10 - Interpretatio ex aequo et bono

Summary

The concept of equity is often assimilated with that of Aristotelian epieikeia, a process that corrects rules when their application to a certain case would be unjust or contrary to the intention of the legislator. In the middle ages - while theologians had written at length on the concept of epieikeia - glossators, commentators, and canonists adopted a concept of aequitas completely unrelated to it. This barrier between law and theology lasted throughout the medieval period. By the mid-sixteenth century the concept of epieikeia had become familiar to legal writers and, through the work of humanist jurists, was explicitly associated with aequitas. The introduction of epieikeia in legal scholarship opened the door to the influence of scholastic theology over the concept of equity, as lawyers and theologians worked together to build a novel concept of aequitas/epieikeia as judicial power to interpret law beyond its letter.