§5.10περὶ δὲ ἐπιεικείας καὶ τοῦ ἐπιεικοῦς, πῶς ἔχει ἡ μὲν ἐπιείκεια πρὸς δικαιοσύνην τὸ δʼ ἐπιεικὲς πρὸς τὸ δίκαιον, ἐχόμενόν ἐστιν εἰπεῖν.
Our next subject is equity and the equitable, and their respective relations to justice and the just.
οὔτε γὰρ ὡς ταὐτὸν ἁπλῶς οὔθʼ ὡς ἕτερον τῷ γένει φαίνεται σκοπουμένοις·
For they appear, when we look into the matter, to be neither absolutely the same nor yet different in genus.
καὶ ὁτὲ μὲν τὸ ἐπιεικὲς ἐπαινοῦμεν καὶ ἄνδρα τὸν τοιοῦτον, ὥστε καὶ ἐπὶ τὰ ἄλλα ἐπαινοῦντες μεταφέρομεν ἀντὶ τοῦ ἀγαθοῦ, τὸ ἐπιεικέστερον ὅτι βέλτιον δηλοῦντες·
At one time we praise the equitable and the person of this character, so that we even transfer the term to other things in praising them, using it instead of "good," and showing that what is more equitable is better.
ὁτὲ δὲ τῷ λόγῳ ἀκολουθοῦσι φαίνεται ἄτοπον εἰ τὸ ἐπιεικὲς παρὰ τὸ δίκαιόν τι ὂν ἐπαινετόν ἐστιν· ἢ γὰρ τὸ δίκαιον οὐ σπουδαῖον, ἢ τὸ ἐπιεικὲς οὐ δίκαιον, εἰ ἄλλο· ἢ εἰ ἄμφω σπουδαῖα, ταὐτόν ἐστιν.
At another time, however, as we follow the argument, it seems strange that the equitable, if it is something apart from the just, should be commendable; for if they are different, either the just is not good or the equitable is not just; or, if both are good, they are the same thing.
ἡ μὲν οὖν ἀπορία σχεδὸν συμβαίνει διὰ ταῦτα περὶ τὸ ἐπιεικές, ἔχει δʼ ἅπαντα τρόπον τινὰ ὀρθῶς καὶ οὐδὲν ὑπεναντίον ἑαυτοῖς·
The puzzle about the equitable arises, then, roughly speaking, from these considerations; yet they are all in a way correct and not opposed to one another.
τό τε γὰρ ἐπιεικὲς δικαίου τινὸς ὂν βέλτιόν ἐστι δίκαιον, καὶ οὐχ ὡς ἄλλο τι γένος ὂν βέλτιόν ἐστι τοῦ δικαίου.
For the equitable, while being better than a certain kind of just, is still just, and it is not better than the just as being of another genus.
ταὐτὸν ἄρα δίκαιον καὶ ἐπιεικές, καὶ ἀμφοῖν σπουδαίοιν ὄντοιν κρεῖττον τὸ ἐπιεικές.
The just and the equitable are therefore the same, and while both are good, the equitable is the superior.
ποιεῖ δὲ τὴν ἀπορίαν ὅτι τὸ ἐπιεικὲς δίκαιον μέν ἐστιν, οὐ τὸ κατὰ νόμον δέ, ἀλλʼ ἐπανόρθωμα νομίμου δικαίου.
What creates the puzzle is that the equitable is indeed just, but not the legally just, rather a correction of legal justice.
αἴτιον δʼ ὅτι ὁ μὲν νόμος καθόλου πᾶς, περὶ ἐνίων δʼ οὐχ οἷόν τε ὀρθῶς εἰπεῖν καθόλου.
The reason is that all law is universal, but about some things it is not possible to speak correctly in universal terms.
ἐν οἷς οὖν ἀνάγκη μὲν εἰπεῖν καθόλου, μὴ οἷόν τε δὲ ὀρθῶς, τὸ ὡς ἐπὶ τὸ πλέον λαμβάνει ὁ νόμος, οὐκ ἀγνοῶν τὸ ἁμαρτανόμενον.
In those cases, therefore, where it is necessary to speak universally but not possible to do so correctly, the law takes what holds for the most part, not being ignorant of the possibility of error.
καὶ ἔστιν οὐδὲν ἧττον ὀρθός· τὸ γὰρ ἁμάρτημα οὐκ ἐν τῷ νόμῳ οὐδʼ ἐν τῷ νομοθέτῃ ἀλλʼ ἐν τῇ φύσει τοῦ πράγματός ἐστιν· εὐθὺς γὰρ τοιαύτη ἡ τῶν πρακτῶν ὕλη ἐστίν.
And the law is no less correct; for the error is not in the law nor in the legislator, but in the nature of the case, since the raw material of practical affairs is of this kind from the start.
ὅταν οὖν λέγῃ μὲν ὁ νόμος καθόλου, συμβῇ δʼ ἐπὶ τούτου παρὰ τὸ καθόλου, τότε ὀρθῶς ἔχει, ᾗ παραλείπει ὁ νομοθέτης καὶ ἥμαρτεν ἁπλῶς εἰπών, ἐπανορθοῦν τὸ ἐλλειφθέν, ὃ κἂν ὁ νομοθέτης αὐτὸς ἂν εἶπεν ἐκεῖ παρών, καὶ εἰ ᾔδει, ἐνομοθέτησεν.
So when the law speaks universally, and a case arises on it which is an exception to the universal rule, then it is right, where the legislator fails and has erred by speaking absolutely, to correct the omission, which the legislator himself would have said if he had been present there, and would have put into his law if he had known.
διὸ δίκαιον μέν ἐστι, καὶ βέλτιόν τινος δικαίου, οὐ τοῦ ἁπλῶς δὲ ἀλλὰ τοῦ διὰ τὸ ἁπλῶς ἁμαρτήματος.
Hence the equitable is indeed just, and better than a certain kind of just, but not better than absolute just, rather better than the error that arises from the absolute statement.
καὶ ἔστιν αὕτη ἡ φύσις ἡ τοῦ ἐπιεικοῦς, ἐπανόρθωμα νόμου, ᾗ ἐλλείπει διὰ τὸ καθόλου.
And this is the very nature of the equitable, a correction of law where it is defective owing to its universality.
τοῦτο γὰρ αἴτιον καὶ τοῦ μὴ πάντα κατὰ νόμον εἶναι, ὅτι περὶ ἐνίων ἀδύνατον θέσθαι νόμον, ὥστε ψηφίσματος δεῖ.
For this is also the reason why not all things are determined by law, that about some things it is impossible to lay down a law, so that a decree is needed.
τοῦ γὰρ ἀορίστου ἀόριστος καὶ ὁ κανών ἐστιν, ὥσπερ καὶ τῆς Λεσβίας οἰκοδομίας ὁ μολίβδινος κανών· πρὸς γὰρ τὸ σχῆμα τοῦ λίθου μετακινεῖται καὶ οὐ μένει ὁ κανών, καὶ τὸ ψήφισμα πρὸς τὰ πράγματα.
For the rule of what is indefinite is itself indefinite, like the leaden rule used in Lesbian architecture; for the rule adapts itself to the shape of the stone and does not remain rigid, and so the decree adapts itself to the facts.
τί μὲν οὖν ἐστὶ τὸ ἐπιεικές, καὶ ὅτι δίκαιον καὶ τινὸς βέλτιον δικαίου, δῆλον.
What the equitable is, then, and that it is just and better than a certain kind of just, is clear.
φανερὸν δʼ ἐκ τούτου καὶ ὁ ἐπιεικὴς τίς ἐστιν· ὁ γὰρ τῶν τοιούτων προαιρετικὸς καὶ πρακτικός, καὶ ὁ μὴ ἀκριβοδίκαιος ἐπὶ τὸ χεῖρον ἀλλʼ ἐλαττωτικός, καίπερ ἔχων τὸν νόμον βοηθόν, ἐπιεικής ἐστι, καὶ ἡ ἕξις αὕτη ἐπιείκεια, δικαιοσύνη τις οὖσα καὶ οὐχ ἑτέρα τις ἕξις.
From this it is also apparent who the equitable person is; for he who chooses and does such things, and who is not a stickler for justice to the worse side but tends to take less than his share, even though he has the law on his side, is an equitable person, and this state of character is equity, being a sort of justice and not a different state of character.