§1.13.10ἔστι δὲ πάντα τὰ τοιαῦτα περὶ τοῦ ἄδικον εἶναι καὶ φαῦλον ἢ μὴ ἄδικον ἀμφισβήτησις· ἐν γὰρ τῇ προαιρέσει ἡ μοχθηρία καὶ τὸ ἀδικεῖν, τὰ δὲ τοιαῦτα τῶν ὀνομάτων προσσημαίνει τὴν προαίρεσιν, οἷον ὕβρις καὶ κλοπή·
All such disputes are about whether an act is unjust and wicked, or not unjust; for wickedness and committing injustice lie in the choice, and such names of acts additionally signify the choice, for instance, insult and theft.
οὐ γὰρ εἰ ἐπάταξεν πάντως ὕβρισεν, ἀλλʼ εἰ ἕνεκά του, οἷον τοῦ ἀτιμάσαι ἐκεῖνον ἢ αὐτὸς ἡσθῆναι.
For he who strikes does not in all cases insult, but only if he does so for some purpose, such as to disgrace the other person or to please himself.
οὐδὲ πάντως, εἰ λάθρᾳ ἔλαβεν, ἔκλεψεν, ἀλλʼ εἰ ἐπὶ βλάβῃ τούτου ἀφʼ οὗ ἔλαβε καὶ σφετερισμῷ ἑαυτοῦ.
Nor does he who takes something secretly in all cases steal, but only if he does so to the injury of the person from whom he took it and for his own appropriation.
ὁμοίως δὲ καὶ περὶ τῶν ἄλλων ἔχει ὥσπερ καὶ περὶ τούτων. §1.13.11ἐπεὶ δὲ τῶν δικαίων καὶ τῶν ἀδίκων ἦν δύο εἴδη (τὰ μὲν γὰρ γεγραμμένα τὰ δʼ ἄγραφα), περὶ ὧν μὲν οἱ νόμοι ἀγορεύουσιν εἴρηται, τῶν δʼ ἀγράφων δύο ἔστιν εἴδη· §1.13.12ταῦτα δʼ ἐστὶν τὰ μὲν καθʼ ὑπερβολὴν ἀρετῆς καὶ κακίας, ἐφʼ οἷς ὀνείδη καὶ ἔπαινοι καὶ ἀτιμίαι, καὶ τιμαὶ καὶ δωρεαί (οἷον τὸ χάριν ἔχειν τῷ ποιήσαντι εὖ καὶ ἀντευποιεῖν τὸν εὖ ποιήσαντα, καὶ βοηθητικὸν εἶναι τοῖς φίλοις, καὶ ὅσα ἄλλα τοιαῦτα), τὰ δὲ τοῦ ἰδίου νόμου καὶ γεγραμμένου ἔλλειμμα. §1.13.13τὸ γὰρ ἐπιεικὲς δοκεῖ δίκαιον εἶναι, ἔστιν δὲ ἐπιεικὲς τὸ παρὰ τὸν γεγραμμένον νόμον δίκαιον.
And the case is similar for other matters as well as for these.\n Since there were two kinds of right and wrong—for some are written and others unwritten— those about which the laws speak have been discussed, but of the unwritten there are two kinds.\n These are, on the one hand, those which accord with an excess of virtue and vice, on which are directed reproaches and praises, and dishonors, and honors and rewards (such as being grateful to a benefactor, and returning good to one who has done good, and being helpful to one's friends, and all other such things); and on the other hand, those which are the omission of the particular written law.\n For the equitable seems to be just, and the equitable is just beyond the written law.
συμβαίνει δὲ τοῦτο τὰ μὲν ἑκόντων τὰ δὲ ἀκόντων τῶν νομοθετῶν, ἀκόντων μὲν ὅταν λάθῃ, ἑκόντων δʼ ὅταν μὴ δύνωνται διορίσαι, ἀλλʼ ἀναγκαῖον μὲν ᾖ καθόλου εἰπεῖν, μὴ ᾖ δέ, ἀλλʼ ὡς ἐπὶ τὸ πολύ, καὶ ὅσα μὴ ῥᾴδιον διορίσαι διʼ ἀπειρίαν, οἷον τὸ τρῶσαι σιδήρῳ πηλίκῳ καὶ ποίῳ τινί· ὑπολείποι γὰρ ἂν ὁ αἰὼν διαριθμοῦντα. §1.13.14ἂν οὖν ᾖ ἀόριστον, δέῃ δὲ νομοθετῆσαι, ἀνάγκη ἁπλῶς εἰπεῖν, ὥστε κἂν δακτύλιον ἔχων ἐπάρηται τὴν χεῖρα ἢ πατάξῃ, κατὰ μὲν τὸν γεγραμμένον νόμον ἔνοχός ἐστι καὶ ἀδικεῖ, κατὰ δὲ τὸ ἀληθὲς οὐκ ἀδικεῖ, καὶ τὸ ἐπιεικὲς τοῦτό ἐστιν. §1.13.15εἰ δὲ ἐστὶ τὸ εἰρημένον τὸ ἐπιεικές, φανερὸν ποῖά ἐστι τὰ ἐπιεικῆ καὶ οὐκ ἐπιεικῆ, καὶ ποῖοι οὐκ ἐπιεικεῖς ἄνθρωποι· §1.13.16ἐφʼ οἷς τε γὰρ δεῖ συγγνώμην ἔχειν, ἐπιεικῆ ταῦτα, καὶ τὸ τὰ ἁμαρτήματα καὶ τὰ ἀδικήματα μὴ τοῦ ἴσου ἀξιοῦν, μηδὲ τὰ ἁμαρτήματα καὶ τὰ ἀτυχήματα·
This happens partly with the consent and partly without the consent of the legislators; without their consent when it escapes their notice, and with their consent when they are unable to define it precisely, but it is necessary to speak universally, though it is not so, but only for the most part; and also whatever is not easy to define because of its infinity, such as wounding with iron, of what size and of what kind; for a lifetime would fail one who tried to enumerate them.\n If, then, a case is indefinite, and it is necessary to legislate, one must speak in absolute terms, so that even if a man wearing a ring raises his hand or strikes, according to the written law he is guilty and commits an injustice, but in truth he does not commit an injustice, and this is the equitable.\n If, then, the equitable is what has been said, it is clear what kinds of things are equitable and not equitable, and what kinds of people are not equitable.\n For those things for which one ought to have sympathy are equitable; and also not to regard errors and injustices as of equal value, nor errors and misfortunes.
ἀτυχήματα μὲν γὰρ ὅσα παράλογα καὶ μὴ ἀπὸ μοχθηρίας, ἁμαρτήματα δὲ ὅσα μὴ παράλογα καὶ μὴ ἀπὸ πονηρίας, ἀδικήματα δὲ ὅσα μήτε παράλογα ἀπὸ πονηρίας τέ ἐστιν· τὰ γὰρ διʼ ἐπιθυμίαν ἀπὸ πονηρίας. §1.13.17καὶ τὸ τοῖς ἀνθρωπίνοις συγγινώσκειν ἐπιεικές.
For misfortunes are all those things that happen contrary to expectation and not from wickedness; errors are all those that do not happen contrary to expectation and not from malice; and injustices are all those that do not happen contrary to expectation and are from malice; for those done from desire are from malice.\n And to be sympathetic to human weaknesses is equitable.
καὶ τὸ μὴ πρὸς τὸν νόμον ἀλλὰ πρὸς τὸν νομοθέτην, καὶ μὴ πρὸς τὸν λόγον ἀλλὰ πρὸς τὴν διάνοιαν τοῦ νομοθέτου σκοπεῖν, καὶ μὴ πρὸς τὴν πρᾶξιν ἀλλὰ πρὸς τὴν προαίρεσιν, §1.13.18καὶ μὴ πρὸς τὸ μέρος ἀλλὰ πρὸς τὸ ὅλον, μηδὲ ποῖός τις νῦν, ἀλλὰ ποῖός τις ἦν ἀεὶ ἢ ὡς ἐπὶ τὸ πολύ.
And to look not to the law but to the legislator, and not to the letter of the law but to the intention of the legislator, and not to the action but to the choice,\n and not to the part but to the whole, nor what kind of person someone is now, but what kind of person he was always or for the most part.
καὶ τὸ μνημονεύειν μᾶλλον ὧν ἔπαθεν ἀγαθῶν ἢ κακῶν, καὶ ἀγαθῶν ὧν ἔπαθε μᾶλλον ἢ ὧν ἐποίησεν.
And to remember the good things one has received rather than the bad, and the good things one has received rather than those one has done.
καὶ τὸ ἀνέχεσθαι ἀδικούμενον.
And to tolerate being wronged.
καὶ τὸ μᾶλλον λόγῳ ἐθέλειν κρίνεσθαι ἢ ἔργῳ.
And to wish to be judged by reason rather than by action.
καὶ τὸ εἰς δίαιταν μᾶλλον ἢ εἰς δίκην βούλεσθαι ἰέναι· §1.13.19ὁ γὰρ διαιτητὴς τὸ ἐπιεικὲς ὁρᾷ, ὁ δὲ δικαστὴς τὸν νόμον· καὶ τούτου ἕνεκα διαιτητὴς εὑρέθη, ὅπως τὸ ἐπιεικὲς ἰσχύῃ. περὶ μὲν οὖν τῶν ἐπιεικῶν διωρίσθω τὸν τρόπον τοῦτον.
And to prefer to go to arbitration rather than to court;\n for the arbitrator looks to the equitable, but the judge to the law; and for this reason an arbitrator was devised, so that the equitable might prevail.\nConcerning the equitable, then, let it be defined in this manner.