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The Abuse of Casuistry: a History of Moral Reasoning.

The Abuse of Casuistry: A History of Moral Reasoning. By Albert R. Jonsen and Stephen Toulmin. Berkeley: University of California Press, 1988. 404 pp. $45.00, cloth; $12.95, paper.

It is fitting that a book championing the case for particularity and practical judgment in ethics should have emerged from a pivotal experience shared by the authors. Working with the National Commission for the Protection of Human Subjects, Albert Jonsen and Stephen Toulmin marvelled at how commissioners with widely varying religious, scientific, and theoretical commitments could agree on some rather vexing issues in research ethics while disagreeing strongly about the rationale behind their respective positions. So long as they concentrated their attention upon paradigmatic instances of right and wrong, slowly working their way out toward more marginal or problematic cases via a method of "moral triangulation," the commissioners could achieve consensus. But as soon as they began to invoke their favorite theories, religious beliefs, or ethical principles to justify or explain their votes, consensus quickly vanished.

Contrary to the widespread belief that ethical certainty must reside on the level of theory, Jonsen and Toulmin found that whatever certainty the commissioners wrested from their deliberations lay instead in their intuitive responses to specific cases. Rather than proceeding from the top with ethical theory and working their way down to practical "applications," the commissioners worked from the bottom up, starting with straightforward moral maxims clearly embedded in specific paradigm cases of ethical or unethical research. In a manner quite similar to the development of the common law, their analyses of cases were driven more by attention to circumstances, "moral taxonomy," analogical reasoning, and the practical weighing and balancing of competing considerations than by appeals to abstract theory. Given a sufficient number of such case analyses, larger, more abstract generalizations could eventually be articulated, but almost always as afterthoughts or methodological window dressing. Interestingly, the authors reveal that the Commission's highly influential articulation of the Big Three principles of autonomy, beneficence, and justice in the Belmont Report-the mantra of contemporary bioethics--was composed last, after all the actual work of moral analysis had been done ! The authors discerned in the workings of the commission an inchoate method of moral analysis that might more accurately describe how we all think about moral problems and point the way toward greater consensus in our contentious public debates over the ethics of life and death. In The Abuse of Casuistry, Jonsen and Toulmin attempt to make this method more explicit, connect it to the historical tradition of casuistical reasoning in moral theology, and show how it might be fruitfully applied to contemporary moral controversies. The result is a fascinating and thought-provoking study of moral methodology that will enrich our understanding of moral reasoning and quicken the ongoing debate over the appropriate role of ethical theory in bioethical analysis.

Jonsen and Toulmin pursue two overarching goals in this book that roughly correspond to two distinct definitions of casuistry. First, they attempt to illustrate how moral principles or maxims might be most fruitfully applied or interpreted in concrete circumstances. The operative definition of casuistry here is simply the art of applying whatever moral principles happen to be at hand to particular cases. This task is accomplished both through a perceptive redescription of how most of us actually think our way through moral thickets-it turns out that, like the bourgeois gentilhomme, we've all been "practicing casuistry" all along-and by means of some extraordinarily interesting historical chapters tracing the development of casuistry from its roots in classical thought to its full flowering in the thought of jesuit moralists in the sixteenth and seventeenth centuries. Quite apart from the book's more normative message, the authors' "samples" of casuistical reasoning as applied to the problems of usury, equivocation, and responding to insults-in addition to their account of Pascal's devastating but (they argue) misguided attack on casuistry in the Provincial Letters--would alone be worth the price of admission.

For all of its fascinating details, however, this particular agenda of the book adds little to the important normative debate bearing on the most appropriate method of moral inquiry. Understood merely as the art of applying moral principles to particular cases, casuistry would appear to be entirely neutral between the partisans of a highly theoretical ("top down") "applied ethics" approach and the champions of a highly pragmatic ("bottom up") case-driven method. Indeed, since any and all ethical principles must eventually be applied to particular cases, this understanding of casuistry could legitimately be viewed as the handmaiden even of a highly deductivistic, applied ethics model of moral reasoning.

This brings us to the second and, I think, more important agenda of the book, which amounts to a frontal assault upon all moral methodologies inspired by the "spirit of geometry"--that is, all approaches that emphasize theory, deduction, and the quest for moral certitude. This critique is driven by a much more substantive definition of casuistry, which I shall call [casuistry.sub.2], embodying much stronger claims about the nature and derivation of the principles at hand, the locus of moral knowledge, and the appropriate role of ethical theory in moral deliberation. The patron saint, if you will, of this campaign is Aristotle, champion of a practical conception of ethics; its archenemy is Sidgwick, the defender of theory.

Some portions of the book and earlier papers by Toulmin clearly suggest the improbable thesis that practitioners of [casuistry.sub. 2] can do entirely without moral theory and regulative principles. This gloss of casuistry founders on the problem of relevance. Take, for example, the problem of assessing the morality of forcing women to undergo cesarean sections for the benefit of their children. What are the appropriate analogies for our process of moral triangulation? The list of possibilities includes the morality of abortion, child abuse, treatment refusals by competent adults, and good samaritan laws. To reason by analogy, we must already have a sense of what is valuable, of what to look for. Casuistry defined as mere moral triangulation would provide us with a powerful engine of moral thought without any sense of direction or relevance. As the authors themselves admit, moral theory is, along with other principles derived from traditional moral wisdom, one source of this kind of orientation.

A more modest and plausible gloss of [casuistry.sub.2] would be based upon its critique of the role of ethical theory in practical deliberation. Instead of viewing disembodied theory as the site of the real action in moral philosophy, and instead of viewing so-called applied ethicists as the mere "moral valets" of the various professions, Jonsen and Toulmin argue that all genuine ethics is already concrete and particular.

While conceding some legitimate, albeit modest, function to ethical theory, the authors sharply attack a conception of moral theories as universal, mutually exclusive sources of deductive, apodictic ethical truth. In the place of this imperialist and reductivist view of theory Jonsen and Toulmin would substitute a chastened, pragmatic conception of ethical theories as merely partial, complementary perspectives that might be fruitfully brought to bear on practical problems. Thus, just as a street-wise lawyer must determine the best legal theory (e.g., torts or agency) on which to hang her case, so the experienced practical philosopher will know which theory to invoke in any particular context and just as the good lawyer will seek to persuade through the marshalling of all available considerations, the experienced casuist will employ a "rhetorical" rather than a narrowly deductive style of argumentation. (A good example of this rhetorical style, which eschews theoretical purity and attempts to convince by amassing a wide variety of complementary considerations, can be found in the President's Comission's argument for a social duty to provide equitable access to medical care.)

This distrust of universalistic theory and corresponding emphasis upon particularity and context harmonizes with similar critiques of moral theory recently advanced by such "anti-theoretical" philosophers as Bernard Williams, Alasdair MacIntyre, Stuart Hampshire, and Annette Baier. While practical philosophers have been glibly suggesting for years that the relationship between moral theory and applied ethics might well be reciprocal-that in addition to benefitting from the provision of theoretical insights, applied ethics might actually have something valuable to teach theorists about the nature, scope, and functions of their enterprise-Jonsen and Toulmin have finally given us one definite idea of what that something might be.

The problem here, of course, is knowing which theory to apply in which circumstances. Harkening back to our example of forced C-sections, should we deploy a Kantian analysis of individual lights that would vindicate the mother's claims or a consequentialist analysis that might decide in favor of the child's welfare? Given the serious difficulties involved in sorting out the opposing claims of theories or conceptions of the good life, Jonsen and Toulmin's analogy of the street-wise lawyer might suggest a somewhat Panglossian intuitionism. Perhaps a more fitting (and daunting) analogy would be the lawyer who must choose not only a general strategy (e.g., ton or contract "theory"), but also select one of several competing approaches to contract theory (e.g., Charles Fried's liberal, Kantian theory; Richard Posner's economic analysis of rights; or perhaps Duncan Kennedy's "critical legal studies" approach.)

This brings us to the difficult question of justification in ethics. Interestingly, the authors' exceedingly short and even idiosyncratic list of the appropriate uses of moral theory omits any reference to theory's justificatory potential. While Mill, Kant, Sidgwick, and the Rawls of A Theory of Justice might have been somewhat concerned to draw disciplinary boundaries, redress current balances of values, or "make a case for morality"-the three residual functions permitted to theory by Jonsen and Toulmin-they were also clearly concerned to provide some kind of rational justification for our moral judgments.

In the absence of a theoretical warrant for our moral judgements. Jonsen and Toulmin assert that whatever certainty we might achieve in matters of ethics is due entirely to our intuitive responses to paradigmatic instances of right and wrong. But given the propensity of our intuitive responses to be distorted by ignorance, prejudice, selfishness, and power, the authors need to say more about their criteria of ethical truth. For example, is truth primarily a matter of instantaneous individual intuitive responses or is it largely a function of the practices and beliefs of the community of inquirers over time? In either case, do Jonsen and Toulmin have in mind an ideal of "undistorted intuition" akin to Habermas's critical ideal of undistorted communication against which imbalances of power might be judged?

Jonsen and Toulmin's recourse to moral intuition has troublesome implications for their recurring theme of greater consensus through casuistry. To avoid sterile battles between opposed moral absolutists, the authors propose that we concentrate less on theory and abstract principles and more on reasoning by paradigm and analogy through moral triangulation. While they cannot be blamed for wanting to temper our sometimes uncivil public debates with the virtues of pragmatic tolerance, it is far from clear that any version of casuistry will bring us closer together on such divisive issues as abortion, reproductive technologies, and the withholding of artificial food and fluids.

The first problem here is that we tend to have different moral intuitions on precisely these nettlesome questions. What to some appears to be a reasonable cessation of artificially administered fluids to permanently unconscious patients appears to others as a paradigm case of murder. The second problem is the absence of the necessary cultural framework required for casuistry to achieve widespread consensus. During the salad days of high casuistry, moralists operated against a backdrop of widely shared principles and ideas of the good drawn from the Bible, natural and Roman law, and the theoretical treatises of the theologians. As Aristotle was well aware, even the person of good judgment, the phronimos, requires a context of agreed-upon values fully to manifest his or her virtue. Part of our current malaise is that we appear to lack such common ground.

As we have already seen, casuistry is a technique that must be directed by ulterior values. Since we live in a pluralistic and fractured society, we should expect that our casuists will be guided by many conflicting theoretical persuasions and notions of the good. Consequently, we can expect widespread disagreement on precisely those issues that implicate fundamental value conflicts. My own experience as a member of the New York State Task Force on Life and the Law tends to confirm this expectation and provides an interesting counterpoint to Jonsen and Toulmin's portrait of the National Commission. On some issues, such as brain death, do-not-resuscitate orders, and even surrogate motherhood, consensus has been achieved in an atmosphere of mutual respect with the help of the casuistical and rhetorical techniques recommended by Jonsen and Toulmin. But on the most controversial issues-such as abortion or the withholding of food and fluids without an explicit prior directive-the deliberations of the Task Force tend merely to reproduce very deep-seated divisions within the larger society on such questions as the value of fetal life and the permissibility of quality of life judgments. Whereas the National Commission achieved consensus across the board, the New York Task Force achieves it most of the time, but by no means all the time. How can this be explained?

My own hunch is that the National Commission was able to achieve consensus, not entirely through the miracle of modern casuistry, but rather through a combination of adventitious factors. While the Task Force is comprised of a highly diverse membership-including representatives of all four major New York religions, including Catholicism, Judiasm, Protestantism, and the ACLU-the National Commission may have been less representative. (Would they have achieved unanimity with either hard-core utilitarians or Paul Ramsey aboard?) Secondly, the National Commission was charged, not with "life and the law" generally, but with the issues surrounding the protection of research subjects, where consensus is perhaps easier to attain. Finally, whereas the National Commission had the luxury of operating in a relatively nonpolitical climate, many state bioethics commissions must now discuss matters of life and death in the context of a highly polarized (and sometimes paralyzing) "right to life" debate.

It appears unlikely then that casuistry, or any other method of moral argument, will be able to secure greater consensus on such divisive issues. Even if, as Jonsen and Toulmin allege, the locus of moral knowledge and certainty is the particular, the locus of moral disagreement surely lies in our conflicting views of the good life that will inevitably drive our particularistic casuistic analyses. This is not to say that we shouldn't try harder to achieve consensus, or that appeals to ethical theory will prove more successful in bringing us together. (We should, and they won't.) The implication is plain, however, that Jonsen and Toulmin's faith in casuistry as an engine of social consensus is most likely unwarranted.

In spite of its occasional lacunae and misplaced faith in the power of casuistry to heal our societal rifts, this is an enormously enjoyable and important book. Jonsen and Toulmin argue the case for phronesis over deduction, for a "common law morality" over axiomatics, with impressive resources of historical knowledge and dialectical skill. If their ground-breaking book leaves us with unanswered questions about the nature and criteria of moral truth and about the appropriate role of ethical theory in practical moral reasoning, that is as it should be. Important books should bequeath not merely better answers, but better questions as well.

Correction: The institutional affiliation of E. Barbara Orlans was inadvertently omitted from the Animals, Science, and Ethics special supplement to the Hastings Center Report (May/June 1990). E Barbara Orlans is research associate, Kennedy Institute of Ethics, Georgetown University.
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Author:Arras, John D.
Publication:The Hastings Center Report
Article Type:Book Review
Date:Jul 1, 1990
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