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20 Syracuse J. Int'l L. & Com. 95 (1994)
Aequitas in the Corpus Iuris Canonici

handle is hein.journals/sjilc20 and id is 99 raw text is: 'AEQUITAS' IN THE 'CORPUS IURIS CANONICI'
Dr. Peter Landau
'Aequitas canonica' is used as a label to characterize the essence of
canon law since the Middle Ages. The code of canon law which was
promulgated in 1983 provides a general rule to be applied in all cases
where special statutes do not exist. The official English translation of
Canon 19 states that: Unless it is a penal matter, if an express prescrip-
tion of universal or particular law or a custom is lacking in some particu-
lar matter, the case is to be decided in light of laws passed in similar
circumstances, the general principles of law observed with canonical
equity, the jurisprudence and practices of the Roman Curia, and the
common and constant opinion of learned persons.'
In nearly two thousand years the history of canon law, the concept
of equity was not always used to describe canon law as distinct from
other legal systems. But the term 'aequitas' is already applied in late
antiquity by Latin church fathers to describe the Christian ideal of jus-
tice, justice that would include not only a measure of equality and pro-
portionality as in the Aristotelian tradition, but which would also include
charity and indulgence in special cases. The element of charity as a
component of perfect justice is already mentioned by St. Augustine in
one of his letters.2 However, it is difficult to find in late antiquity any
idea which takes the canons as special rules of equity being by that qual-
ity distinct from the leges. On the other hand, the concept of equity is
often used to characterize and legitimize the legislation of the Christian
emperors so that their legislation is seen a special quality.3 Equity, as a
concept, is the creative element for the development of law.4 This is
based on a Ciceronian idea5 which the emperors used to justify the
changes of law already prior to the time of conversion to Christianity so
by Antoninus Pius: Etsi nihil facile mutandum est ex solemnibus,
tamen ubi aequitas evidens poscit, subveniendum       est.6  (Though
changes in solemn form are not easily admitted, yet, where aequitas de-
l. CODE OF CANON LAW 9 (Latin-English ed. 1983).
2. Augustine Ep. 153, 26 (CSEL 44) 426: lustitiam quippe et nemo male habet et, qui non
dilexerit, non habet.
3. See PRINGSHEIM, ROMnscHE AEQUITAS DES CHRISLICHEN KAISERS, ACTA CONGRESSUS
IUmDICI 1 120-152 (1935).
4. BERGER, ART. AEQUITAS, ENCYCLOPEDIC DIcTIONARY OF ROMAN LAW (Transactions of
the American Philosophical Society, N.S. vol. 43/2, col. 354 1953).
5. CICERO, TOPICA II § 9 (H. Bornecque ed., CICtRON, DvSIONS DE L'ART ORATOIRE. ToPI-
QuES), p. 69f: lus civile est aequitas constituta, eis, qui eiusdem civitatis sunt, ad res suas ob-
tinendas; eius autem aequitatis utilis est cognitio; utilis est ergo iuris civilis scientia.
6. DiG. 4.1.7 pr.

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