Casuistry is a specific method of doing ethics that relies on the analysis of individual cases, exploring them in relation to paradigm cases and broad principles. Casuistry has had a varied history of acceptance, ranging from broad and popular use during the fifteenth to the seventeenth centuries, to being scorned as sophistry and moral relativism from the eighteenth century until quite recently. A resurgence of interest in casuistry has been sparked, in part, by the similarity of method and usefulness to certain strongly rooted fields in contemporary society, primarily medicine and law.
The historical roots of casuistry can be found in ancient Rome and Greece. Cicero, the great rhetorician, described early casuist methodology in his work, On Duty (106-43 BCE). In it he states that “we need to consider ‘what is most needful in each individual case,’ … and that .different circumstances should be carefully scrutinized in every instance.’” (David Jonsen, The Abuse of Casuistry, 1988, p. 10). In On Duty, he explores this proposal in cases that he presents where “conflicts of duty appear to arise.”
Prior to Cicero we see a more abstract struggle occurring between the ideas of Plato, the Sophists and Aristotle. According to Jonsen (The Abuse of Casuistry, 1988), Plato argued against the Sophists’ belief that each situation needed to be examined de novo on its own merits, in its unique context. Plato disagreed, believing that moral knowledge was a “sub-species of formally demonstrable, or ‘geometrical,’ knowledge” (p. 62), treating ethics much more like a science than an art. In doing so, he depends on the existence of universal principles by which all situations can be judged, based on a timeless and unchangeable vision of the Good.
Aristotle departed from his teacher on this point, believing that
agents are compelled at every step to think out for themselves what the circumstances demand, just as happens in the arts of medicine and navigation … Prudence is not concerned with universals only; it must also take cognizance of particulars, because it is concerned with conduct, and conduct has its sphere in particular circumstances. (Jonsen, “Causistry”, Methods in Medical Ethics, 2001, p. 104).
Here we can see that Aristotle takes a more flexible approach to exploring ethical issues than does Plato. Rather than looking to universal principles that apply in all circumstances, Aristotle points out that every situation has a unique particularity that requires focused attention and creative application of the human faculties.
In this debate between Plato and Aristotle, we see the tension between episteme, a scientific form of knowledge, and phronesis, practical reasoning or prudence. We see a similar tension through the history of ethics and philosophy, swinging to the side of Plato in Kant, who also proposed a universalizable, immutable system of principles that reigned supreme in every situation, then swinging to the side of Aristotle in Aquinas and Hegel, who proposed ideas and ethics that were context dependent and required practical reasoning to discern the best course of action. The longevity of both of these general approaches evidences a powerful insight into reality, even though they may seem at some level contradictory. The Aristotelian emphasis on prudence and particularity has generated a long history, including our current topic, casuistry.
After Aristotle and Cicero, the next major move of casuists occurred in the writers of the Penitentials beginning in the sixth century. These writings were attempts by leaders of the church at that time to create a series of paradigm cases by which local clergy could offer penance to the parishioners who came to them to confess. Similarly, the church members could use such cases to think about and judge their own actions, helping them decide what to do in various circumstances. Whereas the early church had a more binary view of sin and faithfulness, the Penitentials exhibit an understanding that some sins were more serious than others and should be treated with different levels of penance and judgment. The seriousness of the various types of acts were judged by situational features, such that, “the priest shall [also] make a distinction for the character of the sins or of the men – under compulsion or voluntary; the time and place, and so on”. These situations, which may not fall under a discrete rule on close inspection, required prudence and practical reason in each circumstance and the process of discernment was aided by the paradigm cases that were developed at this time.
Another nexus for casuistry occurred during the sixteenth to seventeenth centuries. This is the era that Jonsen calls “High Casuistry”, in which casuistry saw a concerted revival among the Jesuits, an order of Catholics who served both Church and State with an impressive legacy. The Jesuits were important during this time period, acting as a link between the powerful religious presence on the one hand, and secularity on the other. Jonsen states that the Jesuits “were the first fully ‘worldly’ religious community, bound by the traditional vows, but mandated to work among secular persons in secular institutions” (Jonsen, 1988, p. 147). Because of this unique position, the Jesuits were faced with problems that could not as easily be brought under classical church Law as had many previous efforts at religious irruptions into secular life, which often were aimed at converting the secular to the sacred, not working within the secular. Thus we see the usefulness of casuistry to this order, who relied on the flexibility of a case-sensitive approach and the use of paradigm cases to help them sort through the complexities of their interdisciplinary position.
The Jesuits found an enemy in Pascal, who laid against casuistry the condemnations found in many opponents of the method: laxism, situationism and moral relativism. Similar to Plato’s disdain of the Sophists, Pascal argued that the casuists had no solid moral base, but created a series of possible solutions to moral problems that could be arbitrarily picked by the whim of the chooser. Pascal believed that laxity developed in casuists who sought “‘probable’ opinions on every side of a difficult case” and that “the method of casuistry came to be seen as a source of excuse-making." His strong denunciation and rationale sound not dissimilar to critiques heard today against ethical systems that do not follow a Platonic system of moral absolutes: “Let the casuist consider before God how shameful and pernicious for the Church is the moral teaching they spread far and wide; how scandalous and excessive the moral license they have introduced” (Jonsen, 1988, p. 238).
Jonsen (Vaux, “Casuistry, Situationism, and Laxism”, Joseph Fletcher: Memoir of an Ex-Radical, Reminiscence and Reappraisal, 1993) makes the case that this attack is not necessarily credible. He distinguishes between the categories of casuistry, situationism, laxism and moral relativism. He first separates laxism as a judgment made about the situation where moral principles are ignored, but it is in itself not a system of ethical discourse. Situationism, on the other hand, is a developed system of deciding moral problems, based on examining each individual situation. Such a method can be found in Joseph Fletcher’s book, Situation Ethics. While this sounds similar to casuistry, the difference is that situationism, according to Jonsen, does not use paradigm cases or generalized principles as norms to resolve a dilemma. Instead, situationism
consists in the readiness to make an exception of one’s own situation from the norms that usually or generally govern the situation. In casuistry, the question was, “What are the rational criteria that should be observed when proposing a shift of maxims within the taxonomy of paradigm and analogy?” For the situationist, the question is, “What motive and what consequences license me to exempt myself from the usually or generally right behavior?” (p. 19).
Jonsen further claims that Fletcher sees situationism as somewhat related to casuistry, to the effect that it may be a “casuistry obedient to love”, or “neocasuistry” (p. 11), but that Fletcher remains critical of casuistry because it is still tied to a system of rules in that it is a moral system that involves making “rules about how to avoid rules” (p. 12).
Casuistry as it appears today has found widespread use in the field of bioethics. The case-based approach of casuistry lends itself to the pluralistic context in which most medical decisions are made. Frequently there are competing interests in medical situations: the moral position of the physician, patient and patient’s family; the economic and legal position of the hospital; the vested interest of government and community in life, quality of life and precedents set by decisions of medical institutions as they relate to the public good. Each of these powerful influences may try to pull the situation in radically different directions and may have perfectly valid reasons for doing so.
The power of the casuistic approach is that it allows the users to find common ground from which to begin deliberation. Whether in medical situations or any other situation, the starting point of most casuistic deliberations is finding one or more paradigm cases that bear resemblance to the case in question. Using those as a foundation, an attempt is made to relate principles and maxims that help us decide the present case. Arguments are made regarding whether the paradigm cases are actually analogous to this case, and whether general principles apply in this case, even if they are analogous. In this dialectical process, eventually a resolution is usually reached, knowing that it may not be “right” in a Platonic sense, but it is right in as far as it is the best decision that can be made given the information available.
Following Miller (Casuistry and Modern Ethics, 1996), Casuistry can be characterized by five components (p. 5).
In Miller’s words, “casuistry seeks to deliver us from those occasions when rules are unclear, when conflicting rules pull us in opposite directions, or when we must ascertain degrees of moral culpability” (p. 4). The first step in this process is to find paradigm cases that “look” like the case in question. The paradigm case is one which is “simple and straightforward, and in which the presumptive nature of the claim is overpowering”, one for which “any reasonable person would recognize the right or wrong, or ‘no unreasonable person’ would object or doubt the dominance of that maxim for the case” (Jonsen, 1993, p. 15).
The process of sorting through the various cases is what Jonsen calls taxonomic, because it involves “lining up” the cases (p. 14). This is done by looking at the morally unique features of the cases, the maxims. A maxim can usually be expressed in a brief, pithy phrase, such as “Do not kill”, or “An eye for an eye and a tooth for a tooth”. Once maxims are determined, their corresponding cases are organized into groups such that “competing maxims can be compared in relationship to the circumstances” (p. 14). From these groupings, paradigm cases are identified that are morphologically simple—such that the features are easy to recognize, the maxim is easily detectable, and the solution is agreed by the aforementioned “reasonable people”.
The second step Miller identifies involves identifying the presumptions that we believe are relevant to the case in question. Once identified, we can look at how those presumptions affect the way we see the case itself: how we perceive certain features of the case as morally relevant, and other features as not relevant. In the case of abortion, the “pro-life” advocate may presuppose that the fetus is ensouled at conception, therefore intentionally terminating the pregnancy would be equivalent to murder. The moderate “pro-choice” advocate, on the other hand, may not view the fetus as a “person” until it has developed a highly functional nervous system, and until that point, the rights of the fetus cannot overshadow the rights of the mother.
Third, the casuist identifies unique features of the present case and explores how these features affect the way we see the case as a whole. In the case of examining the ethics of the U.S. invasion of Iraq to remove Saddam Hussein from power, we might point to Hussein’s treatment of the Kurdish people in his country and his aggression against neighboring countries as justification for the invasion. On the other hand, we might identify the fact that Iraq is a major player in global oil markets, and that President Bush owes much of his and his family’s wealth on oil as reasons to be skeptical about his publicly expressed rationale for invading Iraq.
In the last two steps Miller identifies, the casuist attempts to come to some resolution of the case. Fourth, the casuist might look to authorities in whatever field is relevant to our case, to see how they have dealt with similar situations, or possibly we can find experts who have developed principles that are relevant to the case. Finally, the casuist looks at all of the information that has been collected, applies that to the particularities of the case in question, and comes to a decision in line with Aristotle’s phronesis. For Miller, the importance of this process, and of casuistry itself, is due to the inherent ambiguities in life and most situations in which we find ourselves. Summarizing the method and application of casuistry, he says, “ambiguity in moral experience provides one occasion of casuistry, requiring casuists to specify a rule’s range of application, distinguish between permitted and prohibited actions, develop paradigms and taxonomies, reason by analogy, and attend in various ways to the circumstances surrounding an action: (p. 25).
Casuistry has shown itself to be a useful tool in contemporary ethical dilemmas, especially biomedical situations. It would also be difficult to ignore the similarities between casuistry and juridical methodologies of comparing salient features of relevant cases to come to decisions. However, despite its widespread usage, there are still issues yet to be resolved regarding the method itself. Kopelman (“Case Method and Casuistry: The Problem of Bias”, Theoretical Medicine, 1994) identifies bias as a major potential problem of the casuistic endeavor. She notes that several recent philosophers agree that “the roots of our reasoning are in the human fabric” (p. 23), not Platonic categories that we can perceive if we can look close enough.
The cognitive categories that groups of casuists must share in order to be able to group cases, derive maxims and find analogies are thickets of bias that can skew our decisions. This bias causes us to hold unwarranted and untested beliefs, but since they are so deeply rooted in our culture, we do not see them as needing to be tested, or we may not even recognize that we are making assumptions. These implicit beliefs can affect each step of the above mentioned process for coming to resolution of cases. Since there are no universals in casuistry against which we can measure either our outcome or the process by which we came to the result, there is little protection against minor, or worse, snowballing effects of bias that lay hidden in the shared understandings of the community of casuists who make important decisions.
Despite the problem of bias, casuistry has proved to be a very useful tool in helping communities make ethical choices. A problem that no human society is currently facing, but may in the future, is whether machines could be created that would ultimately deserve “rights”. There are many different ways to look at this problem and many different competing paradigms that might eventually help people resolve the issue. The question, addressed not infrequently in science fiction stories about computers that become sentient, often in the form of androids, is far from needing to be addressed by our legal system or ethics committees at the moment, since no machines currently proposed have any features of sentience that might lead the question to be asked in practical experience. However, the questions as posed by science fiction may eventually need to be asked, given the logarithmically increasing capacities of computers.
Without having an actual case, the present-day casuist would need to suppose an hypothetical case. Identifying the salient features of the case is the first task. Let us suppose the existence of a computer whose creator claims has passed various tests of sentience. One of the most widely known of these is the Turing test, in which the computer is tested to see if it has grammatical skills powerful enough to fool a human into thinking the computer itself is a human. Assuming a computer could even pass such a test, it leads us to ask what criteria anything must pass in order to be considered sentient. Further, one might question whether sentience itself is an adequate determinate for whether someone/something should be given rights. One might further note that different type of beings are granted varying degrees of rights, depending on factors not related to sentience. For example, within the scientific community, rodents are granted protection from unnecessary torture, while it is far from clear that they are sentient. They are granted rights simply because we are aware that they can feel pain. One might also note that other types of beings are granted rights, based not even on their capacity to experience pain, but based on their uniqueness. Endangered plants have been granted rights because they are rare and their existence is deemed invaluable to humanity, so are protected because of their relationship status to sentient beings.
These questions might give us a foundation from which to build an argument for the rights of a sentient computer, such as the right not to be turned off or dismantled without consent. If we assume the validity of the case that the computer is indeed sentient, one can then try to find paradigm cases that might fit with our question. Having already established the precedent of granting rights to non-sentient organisms based on their uniqueness and value to humanity, one might ask whether this is sufficient grounds to grant such a computer rights. It might make a difference if the materials needed to give sentience the computer are rare enough to make the computer rare. At that point one could ask whether it is the materials that make the sentient computer unique, or the computer’s sentience itself. For humans, it is our unique sentience which grants us our right to life, not the rarity of the materials that comprise us. The question at that point might be whether human sentience is the best paradigm case to apply in determining the rights of the computer.
Suppose the question were not whether this one unique sentient computer has rights, but whether a huge population of mass-produced sentient computers had rights. It would be easier to apply the uniqueness criteria to just one computer. Assuming all of the computers were unique sentient beings, one might consider questions of the public good. Are the computers contributing to society? Or how much resources are being dedicated to their manufacture, maintenance and power and does that expenditure limit the resources needed for humans? Should either of those two questions matter? One might then ask if failing to produce more computers is unethical. Can it be related to the Roman Catholic Church’s prohibition on contraception, since contraception prevents the creation of a new life? As the computers eventually deteriorate beyond repair, are we negligent in not making new computers? Is our insistence on trying to breed endangered animals a paradigm case for the imperative to make new sentient computers? What past and current cases will help us best answer the questions that might be raised by situations like these? And after we have agreed on those cases, do we now, or will we when the time comes, have enough shared understandings to discern the morally relevant features of the case?
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