Eugene P. Salazar Prof.

Ciriaco Sayson

MA Philosophy, University of the Philippines Philo 291 (Nicomachean Ethics)

Epieikeia as a Sub-virtue of Justice in Aristotle’s Nicomachean Ethics

Of the many abstractions raised and intelligently considered in Aristotle’s Nicomachean Ethics,

(NE) the idea of equity seems to have gotten less attention in many scholarly journals lately. Not that

serious thinkers considered it as less interesting or lacking in real world applications, equity – referred to

as epiekeia – stands out as a very unique discursive theme under Aristotle’s treatment of justice in the

fifth chapter of The Nicomachean Ethics (NE). Its apparent brief treatment merits some speculation to its

importance. One could say that such paucity of attention maybe attributable to the common assumption

that equity as such is not up for further clarification as much as it seems like a humanely rational

consequent of the application of the concept of justice. On the other hand, Aristotle’s not so substantive

treatment of the concept maybe reckoned as an off-hand method in which the writer sees it a self-

explanatory corrective to excesses of applications of a principle that, if rationally pursued, maybe seen

as rigid or harsh.

In this paper, the present writer will sustain traditional interpretations of scholarly corpuses as

regards the Aristotelian principle of equity. The trajectory of the paper is to clarify definitional tasks,

establish the unique position it occupies in the concept’s treatment in the fifth chapter of the

Nicomachean Ethics (NE), set the relevance of the concept not just in its historico-social position, but as

a differentiated species of the principle of Aristotelian justice and finally, situate the practical application

of the principle as it commands relevance in a contemporary post-industrial, consumer infused culture

such as the present.

Epieikeia : Some Preliminary Considerations

In her substantive treatment of the concept, University of Chicago law and philosophy professor

Martha Nussbaum, carefully considers the historical as well as contextual contingencies that lent fruition

to the conceptual development of Aristotle’s abstraction of equity and associates its philosophical

inflection with a legal interpretive tradition associated with mercy i. From the earliest surviving fragments

(Anaximander’s philosophical musing on the encroachment of the elements right up to Aristotle’s

focused explication of equity as a form of justice in reaction to Plato’s Laws), Nussbaum thoroughly

traces and justifies the conceptual genesis for equity as a corollary concept of justice in such traditions

as that of the ancient Greek and Latin writers like Aristotle (Book V of Nicomachean Ethics) and Seneca

(On Clemency). This classical tradition that explains epieikeia sees it as that which provides a counter-

corrective to the excesses of the strict application of the law in situations and events that invite for

them. Whether in legal discourses or philosophical reflections, the relevance of epieikeia is particularly

understood in the context of the polis – that consequently, if equity is interpreted as a form of

correction, it should be understood in terms of what it should rectify. This she explains by signifying that

the answer lies in clarifying what makes the law harsh or cruel especially when applied in specific

contexts.

In a very interesting exploration on the role of Athenian legal arbitration, Andrew Sucre (2013)

correctly historicizes a specific perspective on the context of legal arbitration in 5 th century Athens and

how equity occupies a prominent role in the legal application of nomos. This discussion of Sucre is

emphatic on conceptual connection or relationship of equity as a virtue demonstrated in close

association with Aristotle’s concept of philia – that over all attitude of shared mutual congeniality to

various human ties and shared associations.

 Furthermore, for Sucre, this means equity should be defined as

“ . . . the preferred means of resolving the disputes of a society because it is the species of

justice that most resembles the superior virtue of friendship.” ii

As a corrective frame through which legal arbitrators of fifth century Athens interpret perceived

excesses of applying a well-reasoned judgment based on an understanding of the law, Sucre argues that

effectively, the extra-legal dimensions of grasping the concept of equity will always go back to the

implied Aristotelian notion of equity as both a rational exposition of the idea of justice and friendship.

Epieikeia : Aristotle’s Definition

The foundational Aristotelian definition of epieikia as expounded in the fifth book of the

Nicomachean Ethics provides a thorough countercheck to the discussion of the concept of justice from

the earlier part of the book. Here, Aristotle explains that “when the law speaks universally, and a

iii
particular case arises as an exception to the universal rule, then it is right . . . to correct the omission”

The use of a well –reasoned faculty when it comes to interpreting laws and applying them to definite

concrete and particular human cases seems like a rationally defensible assumption that should underlie

every understanding of legal as well as political discourse. If there is not reasonable assumption held,

then it follows that verdicts delivered by judges in legal cases would simply be considered as the fringed

and subjective opinions of individuals accidentally thrown into such positions. The result would be the

rise of distrust in public institutions, doubt in the necessity of paternalistic agencies in the public sphere

and the denial of the rationality of a state that runs overseers the lives of its citizen. In other words it

throws out of the window the importance of laws, institutions and society as a whole.
 In Aristotle’s subtle and defensible discussion of the nature of justice, both as a virtue and as a

desirable quality of institutions, the requirement for rationality calls for the consistent application of the

law. It is meritorious to have rationality and consistency to inform legal interpretation and application

and since the Aristotelian invocation of justice as an abstraction of universal principles lies at the heart

of any defensible discussion of the law, there seems to be chances where particular cases of injustice

may not be intended but still take place. Roger Shiner in his article, “Aristotle’s Theory of Equity”,

correctly identifies that gaps exist in the application of laws; the attention allotted by Aristotle in his

theory of justice sharply calls for the discussion of a “sub-virtue” within the legal abstraction of justice as

a social good – the idea of a corrective entailment seems inevitable. For Shiner, equity stands as

epanorthoma - the “rectification” of the law, or more precisely situations where following the letter of

the law (borrowing the metaphor from St. Paul in the New Testament) maybe considered secondary

when the “spirit” of the law should be the one prevailing.

The tenth chapter of Book V of the Nicomachean Ethics provides a short explanation of why

what Aristotle considers as equitable is actually a good and a superior. The emphasis is on why an

equitable understanding of the law is by far better than an unqualified interpretation of it. By itself, the

act of interpreting and applying laws, is a noble task of arbitrators because it is an action enforced with

the telos of assuring that fairness is ensured for citizens in a society. When further applied with

discretion and wisdom, equitability or equity becomes a superior version of a form of justice. The

consideration hinges on the perceived act of rectification. This same chapter also applies equity to a

person who practices it and in the same vein, this part of the book explains why such person is doing

more than what is just but what is actually a more desirable quality beyond what is merely expected of

him.
Epieikeia in the Real World

As much as reason plays a role in the act of reflection and application for pragmatic grounds,

and as much as in the course of a life lived, rationally compelled individuals will rely on well-established

and healthy habits, the command of reason in the understanding of the world and human experiences

will not be enough, nor will it be enriching for individuals even if they have lived by moral codes that are

firmly entrenched with reason. For this same reason, Aristotle’s notion of a rectifying sub-virtue when it

comes to applying the law serves as a case study that invites a similar response to other facets of living

the eudaimonia that he has advocated in the Nicomachean Ethics. While it is understandable that fears

of “subjectivity” might crop up in interpretations of moral duties and institutionally assigned tasks, it

should not discourage legal scholars, philosophers, ethical thinkers and their ilks to continue the

discussion in the realm of practical discourses. Carefully crafted questions that have direct implications

for social and governmental policies should be sensitively taken as well in rational debates about social

policies, interpersonal relations, and civic responsibilities and obligations. A rationally structured

approach to extending the conversation among stakeholders on various disciplines and even industries

should inform attitudes and stances; this spirit-of-the-law over letter-of-the-law approach will stand the

scrutiny of critical assessments of company and industry practices as it is built around principles of

solidarity, efficiency, fairness and congeniality; it will make better citizens - more humane and empathic

in their approach to their careers, professions and callings, as well as appreciate the challenges and

difficulties posed by their specific positionalities in organizations, public spheres and kinship relations.

The equitable approach will better inform society by creating in citizens priorities of trust, appreciation

of the particularities where others in their social network are found and an expansive awareness of the

common good – moving citizens away from excessive egoistic ethics and fostering an attitude that is

more globally aware, culturally sensitive and ethically informed.

Works Cited

Aristotle. The Nicomachean Ethics. trans. Roger Crsip. Cambridge Texts in the History of Philosophy.
2004

Nussbaum, Martha. Equity and Mercy. Philosophy and Public Affairs vol. 22 no. 2 Spring (1993) pp. 83-
125. Black and Wiley Publishers.

Shiner, Roger. Aristotle’s Theory of Equity. Loyola of Los Angeles Law Review. vol. 27. Loyola
Marymount University, 1994.

Sucre, Andrew. Aristotle’s Conception of Equity in Context. (2013) Thesis. University of Missouri – St.
Louis. 201
i
Nussbaum, Martha “Equity and Mercy”. Philosophy and Public Affairs, Wiley and Blackwell, vol 22 no. 2, 1993 pp. 83-125
ii
Sucre, Andrew “Aristotle’s Concept of Equity in Context”. MA in Philosophy thesis, University of Missouri, St. Louis, 2013.
iii
Aristotle, “The Nicomachean Ethics” trans. Roger Crisp. Cambridge Texts in the History of Philosophy, 2004.