Albert R Jonsen. Bioethics. Editor: Bruce Jennings, 4th Edition, Volume 2, Macmillan Reference USA, 2014.
Casuistry is a method that some moral philosophers and theologians use to analyze and, if possible, resolve a moral perplexity of a particular case by interpreting general moral rules in the light of the circumstances of the case. The term casuistry is derived from the Latin word meaning “event, occasion, occurrence” and, in later Latin, “case” (as in legal case). Critics of this style of moral discourse—then generally called cases of conscience—coined the term in the seventeenth century and judged that its practice led to unwarranted moral laxity. This entry relates the origins and development of casuistry in European culture, its decline, and its revival as a method of ethical analysis, particularly in bioethics.
Origins of Casuistry
The earliest discussions of morality in Greek philosophy reveal the tension between general moral norms and particular decisions. The Sophists of fifth-century Greece maintained that because no universal truths could be affirmed in moral matters, right and wrong depended entirely on the circumstances. Ethics consisted in the rhetorical ability to persuade persons about opportune action. Plato (C. 428-348 or 347 B.C.E.) devoted The Republic to a vigorous refutation of this thesis, placing moral certitude only in universal moral truths. Ethics consisted in transcending particularities and grasping permanent ideals from which right choices could be deduced. Aristotle (384-322 B.C.E.) proposed that in ethical deliberations, which deal with contingent matters, formal demonstration was not possible. Rather, plausible argument would support probable conclusions. Ethics belongs not to the realm of scientific knowledge but to the domain of practical wisdom, or phronesis. Phronesis is a knowledge of particular facts and is the “object of perception rather than of science” (Aristotle, Nicomachean Ethics VI. viii. 1142a). Criticism, interpretation, and amplification of these theses constitute much of the history of moral philosophy. The Aristotelian viewpoint, which places moral certitude in the domain of practical judgments about what ought to be done in the actual circumstances of a situation, is the remote philosophical ancestor of casuistry.
The Roman philosopher and statesman Marcus Tullius Cicero (106-43 B.C.E.) designed an approach to moral problems that would powerfully influence medieval and Renaissance authors of cases of conscience. Cicero, although a philosophical eclectic, inclined to Stoic thought in ethics. Drawing from the Stoics Panaetius (c. 180-109 B.C.E.) and Posidonius (C. 135-c. 51 B.C.E.) and inspired by the Roman passion for practicality, Cicero held that to be a virtuous person one must become “a good calculator of one’s duty in the circumstances, so that by adding and subtracting considerations, we may see where our duty lies” (On Duties I, 59). One did this adding and subtracting by offering and evaluating probable reasons. The primary moral problem was the continual conflict between duty and utility, a conflict resolved only by examining the circumstances of cases.
In On Duties, Cicero proposed a number of cases, some drawn from the Stoic philosophers and others from Roman history. He analyzed each case that represented an apparently insoluble conflict between duty and utility to show that by taking circumstances into account, one could discern what one ought to do to be morally correct. Cicero also espoused the Stoic doctrine of natural law and often referred to its overarching precepts in his analyses of cases, but the problem, he affirmed, was how to interpret these precepts in context. On Duties remained one of the most studied texts of antiquity and into the subsequent centuries. By its organization of material and its methods of reasoning, On Duties powerfully influenced the way morality was conceived and taught in the Greco-Roman world and thus sanctioned subsequent casuistry.
Whereas moral discourse moves between the broad generalizations of principle and the particular decisions made in specific circumstances, religions that are monotheistic and moral in nature face a particular problem in moving from the general to the particular. The three religions of “the book”—Judaism, Christianity, and Islam—have in common a scripture in which the word of God is recorded, that is, in which God speaks to believers in concrete and specific language. The divine message also contains imperatives that enjoin moral obligations, sometimes stated in broad terms and sometimes referring to specific forms of behavior. It becomes necessary for believers to understand how the broad general imperatives apply to the variety of moral questions, great and small, that arise in daily life, and to learn how specific commands expressed in the language and cultural setting of the past are to be followed in the circumstances of later times. Thus each religion of the book developed a moral teaching that begins with affirmations from the divine text, moves through traditional explanations of that text by saintly and scholarly interpreters, and comes finally to the task of bringing text and interpretation to bear on particular circumstances of time and place. Each of these religions therefore has developed a casuistry or manner of working at the task of concrete application. This entry describes the development of casuistry in European Christianity.
Christianity introduced a powerful and original morality into the Greco-Roman world. The thought of its founder, Jesus (c. 6 B.C.E.C. 30 C.E.), reflected the dedication of Jewish law to the sovereignty of God and refashioned it to include a demanding commitment to Jesus himself as Lord and to self-sacrifice for one’s neighbors, spelled out in strenuous, often paradoxical commands. The early disciples of Jesus, seeking to follow these commands, preached an ascetic repudiation of the ways of the world. This meant that the moderate virtues prized by the pagans among whom the early Christians lived were often deprecated and that the vices of pagan life, which even pagan authors often criticized, were reviled. The morality of the Hebrew scriptures and the Christian Gospels, which condemned many attitudes and practices common in pagan culture and demanded adherence to self-discipline and altruism, posed profound difficulties to believers. How were they to live in a world that held values so different from their own? How were the hard commandments of the Gospels to be carried out in daily life? These problems perplexed Paul of Tarsus (d. 62-68 C.E.), the most influential of Jesus’s early followers, whose efforts to answer them, especially in his First Letter to the Corinthians, adumbrated the work of later Christian casuists. In addition, early Christian thinkers were suspicious of the philosophical thought of the Greco-Roman world.
By the third century many Christian scholars had come to accept that Christian belief and pagan philosophy were compatible in important respects. The authors of the patristic era (second to sixth centuries) reflected on Christian moral problems with the help of Plato, Aristotle, and Cicero. Christian authors and teachers modified and incorporated the framework of virtues, natural law, and practical reasoning that these and other pagan authors elucidated. The Christian authors sought, as did their pagan mentors, to understand the nature of the moral life but were concerned above all with providing practical advice about how the faithful should live a Christian life in a non-Christian world. Many Christian authors used Cicero’s On Duties as a model for treatises on morality. Saint Ambrose of Milan (339-397), friend and teacher of the great Saint Augustine (354-430), also titled a book On Duties and, closely following Cicero, attempted to refashion the latter’s thoughts within the perspective of Christian faith.
Christian teaching does not merely require belief; it strongly stresses the importance of morally correct behavior. Although killing, deception, and adultery are condemned as sins and charity, self-denial, and honesty are commanded, questions inevitably arise about what sorts of behavior belong in these general categories. Early Christians were intensely aware that failure to follow the rigorous commandments of their faith separated them from God and from their fellow believers. The practice of confession of one’s sins before the community of believers and the imposition of penance that would reconcile the sinner to God and to the community became common in the early centuries. By the eighth century private confession to a priest, who had the ecclesiastical authority to absolve the repentant sinner from guilt, had been introduced. This practice of sacramental confession and penance enhanced the need for clear descriptions of the moral dimensions of various behaviors and of the ways various circumstances excused or aggravated the seriousness of those behaviors.
From the eighth to the twelfth centuries, educators of the clergy produced penitential books that presented systematic catalogs of sinful and virtuous actions under various typical circumstances, such as the killing of another out of revenge, in fear, or in ignorance. The motives, the consequences, and the social status of the agent were important considerations in evaluating the responsibility and seriousness of behavior. Appropriate penances were assigned in view of the gravity of the sin. These penitential volumes, the earliest examples of which came from the Irish and Welsh churches, became widespread throughout Europe.
In the course of four centuries, the content of the penitential volumes became more elaborate and the format more systematic. The first were collections of crudely described cases with simple distinctions elaborated with biblical or patristic quotations. Later examples incorporated advancing biblical and theological scholarship and, above all, the work of the canon lawyers. Since the rediscovery of Roman law in the eleventh century, canon lawyers had exercised increasing influence over the formulation of church law as it touched the organization and practices of Christian life. The work of Peter the Chanter (d. 1197), Alain of Lille (c. 1128-1202), and Thomas of Chobham (c. 1200) were filled with well-described cases of moral perplexity analyzed with reference to biblical texts, maxims from the fathers of the church, and the growing body of church law. These books were used not only to educate the parish priests but also to guide the ecclesiastical hierarchy in the formulation of policy and in judicial decision making. Some of these books were written to instruct laypersons on how to make proper confession and how to lead a good life.
During the twelfth through fourteenth centuries great theological scholars, such as Abelard (1079?-1144), Peter Lombard (c. 1095-1160), Albert the Great (c. 1200-1280), Thomas Aquinas (1225-1274), Duns Scotus (1266-1308), and William of Ockham (c. 1285-1349?) elaborated systematic treatises, or summae, in which they attempted to present the full range of Christian belief and to support it with rational argument. In doing so they placed the questions of morality within larger frameworks of interpretation and justification, drawing heavily on philosophers of antiquity. These treatises did not discuss cases, as did the penitential literature, but created theoretical foundations for the discussion of cases. They explored in great depth the relevance of scriptural admonitions, natural law, custom, and civil and canon law to moral decisions and carefully examined the relevance of principle, motive, and circumstances. These theologians, although not casuists, greatly influenced the next generations of casuists.
Casuistic Writings
Through the fourteenth and fifteenth centuries many books of cases of conscience were published. The Summa Angelica (1480) and the Summa Sylvestrina (1516) were the most famous. However, these works were staid, unimaginative, and formalistic; many authors simply plagiarized from more celebrated authors.
Casuistry properly speaking came into its own in the mid-sixteenth century. In 1556 a Spanish canonist, Martin Azpilcueta (1491-1586), published A Handbook for Confessors and Penitents, which revitalized the literature of cases of conscience. This book abandoned the practice of listing moral problems alphabetically and adopted a less frequently used device of organizing various sins under the commandments of the Decalogue. This system allowed for a more flexible and nuanced treatment and for comparison between various categories of moral behavior. Above all, it introduced the analysis of issues that moved from the simpler and more obvious (e.g., careless killing of an innocent bystander) toward the more complex (e.g., killing an apparent intruder in the darkness), a method that later casuists exploited as reasoning by paradigm and analogy. Azpilcueta’s style was widely copied. The Jesuit order, founded in 1534, was dedicated to the work of moral education and guidance of conscience, especially in sacramental confession. The Jesuits introduced Azpilcueta’s approach into their own training of priests as ministers of the sacrament of penance and published many volumes of cases of conscience. John Azor’s (1535-1603) Moral Instruction (1600) was the preeminent work. Jesuit casuistry was in general careful, scholarly, sensible, and practical. It was also comprehensive.
Whereas the Decalogue was used to organize materials, Jesuit casuistry treated the duties of various occupations, such as doctor and advocate; the obligations of princes and bishops; and the moral dimensions of diplomacy, economics, warfare, and exploration. Some scholars have suggested that the origins of modern economics, sociology, and political science lie in the work of the seventeenth-century casuists. Popes and kings sought their advice in matters that people in later centuries considered political or economic rather than moral. In the seventeenth century, however, the moral questions on a king’s or pope’s conscience often concerned politics and finance.
The seventeenth-century casuists not only analyzed and resolved complex cases but also elaborated on speculative positions. They wrote treatises on topics such as justice, usually as prolegomena to their analyses of cases of government and trade. Among the central speculative questions was that of the degree of moral certitude required to act in good conscience, that is, how sure a person must be that a casuistic resolution of a moral problem is the correct one before acting on it. A vigorous intellectual debate on this question took place in the last half of the seventeenth century between the Jesuits and their theological rivals, the Dominicans, and among the Jesuits themselves. From that debate the position of the leading Jesuit theologians emerged as dominant. That position, called probabilism, maintained that a person was entitled to act in good conscience if there were probable arguments in favor of the choice. Probable arguments are those supported by solidly reasoned opinion and defended by respected authors. Probabilism, though defended with elegant argument and sanctioned by ecclesiastical authority, remained a contentious issue and led to the tarnishing of the casuists’ reputation in the seventeenth century. Many critics accused them of laxism, that is, the ability to any probable argument to justify their preferences.
The Jesuits were not the only authors of casuistry. Many other Catholic theologians were so engaged. Anglican divines produced clear and sensible books of casuistry, and because most works of classical casuistry have not been translated from their original Latin, Anglican casuistic books offer the best access to casuistry for English readers (Perkins 1970). Lutherans were not well disposed toward casuistic analysis. Martin Luther (1483-1546) had cast into the flames the Summa Angelica, calling it “Summa Diabólica.” Nevertheless, prominent Lutheran theologians, such as Andreas Osiander (1498-1552), wrote casuistic treatises for guidance of pastors and the faithful. Still, the Jesuits attained the reputation of being the premier casuists. Because they were deeply involved in the religious and secular politics of the era, the Jesuits won enemies on every side, and their casuistry often seemed to serve their own interests rather than the good conscience of their penitents. In particular, the genius mathematician Blaise Pascal (1623-1662) was distressed by the Jesuits’ opposition to Jansenism, a particularly rigorist Catholic theology that he favored, and at the urging of other Jansenists, he set out to destroy the Jesuits’ anti-Jansenist arguments.
Pascal’s The Provincial Letters (1967 [1656]) is a brilliant and wittily written refutation of the Jesuit arguments against Jansenist theology and in particular of the casuistry that Pascal claimed made a mockery of Christian moral beliefs. Pascal gave numerous examples of Jesuit resolution of cases of conscience and found them tainted by a probabilism that bred moral laxity, intellectual sophistry, and disguised heresy. Even though Pascal took cases out of context and chose only those that suited his polemical purposes, his diatribe became immensely popular. At best, it can be said that his critique demolished not casuistry itself but the lax casuistry that was counted reprehensible even by the Jesuits whom he accused. It was not only Pascal’s popular book that tarnished casuistry’s reputation. Certain casuists took the skill of case analysis to an extreme. Almost any argument could be presented plausibly, and fine distinctions could be drawn to make, as Plato said of the Sophists, “the worse appear the better.”
Casuistry and sophistry became invidious synonyms, as did casuistry and Jesuitry. In the hands of other authors, casuistic argument became legalistic in tone and content, promoting a morality of observance rather than of conscience. Finally, casuistry was falling out of step with the prevailing intellectual progress. The interest in intellectual systems, seen in the writings of Isaac Newton (1642-1727), Gottfried Wilhelm Leibniz (1646-1716), Baruch Spinoza (1632-1677), and Hugo Grotius (1583-1645), made the casuists’ interest in particular cases appear disorderly and without solid foundation. By the end of the seventeenth century casuistry was discredited in the European intellectual world. The word casuistry was invented as a term of abuse (earlier the word casista was used merely to describe a scholar who presented cases of conscience). In An Historical and Critical Dictionary (1697), Pierre Bayle (1647-1706) defined casuistry as the “art of quibbling with God.” At the close of the eighteenth century Immanuel Kant (1724-1804), who was familiar with traditional casuistry as a way of teaching ethics, found the only interesting question to be how to transform the limited and probable maxims of moral discourse into categorical certitude.
Casuistic writing continued through the eighteenth and nineteenth centuries within the Roman Catholic tradition, particularly in the education of the clergy, but it was a desiccated casuistry, wary of innovative solutions and bound by ecclesiastical pronouncements on moral matters. The Casus Conscientiae in Praecipuas Quaestiones Theologiae Moralis (1862) by the French Jesuit Jean Pierre Gury (1801-1866) was representative of the fading tradition. A journal titled the Casuist published for American Catholic clergy (1906-1917), shows the tradition at its nadir. Still, casuistry continued to serve the practice of sacramental penance for which it had been created. Outside this tradition, remnants of casuistry lingered in the teaching of ethics. The textbooks of the time included fragments of Aristotle and Cicero and many of the classical cases loosely grouped around virtues and duties. In 1870, revolted by the untidy and incoherent presentations of these texts, Henry Sidgwick (1838-1900), professor of casuistic divinity at Cambridge University (he had his chair renamed moral philosophy), undertook to construct a systematic presentation of an ethical theory, utilitarianism, in which tenets were tightly argued, inconsistencies rectified, and opponents refuted. The progress of moral philosophy from Sidgwick’s time until the early twenty-first century has been toward greater articulation of theory and away from analysis of cases of conscience.
The Practical Need for Casuistry
After the late nineteenth century casuistry almost disappeared from the formal academic disciplines that study moral discourse. However, in the 1960s a number of important moral questions began to trouble the American conscience, and moral philosophers were spurred to attend to the practical application of their discipline. The war in Vietnam required many to examine their consciences concerning support of and participation in what they judged an immoral war. At the same time, the civil rights movement stimulated consciences concerning discrimination and racial injustice. The analytic moral philosophy current in academic circles had little advice to offer.
The emerging interest in the ethics of medical and health care opened vistas for a new casuistry. Medical care is about cases: the illness and the treatment of particular persons with particular diseases. Philosophers and theologians who engaged in this work had initially tried to bring the standard ethical theories to the analysis of medical problems, but they found themselves discussing cases, not theories, and felt the need for an approach that would stay closer to the particulars of the case under discussion than did the standard theories. Above all, they realized that cases were being discussed not merely to elucidate the meaning of concepts but also to arrive at a resolution. Physicians, nurses, and patients were interested in what moral philosophy had ignored: answers to practical moral perplexity. By the late 1970s talk of case method had become common in bioethics. At the same time, ethical issues in business, government, and journalism seemed to call for study of individual cases rather than flights into ethical theory. Also influential moral philosophers were beginning to criticize the dominance of moral theory in practical ethics and to call for approaches that were more concrete than speculative.
Albert R. Jonsen and Stephen Toulmin published The Abuse of Casuistry: A History of Moral Reasoning in 1988. Aware that many were interested in inventing a case method for ethics, they hoped to show that such a method had been invented long ago and that, although discredited and seemingly outmoded, classical casuistry had much to offer modern ethicists. Casuistry, invisible to the scholarly world for many decades, had to be explored if a case method for ethics was to be re-created. Jonsen and Toulmin attempt to restore casuistry to intellectual respectability. After presenting a historical survey of the rise and fall of casuistry, they contrast casuistry with current approaches to moral philosophy and define it as follows:
The analysis of moral issues, using procedures of reasoning based on paradigms and analogies, leading to the formulation of expert opinion about the existence and stringency of particular moral obligations, framed in terms of rules and maxims that are general but not universal or invariable, since they hold good with certainty only in the typical conditions of the agent and circumstances of the case. (Jonson and Toulmin 1998, 257)
Methodology
The term methodology may be too formal a word to describe how casuistry works. The casuists of the past left almost no elaborated explanation of their way of working. The casuists of the present, pressed by their critics based in moral philosophy, are still asking themselves questions about methodology. Still, certain characteristics of the casuistic approach are of note. These characteristics have their origins in the classical discipline of rhetoric rather than in philosophy as such. The historical casuists had, like all educated persons of their time, been educated thoroughly in rhetoric. Aristotle and Cicero, the authors from whom they learned rhetoric, also taught them ethics.
Classical rhetoric was defined as having a moral purpose: the persuasion of persons toward right and just action. The classical books of rhetoric, because they were so rich in examples of moral behavior, were often used as texts in ethics. In the centuries during which casuistry flourished, moral philosophy was not a clearly defined discipline. Thus it is not surprising to find the historical casuists implicitly using the techniques of rhetoric in their analysis of cases of conscience. Both rhetoric and casuistry had morally correct attitudes and action as their ultimate goal.
Two characteristics of rhetorical technique are particularly important for casuistry: topics and the comparison of paradigm and analogy. Rhetoricians taught that discourse in general could be divided into a set of common ideas, such as causality and temporal sequence, which they called topics. Each of these topics had sets of definitions and forms of argumentation that were invariant. Each special realm of discourse, such as discourse about politics, art, or economics, also has its own set of special topics, the features of the field that must be understood and discussed if an adequate argument is to be made about what should be done. For example, discourse about a political matter is designed against a background of constant features of politics, such as authority, the common good, and the voice of the people. A casuistic approach to an ethical problem requires that the field of discourse be analyzed to designate the invariant features. For example, scholars have suggested that the topics of clinical ethics are medical indications, patient preferences, quality of life, and contextual features, such as costs of care and allocation of resources (Jonsen, Siegler, and Winslade 2010). Each of these topics has certain definitions, maxims, and arguments that must be taken into account in discussion of any case. The particular circumstances, such as time, place, personal characteristics, and various behaviors, that are the details of any case are viewed in the light of these topics.
An intrinsic feature of the topics is the relevance of certain general statements about moral behavior usually designated as principles, rules, or maxims. These general statements usually either formulate certain consistent habits of behavior, such as virtues, or direct the performance of certain kinds of action. A principle may be broadly stated, such as “preserve and protect human life,” or be more particular in scope, such as “benefit patients and do them no harm.” Stated in the topics, the principles, rules, and maxims remain general and await the context of circumstances to make a case.
Once the particular case is described by its circumstances and topics, casuistic analysis seeks to place this case into the setting of similar cases. The classical casuists were accustomed to lining up cases of similar sorts. For example, they aligned cases describing various sorts of homicide in an order that would reveal the similarities and differences between cases. Through this process the casuist was able to identify cases in which the moral principles and maxims appeared to lead to an unambiguous resolution. Thus the prohibition against killing another human being seemed most obviously to hold if the circumstances described a vicious, unprovoked attack on an unoffending person. The prohibition would allow an exception if the circumstances described a killing that resulted from that unoffending person’s self-defense against a lethal attack.
The technique of lining up cases rather than seeing them in isolation is the essence of casuistic analysis. Some authors call it the technique of paradigm analogy. The paradigm case is the case in which circumstances allow moral maxims and principles to be seen as unambiguously relevant to the resolution of the case. The analogies are the cases in which particular circumstances justify exceptions and qualifications of the moral principles or the invocation of a different principle. A high degree of assurance, or moral certitude, pertains to the resolution of paradigm cases, whereas varying degrees of moral probability, or probabilism, attach to the resolution of analogous cases.
Finally, the resolution of each case depends on what Aristotle called phronesis, or moral wisdom. Phronesis is the perception of an experienced and prudent person that in these circumstances and in light of these maxims one of several options is the best possible moral choice. As one commentator on modern casuistry has written, “for casuistry, moral truth resides in the details. … [T]he meaning and scope of moral principles is determined contextually through the interpretation of factual situations in relation to paradigm cases” (Arras 1991, 37).
Bioethics is the most prominent field in which casuistry has been reintroduced as a method for ethical analysis. This is not surprising, because a strong interest of bioethicists is the clinical care of patients, and many cases that came to the attention of bioethicists involved life and death decisions arising from the use of new medical technologies. Cases about whether the use of life-support technologies should or should not be continued for particular patients lend themselves to casuistic analysis. The differing circumstances of individual patients, the topics (the significant categories into which a medical-ethical decision can be factored), and certain general principles (such as “do no harm” and “respect the patient’s informed choices”) are each in their own way crucial to the resolution of any case. Placing the case in a lineup of paradigm and analogy, from the most obvious (in which the patient is dead by brain criteria or continued care is manifestly futile) to the problematic (in which diminished quality of life or unclear preferences are at issue), allows for discretionary judgment between cases (Jonsen 1991).
What has been called clinical ethics is, consciously or unconsciously, the casuistry of contemporary bioethics. Casuistry, then, keeps moral reflection close to cases. Neither classical nor modern casuistry repudiates principles. Casuistry is not merely another name for situationism or contextualism. Rather, principles are seen to be relevant to cases in varying degrees. In some cases, principles will rule unequivocally; in others, exceptions and qualifiers will be appropriate. Modern casuists dislike the description of casuistry as applied ethics, because they explicitly repudiate the notion that an ethical theory must be elaborated and then applied to the circumstances of the case. Still, the relationship between cases and ethical theory is unclear and poses the principal speculative problem that casuists and moral philosophers must ponder, just as the historical casuists pondered the problem of the certitude of practical judgment.
On the one hand, casuistry is not simply applied ethical theory; on the other, it is not simply immersion in the factual circumstances of cases, which would reduce it to situationism. Casuistry is not tied to any single theory of ethics but fits in with selected elements of multiple theories. For example, a casuistic argument might draw on utilitarian, deontological, and contractual justifications in a single case. The designation of topics and the selection of paradigms also have theoretical presuppositions. The normative nature of principles and maxims, which one must clarify to specify the obligatory nature of casuistic resolutions, requires reference to theory.
Casuistry is not theory free but is rather, as John D. Arras (1991, 41) suggests, “theory modest.” Theories for contemporary casuistry are not mutually exclusive a priori foundations for practical ethical discourse but are limited and complementary perspectives that illuminate practical judgment. Much work remains to be done on the relationship between theory and practical judgment. As suits its style through its history, casuistry can be used to grapple effectively with difficult cases even though speculative and theoretical questions about its methods and presuppositions still require answers.