Dec 03, 2020 08:00:00

What is 'Casuistry' that realizes justice without relying on uniform law?

In general, when judging things, it is correct to judge and punish according to the law made by the government. However,

Jason Morgan, an associate professor at Reitaku University, suspects that there is also the idea of ' casuistry ' that makes decisions by looking at individual cases and situations rather than relying on uniform laws. Explains theoretical thinking and its history.

On Casuistry | Issue 141 | Philosophy Now
https://philosophynow.org/issues/141/On_Casuistry

Morgan points out that people are supposed to see proceedings as 'an equation that derives guilty or innocence from the legal information entered,' and forget that there is another way to pursue justice. Casuistry exists as a way to carefully observe the relationships of the people involved in the case and correct the mistake, rather than applying the case to the strict definition described in the law book. Justice is an ongoing task in the casuistry, and Morgan says that the black and white are not clearly separated, leaving many ambiguities.

◆ Ancient decisive thought

Aristotle , an ancient Greek philosopher, thought that it was not true justice to apply each actual case to pre-generalized law. Aristotle's skepticism about the general idea of prioritizing law is related to his denial of the idea theory advocated by his teacher Plato .

Plato thought that 'idea' existed as a true existence beyond human senses, and that it was an imperfect resemblance of idea that existed in the real world. In contrast, Aristotle argues that what people can feel is the basic reality, and it can be said that he adopted a more realistic approach than Plato. One of the culminations of Aristotle's philosophy is the idea of eudaemonism that 'the purpose of human beings to act better and more ethically is to obtain happiness .'

Aristotle taught that people do not know 'what to do' from the moment they are born, but need to seek the best behavior in a complex daily life. However, philosophers at that time had the idea that 'ethical matters can be considered in the same way as geometry,' and Aristotle had a hard time teaching his claim. 'People's lives are more complex than figures, and there is no such thing as a'hypotenuse'or'square root of justice',' Morgan said, noting that not all ethics fall into the simple category. I am.

by Flying Puffin

◆ Death of Casuistry Due to Centralization
In the 21st century, many people have no doubts about rigorously applying cases to pre-determined laws and deriving justice like a kind of formula, equation, or proof, but once skeptical justice Morgan points out that it was common. In the early Middle Ages, justice was not in the law, but was nurtured as a custom in the local community. At that time, the trials were based on customs rather than laws, and they tended to make controversial decisions in the best interests of the community and individuals.

However, in England, political centralization began around the 12th century, and the casuistry died. Henry II created a strong and unified judicial and judicial system, in place to punish those who disturbed 'King's Peace' even in the provinces of England.

The move has wiped out the suspicions everywhere in England, leaving government-established legislation rather than based on community-based practices and the conscience of those involved in the case. Mr. Morgan likened the sequence to Gresham's law , known as 'bad money drives out good money,' and 'Henry II's law could be said to be'a centralized state drives out justice.'' It states.

In addition, the expansion of the king's power through centralization has strengthened the movement to regard local people as 'individuals with private sovereignty' rather than as 'members of an organic society.' In response to this, the idea that the king, who is a higher sovereign, should rule people and restrain their actions by law and punishment has also been strengthened.

◆ Problems brought about by law
In the past, it was the local justice of the peace who tried various cases in the community, and the judge decided according to customs, precedents, and circumstances. The decision was very personal and flexible here, but the reforms under Henry II extended the effect of government legislation to local areas, a controversial decision. Has disappeared.

'Slavery' is cited by Morgan as a detrimental effect of the elimination of casuistry decisions and the increased authority of legislative bodies. It was difficult to support slavery, as it is clear to many that slaves have humanity in a situation where a casuistry decision is made. However, if slavery is allowed under the law in a centralized state that does not use casuistry, people can accept slavery without hesitation according to the law.

'Centralization is the process of keeping humanity out of the law so that it doesn't interfere with the rule of the state,' Morgan said. By abstracting humanity as a mere number, he puts it into a paper equation and slaves. He pointed out that the system was made possible.

◆ Casuistry now and in the future
Casuistry in Europe has not completely disappeared due to centralization, and in the 17th century, casuistry became popular among Jesuit missionaries. However, Jesuit missionaries used the casuistry in a way that was convenient for them, such as changing the punishment depending on the amount donated by the parishioners, and the casuistry itself was strongly criticized. As a result, the status of casuistry has fallen in Europe.

However, Morgan points out that in a modern society where globalization is progressing and diverse cultures are mixed, the suspicion that black and white is not clearly set as in existing law may be useful. For those who want to do their best in making decisions, 'Casuistry should never be out of date, it should be a way of engaging with the world,' Morgan said.

In the second half of the 20th century, many issues emerged that could not be judged by law, such as in vitro fertilization, life-prolonging measures for brain-dead patients, euthanasia, and the priority of those who receive organ transplants from donors. In response to this situation, in recent years, some philosophers and thinkers have been paying more attention to the casuistry. In the late 1970s, philosopher Stephen Toulmin criticized 'the mathematical approach to ethics brought about a strict formalism that was the exact opposite of justice,' and criticized flexible suspicions. He insisted that he needed a return.

Mr. Morgan himself understands that there are criticisms of the criticism that 'the judge may run away in court.' However, he pointed out that 'the effect of one bad law is greater than the effect of an unjust judgment by one judge,' and that the monopoly of justice by the legislature is also a serious problem. Regaining freedom and justice in the hands of all from legislative centricity may require controversial thinking to make 'case-by-case' decisions, Morgan said.