The Beauty of Casuistry
posted by Nate Oman
When I get asked by non-lawyers about teaching law school (and this happens about once or twice a year) I tend to tell them a certain kind of myth about the case method. I try to throw my students into the particulars of the common law and force them to engage in a casuistic process of pushing the limits of their intuitions by testing them against new, but slightly different fact patterns. Likewise, when a student asks me something like “Yes, but what does reasonable reliance really mean?” my answer is generally that they have to look to the cases. I can’t give you a set of abstract principles that answer that question, I say, what you have to do is find a case with a fact pattern similar to yours and then either distinguish it (if it is bad for you) or argue that it covers your case (if it is good for you). In my more nominalistic moments, I will insist with what I hope is a suitably wild-eyed look that there really is nothing else there when it comes to many legal concepts. It is just the cases. Just the particulars.
Of course, I — and I suspect that many law profs fall into the same category — am engaged in a bit of pedagogical hypocrisy here. It is not that the I think that the little hymns to casuistry that I give my students are false. I certainly think that they are good bits of practical advice about how to make successful legal arguments. It is just that when I sit down and write my articles I am generally not engaged in casuistic case chopping. For example, my most recent paper does not try to draw careful distinctions between closely similar fact patterns. Rather, I paint in broad brush strokes at the level of entire bodies of law — contract law v. employment law, etc. Likewise, while I read lots of cases, when it comes to secondary sources I am more likely to hunker down with an article on the philosophy of law or legal history than a bit of casuistry. I wonder if my praise of casuistry and common law is simple pedagogical laziness. The case method is ready at hand, and it’s easiest to simply do what has always been done.
Perhaps not. Last night I was reading Blackstone and I came across the following passage. Speaking of the right to distraint of animals on rented land by a land lord as security for payment of rent, he wrote:
With regard to a stranger’s beasts which are found on the tenant’s land, the following distinctions are however taken. If they are put in by the consent of the owner o fthe beasts, they are distreinable immediately afterwards for rent-arrere by the land lord. So also if the strangers cattle break the fences, and commit a trespass by coming on the land, they are distreinable immediately by the lessor for his tenants’s rent, as a punishment to the owner of the beasts for the wrong committed through his negligence. But if the lands are not sufficiently fenced so as to keep out cattle, the landlord cannot distrein them, til they have levant and couchant (levantes et cubantes) on the land; that is, have been long enough there to have laid down and rose up to feed; which in general is held to be one night at least: and then the law presumes, that the owner may have notice whither his cattle have strayed, and it is his won negligence not to have taken them away. Yet if the lessor or his tenant were bound to repair the fences and did not, and thereby the cattle escaped into their grounds without the negligence or default of the owners; in this case, though the cattle may have been levant and couchant, yet they are not distreinable for rent, til actual notice is given owner that they are there, and he neglects to remove them: for the law will not suffer the landlord to take advantage of his own or his tenant’s wrong.
I had this odd moment of delight in the filigreed set of distinctions drawn in the fact patterns here; the basic right to distrain cattle being honed by each slight change in the circumstances. When I read the passage to my wife she was less taken by its beauty. I loved it, though.
May 8, 2009 at 8:43 am
Posted in: Law School, Law School (Scholarship), Law School (Teaching)
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Responses (3)
Peter Friedman - May 8, 2009 at 9:55 am
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).
Nate Oman - May 8, 2009 at 10:05 am
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…
Jeff Lipshaw - May 9, 2009 at 6:05 am
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)?
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