the PhilosopherKing / Jud ge can use
epikeia

every citizen can practice
epikeia
F. Suárez emphasises legal certainty more than justice, and the legislator’s
will more than reason.
Put simply, Suárez shifts epikeia from a virtue to a
sophisticated interpretation of the law in extraordinary circumstances when the law is
too general. Unlike Aristotle and Aquinas, who understood epikeia as belonging to
every rational human being, Suárez maintained that only legal experts are entitled to
act in the sense of epikeia.
In relation to St Thomas Aquinas, Suárez narrows down the content of epikeia
in two ways: The realm of epikeia is not the whole area of law, but only the laws of
the state. For Thomas epikeia was the virtue that enabled everybody to act “praeter
legem” in extraordinary circumstances through recourse to higher principles. When
Suárez quotes St. Thomas, he uses “contra legem” in the sense of acting against the
law of the state. For Suárez it is impossible to act independently of the legislator,
because the binding power of law comes from the will and intention of the legislator.
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
Angel Rodríguez Luño, “L’epicheia nella cura pastorale dei fedeli divorziati
risposati”, in L’Osservatore Romano (26.11.1997), p.9.
Available in English at http://www.eticaepolitica.net/famiglia/arl_epi%5Ben%5D.htm
This article serves to throw more useful light on the moral concept of epikeia. It is
one interpretation of the concept of epikeia from the perspective of Plato and Suárez.
One occasionally encounters moral theologians who present the concept of epikeia
as a relaxation or a watering down of moral norms. In fact, the author commences
his long article in the Vatican daily newspaper by stating: “In various quarters the
hypothesis has been put forward that the traditional doctrine of epikeia might provide
a different moral solution to the problem of the divorced and remarried faithful”
(column ‘a’). Rodríguez Luño commences his contribution by providing the basic
principles on the subject. He refers to the authors who have studied the theme:
Albert the Great, Thomas Aquinas, Scotus, Cajetan, Suárez, the Carmelites of
Salamanca and Alphonsus de’ Liguori. The following are the main points of the
article:
(a) The study of the classical sources leaves no doubt on the fact that epikeia has
been understood as a moral virtue (cfr Aquinas, Summa Theologica, IIa-IIae,
q.120, a.1). In other words, epikeia is understood as a quality belonging to “la
formazione morale compiuta dell’uomo” (col. a). This has two important
consequences: (i) epikeia is a principle regarding choices which are not only
good, but which are excellent and the best possible choices. For Albert the
Great, epikeia is superiustitia. Therefore, epikeia does not lead to the choice
of a lesser good – a sort of mitigatio iuris or a “discount” – which in certain
cases can be tolerated; (ii) transferring epikeia to an epistemological or ethical
context which is diverse from classical virtue ethics requires several
clarifications.
(b) Luño explains that the proper context to understand epikeia is that of the laws
regulating the life of the polis, in other words perfectible human laws. Basing
himself on Aristotle and Aquinas, Cajetan synthetically explains that epikeia
entails a directio legis ubi deficit propter universale. The well-formed human
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being does not only know which behaviour is ordered or prohibited, but also
knows the reason why this is so. Moreover, since the law is a universal norm,
it can be the case that a particular situation is not covered by it. The virtuous
man realises this because he understands that a literal observation of the law
leads to an action which goes against the ratio iustitiae or the communis
utilitas which have inspired every law and legislator. It is therefore the duty of
the human legislator, in these cases to give a direction to the application of
the law in such a way that what should have been originally contemplated in
the law be now included in it, had he envisaged the case in question. The
scope of this action is not only to improve the law, but to avoid unjust
behaviour which wounds the common good. This explains why epikeia is not
a question of benevolence or tolerance. Rather, it becomes the rule which
must necessarily be followed. In fact, Aquinas explains that epikeia is “a kind
of higher rule for human actions” (ST, IIa-IIae, q.120, a.2). This does not
mean that epikeia is superior to the good and the bad, but that when the
common criteria of judgement cannot be applied, epikeia provides a direction
to judgement, what Aquinas calls “gnome” – this being inspired by higher
principles. Epikeia “is a ‘higher rule’, since it appeals directly to a higher level
of moral principles in order to evaluate exceptional cases” (col. a).
(c) The author reminds us that all great moral theologians are in accordance that
a law is not to be observed when, even because of a single case, that law is
defective. A law is not to be observed if it leads to a behaviour which is
contrary to justice or to the common good. In this case, epikeia is not invoked.
Rather, Aquinas insists that when the application of a law is harmful to the
common good and the danger is not imminent, recourse must be made to the
legislator. It is important that recourse be made to the legislator because if
each individual were arbitrarily to decide for himself, this would lead to a “freefor-all” situation and the dissolution of the entire legal system, both civil and
ecclesiastical. The debate between moral theologians lies – Rodríguez Luño
affirms – on when to consider a law to be defective. He presents, on the one
hand, the opinion of Aquinas and Cajetan, and on the other, that of Suárez
(col. b). He also demonstrates the positions of these authors with regard to
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the natural moral law, and whether epikeia can be invoked to correct it.
Despite the diversity in their mode of reasoning, they agree that it is clear that
no natural precept requires the directing role of epikeia (col. b). An action
which goes counter to the natural moral law can never become licit through
the application of epikeia (col. c).
(d) The complex points raised in the article by Rodríguez Luño seek to address
the discussion among theologians regarding Familiaris Consortio 84 and the
Letter to Bishops by the CDF (14.9.1994), both presented in previous issues
of this series of theological subsidia by the Interdiocesan Theological
Commission (Malta). The author reiterates that unfortunately a number of
writers and speakers have confused epikeia with tolerance and understanding
(col. d). He studies in detail the provisions of canon 1085 § 2,1 especially in
the light of incorrect interpretations of this canon. Rodríguez Luño explains
that this canon offers a guarantee against any form of subjective arbitrariness
regarding the validity of the marriage bond, and seeks to protect the ecclesial
and the public reality of Christian marriage (col. d). The author explains that
the ecclesial legislator has never intended to leave judgement regarding the
validity of a marriage bond to the private judgement of one of the spouses. In
this regard, he refers to the Allocution of Pope John Paul II to the Roman Rota
(10.2.1995) where this was, once again, made clear. Care is to be taken to
avoid easy solutions in the internal forum to difficult situations regarding the
validity or invalidity of marital consent (col. e).
(e) According to Rodríguez Luño, there is practically no case when epikeia can
be applied in the situations being described. He allows only this exception: “It
would be possible to appeal to epikeia only if, due to exceptional
circumstances, a capable person were denied the exercise of the ius
connubii, in a way not foreseen or foreseeable by the lawgiver and without it
being required by the common good of the faithful, the common good that –
perhaps today more than ever – calls for the careful safeguarding of the
Can. 1085 § 2: Even though the previous marriage is invalid or for any reason dissolved, it is not thereby lawful
to contract another marriage before the nullity or the dissolution of the previous one has been established
lawfully and with certainty.
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indissolubility of marriage” (col. e). Further on in his article, Rodríguez Luño
explains that the subjective conviction of one or both of the spouses does not
authorise one to conclude that the ecclesiastical law (regarding marriage
nullity processes) is defective (col. e-f). Recourse to the opinion of an expert
priest or to some other diocesan body regarding the nullity of marriage is
untenable, and he explains: “It is hard to understand, then, how a priest or a
diocesan office could arrive at a veritas rei, which, on the other hand, could
not be reached by a tribunal of the same diocese or a tribunal of the Holy
See” (col. f).
(f) Towards the end of the article, Rodríguez Luño discusses the question of
reception of the Eucharist by remarried divorcees whose first marriage union
was certainly valid. He explains that although many a time the discussion is
centred on whether they can receive the Eucharist or not, in actual fact, the
issue is whether they can validly receive sacramental absolution. The latter
question must also be studied with regard to other past faults of the
individuals in question (in other words, not only with respect to the sin of
adultery, but also to other grave sins). He affirms that with reference to the
necessity of the state of grace to receive the Eucharist, it is not possible to
invoke the concept of epikeia because here we are talking of the divine law.
(Note that as seen in the beginning of this resumé, the use of epikeia
concerns only perfectible human laws, and not divine laws.) Furthermore, the
author reminds us that an act of perfect contrition is required for valid
sacramental absolution which includes the penitent’s resolution to go to
confession as soon as possible (can. 916) and to avoid the same sin in the
future. In the case of remarried divorcees, how is this possible?
(g) The conclusion to Angel Rodríguez Luño’s article gives us a summary of his
presentation: “At the end of these considerations, we can note that epikeia is
the moral virtue that identifies the action to be taken in individual situations,
which, by their exceptional nature, do not fall within the ordinary provisions of
canon law. The recent proposals regarding the divorced and remarried faithful
invoke it instead as a possible basis for an alternative solution to a general
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problem, which shows that their appeal to epikeia is very inappropriate and
certainly foreign to the great tradition of Catholic moral theology. What these
proposals envisage is a new general criterion of tolerance, whose
compatibility with the indissolubility and sacramentality of Christian marriage
remains to be shown, and seems rather to stem from an idea of consience
that the Church cannot accept (cf Veritatis Splendor, nn 54-64)” (col. f).
Fil-paġni li ġejjin qegħdin inwasslu l-artiklu sħiħ li semmejna fil-bidu: l-artiklu tal-Papa
Benedittu XVI. Dan l-artiklu reġa’ nġieb minn L’Osservatore Romano f’Diċembru li
għadda.
Dun Hector Scerri
Kummissjoni Teoloġika Interdjoċesana
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