The Beauty of Casuistry

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3 Responses

  1. It is, precisely, I think, the effort to “paint in broad brush strokes at the level of entire bodies of law” that renders so much legal scholarship completely meaningless to the mass of practitioners. As practitioners, we know the justice of each case depends on the facts of the particular case. When contracts scholarship, for one extreme example, focuses on whether contractual obligation is based in reliance or the moral quality of the promise, the debate seems to resolve into one like those of medieval theologians. Who cares if reliance has swallowed contract law. Reliance alone will not win a client a case except in the most egregious of circumstances, and the broad brush ideas of reliance are meaningless (in all respects).

  2. Nate Oman says:

    Peter: There is a fair amount of truth to these comments. On the other hand, I think that there are valid criteria for good scholarship other than “it is of use to practitioners.” Indeed, if called upon, I even have kind words for medieval theologians…

  3. Jeff Lipshaw says:

    My first reaction was to be facetious and tease about reading Blackstone last night, except that I’m the guy, who at a recent colloquium, a la Woody Allen, just happened to pull Wittgenstein’s Philosophical Investigations out of my backpack to make a point.

    Isn’t what you are experiencing the constant antinomy of universals and particulars? Take the Categorical Imperative: “Act on that principle that you would make a universal law of nature.” Well, the post-Kantian criticism is that’s very nice, but it’s almost useless by way of brute application to a particular set of facts.

    I could do two other Kantian riffs on this.

    First, the distinction between what practitioners do in terms of casuistry is practical judgment versus scholarly “theoretical judgment.” That is, the first approaches the problem of what we ought to do; the latter tries to understand what is.

    Second, it describes the difference between what he called reflective judgment – basically, induction – whereby we attempt to derive a rule from experiences, on one hand, and the determinant judgment, in which we need to classify events or experiences in accordance with a previously determined rule. Black letter legal rules are the product of reflective judgment. Case resolutions are the product of determinant judgment. Take the well-known case of Gordon v. Doty, in which the school teacher loaned her car to the football coach, and he crashed it, injuring a student. For purposes of respondeat superior, does the rule of agency apply (teacher and coach manifested assent to be principal and agent by which coach acted on behalf of teacher and under her control) or does the rule of Samaritan apply (teacher was doing a gratuitous favor for coach)?