On Casuistry
philosophynow.org
philosophynow.org
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.
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.
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."
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.)
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.
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.
No, but one does have to have some objective way to test for them. And there isn't any. Ultimately, every person has to judge for themselves what does and does not count as equality and fairness.
I disagree. Just because a fully objective test is impracticable doesn’t mean the ideal doesn’t exist or shouldn’t be taught or strived toward—or that objective values and duties don’t exist.
Beyond that, appeals courts exist as a check on injustice in lower court rulings. They do try to objectively verify whether a given ruling was just.
Yes, individuals do have to “judge for themselves”, but there are objective standards to apply and evaluate decisions by, even if those standards can only be intuitively defined.
You evidently haven't read many appeals court opinions or looked at the actual rules for when a case can be appealed at all. Those rules have little if anything to do with whether the ruling was just. They mostly have to do with whether particular procedural rules were followed. As for the actual opinions and rulings issued by appeals courts, after reading many of them, the only clear pattern I can see is that judges start out already knowing what result they want and simply find appropriate laws and precedents to justify it; since the body of law and precedents, taken as a whole, is mutually inconsistent, it is easy to find a justification for any position you like.
Guess I'm speaking more about what I believe is the ideal.
To me this is a contradiction in terms: "only intuitively defined" means human intuition, i.e., subjectivity, is involved. I guess we'll just have to disagree.
We could take it a step further and discuss what establishes objective moral values and duties, but that plants us firmly in a discussion centering around worldviews and their truth/falsehood.
All to say, I believe there is an objectively true worldview upon which objective moral values and duties rest, upon which an objective jurisprudence can rest, upon which good (though inescapably subjective) judicial opinions can be issued. Maybe I'm being overly pedantic, but I'm frustrated with what seems an intentional departure from objectivity (and an originalist jurisprudence to boot) as the goal in certain circles.
Godel's theorem is a limitation on any system of formal rules, but it's not the limitation I'm talking about.
> Even known true statements can't be proved all the way down --- at some point they have to rest on axioms that are assumed (or taken on faith).
This is a different limitation from Godel's theorem, but it's also not quite the limitation I'm talking about (though I think it's related to it--see below).
> I believe there is an objectively true worldview upon which objective moral values and duties rest
This is the limitation I'm talking about. Even if you have an objectively true view of the world, moral values and duties aren't just about the way the world is; they're about the way humans want the world to be. And human wants are subjective; if you and I disagree about how we want the world to be, there is no objective way to resolve our disagreement.
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.”
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.
No, this still isn't "most" of what the legal system deals with. It's a large fraction of what the criminal legal system deals with, but most legal cases are civil, not criminal. That's why I took the trouble to draw the key distinction between those two types of cases.
As far as criminal law is concerned, the way to minimize police harassment of citizens for no good reason is to minimize the things that are crimes. For example, the war on drugs is insane: there is no reason to criminalize mere possession of a drug. Just that one single change would drastically reduce the number of people the police can harass (and just freeing all of the people who are currently in jail for non-violent drug possession would drastically reduce the number of people in jail--and a disproportionate fraction of those would be poor and minorities, exactly the people we want to give more protection from police harassment). But there are many, many other laws on the books that could be eliminated on similar grounds: they criminalize behavior that shouldn't be criminalized and the laws can't possibly be enforced as written, so the end result is to give the police a much larger selection of excuses to harass people when they feel like it.
But this "fix" for criminal law doesn't work by fixing how the system deals with cases that are before it (things like reducing the variation in sentencing); it works by eliminating a huge set of cases altogether--the system no longer even sees them because the system is no longer criminalizing acts that shouldn't be crimes.
The problem is that a similar fix doesn't work for civil cases, precisely because there is no simple way to draw bright lines to separate disputes that should be dealt with by the legal system and disputes that shouldn't.
* https://www.ucpress.edu/book/9780520069602/the-abuse-of-casu...
* https://www.goodreads.com/en/book/show/954645.The_Abuse_of_C...
Old review:
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.
* [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:
To think that this turns out well displays either staggering ignorance or the naïvete of an infant. This is how you get lynchings, folks.
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.
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.
I disagree. Historically there are plenty of examples of communities that have managed to get along for extended periods with reasonably good outcomes. What we humans don't (yet) have a good handle on is how to protect such communities against invasion from outside--other people outside the communities just won't leave them alone, but insist on trying to make them part of some larger social experiment.
Yes, but those are subjective as well; there's no objective test for who is virtuous and who is not. Everyone has to judge that for themselves.
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.
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:
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.
However, the answer is not some kind of local unaccountable justice system where a judge basically rules based either on the will of the crowd or his own personal interests, and then calls it "community reconciliation" or some such bullshit. It's like the person who wrote the article literally never contemplated the reason for written law to exist in the first place.
> 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.
I think this is also basically undeniably true. But across all of history, I really don't know of any politcal system that had a noticable positive effect on the moral quality of the individual humans it ruled over. So this just leaves me with a sense of metahistorical pessimism.
There is no reason why a local justice system can't be accountable to the people who live in the community. But, as I said in another comment upthread, if the people in the community aren't good people, you aren't going to have good outcomes no matter what kind of system you set up, or what kind of laws you write.
> It's like the person who wrote the article literally never contemplated the reason for written law to exist in the first place.
Sure they did; they just recognize that written laws are attempts to achieve an unachievable ideal. It is impossible to capture "fairness" and "justice" in any written set of rules. There will always be human judgment required in individual cases, and human judgment is (a) subjective, and (b) depends on the humans doing the judging. If you have corrupt humans, you will get corrupt outcomes, and you can't fix that by writing laws, because corrupt people will just figure out loopholes in the laws, and writing guaranteed loophole-free laws is impossible.
In fact, given the people, local or non-local, have power, it is a virtual certainty that there will be some level of corruption among them.
That's not a given. Governments only have power to the extent that citizens agree to abide by the government's laws. If enough citizens get fed up with the laws, they stop abiding by them. Sometimes it's open revolution, as happened for instance in the United States in the late 1700s. Sometimes it's just selective noncompliance when people know a law is unenforceable, as for instance the way most Americans today treat speed limits and many other traffic laws.
A more difficult situation is when a society at large is split between two very different views of what kinds of laws are good social policy. IMO, in such cases neither side should have the power to get their preferred laws passed; laws affecting entire societies should only be passed when there is a broad consensus that they are good laws, or at least acceptable.
And I mean really, social policy? So what if people in Mississipi decide they still want slavery or jim crow? Those are binary choices. There is no way to implement your "neither side should have the power to get their preferred laws passed" legislative scheme. What I mean in practice is that you either have slavery, or you do not have slavery. There is no state that a free portion of society can be in where they both have and don't have slavery. At some point, you have to choose. What I'm asking, is what happens when the inevitably corrupt government officials choose to infringe on the freedoms of the citizens? Of course, we hope that they will never make choices that infringe on the freedoms of citizens. But humor me, what happens if they do?
Who is giving the corrupt local government that power? The answer, historically, has always been: a higher-level government. And that's also the answer with corrupt localities today. They only survive because they have political friends in higher places.
> my experience has been that such circumstances only yield busier gulags
Which places with gulags have you lived in? (That's a serious question, btw: we have had posters on here who are from the former Soviet Union or one of its satellites and who have had direct personal experience of such things.)
> So what if people in Mississipi decide they still want slavery
They can't just decide they want slavery: they would have to get people in the same community to become slaves. Historically, that's never happened. Slavery has never been a local process; it's never that some people in a particular community just decide to enslave the others. It always happens as a result of non-local invasions (usually wars of conquest). Maintaining slavery as an institution also has never, historically, been done locally; it has always needed higher level non-local enforcement. For example, slavery only survived in the antebellum US South because both State and Federal governments enforced it. And even then they couldn't really enforce it; purposeful non-compliance by many people in the North with things like fugitive slave laws was common and almost never punished.
> What I'm asking, is what happens when the inevitably corrupt government officials choose to infringe on the freedoms of the citizens?
I've already answered this: citizens start finding ways not to comply, because enforcement can never be perfect; and eventually, if things get bad enough, they revolt.
The worst case is something like the Soviet Union or China, where a high-level central government is willing to use enough force even to put down open revolt. However, first, this is obviously not a local government doing this--no local government in history has had that much force at its disposal--and second, even that won't last: the Soviet Union fell apart, and if history is any indication, China will eventually do the same if its government continues with the level of repression it has shown thus far.
Sure, but at least local people have some skin in the game; they have to live locally with the consequences of their actions. Non-local people don't.
> In either case, a man is obliged to live under the tyranny of potentially corrupt people.
But the tyranny is much more limited in scope if it's only local people; they will have limited resources at their command, and worst case I can always move. If the entire planet is a tyranny, I'm screwed.
The purpose of their corruption is precisely so that they don't have to live with the consequences of their actions.
I can always move
Not if the local people with power disallow it. Or are you saying you always want non-local people to have power over the local people so that the locals are compelled to allow you to leave?
If they're local, they live there, so they can't avoid the consequences. The law of unintended consequences applies to corrupt officials just like it applies to everybody else. The reason corrupt officials in our current system can avoid those consequences is that they don't have to live in the places they govern. That's true even of many so-called "local" officials: mayors and city council members often don't live in the cities they govern.
> Not if the local people with power disallow it.
How are they going to prevent people from leaving? If the only resources they can draw on are local, their power will be too limited.
Basically, your picture of "local" seems to be the way "local" works in our current society, which allows localities that are politically favored by higher level governments to draw on resources from those governments. But that's not actaully local; it's the higher level, non-local governments using the lower-level governments as political tools.
But consequences may not apply to everyone else. What if local bosses make a law that firearms holders have to turn in their firearms? What if local bosses make a law that blacks have to be slaves? What are the consequences that the local bosses are living with? (Assuming no interference by non local authorities.)
How are they going to prevent people from leaving? If the only resources they can draw on are local
Local bosses make law that it's illegal for anyone other than his henchmen and women to have firearms. Local bosses also make law that leaving town is illegal. Local bosses also orders searches of homes to confiscate firearms. Finally, local bosses authorize deadly force to deal with law breakers.
In this scenario, no outside help is necessary for the local bosses. (I suppose the factory they buy their guns from might be from outside the locality, but that's about it.) Heck, the bosses might even have the support of many of the pearl clutching local citizens. Some of whom might even, gasp, sell me out to the local bosses.
This example is contrived, but has happened often enough in human history for me to want to know how the local citizens can leave before I would concede to living under such a system. There has never been an example of such a system in modern history where non-local powers were not involved in liberating the local citizenry. So if you can outline a credible method for the unarmed citizenry to exercise the freedom to move away, I'd certainly be interested in hearing it.
How are they going to enforce such a law? (Same question for your other examples.)
> (Assuming no interference by non local authorities.)
You must be joking. Without support from non-local authorities, local bosses would simply be laughed at if they tried such things. Where you see such things going on in localities, it's because of support from non-local authorities.
> This example is contrived, but has happened often enough in human history
Please give specific examples. I'm not aware of any case where local bosses got away with such things without any support from a non-local, higher-level government.
> if you can outline a credible method for the unarmed citizenry...
In the historically default situation, the citizenry is not unarmed. Having large numbers of citizens unarmed is a recent and historically aberrant situation, and requires a huge level of support from higher level governments to even make possible. Local authorities in a society where higher level governments do not exist or do not provide such huge support for disarming citizens simply won't have unarmed citizens to play with.
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!
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.
Which seems like a peculiar position when put like that. Would you like to add some qualifiers?
I'm guessing that you equate other justice as laid down by by some benevolent and learned body of people.
All senses of justice come from somewhere humble.