On Casuistry

https://philosophynow.org/issues/141/On_Casuistry

by smollett • 6 years ago

26 49 6 years ago

philosophynow.org

techbio• 6 years ago

Merriam-Webster puts the two definitions in the other order, but clearly this is a contentious terrain:

https://www.dictionary.com/browse/casuistry

throw0101a3• 6 years ago

Definition (2) was the original one, and the one that is at the top:

* [1] https://en.wikipedia.org/wiki/Casuistry

Definition (1) is what the critics of the Jesuits applied to the technique during the 1600s, and what seems to have been carried forward in the general use of the word.

This is/was a pretty good overview of the technique through ages:

* https://www.ucpress.edu/book/9780520069602/the-abuse-of-casu...

* https://www.goodreads.com/en/book/show/954645.The_Abuse_of_C...

Old review:

* https://www.journals.uchicago.edu/doi/10.1086/293127

patjenk• 6 years ago

Let me abuse pythonic values:

IMHO, minimum sentencing requirements and a rigid adherence to stare decisis is harmful.[1]

On the other hand, it is helpful to have a reasonable expectation for how things are going to turn out.[2]

I don't have the time to compare and contrast "casuistry" with legal realism, but my hunch is it would end up with the same result: judges figure out how they want to rule and then pick and choose what law to use to get there.

[1] PEP 8 (Quoting Ralph Waldo Emerson), "A Foolish Consistency is the Hobgoblin of Little Minds".

[2] PEP 20, "There should be one-- and preferably only one --obvious way to do it."

chmod6002• 6 years ago

It's easier to get people to agree to a process than a result, so processes make it a lot easier for people to work together.

The processes are imperfect and often take on a life of their own, but still tend to be respected, and are generally improved when the outcomes start getting too far from the spirit of fairness.

Transparent processes which involve specific laws are much easier to respect than opaque "wise elder chooses" processes. Especially when there are many wise elders who might have different opinions.

User232• 6 years ago

Ah yes, the classic DKP vs Loot Council dispute.

_jahh• 6 years ago

this is such an important point. A corollary that those who control the process in many ways can control or at least massage the outcome (cf. mitch mcconnell)

chmod6002• 6 years ago

The normal way to change the process is by changing the law. It's normally used to improve the process when the process produces too many bad outcomes.

Of course, making law also requires a process, which we should not expect to be perfect. And that process has its own process for being changed, and so on.

Would you run a startup this way? Of course not. But stable, transparent laws are a feature, not a bug, when it comes to things like banking.

voldacar4• 6 years ago

Under casuistry, communities themselves deal with those accused of disturbing the community’s peace or of harming some of its members

To think that this turns out well displays either staggering ignorance or the naïvete of an infant. This is how you get lynchings, folks.

dbspin• 6 years ago

Well, the original meaning of casuistry is "the use of clever but unsound reasoning, especially in relation to moral questions; sophistry", which seems apt to this article.

We have another name for what the article is describing, vigilantism.

"Under casuistry, communities themselves deal with those accused of disturbing the community’s peace or of harming some of its members."

I can think of few things more terrifying than a community seeking to impose 'justice' emboldened by the absence of law.

voldacar4• 6 years ago

Well, the original meaning of casuistry is "the use of clever but unsound reasoning, especially in relation to moral questions; sophistry", which seems apt to this article.

Yeah very true. Before I clicked it I thought it would be about something like scholasticism, angels dancing on the head of a pin etc, but really the article itself was the casuistry all along. Kind of funny.

We have another name for what the article is describing, vigilantism.

Vigilantism is essentially a meaner word of describing what the article describes in weirdly positive language. Russell conjugation and all that. Your vigilantism is my case-based community justice!

pdonis17• 6 years ago

I can think of few things more terrifying than a community seeking to impose 'justice' emboldened by the absence of law.

I can think of few things more terrifying than "law" being imposed on citizens by legislators and bureaucrats who themselves have no skin in the game and suffer no consequences if the laws they impose are bad. We have another name for this too: tyranny.

throw0101a3• 6 years ago

Well, the original meaning of casuistry is "the use of clever but unsound reasoning, especially in relation to moral questions; sophistry", which seems apt to this article.

That is not the original meaning of casuistry. It is the meaning given to the word by casuistry's critics, or rather probably the critics of the Jesuits, as they used the technique a lot in the past.

A 'fuller' defintion:

Casuistry (/ˈkæzjuɪstri/) is a process of reasoning that seeks to resolve moral problems by extracting or extending theoretical rules from a particular case, and reapplying those rules to new instances.[1] This method occurs in applied ethics and jurisprudence. The term is also commonly used as a pejorative to criticize the use of clever but unsound reasoning, especially in relation to moral questions (as in sophistry).[2] The word casuistry derives from the Latin noun casus ("case" or "occurrence").

[…]

Certain kinds of casuistry were criticized by early Protestant theologians, because it was used in order to justify many of the abuses that they sought to reform. It was famously attacked by the Catholic and Jansenist philosopher Pascal, during the formulary controversy against the Jesuits, in his Provincial Letters as the use of rhetorics to justify moral laxity, which became identified by the public with Jesuitism; hence the everyday use of the term to mean complex and sophistic reasoning to justify moral laxity.[14] By the mid-18th century, "casuistry" had become a synonym for specious moral reasoning.[15] However, Puritans were known for their own development of casuistry.[citation needed]

* https://en.wikipedia.org/wiki/Casuistry

This is/was a pretty good overview of the technique through ages:

* https://www.ucpress.edu/book/9780520069602/the-abuse-of-casu...

* https://www.goodreads.com/en/book/show/954645.The_Abuse_of_C...

Old review:

* https://www.journals.uchicago.edu/doi/10.1086/293127

pdonis17• 6 years ago

To think that this turns out well displays either staggering ignorance or the naïvete of an infant.

Unfortunately, so does thinking that the alternative, trying to have governments spell out everything in advance and dictate outcomes from the top down without being able to take into account the circumstances of individual cases, turns out well.

The unpleasant truth is that if you live in a community whose members are not good people, you won't have good outcomes, no matter what kind of system you design.

bilbo0s6• 6 years ago

The unpleasant truth is that if you live in a community whose members are not good people, you won't have good outcomes

Again, the quandary is that if you live in a community whose members are "good" people, you also won't have good outcomes. That's the nature of people. They are not "bad" or "good". They are just humans. Their actions are sometimes "bad", sometimes "good", but rarely are their actions consistently the one or the other. That's just the nature of being human. In fact, it's the entire reason we talk about "justice" in the first place.

emmelaich2• 6 years ago

It's also how you get mercy.

Non-local justice can get you genocide.

bilbo0s6• 6 years ago

Non-local justice can get you genocide.

As can local justice. Those too anxious to deal out their own interpretation of "justice" are generally deadly whether they live on the other side of a continent, or next door.

atty• 6 years ago

I think one thing that’s very important is that the judicial system needs to be perceived as somewhat “fair” in that the punishment should fit the crime, AND that factors such as race, status, wealth, etc should not bias the outcome. As someone living in the US, it’s quite obvious our system has a lot to be desired in this area, especially when comparing outcomes amongst different ethnicities or wealth classes. But there is an ideal we reach for that our rules should treat every individual equally regardless of their place in life. Giving judges and juries even more latitude than they have already would completely shatter that.

I’d also point out that, given historical context for such methods, anyone giving strong support to this sort of “justice” system really does need to hear the quote that didn’t really come from Einstein :) “Insanity is doing the same thing over and over again and expecting different results.”

pdonis17• 6 years ago

there is an ideal we reach for that our rules should treat every individual equally regardless of their place in life. Giving judges and juries even more latitude than they have already would completely shatter that.

Such a claim might be valid for crimes such as murder, where we would indeed expect sentencing to fit the crime and not to be adjusted for certain individuals because of factors irrelevant to the crime.

But most cases aren't like that. Most cases involve civil disputes between parties based on non-repeatable individual circumstances that don't lend themselves to one-size-fits-all, bright-line rules the way criminal prosecutions usually do. In cases like that, if there's going to be fairness at all, it has to involve judges and juries exercising non-repeatable individual judgment based on the non-repeatable individual circumstances of the case. Yes, there will be legal principles involved that could apply to many cases, but there will always be unique aspects to the facts of an individual case that can only be assessed by human judgment.

eyelidlessness2• 6 years ago

“Most” is perhaps an expression of your experience. The actual most that objectively happens is such routine banal minor infraction enforcement and intrusive stops that affect a minority of the population that it’s understandable that you can’t see it or maybe even quantify it but it’s constant and it affects “case based” judgement severely. Many people under this kind of jurisdiction are already facing potential lifetime sentences before they’re adults.

TimTheTinker5• 6 years ago

Much of the discussion, both in the article and in the comments, seems to hinge on having a good definition of legal justice. May I suggest the following: "Legal justice occurs when all individual persons are treated equally and fairly under the law, and when no person is allowed to wrongfully take advantage of another."

As others have mentioned, I think this philosophy's weakness is that it leads to the very opposite of legal justice. There ought to be an objective legal standard that doesn't change based on who appears on the docket, the judge's unconscious bias/prejudice, how the judge is feeling about the case, his/her sense of how society is faring, or what he/she had for lunch. That's why legislators write law and judges interpret law, and why "legislating from the bench" is an aspersion and not something to which good judges aspire.

Legal subjectivism is just a big invitation to injustice -- which indeed can and does happen when the judge and legislator are the same person. (Hopefully he/she is not also the executioner.)

pdonis17• 6 years ago

There ought to be an objective legal standard

There can't be, because there is irremovable subjectivity in your definition of legal justice: "equally and fairly" are subjective, and so is "wrongfully take advantage". There is no way to write an objective rule that will handle every case. You have to apply human judgment to each individual case, and human judgment will always be subjective. Written laws attempt to set down objective rules, but such attempts will never completely succeed.

TimTheTinker5• 6 years ago

One doesn’t need to invoke platonic forms to assert that equality and fairness do exist as objective moral values and duties.

I agree that applying them in particular cases is inescapably subjective since judges are subject to human limitations. But in doing so, one ought to strive for objectivity as much as possible.

A good ruling is good insofar as it was able to preserve, despite the judge’s human limitations, fidelity to the law and to legal justice.

bluetomcat• 6 years ago

Casuistic judgement is better able to consider the moral and ethical background of a case, without trying to associate it with any written legislation. Laws can sometimes be crossed while still having a high moral standard accepted by the society. Conversely, having low morals is not punished by the law most of the time. Good moral dictates the actions of people at a much finer level than what any law can regulate.

User232• 6 years ago

Any discussion of philosophical casuistry should include the Jesuits' abuse of the technique[1]. They basically made it a synonym for deceptive argument. Put another way, it's an excellent technique for picking an outcome and then arguing to it. Great when you want to please your wealthy donors, not so great if you care about justice.

[1] https://en.wikipedia.org/wiki/Casuistry#History

throw0101a3• 6 years ago

A fuller and more balanced examination of the technique from antiquity to the 1600s (where it got labelled as being "bad") to the modern era:

* https://www.ucpress.edu/book/9780520069602/the-abuse-of-casu...

* https://www.goodreads.com/en/book/show/954645.The_Abuse_of_C...

Old review:

* https://www.journals.uchicago.edu/doi/10.1086/293127

eyelidlessness2• 6 years ago

The fact that this article is about “justice” based on “case” and the word “bias” doesn’t appear in the article is a pretty good indication that whatever navel gazing is below the fold is not fit for real world application.

I understand it’s on a philosophy site, but it sets out a pretty bold stance from the outset that is amply contradicted by real case-based law that has been established specifically because bias has repeatedly, systematically poisoned justice.

On Casuistry

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