Casuistry

From LawGuru Wiki

Casuistry is a broad term that refers to a variety of forms of case-based reasoning. Used in discussions of law and ethics, casuistry is often understood as a critique of a strict principle-based approach to reasoning. For example, while a principle-based approach may conclude that lying is always morally wrong, the casuist would argue that lying may or may not be wrong, depending on the details surrounding the case. Consider the following two cases. On the one hand, the casuist might conclude that a person is wrong to lie while giving legal testimony under oath. On the other hand, the casuist might argue that lying is actually the best moral choice if the lie saves someone's life. For the casuist, the circumstances surrounding a particular case are essential for evaluating the proper response to a particular case.


Casuistic reasoning typically begins with a clear-cut,paradigm case (from the Greek word παράδειγμα (paradeigma) which means "pattern" or "example", from the word παραδεικνύναι (paradeiknunai) meaning "demonstrate"). In legal reasoning, for example, this might be a case precedent, such as an obvious case of premeditated murder. From this model case, the casuist would then ask how close the particular case currently under consideration matches the paradigm case. Cases similar to the paradigm case ought to be treated in a similar manner; cases unlike the paradigm case ought to be treated differently. Thus, a man is properly charged with premeditated murder if the circumstances surrounding his particular case closely resemble the ideal case of premeditated murder. The less a particular case resembles the paradigm case, the weaker the justification for treating that particular case like the paradigm case.


While the roots of Western casuistry can (at least) be traced back to Aristotle (384-322 BCE), the high point of casuistry occurred from approximately 1550 to 1650. It was at this time that the rise of the Jesuit order made extensive use of casuistry, particularly in the practice of the private Catholic confessional. The term quickly took on a pejorative meaning, following Blaise Pascal's attack on the misuse of casuistry. In his Provincial Letters (1656-1657), Pascal scoulded the Jesuits for, among other offenses, using casuistic reasoning during confessional practice to placate wealthy Church donors, while punishing poorer penitents. Pascal charged that aristocratic penitents could confess their sins one day, commit the same sin the next day, make a generous financial donation the following day, then return to confess their sins once again, only to receive the lightest of punishments. Pascal's criticisms cast a long shadow on casuistry's reputation. Since the 17th century, casuistry has been widely considered a degenerate form of reasoning. Critics of casuistry often focus on how casuistry functions as specious argumention or as intentionally misleading.


Not until 1988, with the publication of Albert Jonsen and Stephen Toulmin's Abuse of Casuistry: A History of Moral Reasoning, did a revival of casuistry meet with any significant success. Their work argued that it was the abuse of casuistry that was the problem, not casuistry itself. Properly used, casuistry is a powerful tool in reasoning. Jonsen and Toulmin offer casuistry as an attempt to to dissolve the seemingly contradictory philosophical positions of absolutism and relativism.

Contents

[edit] Meanings

Casuistry is a branch of applied ethics. Casuistry is the basis of case law in common law. It is the standard form of reasoning applied in common law.

[edit] The casuist morality

Casuistry takes a relentlessly practical approach to morality. Rather using theories as starting points, casuistry begins with an examination of cases. By drawing parallels between paradigms, so called "pure cases," and the case at hand, a casuist tries to determine an moral response appropriatew to a particular case.

Casuistry has been described as "theory modest"(Arras, see below). One of the strenghts of casuistry is that it does not begin, nor does it overemphasize theoretical issues. Casuistry does not require practicioners to agree about ethical theories or evaluations before making policy. Instead, they can agree that certain paradigms should be treated in certain ways, and then agree on the similarities, the so-called warrants between a paradigm and the case at hand.

Since most people, and most cultures, substantially agree about most pure ethical situations, casuistry often creates ethical arguments that can persuade people of different ethnic, religious and philosophical beliefs to treat particular cases in the same ways. For this reason, casuistry is the form of reasoning used in English law.

Casuistry is prone to abuses wherever the analogies between cases are false. Often late medieval reasoning applied false analogies in casuistry, through allegorical interpretations, a mode of illogic that found support in the elaborate parallels deduced by Christians between Old Testament Law and New Testament events.

[edit] Casuistry in early modern times

The casuistic method was popular among Rabbinic scholars and Catholic thinkers in the early modern period, especially the Jesuits. It was encouraged by the Catholic practice of confession of sins to priests, which created a demand for manuals for confessors with detailed advice on cases of conscience. Casuistry was much mistrusted by early Protestant theologians, because it justified many of the abuses that they sought to reform. It was famously attacked by Pascal in his Provincial Letters as the use of overly complex reasoning to justify moral laxity; hence the everyday use of the term to mean complex reasoning to justify moral laxity. Pascal defended the Jansenist Port-Royal Logic against the Jesuits' casuistry and their legitimation of power.

[edit] Criticism

Casuists have often been mistrusted as too self-serving, and their reasoning thought too inaccessible. The reasoning is often inaccessible because successful casuistry requires a large amount of knowledge about paradigms, and how parallels can be drawn from those paradigms to real life situations. In modern times, there is a similar tremendous resentment against lawyers and law. Defenders of casuistry often point out that the problems are not so much with casuistry itself, but with the impromper use of casuistry.

[edit] Casuistry in modern times

In modern times, casuistry has successfully been applied to law, bioethics and business ethics, and its reputation is somewhat rehabilitated. G.E. Moore dealt in chapter 1.4 of his Principia Ethica with casuistry; he claimed that "the defects of casuistry are not defects of principle; no objection can be taken to its aim and object. It has failed only because it is far too difficult a subject to be treated adequately in our present state of knowledge."

A good reference, analysing the methodological structure of casuistic argument is The Abuse of Casuistry: A History of Moral Reasoning (1990), by Albert Jonsen and Stephen Toulmin (ISBN 0520069609).

[edit] External links

[edit] See also

[edit] References

Alonso, Alfred (1990). "The Abuse of Casuistry: A History of Moral Reasoning." Journal of the History of Philosophy, Vol. XLIII, pp. 639-641.

Arnold, Carroll C. (1989). "The Abuse of Casuistry: A History of Moral Reasoning." Quarterly Journal of Speech, Vol. 75, pp.494-495.

Arras, John D. (1991). "Getting Down to Cases: The Revival of Casuistry in Bioethics." The Journal of Medicine and Philosophy, Vol. 16, pp. 29-51.

Biggar, Nigel. (1989). "A Case for Casuistry in the Church." Modern Theology, Vol. 6, p. 29.

Blake, David C. (1992). "The Hospital Ethics Committee: Health Care's Moral Conscience or White Elephant?" Hastings Center Report, Vol. 22, pp. 6-12.

Bliton, Mark J. (1993). The Ethics of Clinical Ethics Consultation: On the Way to Clinical Philosophy (Diss. Vanderbilt)

Boeyink, David E. (1992). "Casuistry: A Case-Based Method for Journalists." Journal of Mass Media Ethics, Vol. 7, pp. 107-120.

Boyle, Joseph. (1991). "Who is Entitled to Double Effect?" Journal of Medicine and Philosophy, pp. 475-494.

Brody, Baruch A. (1988). "Ethical Questions Raised by the Persistent Vegetative Patient." Hastings Center Report, Vol. 18, pp. 33-37.

Brody, Baruch A. (1989). "A Historical Introduction to Jewish Casuistry on Suicide and Euthanasia." in Baruch A. Brody, Suicide and Euthanasia: Historical and Contemporary Themes (Netherlands).

Brown, James F. (1991). "The Abuse of Casuistry: A History of Moral Reasoning." America, p. 492.

Buckley, William Joseph. (1989). "The Abuse of Casuistry: A History of Moral Reasoning." Journal of Religion, Vol. 69, pp. 577-578.

Carlson, A. Cheree. (1992). "Creative Casuistry and Feminist Consciousness: The Rhetoric of Moral Reform." Quarterly Journal of Speech, Vol. 78, pp.16-33.


Carney, Bridget Mary. (1993). Modern Casuistry: An Essential But Incomplete Method for Clinical Ethical Decision-Making. (Diss., Graduate Theological Union).

Carson, Ronald A. (1990). "Interpretive Bioethics: The Way of Discernment." Theoretical Medicine, Vol. 11, pp. 51-59.

Carson, Ronald A. (1988). "Paul Ramsey, Principled Protestant Casuist: A Retrospective." Medical Humanities Review, Vol. 2, pp. 24-35.

Chidwick, Paula Marjorie (1994). Approaches to Clinical Ethical Decision-Making: Ethical Theory, Casuistry and Consultation. (Diss., U of Guelph)

Davis, Dena S. (1992). "Abortion in Jewish Thought: A Study in Casuistry." Journal of the American Academy of Religion, Vol. 60, pp. 313-324.

Degrazia, David (1992). "Moving Forward in Bioethical Theory: Theory, Cases, and Specified Principilism." Journal of Medicine and Philosophy, Vol. 17, pp. 511-539.

DeMarco, Joseph P. (1991). "The Abuse of Casuistry." Southwest Philosophy Review, Vol. 7, pp. 17-30.

Downie, R. (1992). "Health Care Ethics and Casuistry." Journal of Medical Ethics, Vol. 18, pp. 61-62, 66.

Drane, J.F. (1990). "Methodologies for Clinical Ethics." Bulletin of the Pan American Health Organization, Vol. 24, pp. 394-404.

Dworkin, R.B. (1994). "Emerging Paradigms in Bioethics: Symposium." Indiana Law Journal, Vol. 69, pp. 945-1122.

Elliot, Carl (1992). "Solving the Doctor's Dilemma?" New Scientist, Vol. 133, pp. 42-43.

Emanuel, Ezekiel J. (1991). The Ends of Human Life: Medical Ethics in a Liberal Polity (Cambridge).

Gaul, Al (1995). "Casuistry, Care, Compassion, and Ethics Data Analysis." ANS Advance Nursing Science, Vol. 17, pp. 47-57.

Gaffney, James (1990). "The Abuse of Casuistry: A History of Moral Reasoning." America, pp. 467-468.

Gallagher, Lowell (1991). Medusa's Gaze: Casuistry and Conscience in the Rennaissance (Stanford)Green, Bryan S. (1988). Literary Methods and Sociological Theory: Case Studies of Simmel and Weber (Albany)

Hoffmaster, B. (1994). "The Forms and Limits of Medical Ethics." Social Science and Medicine, Vol. 39, pp. 1155-64.

Hoose, Bernard (1991). "The Abuse of Casuistry: A History of Moral Reasoning." Journal of Medical Ethics, Vol. 17, pp. 221-222.

Houle, Martha Marie (1983). The Fictions of Causistry and Pascal's Jesuit in "Les Provinciales" (Diss. U California, San Diego)

Hunter, Michael (1993). "Casuistry in Action: Robert Boyle's Confessional Interviews with Gilbert Burnet and Edward Stillingfleet." Journal of Ecclesiastical History, Vol. 44, pp. 80-99.

Hunter, Kathryn Montgomery (1989). "A Science of Individuals: Medicine and Casuistry." Journal of Medicine and Philosophy, Vol. 14, pp. 193-220.

Jonsen, Albert R. (1991). "American Moralism and the Origin of Bioethics in the United States." Journal of Medicine and Philosophy, pp. 113-130.

Jonsen, Albert R. (1986). "Casuistry and Clinical Ethics." Theoretical Medicine, Vol. 7, pp. 65-74.

Jonsen, Albert R. (1986). "Casuistry" in J.F. Childress and J. Macgvarrie, eds. Westminster Dictionary of Christian Ethics (Philadelphia)

Jonsen, Albert R. (1991). "Casuistry as Methodology in Clinical Ethics." Theoretical Medicine, pp. 295-307.

Jonsen, Albert R. (1991). "Of Balloons and Bicycles; or, The Relationship Between Ethical Theory and Practical Judgment." Hastings Center Report, pp. 14-16.

Jonsen, Albert R. and Stephen Toulmin (1988). The Abuse of Casuistry: A History of Moral Reasoning (California).

Keenan, James F., S.J. (1989). "The Abuse of Casuistry: A History of Moral Reasoning." Theological Studies, Vol. 50, pp. 390-392.

Keenan, James F., S.J. and Thomas A. Shannon. (1995). The Context of Casuistry (Washington).

Kemp, Kenneth W. (1989). "The Abuse of Casuistry: A History of Moral Reasoning." Ethics, Vol. 99, pp. 945-966.

Kirk, K. (1936). Conscience and Its Problems, An Introduction to Casuistry (London)

Klinefelter, Donald S. (1990). "How is Applied Philosophy to Be Applied?" Journal of Social Philosophy, pp. 16-26.

Kopelman, Loretta M. (1994). "Case Method and Casuistry: The Problem of Bias." Theoretical Medicine, Vol. 15, pp. 21-37.

Kopelman, Loretta M. (1990). "What is Applied About 'Applied' Philosophy?" Journal of Medicine and Philosophy, Vol. 15, pp. 199-218.

Kuczewski, Mark G. (1994). "Casuistry and Its Communitarian Critics." Kennedy Institute of Ethics Journal, Vol. 4, pp. 99-116.

Kuczewski, Mark G. (1994). Fragmentation and Consensus in Contemporary Neo-Aristotelian Ethics: A Study in Communitarianism and Casuistry (Diss., Duquesne U).

Leites, E. (1988). ed. Conscience and Casuistry in Early Modern Europe (Cambridge).

Leites, E. (1974). "Conscience, Casuistry, and Moral Decision: Some Historical Perspectives." Journal of Chinese Philosophy, Vol. 2, pp. 41-58.

MacIntyre, Alasdair (1990). "The Abuse of Casuistry: A History of Moral Reasoning." Journal of the History of Philosophy, Vol. XXVIII, pp. 634-635.

MacIntyre, Alasdair (1984). "Does Applied Ethics Rest on a Mistake?" Monist, Vol. 67, pp. 498-513.

Mackler, Aaron Leonard. Cases of Judgments in Ethical Reasoning: An Appraisal of Contemporary Casuistry and Holistic Model for the Mutual Support of Norms and Case Judgments (Diss., Georgetown U).

Macpherson-Smith, M. (1994). "Anchor and Course for the Modern Ship of Casuistry." Cambridge Quarterly Healthcare Ethics, Vol. 3, pp. 391-402.

Mahowald, Mary B. (1994). "Collaboration and Casuistry: A Peircean Pragmatic for the Clinical Setting." in Herman Parret, ed. Peirce and Value Theory (Amsterdam).

McCready, Amy R. (1992). "Milton's Casuistry: The Case of 'The Doctrine and Discipline of Divorce.' " Journal of Medieval and Renaissance Studies, Vol. 22, pp. 393-428.

Miles, Steven H. (1989). "The Abuse of Casuistry." JAMA, Vol. 262, pp. 961-962.

Miller, Richard B. (1989). "On Transplanting Human Fetal Tissue: Presumptive Duties and the Task of Casuistry." Journal of Medicine and Philosophy, Vol. 14, pp. 617-624.

Murray, Thomas H. (1994). "Medical Ethics, Moral Philosophy and Moral Tradition." in K.W.M. Fulford, ed. Medicine and Moral Reasoning (New York).

Murrary, Thomas H. (1993). "Moral Reasoning in Social Context." Journal of Social Issues, Vol. 49, pp. 185-199.

Odozor, Paulinus Ikechukwu (1989). Richard A. McCormick and Casuistry: Moral Decision-Making in Conflict Situations (M.A. Thesis, St. Michael's College).

Pack, Rolland W. (1988). Case Studies and Moral Conclustions: The Philosophical Use of Case Studies in Biomedical Ethics (Diss., Georgetown U).

Pascal, Blaise (1967). The Provincial Letters (London).

Peach, Lucinda Joy (1994). "Feminist Cautions About Casuistry." Policy Studies, Vol. 57, pp. 143-160.

Rudy, Kathy (1994). "Thinking Through the Ethics of Abortion." Theology Today, Vol. 51, pp. 235-249.

Seiden, Melvin (1990). Measure for Measure: Casuistry and Artistry (Washington).

Sichol, Marcia, S.H.C.J. (1992). "Women and the New Casuistry." Thought, Vol. 67, pp. 148-157.

Singer, Marcus G. (1980). "Is Ethics a Science: Ought it to Be?" Zygon, Vol. 15, pp. 29-42.

Smith, David H. (1991). "Stories, Values, and Patient Care Decisions." in Charles Conrad, ed. The Ethical Nexus: Values in Organizational Decision Making. (New Jersey).

Sobel, Jordan Howard (1985). "Everyone's Conforming to a Rule." Philosophical Studies, Vol. 48, pp. 375-387.

Spohn, William C. (1993). "The Magisterium and Morality." Theological Studies, Vol. 54, pp. 95-111.

Starr, G. (1971). Defoe and Casuistry (Princeton).

Strong, Carson (1988). "Justification in Ethics" in Baruch Brody, ed. Moral Theory and Moral Judgment in Medical Ethics (Dordrecht).

Tallmon, James Michael (1993). Casuistry and the Quest for Rhetorical Reason: Conceptualizing a Method of Shared Moral Inquiry (Diss., U of Washington).

Tallmon, James Michael (1994). "How Jonsen Really Views Casuistry: A Note on the Abuse of Father Wildes." Journal of Medicine and Philosophy, Vol. 19, pp. 103-113.

Taylor, Richard (1984). Good and Evil - A New Direction: A Foreceful Attack on the Rationalist Tradition in Ethics (Buffalo).

Thomasma, David C. (1994). "Clinical Ethics as Medical Hermeneutics." Theoretical Medicine, Vol. 15, pp. 93-111.

Tomlinson, Tom (1994). "Casuistry in Medical Ethics: Rehabilitated, or Repeat Offender?" Theoretical Medicine, Vol. 15, pp. 5-20.

Toulmin, Stephen (1982). "How Medicine Saved the Life of Ethics." Perspectives in Biology and Medicine, Vol. 25, pp. 736-750.

Toulmin, Stephen (1988). "The Recovery of Practical Philosophy." The American Scholar, Vol. 57, pp. 337-352.

Toulmin, Stephen (1981). "The Tyranny of Principles." Hastings Center Report, Vol. 11, pp. 31-39.

Van Der Steen, William J., and Bert Musschenga (1992). "The Issue of Generality in Ethics." Journal of Value Inquiry, Vol. 26, pp. 511-524.

Walton, Douglas N. (1990). "Courage, Relativism and Practical Reasoning." Philosophia, Vol. 20, pp. 227-240.

Warnick, Barbara. "The Abuse of Casuistry: A History of Moral Reasoning." Philosophy and Rhetoric, Vol. 24, pp. 76-80.

Watson, Robert N. (1992). "Measure for Measure: Casuistry and Artistry." Shakespeare Quarterly, Vol. 43, pp. 242-244.

Weinstein, Bruce David (1989). The Possibility of Ethical Expertise (Diss. Georgetown U).

Weston, Anthony (1984). "Drawing Lines: The Abortion Perplex and the Presuppositions of Applied Ethics." Monist, Vol. 67, pp. 589-604.

Wildes, Kevin Wm., S.J. (1990). "The Priesthood of Bioethics and the Return of Casuistry." Journal of Medicine and Philosophy, Vol. 18, pp. 33-49.

Wildes, Kevin Wm., S.J. (1993). The View for Somewhere: Moral Judgment in Bioethics (Diss. Rice U).

Winston, Morton (1990). "Ethics Committee Simulations." Teaching Philosophy, pp. 127-140.

Zacker, David J. (1991). Reflection and Particulars: Does Casuistry Offer Us Stable Beliefs About Ethics? (M.A. Thesis, Western Michigan U).

Zaner, Richard M. (1993). "Voices and Time: The Venture of Clinical Ethics." Journal of Medicine and Philosophy, Vol. 18, pp. 9-31.


Template:Portalparda:Kasuistisk ret de:Kasuistik fr:Casuistique pl:Kazuistyka sv:Kasuistik

LawGuru Legal Forms

Search by category
Popular Forms: Accounting, Affidavits, Assignments, Attorney Forms & Guides, Bankruptcy, Bill of Sale, Business, Canadian Forms, Collections, Confidentiality, Contracts, Copyright, Corporations, Credit, Declarations, Deeds, Divorce, Employment, Entertainment Law, Family & Consumer, Family Law, Government, Health Care, Homestead, Indemnity Agreements, Intellectual Property, Internet, Landlord & Tenant, Leases & Rentals, Letters, Limited Liability Co., Living Trusts, Name Change, Non-Compete, Non-Disclosure, Notices, Parental Permissions, Partnership, Power of Attorney, Promissory Notes, Real Estate, Receipts, Releases, Sale of Goods, Spanish Forms, Technology, Trusts, UCC Forms, Wills, more...
Personal tools
Toolbox