by T Gábriš · 2019 · Cited by 4 — Systematic versus Casuistic Approach to Law: On the. Benefits of Legal Casuistry. Tomáš Gábriš. Department of Theory of Law and Social Sciences,. Comenius

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57Systematic versus Casuistic Approach to Law: On the Bene˚ts of Legal Casuistry Tomáı Gábriı Department of ˛eory of Law and Social Sciences, Comenius University tomas.gabris@˚ Abstract: ˛e period of 16th to 18th centuries has brought about signi˜cant changes in legal thought. In addition to looking for a system in con˚icting Roman law and Canon law texts, late scholastics formulated the ˜rst general rules (regulae) that they derived from the Roman case law and which were to become the nucleus of current, predominantly systematic, approach to law in Europe Œ applying the rule prescribed by law, court practice or legal science onto the facts of the case via the so-called legal syllogism method. And although in the mid- 20th century there were also a˝empts to reinvigorate the casuistic approach to law known previously in the ancient Rome and in medieval moral theology (revived through Viehweg™s topics or Perelman™s new rhetoric), these e˙orts have ultimately not changed the prevailing way of legal thinking. However, current technological challenges as well as strongly perceived ambiguity of law, especially in the so-called hard cases (the most diˆcult legal cases), where there is no clear legal solution to be found in legal norms, the approaches and methods of problem-based (casuistic, topical) legal thinking resurface again. ˛ere seems to be thus a need for a new (and indeed bene˜cial) reconsidering of legal casuistry, helping to address the so far unclear legal problems, arising more o˘en than ever before. ˛is sort of new legal casuistry can be thereby built on the foundations taken from Roman law as well as from ethics, more speci˜cally from the early modern moral theology. Keywords: casuistry, systematization of law, moral theology, cognitive studies

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581. Introduction ˛e currently prevailing systematic approach to law can be perceived as the victory of 19th-century legal thinking, based on Kant™s concept of law. At the turn of the 18th and 19th centuries, the idea of axiomatization of law and of legal science more geometrico was namely abandoned as an unsuccessful a˝empt, being criticized on grounds that some of the axioms were legal, while others were moral, as demonstrated by Immanuel Kant: fi As Kant™s critical philosophy eventually pointed out with merciless clarity, each of these elements was of a diˇerent nature and therefore required diˇerent thought processes . Mixing up these elements, therefore, led to hopeless methodological confusion.fl (Reimann, 1990, 844). ˛us, Kant was the one who brought decay and rejection of the geometric method in law, while at the same time, his name is also associated with an a˝empt to create a new form of legal science and legal thinking Œ on non-geometric and non-axiomatic foundations. In order to be a true fisciencefl, Kant suggested to deal instead of fithings themselvesfl with positive law only, as a manifestation of phenomenal world, while this law was to be given a speci˜c scienti˜c systematization (Ibid., 846Œ847).1˛is was to be constructed by the incoming German Historical School of Law based on analysis of historical (especially Roman and Germanic) law. A˘erwards, the individual abstract legal concepts were further developed by the Conceptual School of Law and pandectists, peaking in the school of legal normativists in the ˜rst half of the 20th century. However, similarly to the failed axiomatization of law in the 17th and 18th centuries, the positive systematization began to show several shortcomings soon (see infra), which were addressed in the 20th century by rejection of formalist normativism and by re-introduction of natural law principles, as well as by realist and psychological approaches to law, with related doubts as to the possibility of fione right answerfl in law. In addition to the standard, traditional Œ systematic Œ approach to law, supplementary theories have been formulated in the mid-20th century to make up for the de˜ciencies of the concept of a closed system of law either by a˝empting to construct law as an open system (Canaris) or by introducing problem-based thinking into law Œ so-called Problemdenken (in Viehweg™s topics). However, these authors and their solutions were not entirely original. E.g., the topical view and Problemdenken were already used by ancient Greek philosophers (cf. Moro, 2015) and ancient Roman lawyers 1 In contrast, common law is still not systematized and is to a greater extent empirical compared to continental European legal systems (Spector, 2004, 261).

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59as part of their triple function of cavere , agere , and respondere (O˝e, 2006). Viehweg himself was aware of these ancient roots of his ideas. However, similar (problem-based) medieval thinking was completely disregarded by Viehweg and others in this context, especially the thinking elaborated in canon law and moral theology, where a priest-confessor acted in a function similar to that of a legal counsel (a˝orney), seeking for correct solution to a problem of potentially sinful behaviour (cf. Jonsen and Toulmin, 1988). In this paper, we shall try to compensate for this omission Œ starting from the historical problem-based approach known in ancient Rome and going through the early modern casuistry present in moral theology, we shall ˜nally a˝empt to o˙er a firealisticfl view on solving current legal problems for which there is no unanimous solution. It is namely clear that fast societal and technological development contribute to emergence of numerous finatural de˜cienciesfl of legal systems, including foremost their porous nature. Both law and ethics share the current need for searching ways to respond to the challenges brought about by sudden changes in both society and technology. In ethics, especially in bioethics, one of the approaches proposed in this respect is a casuistic approach, especially since classical principlist or utilitarian views on ethics seem to fail in providing an answer to numerous bioethical dilemmas. Obviously, lawyers could react in the same way as ethicists Œ where there is no clear solution to new legal issues, the topical argumentation or legal casuistry might o˙er a solution, meaning a case-by-case approach, looking for an ideal solution for each particular case, until explicit legal regulations or unambiguous principles for dealing with such cases will be provided by legislators or legal scholars. In order to develop such a case-by-case approach to legal issues raised by quick development of our societies and modern technologies, we shall o˙er in this paper an introductory comparison of the traditional systematic approach to law (which is characteristic of the 19th and 20th centuries™ legal systems in Europe) with the revived casuistic (bo˝om-up, topical, argumentative-rhetorical) approach, deemed useful particularly in controversial and currently under-regulated issues associated speci˜cally with the challenges of modern societies. 2. Systematic Approach to Law ˛e scholastic legal science taught at the medieval universities as a theoretical discipline (cf. Meder, 2008, 55) met all the contemporary demands for a scholarly discipline and constituted one of the fundamental university disciplines. However, it still did not represent a seed of modern way of legal thinking; the theoretical legal education cultivated in universities di˙ered

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60from the present legal scholarship and legal thought foremost in that it did not examine the law of a particular state or its implementation and application in practice. It was in fact not really related to legal practice at all. ˛e legal scholarship, born and developed in European conditions especially at the medieval universities, nevertheless opened the door for a modern idea of law. ˛is materialized in the period of absolutism, starting from the 16th century onwards, when the rulers started representing the state monopoly of law-making. University-educated lawyers, by becoming the bureaucrats of absolutist states (rulers) started soon therea˘er with transplanting their theoretical concepts of law into the sovereign™s newly issued laws Œ in accordance with Halperin™s theory on the role of lawyers in creation of modern legal systems (Halpérin, 2014, 187Œ188). Law was thus soon transformed from a filearnedfl idea to a practical regulatory reality, in˚uencing the running of states and of lives of their peoples. ˛e absolutist states of the 16th to 18th centuries namely tried to take over all instruments of social control, be it norms of municipalities, churches, guilds or other communities, traditionally being interpreted by local law enforcement authorities (local courts). ˛ese norms were to be replaced by and transformed into the law centrally issued by monarchs and interpreted by their judges acting as civil servants. ˛us, the idea of law started resembling its current paradigm, the paradigm of the state-made law, law made by a designated law-making body, being interpreted and applied by judges appointed by the state itself. ˛e hoped-for outcome thereby was that the law thus created would not even be interpreted by the judges, but only directly applied instead Œ for example, the Prussian Landrecht of 1794, with more than 19,000 paragraphs, instructed judges to address the Prussian sovereign in case of doubt and reserved for him the right of interpretation, 2 not unlike the exegetical concept in French legal system with the Montesquieu™s idea of judge being only the mouth of the law Œ la bouche de la loi .˛is change in the nature of law taking place in the 16th-18th centuries was of course followed also by changes in the nature of legal science. First of all, legal scholars gradually abandoned the traditions of Roman and canon law in favour of natural law, but also their methodological approach to law has signi˜cantly changed. ˛e well-known philosopher and lawyer, Leibniz, may be seen as a typical example of this development (cf. Berkowitz, 2005). In addition to the fact that in his person the new mission of legal science as an instrument of absolutist ruler was being re˚ected (Leibniz was the 2 Preceded by the well-known Müller-Arnold-Fall from 1779, where the Prussian ruler Frederick II. advised the courts on how to decide the case of the miller Arnold, and upon their refusal he punished the judges by imprisonment.

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61author of the Codex Leopoldus , a legislative proposal never adopted by the ruler), Leibniz™s work also o˙ers a good example of the new scienti˜c approach within legal scholarship. Leibniz has namely adopted a formalistic, systematic approach to law, being a rationalist, deductive approach, apparently trying to axiomatize law and legal science more geometrico . ˛us, under the impressive advances in natural sciences, scholarly methods used in legal scholarship should have also been brought closer to other (notably natural) sciences, ideally using geometric and logical mathematical rules and principles. Leibniz, of course, did not remain alone in this endeavour Œ lawyers of the 17th and 18th century German countries followed him without major reservations. At the turn of the 18th and 19th centuries, however, the idea of axiomatization of the legal science more geometrico began to be abandoned as an unsuccessful enterprise when it was accused that some of its axioms were legal, while others were rather moral, while each of these normative systems requires a di˙erent scienti˜c approach, as demonstrated foremost by I. Kant (cf. Reimann, 1990, 842Œ843). At the same time, however, his name is also linked to the creation of a new form of legal science Œ supposed to deal only with positive law, which was to be given a scienti˜c system (Ibid., 846Œ847). ˛e German Historical School of Law has a˝empted to create such a Kantian system of law, drawing from historical (especially Roman) legal sources. ˛e foundations of this approach were laid down in the ˜rst half of the 19th century by Hugo and Savigny. Later on, the individual abstract legal concepts and notions were further developed by the so-called Conceptual School of Law ( Begriˇsjurisprudenz) and by scholars known as pandectists, including foremost Puchta, Ihering, Vangerow and Windscheid (Ibid., 864Œ 866). It might not be a coincidence that their procedures thereby consistently resembled scienti˜c procedures used in chemistry Œ namely, the merging and separation of components (legal concepts) (Ibid., 883). ˛e product and the culmination of this scienti˜c approach is the German Civil Code, e˙ective from 1900 until today, embodying formalist and systematic legal science in the Max Weber™s wertfrei rendition. However, similarly to the failed a˝empt at axiomatization of law, even this positivist systematization of law began to show a number of shortcomings very soon Œ in the form of gaps in law, ambiguity of law, abuse of rights and the like Œ to be compensated for since the mid-20th century (especially a˘er the abuse of wertfrei law and legal science by totalitarian regimes) by natural law principles on one hand and by critical and realistic approaches to law, doubting the fiscienti˜c naturefl of legal science. As a correction to purely conceptual jurisprudence, schools began to be formed already since the late 19th century and then in the 20th century,

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62pointing to the need to take into account the purpose of law (Ihering), interests in law (Heck), sociological (Genes, Duguit, Ehrlich, Kantorowicz) and psychological (Petrazycki) elements in law, the importance of the personality of the judge (legal realism), or the values and principles in law (Alexy). Still, however, legal thinking is being dominated by a positivist approach to law that focuses on the text of laws foremost Œ applying the text of the law onto the facts of a case in the procedure known as legal or judicial syllogism. ˛us, in most legal textbooks students even nowadays read that legal decision-making is divided into (more or less) the following steps: 1) Analysis of the facts of the case; 2) Finding (a) and interpretation (b) the law; 3) Conclusion in the sense of syllogism (Prümm, 2011, 1239 ˙.). ˛ereby, already the movement of legal realists in the USA pointed out the fact that brute facts of a case themselves need to be interpreted, in˚uencing thus the actual application of law and the ˜nal decision of the case by the court. However, analysis of the facts of the case never really played a role in the academia. Emphasis is instead being put on ˜nding the relevant legal norm. H. P. Prümm thereby acknowledges that in reality, never one norm alone answers the legal question; instead one has to construct a so-called decision-norm from several legal norms, he claims. ˛e construction of such decision-norm can be sketch in the following form: Answer-norm + Helping norms + Counter norms = Decision-norm (cf. Prümm, 2008, 37)However, sometimes not even reading down the norm does lead to a practicable or reasonable result, and o˘en neither reducing the scope of the words nor interpreting the words in a broad sense helps. Here, legal methodology o˙ers other instruments for a legal decision-making: a) ˜lling of statutory gaps and b) correcting legal defects (Prümm, 2011, 1242). ˛ese methods are exclusive exceptions that can only be justi˜ed when they are inevitable (Ibid.). Finally, concerning the step of application of law onto the facts, the classical approach emphasizes the logical-systematic application of law, as a sort of analytic-deductive derivation, within the quasi-mathematical application, known as syllogism Œ e.g.: First/ major premise: A person who commits the crime of murder is liable to imprisonment for life. Second/ minor premise: M murdered F. Conclusion/ result: M gets life imprisonment. However, as already pointed out above, both the construction of facts in the minor premise as well as the interpretation of law within the major premise

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642008, 113). Finally, the di˙erences between Roman lawyers and modern lawyers also include the fact that Roman lawyers mostly did not apply general standards to a particular case, since a prede˜ned set of standards did not exist in the form as we are used to today. Rather, they were trying to ˜nd the most appropriate solutions for speci˜c problems. Such an approach is labelled as ficasuisticfl or being a ficasuistryfl, in fact being a problem-based approach to law, as opposed to today™s fisystematic approachfl (Honsell and Mayer-Maly, 2015, 138). Summarizing this main principle, the Roman lawyer Paul wrote: fi ˜e law can not be derived from a rule, but the rule must come from the law as it is .fl (D 50.17) (cf. Cairns and du Plessis, 2010, 1). Only upon collecting the individual legal solutions, in the 6th century AD, in the post-classical Roman law period, the Justinian™s Corpus Iuris Civilis was created, which soon started to be considered a ficodefl (and a source of inspiration for barbaric ficodes of legesfl), containing answers to speci˜c legal issues. However, the decline in education has subsequently led to substantial simpli˜cations of this ficodi˜cationfl and to its replacement by more brief and compact works. Classical Roman legal science thus di˙ered considerably from our current legal scholarship (being casuistic instead of systematic), but also from the medieval, scholastic legal science which used a speci˜c method Œ trying to reconcile disagreements within the norms of Corpus, hoping to fiscienti˜callyfl solve the contradictions just as in case of contradictions found in canon law (Gratian™s decree is therefore called fi Concordia discordantium canonumfl), or contradictions between Roman and canon law (Hsin, 2017, 14Œ 15). However, even the ficasuisticfl or fitopicalfl approach to solving disputes where there is no speci˜c regulation did not disappear in the period of medieval scholarship. It only moved primarily to the ˜eld of moral theology, which a˝empted to respond ˚exibly to moral problems of believers, realizing that only a fraction of possible behavioural variations was regulated by filawfl (the Holy Scripture), and the question of what is permi˝ed and what is not was thus o˘en to be solved by theologians and priests (confessors) themselves, introducing numerous theories di˙erentiating between the degree of risk of fiillegalityfl or, on the contrary, the degree of adherence to the filawfl, being called the theories of legalism, probabilism, probabiliorism, aequiprobabilism, or tutiorism. Casuistry in this period (and also in the early modern period) thus acquired strong ties with morals (ethics). ˛at is the reason why when looking back through centuries, the Sophists™ casuistry is sometimes not even considered a proper casuistry, acknowledging only Aristotle™s narratives as those which opened the door to proper casuistry. A˘er Aristotle, the Greek casuistry became even more re˜ned, and more integrated into law, as witnessed in the

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65works by Cicero. 3 ˛e original Greek casuistry thus mixed with elements of Roman and canon law argumentation, and Patristic and ˛omistic theology and morals, leading ˜nally to the outcome of fully developed confessional manuals, used in medieval and early modern era throughout Europe and Christian world. ˛e so-called era of high casuistry thereby began with the publication of Martin Azpilcueta™s Handbook for Confessors and Penitents and ended with Blaise Pascal™s (1623Œ1662) Provincial Le˙ers .4 ˛e chief promoters of casuistry itself were most notably Jesuits, who were trained in disputation and logic (Calkins, 2014, 8Œ15). However, later on, even protestant casuistries emerged (cf. Ibid., 141). 5 Casuistry eventually fell out of widespread use in Europe in the Enlightenment period, when casuists were o˘en accused of being able to pardon even a murder, based on the subtle arguments voiced in the manuals.6 Even so, casuistry did not die out altogether. It lived on to re-emerge later (Calkins, 2014, 141). ˛roughout its heyday, but also therea˘er, the impact of casuistry on law was very signi˜cant throughout Europe. During this era, casuistry was o˘en employed to resolve problems related to the Church™s authority over the consciences and social behaviour of believers and also in cases when ancient Roman law failed to o˙er clear solutions to new problems (cf. Jonsen and Toulmin, 1988, 47, 52Œ53, 101, 113Œ121.). ˛e casuistic method has been especially widely adopted in the common law countries where the judges have had and continue to have more discretion in the administration of law, and where the principle of equity has been always respected. ˛e casuistic method namely provides an ideal pa˝ern of judicial reasoning. ˛e place of abstract moral and legal principles in making judgements, a˝ention to the circumstances, appeal to reason, di˙erent ways of interpretation of the 3 ˛e rhetoric works of Cicero contained a sample of future casuistic analysis of cases: concentration on the issue, establishment of relevant moral principles and rules held by conscience, presentation of a set of arguments, and the emphasis on particular circumstances of the case (Shytov, 2001, 76). 4 Sometimes dated until the work of Alphonsus Liguori (1696Œ1787), one of the most prominent theologians in the post-Reformation period of the Roman Catholicism. 5 ˛e same situation was present even in Eastern Europe. E.g., Hungarian scholar, Tapolcsany, studied and later taught moral theology (in Tyrnavia, northern Hungary), which actually represented a general legal theory at that time. In his book Centuria casuum ex academicis qua decretalibus qua theologis praelectionibus (Tyrnavia, 1728), he also dealt with issues relevant to secular legal practice Œ e.g., in case 5 Œ whether the law is valid even if it has not been approved by the people, cases 17 and 20 on the self-defense, 18 on contractual relationships, 41 on the extent of the debtor™s obligation in the case of devaluation of money, and, 45 on the contract with a murderer. ˛ereby, he o˘en noted that the moral and legal aspects are con˚icting, but in his view, morality should always prevail (Rebro, 1968, 15). 6 In a similar vein, lawyers and casuists were considered immoral (cf. Romeo, 2017).

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66established legal rules and new situations which were not envisaged by the lawgiver, all these have originated in the casuistic thinking, many authors agree (Shytov, 2001, 75). ˛e end of the ˚ourishing casuistry approached when the idea of systematization of law and of its codi˜cation emerged. ˛e core of the casuistic method namely lies in the idea that general rules, whether religious or legal, should be applied in a ˚exible way. Circumstances a˙ect the applicability of the rules. Casuistry thus gives more freedom to decision- makers to determine how far the application of rules matches particular situations.7 ˛e second important idea is that when there is a serious diversity of opinion about what is the right course of action, casuists use a technique of comparing, and contrasting di˙erent opinions. ˛irdly, the main interest of (Catholic) casuistry lays in exploring cases of doubt, understood as inability of the moral agent to give assent to either of two contradictory propositions. ˛e task of casuistry was to resolve the doubt by investigation of the circumstances and by recourse to authoritative texts. Fourthly, confrontation was done between rules that were thought of as long se˝led and emerging conditions that apparently challenged those rules. ˛e casuists tried to ˜nd a basic principle that would allow here the moral agent to choose a di˙erent way of action (Shytov, 2001, 78Œ79). ˛e usefulness of the method of casuistry was thus seen foremost in the process of decision- making where the agent had a discretion in selecting the facts, in choosing the rules, or in determination of ˜nal legal conclusions to the dispute (Ibid., 82). Understandably, this sort of casuistic thinking was not acceptable in the world of absolutist states and monarchs in which an individual (including the judge) was to obey law without any discretion. On the other hand, seeing the reasons for downfall of casuistry, one should not wonder nowadays in the era of postmodern doubts and crises of the legislative monopoly of states in the late 20th and early 21st centuries that the ideas of casuistry resurfaces again. Nothing else than re˚ection of the basic ideas of casuistry is namely also the current filegal realistfl view of axiological gaps in law and of the defeasibility of legal norms (Guastini, 2010). In the same way, casuistry provides a ground for interaction of legal and extra-legal (originally moral/theological) approaches, helping to ˜nd a 7 For example, in the situation where oˆcials have to apply a law which seems to be unjust in a particular situation, they are advised in order to escape the open con˚ict and disobedience to look for the exceptions allowed by the lawgiver himself or to undertake detailed scrutiny of the formula in which the law is expressed. ˛e purpose of such a scrutiny is adjusting and factual amendment of the law (Shytov, 2001, 80). Just like in the medieval Satan™s trial, where Satan was a legal formalist, while the Mother of God was a casuist (Coulson, 2015, 409Œ430).

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67way which allows an agent (the judge) to solve a dispute in a fair and just way. ˛e general approach shared by any casuistic theory is namely that one cannot decide which rule has to be followed until all circumstances of the case are taken into consideration. ˛e way the circumstances are collected and considered thereby determines to a large extent the choice of a rule to follow and the ˜nal decision to be reached by the agent (Shytov, 2001, 83). 4. Recent Attempts at Revival of Casuistry Although casuistry is relatively close to legal topics (Sanz Bayón, 2013, 83Œ108) as developed by Viehweg in mid-20th century, he himself only invoked Aristotle, Cicero, Vico and Hartmann™s Problemdenken in his work. He completely omi˝ed the medieval and early modern moral casuistry. Other authors, however, soon realized that Viehweg™s topics is similar to casuistry, both being part of an overarching methodological approach to law that resembles the approach of common law judges in deciding cases and disputes (Launhardt, 2005, 1, fn. 5). Viehweg was mostly building on Aristotle™s search for places (loca) of certainty (certitude) which were seen in legal scholarship by Viehweg in numerous premises and mo˝os (topoi), o˘en taken from Roman law and medieval canon law, being applicable either in the whole legal system or at least in some of its branches (e.g., pacta sunt servanda). Viehweg thereby distinguished between the ˜rst-level topics (topoi), which the lawyers rely on intuitively, and the second-level topoi that require more detailed consideration and selection of topical fiplacesfl from a catalogue of topoi (Ibid., 38-39). ˛is is clearly a forerunner to the cognitive distinction between fast/ intuitive and slow thinking as evidenced later by D. Kahneman (cf. Kahneman, 2013). Similarly, modern cognitive studies point to a speci˜c mechanism of legal thinking, again close to what Viehweg states, namely believing that experienced lawyers mostly think in basic principles (Cankorel, 2008, 168 ˙.), premises, or topoi, rather than in detailed legal norms, which helps them to decide the relevant case in a faster and more eˆcient manner (see infra). ˛is is thereby the way of thinking characteristic both for topical approach as well as for casuistry, which together challenge the direct application of legal norms onto the facts of a case, i.e. simple application of legal (judicial) syllogism Œ speci˜cally in fihard casesfl. Both topical approach as well as casuistry, on the contrary, highlight the investigation of circumstances of each case and the search for an ideal solution to the case (problem), on the basis of identi˜cation of all the circumstances of the case, using analogy with other similar or contrast with dissimilar cases, through weighing of principles (maxims, premises), or through searching for places of certitude

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