Abstract
This article elaborates on the relation between ethical casuistry and common law reasoning. Despite the frequent talk of casuistry as common law morality, remarks on this issue largely remain at the purely metaphorical level. The article outlines and scrutinizes Albert Jonsen and Stephen Toulmin’s version of casuistry and its basic elements. Drawing lessons for casuistry from common law reasoning, it is argued that one generally has to be faithful to ethical paradigms. There are, however, limitations for the binding force of paradigms. The most important limitations—the possibilities of overruling and distinguishing paradigm norms—are similar in common law and in casuistry, or so it is argued. These limitations explain why casuistry is not necessarily overly conservative and conventional, which is one line of criticism to which casuists can now better respond. Another line of criticism has it that the very reasoning from case to case is extremely unclear in casuistry. I suggest a certain model of analogical reasoning to address this critique. All my suggestions to understand and to enhance casuistry make use of common law reasoning whilst remaining faithful to Jonsen and Toulmin’s main ideas and commitments. Further developed along these lines, casuistry can appropriately be called “common law morality.”
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Notes
Toulmin did not write on casuistry—or ethics in general—after publication of the book.
I only touch on very few points of criticism that are particularly interesting for my argument. For further critiques, see Tom Tomlinson’s discussion of Jonsen’s case resolution [9, p. 99 ff.].
The example is about setting up a policy, but it could also have been about the same professionals discussing a particular hard case that they actually face in their hospital.
Arguments by disanalogy do have a very similar structure, see [15, p. 1007 f.].
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Paulo, N. Casuistry as common law morality. Theor Med Bioeth 36, 373–389 (2015). https://doi.org/10.1007/s11017-015-9343-7
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DOI: https://doi.org/10.1007/s11017-015-9343-7