Epikeia is what we call common sense

By Fr. Jerome LeDoux
Contributing Columnist

Fourteen-year-old Kayona Hagen-Tietz was having a delightful swim in the school pool for health class when a small science experiment triggered the fire alarm at Como Park Senior High School in St. Paul, Minnesota. Since Kayona’s clothes were in her locker, a teacher told her that there was no time for her to change. So she was rushed outside into the freezing cold, still dripping wet and dressed in only a swimsuit.

Because school child-safety policy demanded that no teacher or school employee should be in a vehicle together with a minor like Kayona, all employees refused to let her come into a vehicle to warm up a bit. Blindly committed to obeying its fire drill policy to the exact letter of the law, the Min­nesota public high school employees forced Kayona to stand outside in the freezing cold for ten minutes. They would not even allow her to retrieve her clothes or wait inside another building — or step out of their car to let her in! As a result, she suffered frostbite.

Your instinctive, first reaction must be that of undoubtedly most people. “Why in heaven or on earth could an entire group of adults at a school — or anywhere — be so cowed by, blinded by a well-meaning but flawed policy that they would forget the most basic law of our existence as human beings: self-preservation, saving one’s health?”

Small-minded shenanigans like these prompt us to remember the biting reality that common sense is the least-common commodity in the world.

Laws and policies are made for the benefit of people. Yet, according to the attitude of many employers, principals, church leaders and community leaders, one would be led to believe that we the people are here for the benefit of laws and policies. Instead of our health and safety, law and policy are pushed as priorities. A curious case is that of the well-intended, zero-tolerance proscriptions against wea­pons and even facsimiles of weapons by schools and sundry institutions. Such a proscription can be a positive tool in teaching and disciplining children about the dangers and realities of weapons. However, suspending, even ex­pelling a student for brandishing a paper or cardboard gun defies the borders of reason.

This is an instance of throwing out the baby with the bathwater. Have no doubt about the fact that a student in such a case as this is the precious baby. The only question authorities must ask is, “What will be best both for the individual student and for all students for whom the law/policy is ostensibly intended?” Although in some cases the answer requires deliberation, in no case should there be a knee-jerk reaction.

About 1952, we had a brother candidate for our Society of the Divine Word Southern Province. Only in his late teens, he heard that his aunt in Chicago had died. Since his aunt was the only mother he ever knew, he fully expected to be given leave to attend her funeral. Unfortunately, the policy at that time was that one was allowed to attend the funeral of a parent or immediate family member, but not of any other relative.

With a defiant show of horse sense that almost anyone would expect, the young man left the SVDs for good and went home to honor his deceased aunt. That feckless relatives-only policy was common at the time. Thank God, such policy is history.

Epikeia (Greek: epieikes, reasonable) is an indulgent and benign interpretation of law that regards a law as not applying in a particular case because of circumstances unforeseen by the lawmaker. Since the lawmaker cannot foresee all possible cases that may come under the law, it is therefore reasonably presumed that, were the present circumstances known to the legislator, he would permit the act.

While most superiors are in agreement with the concept and parameters of epikeia, I have heard some say over the years, “Look. If you honestly feel that you have a reasonable case of epikeia, go ahead and use it. Don’t handcuff me by asking me about it and perhaps forcing me to make a call that I don’t care to make or does not benefit you.”

By their very nature, laws and policies are written in broad, general terms that do not even pretend to speak directly to situations such as a young nursing mother needing to skip church service because she has no one to help her transport or care for the baby. The clearest cases of epikeia are those in which literal compliance with the law would create serious inconvenience or even harm to oneself or to another or others involved.

Given our human nature’s periodic propensity toward laxity, one can understand the danger of abusing epikeia by claiming too many or exorbitant exemptions to a law or policy. Here we detect an appeal to conscience that tells us that law must be respected and we must answer to God if we exempt ourselves because of grave inconvenience.

This article originally published in the April 7, 2014 print edition of The Louisiana Weekly newspaper.