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Anthology of Critical Thomist Juris Vol II

Anthology of Critical Thomist Juris Vol II

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Published by Anthony Fejfar

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Published by: Anthony Fejfar on Dec 31, 2008
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10/16/2011

Canon Law and Equity

By

Anthony J. Fejfar

© Copyright 2006 by Anthony J. Fejfar

Ordinarily, Roman Catholics are bound by the Code of Canon Law.

However, there is at least one exception to this. The Code of Canon Law,

following Divine Law and Natural Law, has a provision which parallels

Aristotle’s treatment of Equity. This is done in the first instance by the

Doctrine of Epikeia, and in the second instance by Equity itself.

The Doctrine of Epikeia provides:

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.

Epikeia is used where: “(a) the strict interpretation of the law would

work a great hardship,

and (b) in view of the usual interpretation it may

be prudently conjectured that, in this

particular case, the legislator would not

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wish the law to be strictly applied.

Let us take, then, this example. Suppose that a person was stranded on a

desert island with some food and drink, including a box of soda crackers and

a bottle of grape juice. While Canon Law would ordinarily prohibit the use

of grape juice for the eucharist, and while Canon Law ordinarily requires

that Mass be said by an ordained priest. In these exceptional circumstances

the lay person would be permitted to say Mass, as a priest, with the materials

available. The lay person would be entitled under Natural Law, Divine Law,

and Canon Law, to make an exception to the ordinary Canon Law rule so

that the lay person would not be denied the sacrament of the Mass and

eucharist.

A second use of Equity is that Canon Law is to be applied equitably:

“Canonical equity may be defined as a certain human moderation with

which canon law is to be tempered, so that the text may be prudently, even

benignly applied to concrete cases.” This equitable interpretation of law

means that every Canon Law rule can be equitably interpreted so as to

promote Divine Law and Natural Law in the interests of justice. Thus, a

priest could interpret canon law in a particular situation to allow, the one

hour fast before mass rule, to be relaxed for a person who has just gotten of

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the night shift and needs to eat a snack before Mass.

Bibliography

Bouscaren and Ellis, Canon Law

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