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Jason Morgan advocates justice without legislation.
We have largely forgotten that there is another way to pursue justice than by deciding what the answer to every problem is going to be ahead of time through legislation. Casuistry or case-centric jurisprudence is anti-legislation. It is the practice of taking each case as it comes, using judgment to discern the right outcome, while allowing plenty of room for mitigating or exacerbating circumstances. It is not a technique, but a state of mind. It involves taking a few steps back and thinking about what we see and hear with our own eyes and ears instead of trying to fit circumstances into the tight definitions in lawbooks. Judges who practice casuistry put their own intuition and, yes, judgment, ahead of what’s written down in laws compiled by people in faraway places.
Casuistry requires a major conceptual shift, from ‘classical’ to ‘quantum’ jurisprudence we might say. We are used to seeing court cases as equations where legal formulas are filled in with information and the results issue forth in ‘Guilty’ or ‘Innocent’ verdicts. However, casuistry sees cases in terms of relationships among people connected by a common injustice and requiring the careful, attentive, thoughtful, and imaginative application of fair judgment in order to right the wrong and restore all parties to good graces with one another as best as can be done. Under casuistry, justice is a work in progress, with a lot of gray mixed in with the black and white. There are no Newtonian certainties, only Heisenbergian approximations.
Aristotle sitting in judgement
Twenty-four centuries ago Aristotle saw that real justice couldn’t be just a question of making blanket declarations beforehand, calling these generalized utterances ‘laws’, and then shoehorning each case into whatever the laws happened to say.
The reason Aristotle was so skeptical of such generalised reasoning had a lot to do with rejecting the ideas of his equally famous teacher, Plato. Plato had tried to understand the common identity of specimens of a given category – why, for example, pears pretty much all look, taste and feel the same. He postulated that for each category there was a perfect ‘Form’ that existed in a realm beyond human sensation from which each imperfect real example gets its identity. Pears in our own world were imperfect facsimiles of the everlasting pear Form in the Heaven of Forms, Plato thought. There was likewise a Form for horses, cats, ships, tables, and everything else that we could see or hear or touch. Consequently, for Platonists, if you wanted to get at the deep truth of things you had to abstract away from the material universe. Aristotle rejected this prêt-a-porter metaphysical approach, and adopted a bottom-up, investigative way of thinking about the world instead.
One of the culminations of Aristotle’s non-Platonic thinking lay in the realm of ethics, or the way that people should act. In the Nicomachean Ethics, Aristotle argued that people do things because, ultimately, they want to be happy. The trouble is, there’s no Platonic Form of happiness. This is because there is no one thing that happiness is or which constitutes happiness. You have to figure it out as you go.
More generally, people are not born knowing what to do in every given situation, Aristotle taught. We have a natural momentum towards goodness, happiness, and truth, but we still have to steer, navigating all of the complex variety of daily living in order to come up with the best solutions to problems along the way. For Aristotle, this cultivable tendency towards right-acting was called virtue – a kind of habit of excellence that one could make bloom through mindful practice in a world of choices and consequences.
Aristotle had to work hard to explain this to his contemporaries, however, because Plato and many other philosophers had fallen under the spell of geometry. Smart people began to think that ethics could be worked out just like the area of a triangle or the radius of a cone. First you figure out the Form of what you see, then you figure out how to run the formulas, until you arrive at ‘justice’. Voilà!
What’s wrong with this is that people are much more complicated than polygons. They have messy lives. They don’t submit well to formulas. There is no hypotenuse of equity, no square root of justice. So if you want to do the right thing by someone who has been wronged, then you have to stop looking at injustice as something that can be worked out using an abacus. Not everything ethical fits into simple categories. This means you have to be a good listener – which means being a good casuist. You can’t get to justice by thinking like a geometer.
Locke & Henry II
Just as in Aristotle’s and Plato’s day, geometry exercises an undue influence on our own notions of justice. Although people don’t usually frame their legal arguments with express reference to Euclid or the theorems of Pythagoras, the end result is about the same: we see justice as a kind of formula, an equation, a proof. If we get the initial input right, then the right answers will inevitably follow. John Locke (1632-1704) even thought we could eventually arrive at an algebra of ethics.
It was not always so. In the Anglo-Saxon common law tradition, for example, justice was what we might now call a local commodity – you got it in your community from your acquaintances and peers, and not by applying odd, spell-like formulas out of dusty law books. As Arthur R. Hogue lays out in Origin of the Common Law (1986), law in medieval England was ‘the bond of civil society’. There was also a great diversity of courts, secular and ecclesiastical, and judges tended to make casuistic decisions that would benefit the community and the individual alike in accordance with custom.
Justice? © Federico de Cicco 2020. Please visit zumar7.com instagram.com/zumar7/
Then came centralisation. Political centralization was the death knell for casuistry. Beginning with King Henry II (1133-1189), England underwent, as Hogue says, a ‘political crisis’ which permanently determined the character of the legal system. Working from Ranulf de Glanvill’s Tractatus de Legibus et Consuetudinibus Regni Anglie (Treatise on the Laws and Customs of the Kingdom of England, c.1187), Henry II and his ministers and magistrates were able to act with increasingly absolute power as they devised procedures to collect taxes, raise military forces, keep records, police the countryside and punish those who disturbed ‘the king’s peace’. (Recall here Max Weber’s line about the modern state having a ‘monopoly of violence’.) “In the most remote counties of England”, Hogue writes, “royal judges, sheriffs, and commissioners drilled Englishmen of all classes in the procedures of the royal government and in the law of the land.” People lost freedom exactly as the central state grew in power. Gresham’s Law holds that bad money drives out good. Henry II’s Law, we might say, holds that centralised states drive out justice. Casuistry falls by the wayside as the administrative state insinuates itself into every aspect of our daily lives. The explosion of laws during and after King Henry II’s reign was not a coincidence. Centralization of power necessarily entails increased legislation.
The ballooning power of kings (and later, of prime ministers and presidents) led to a way of conceiving of people within a realm as individuals, rather than as members of an organic society. Community-based expectations of behaviour for oneself and others got repackaged as ‘natural rights’ – that is, powers inhering in the individual without regard to their community. Eventually, everyone became a private sovereign whose absolute prerogatives could be governed only by an even bigger sovereign, the actual King. The Chinese Legalist philosopher Han Feizi (279-233 BC), thought that humans were evil and needed to be manacled by law and punishment to keep them in line. Similarly, in Leviathan, the dour English political thinker Thomas Hobbes (1588-1679) posited the state as the ultimate arm-twister, to keep rebellious individuals in check. It seems the more the philosophers and the demagogues cried ‘freedom’, the more the old casuistic bulwarks got flooded over and the more the human person was occulted by the shadow of the state.
The political philosopher Michael Oakeshott (1901-1990) saw Hobbes’ contemporary, Francis Bacon (1561-1626), as having first articulated the view that community members were rights-bearing ‘citizens’ under the sway of the realm-bestriding Leviathan (the state). Once states could supersede custom and make up their own rules, casuistic justice was buried under an avalanche of centrally-issued parchment scribbled over with gibberish legalese.
Here’s an example of how it worked. Under the common law, courts in England had had what Oakeshott called ‘jurisdictio’, or the right to decide controversies as they arise. If you had a problem – if someone murdered your kinsman, or stole your cow, or broke your fence, or kidnapped your child – then you could go to the local magistrate and he would give you a decision, in accordance with custom, precedent, and circumstance, that he thought would right whatever wrong had been done. Here the law was stable, personalized, accretive, retrospective, and circumspect. It did not change to suit the convenience of the state. However, argued Oakeshott, in the new, centralized dispensation begun under Henry II, governments arrogated to themselves the power to supersede jurisdictio and make new law. This state-centric system is called the gubernaculum, and it is how states rule by law. As Oakeshott writes in Lectures in the History of Political Thought (1967):
“Nothing distinguishes a modern European state from a medieval political community (or, indeed, from any other historic polity) more than the freedom and confidence with which its government makes new law; the formality and exactness of the process in which law is made; and the very precise distinction between what is law and what is not law… The unique characteristic of a modern European state is to recognize the supremacy of the legislative act and to regard all other law as authoritative simply in virtue of its not having been changed or repealed by a legislative act.”
The consequences of this were profound, and mainly bad. One immediate example was slavery. In Law and Revolution: The Formation of the Western Legal Tradition (1983), Harold J. Berman argues that, while slavery existed in early medieval England, especially following the social upheavals of the Norman Conquest and the Crusades in the eleventh and twelfth centuries, by the 1300s peasants had become a part of manorial communities. They were serfs.
‘Serf’ may not be the occupation of choice for most of us today, but it was a sight better than being a chattel slave. But how did legal slavery become possible in the first place? Through the power of legislation. Under casuistry, slavery in England had been much harder to uphold. The humanity of the slave is obvious to most judges, and so slavery is liable to break up against the rocks of casuistry. Conversely, centralization is a process by which humanity gets wrung out of the law so that the state can reign unimpeded. From a legislative distance, chattel slaves, on estates, and later on plantations and in sugarcane fields, could be abstracted away to numbers, with only enough of their humanity retained so as to make the legal equations square up and even out. In other words, a human being in a courtroom on paper became a slave. Indeed, when jurisdictio is driven out by gubernaculum, all manner of inhumanities result. For example, Dred Scott was freed by a local magistrate in Missouri; then the centralized state sent him back to slavery.
Casuistry Now & Then
Casuistry is extraordinarily unpopular today, but when you stop to think about it this unpopularity is strange. We live in a time of great plurality, of multicultural profusion and globalized transnationality. We should be very comfortable with there being more than one way, as the saying goes, to skin a cat. Casuistry is the recognition that, on the page, the law may appear black on white, but in real life we are often adrift on a sea of gray. Bobbing here and there like flotsam and jetsam are clues as to what moral probity demands of us, and we have to both pay attention and want to act nobly, magnanimously, and equitably. Things are not always easy to understand, so casuistry takes our human limitations into account by making space for our equally human desire to do the right thing in the best way we can. Casuistry is judgment; and judgment, when we take our time and have courage, is one of the things we are able to do best. Casuistry should be a way of engaging with the world that never goes out of style.
In the background of all of this talk about judgment and circumstance, the figure of Immanuel Kant (1724-1804) looms large. Suffice it here to say that Kant was right when he argued in his Groundwork for the Metaphysics of Morals (1785) that we should treat people as ends, and not merely as means to ends. That is just what casuistry is about – treating people as ends in themselves. Kant was wrong, however, when he argued that all our moral decisions must bear the weight of the categorical imperative. The categorical imperative is Kant’s notion, that (to paraphrase) when we decide one thing in one way, we commit to everyone deciding the same thing in the same way in all suitably similar circumstances. It’s no coincidence that this sounds a bit like legislation. Indeed, following the categorical imperative is how we get a quarter of a million pages of United States Law Code, each page saying that things must be done in one given way for every conceivable situation. This is moral absolutism of a kind the world has surely never seen before.
Casuistry as the West understands it today came about as a reaction to just this kind of moral absolutism. In the seventeenth century, Dutch theologian Cornelius Jansen (1585-1638) introduced an element of intense absolutism into Catholic life. Like the Protestant Calvinists and the Chinese Legalists, the Jansenists thought that people were naturally depraved. They needed rules, and lots of them, to keep them in line. The Jansenists’ rivals in Catholicism were the Jesuits, who had experience as missionaries among other cultures, where discernment was of great value in determining which customs were and were not in keeping with the teachings of the Catholic Church. Then the Jesuits began applying this discernment in Europe. For a time, it seemed as though the Jesuits might temper the Jansenists’ legalising zeal. Soon, however, the Jesuits’ casuistry grew venal and corrupt. For example, when confessing their sins to a Jesuit priest, parishioners with the financial wherewithal to make big donations to the Jesuit order were given light or no penances, even for serious offences, while people of more modest means had to do the usual stringent atonements. Blaise Pascal (1623-1662), the French philosopher and mathematician, denounced the Jesuits for this. Casuistry has had a foul odor ever since. Even today, ‘casuistry’ is frequently mentioned in the same condemning breath as ‘Jesuitical’.
In recent decades, however, some philosophers and legal thinkers have begun arguing that casuistry deserves a second chance. In 1903, for instance, the ethicist G.E. Moore (1873-1958) spoke highly of it in his treatise Principia Ethica. Even then, casuistry remained mostly behind the veil of esoteric specialization until the 1970s and 80s, when bioethics presented new challenges to geometrical, Platonic, centralized legislation. Faced with diverse intractable questions – Who owns unfertilized ova? How long should a patient with no detectable brain activity be kept alive? Who should receive a donated heart, or kidney, or lung? – thinkers struggled for ways to know the right thing to do when there are no clear laws to follow.
In the late 1970s, philosopher Stephen Toulmin (1922-2009) and bioethicist Albert R. Jonsen (1931-) grappled with these kinds of questions as part of their work on the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research in the US. Their conclusion – especially Toulmin’s – was that the ‘mathematical’ approach to ethics had led to rigid formalisms which were antithetical to justice. They argued that what was needed was a return to circumstantial suppleness: a return to casuistry.
Casuistry is not without its detractors, to be sure. Some worry that backing off from legislation will open courts up to abuses – that judges will run wild if not kept on a short leash by the state. But it seems to me much more likely that politicians, not judges, will engage in abuses of legal power. Lobbyists write laws that legislatures rubber-stamp, and this can adversely affect millions – whereas a bad judge is necessarily much more restricted in his or her ability to cause harm. One bad ruling may unjustly bring ruin to a family. One bad law can sink a country. Others might say that casuistry attenuates the seriousness of crimes. But the question of justice is not only about what someone did, but also about why they did it and what is to be done now.
In a larger sense, the question is, who benefits from a monopoly on justice? Are courts set up to keep the people’s peace, or the president’s? Casuistry returns autonomy to hurting neighborhoods. Under casuistry, communities themselves deal with those accused of disturbing the community’s peace or of harming some of its members. If anything, local people, not politicians in Washington (or wherever your Capitol is), are more likely to understand the real costs of crime in your area. In his 1953 book The Quest for Community: A Study in the Ethics of Order and Freedom, the sociologist Robert Nisbet detailed how the centralized state undermined local communities. If Nisbet’s thesis is true, then the state is the last place we should look for ways to heal the communities that centralized legislation has helped undermine.
Wherever the rule of law has given way to the rule of laws, it may be time to give a second look at casuistry, the Aristotelian virtue of doing the right thing in the right way at the right time – case by case. Perhaps this is how we can get from legalism, to liberty and justice for all.
© Jason Morgan 2020
Jason Morgan is associate professor at Reitaku University in Japan.