Casuistry is the science of judging cases of conscience, or moral problems. It flourished especially in the Christian tradition from the late middle ages, particularly (but not exclusively) among Roman Catholics. Some of the best known casuists were priests from the Society of Jesus, or Jesuits. The English Catholics who after the Reformation formed a persecuted minority, represent an interesting backwater of this great traditional stream. The leading English Catholic writers under Queen Elizabeth I were Robert Persons, a Jesuit priest and William Allen, a secular priest made a Cardinal by the Pope. Neither was exactly a famous pastoral theologian, but their writings on casuistry are representative of the mainstream of Catholic thinking at the time on the subject, and are particularly interesting because they deal with some very hard moral cases.
A case is merely a moral question, which asks, ‘Is it lawful to do x?’ These are cases of conscience because the conscience was seen as the psychological apparatus which dealt with moral questions. On the whole an individual’s moral intuitions could be guided by God (working through the agency of guilt, affection etc), and also by prior religious education, but they were also subject to the expert rational debate which was the strongest feature of medieval theology. Because the world was so full of situations and actions, it was not always possible for the untutored conscience to avoid falling into dilemmas. These dilemmas could then be resolved by the work of the casuist, the expert pastoral theologian.
The casuist applied the laws of his religion to the solution of the case, like a judge hearing a legal case, and in the same way as God himself would judge the action at the Last Judgement. The first job was to phrase the terms of the dilemma correctly and to analyse its content. Then the law had to be applied. The most significant law was clearly the Law of God, or Divine Law. This was expressed in the Bible, but not always clearly, of course. Next in the famous Catholic hierarchy of laws came the Law of Nature, which was a somewhat nebulous term covering various rules, like the rule of self-defence. At the bottom of the legal heap was the law of man, which also included the canon law, or law of the Church itself. Also useful, to some extent in a methodological capacity, but also because they supplied some rules themselves, were a series of what might be called casuist maxims: for example, evil must not be done so that good may come of it; or, if one of two evils must be chosen, it should be the lesser of the two. A significant category employed by Christian moralists was sin. Sins could be categorised into venial and mortal; and into sins of commission and omission. These distinctions allowed scope for a great deal of moral debate.
It may be helpful to give the bare bones of a rather typical case from the Elizabethan Catholic literature:
The case: ‘Do innkeepers sin by providing drink for drunken men?’
The solution: ‘Innkeepers who provide a house for those engaged in evil pastimes sin mortally, because by doing so, they tacitly (and often expressly) invite them to engage in this sort of deadly wickedness, and they help them directly or indirectly to do so, and show approval of their sins. But, on the other hand they can provide drink, and strong drink, for drunken men, provided that they do not show approval of their sins, just as they can provide a meal on a fast day to those who are obliged to fast. An innkeeper may help them to drink in so far as drinking is a good, or indifferent, act, and not in so far as it is a sin.’
What the resolution of this case shows is the willingness of the casuist to come to a common-sense conclusion despite what would seem to be a strong prima facie case for adopting a harsh (but unrealistic) line. The precise sense of the resolution is not very clear; is the wickedness in the first sentence just drunkenness, or is the casuist suggesting that to go further than tolerate drunkenness would be wrong? There seems to be a considerable gap between the first sentence and the second. Still, the final answer is plain enough. The main point is that the inn-keeper must not encourage drunkenness and he can protect his conscience by a sort of double-effect argument. There is no appeal to the Bible, only to the interpretation of two non-metaphysical moral concepts: encouragement and intention. The text itself contains two references (not given above) to a higher casuist authority, the roughly contemporary Spanish theologian, Martin ab Azpilcueta.
Casuistry has not been so much underrated and overlooked as abandoned in the face of hostile attacks. There are two completely contrary ways in which casuistry can be attacked. To modern non-Christians the problem lies in the authority which is given for the moral decisions. The Biblical basis of the moral code applied is impossible for a non-Christian to accept, and the non-Catholic will clearly not want to obey canon law. There is little the defender of casuistry can say in answer to that, except that there is a good case to be made for having a metaphysical basis for morality.
Another line of attack might be to question not so much the authority of God as the authority of the casuist. Why should moral questions be referred to an expert of this sort? If one wished to continue to look for a metaphysical basis of morals, one could answer that the priest by virtue of the sacrament of ordination had the same authority as Christ or King David; he became the Lord’s Anointed. Even without this defence, there must be a case for the expert discussion of moral cases. The medieval Church accepted individual moral responsibility as much as J-P Sartre, but also accepted that the individual might need guidance. Despite this reliance on authority at two levels (the level of God, and the level of the casuist expert) there was something wonderfully inductivist, nevertheless in the casuist approach, if we can use that word. The casuist did not start with revelation and then deduce from that the numerous things that were sinful. On the contrary, the casuist looks at cases and sinners and then tries to work out how their actions fit into the complex web of laws and Biblical examples.
A final line of criticism might be that an over-wide range of human activity was included within the range of what the casuist was concerned with. A modern might be reluctant to accept this medieval moral zero-tolerance: we do not consider a trip to the Building Society a moral matter, but the casuist was interested in usury. We do not worry about eating eggs at certain times of year (or perhaps we do!), but there were strict, but confusingly variable, dietary rules in the Catholic Church.
But the great attack on casuistry at the time it flourished came from the other side, from those who claimed that the casuists were too unclear, or too lax. The problem was that casuistry produced famous disagreements: it did not build up a stock of certain judgements which could be used by the confessor like a book of case-law. One learned casuist would answer yes to the question; his Jesuit (or Franciscan) colleague would thunder back, no. There was no certainty, but worse there was laxity. The deeper casuists looked into questions, the more often they came up with the answer, yes. Authoritarianism surely should produce more no answers. There seemed to be no moral problem on which some casuist could not find a piece of advice which seemed to give a way out to a sinner. Hence in the seventeenth century, Protestant moralists but also Catholics, like Blaise Pascal, began to attack what they saw as the devious sophistry of the casuist. Lord Bolingbroke in 1736 summed up the standard view: ‘Casuistry destroys by distinctions and exceptions all morality, and effaces the essential differences between right and wrong’.
One great area where this was the case was on the question of lying. The casuists were reluctant to condemn lying in the terms it was later condemned by Kant. Was it lawful to lie? God told Moses: Thou shalt not bear false witness against thy neighbour, which looks fairly conclusive. But, the casuists were willing to argue that it might be lawful to use amphibology or equivocation. Amphibology was using a word with a double meaning; equivocation was uttering a proposition partly verbally and partly mentally. So, if a Protestant persecutor asked a Catholic if a priest was hiding in his house, he could reply, ‘non est hic’, meaning, ‘he is not here’, or alternatively meaning, ‘he is not eating here’. The Latin ‘est’ can bear both meanings. The Catholic meant that the person in hiding was not eating, but the searcher thought he meant that the person in hiding wasn’t there. This was amphibology. Alternatively the Catholic could answer audibly, ‘no’, adding mentally, ‘as far as persecutors should know’. The casuist justification for this was that the requirement to be completely transparent was overridden by the need to defend not only human life, but in the case of a priest hiding in a country run by persecuting Protestants the Catholic Faith itself. If one wished to bring it back to the Ten Commandments, it was as important to honour God and the parental figure who was the priest as it was not to bear false witness. Any list of more than one commandment which is not accompanied with a methodological key is likely to cause problems (in any case false witness and lying may not be the same thing). One Biblical text appealed to was Luke xxiv, 28, where Christ pretended that he was going to Emmaeus, but then did not do so. Christ must have used some form of dissimulation, it was argued. The anti-Jesuits of the seventeenth century led by Pascal attacked this Jesuitical laxity, and casuistry acquired a reputation for devious logic-chopping in the cause of hypocrisy and immorality.
So, after the seventeenth century attack on casuistry, it fell into neglect. Practical ethical problems, however, continue to exist. As a method, casuistry has considerable appeal. The clear presentation of the case, the weighing of contrary judgements; the appeal to a hierarchy of laws; the attempt to develop methodological rules; the consideration of the opinion of others. If it can be taken away from its religious background, it might serve a secular purpose. We live now in a post-modern world where a new casuistry is emerging. Our Jesuits sit on medical ethics committees; they have been ordained by the Universities. They judge again in a world where the old certainties have gone. Modern biology has destroyed our confidence about words like Life and Death, just as the Reformation and Imperialism created a world where Catholicism found itself for the first time under persecution. The sixteenth century casuists invented new rules and new words to cover these new situations. In the same way, our bio-ethicists invent new words, euthanasia, abortion etc to use instead of kill. The double effect is wheeled out to justify actions in the same way as amphibology and equivocation was used by the original casuists. Perhaps we need a new Pascal or Kant; or perhaps the casuists know best?
