Casuistry

Aristotle’s characterization of rhetoric as a counterpart of both dialectic and ethics took on renewed importance with the publication of Albert Jonsen and Stephen Toulmin’s The Abuse of Casuistry (Berkeley, 1988). Casuistry is an ancient art of case reasoning used to resolve moral dilemmas, whose “golden age” was the late Middle Ages. Jonsen and Toulmin sketch the contribution to casuistry of Cicero’s topical system of invention, but, because of their historical focus in Abuse, Jonsen and Toulmin did not dwell at any length on the why and how of casuistry, opting rather to explain what it is, explore its development and abuses, and suggest both how it might be rehabilitated and, once rehabilitated, how it can serve clinical ethics today.

Jonsen and Toulmin present casuistry as one answer to the pressing need of medical practitioners for a rigorous method of rendering moral decisions. According to Jonsen, a moral dilemma is made of maxims in conflict. “Do no harm,” “Patients ought to have autonomy in matters of treatment,” and “Relieve suffering whenever possible” are examples of the type of maxims that reside in biomedical cases. [...] So, for example, a medical dilemma could hinge on a conflict between the physician’s obligation to “do no harm” and a patient’s autonomous preference to discontinue a lifesaving treatment. Jonsen teaches clinicians how to conduct lines of inquiry, guided by topics, in order to discover the particular maxims that are in conflict at the heart of a given moral dilemma. Jonsen’s topology (collection of special topics) is: Medical Indications, Patient Preferences, Quality of Life, and Context. Jonsen suggests how, in order to render a prima facie defense for a moral judgment in any given case in the care of patients in medicine and nursing, the arguer must address all four of these issues. Each issue, in turn, has attendant subtopics: For example, the issue of competency is an important subtopic of patient preferences because the preferences of an incompetent patient carry little weight compared with those of a fully competent one. The topology operates heuristically by prompting questions that, when taken together, constitute lines of practical inquiry. Such a method is a departure from the received approach to bioethics.

Jonsen and Toulmin discuss how modern moral philosophers privilege a rationalistic method that misuses principles and attempts to deduce from a single principle (autonomy, utility, sympathy, etc.) entire systems of moral philosophy. When “moral geometers” assume that only the knowledge deduced from a superprinciple is valuable knowledge, they deny forms of reasoning that are appropriate to the moral realm. Demonstrative reasoning has its place; but its limitations are underscored when one enters the moral realm. Jonsen and Toulmin contrast this habit of moral reasoning with those who take a rhetorical view, noting how the latter “do not assume that moral reasoning relies for its force on single chains of unbreakable deductions which link present cases back to some common starting point. Rather (they believe), this strength comes from accumulating many parallel, complementary considerations, ... not like links to a chain but like strands to a rope or roots to a tree” (pp. 293–294).

Jonsen and Toulmin’s critique is congruent with the work of many rhetorical theorists the past half-century, because both involve a defense of rhetorical reasoning against the hegemony of geometric or demonstrative reasoning. What is needed now is a fully-elucidated methodology of casuistry, because marking of boundaries (between rhetorical and demonstrative reasoning) is only a preliminary step in the advancement of rhetorical theory (which must eventually take a practical turn).

The methodology of casuistry (and, mutatis mutandis, of rhetorical reasoning) involves the identification and addressing of relevant issues by (1) recognizing and raising appropriate questions as they “issue” from the case, (special topics); (2) narrowing the field of inquiry until the question(s) upon which the case “hinges” comes clearly into view (stasis and maxims); and (3) building lines of argument congruent with and derived from the analysis of the case by turning to the common topics. Each of these components employs phronesis because cases are situated in two ways: in real time and place, and relative to other similar cases. It takes practical wisdom to understand the relationship between analogous cases, and also to distinguish particulars that are relevant from those that are tangential to the heart of the case.

Rhetoricians will, of course, recognize the components identified above as the elements of the rhetorical method of case argument that was a staple of the forensic schools of antiquity. Given the importance of that doctrine in early systems of education, it is not surprising that the first casuists adopted rhetorical methods when faced with the need to render judgments in cases that involved difficult moral and theological dilemmas. They were schooled in the tradition of Cicero (106–43 BCE), Quintilian (c.35–c.100 CE), Augustine (354–430 CE), Boethius (480–524 CE) and Aquinas (1225–1274). Interestingly, the casuists never explicated their method; they simply went to work, determining appropriate amounts of penance for given sins and writing judgments on various moral and theological cases of conscience. Just after publication of Abuse in 1988, Albert Jonsen set about developing a fully-elucidated methodology of clinical casuistry. The following sketch of that methodology underscores what Jonsen means when he asserts “the form of reasoning constitutive of classical casuistry is rhetorical reasoning” (“Casuistry as Methodology in Clinical Ethics,” Theoretical Medicine 12, 1991, pp. 295–307; hereafter “Methodology.”). This article focuses on Jonsen’s casuistry because his conception of casuistry underscores the role of rhetoric in ethics like no other.

Albert Jonsen on Clinical Casuistry

Jonsen’s more refined and nuanced account of clinical casuistry begins with “Methodology,” which takes a step not taken in Abuse, according to Jonsen, because Abuse was primarily a historical account of casuistry. So, he and Toulmin did not there present casuistry as a technique for clinical ethics, although they did lay the groundwork for so doing.

Jonsen there describes the method of reasoning indigenous to casuistry by harkening back to Abuse, where casuistry is defined as:

[T]he analysis of moral issues, using procedures of reasoning based on paradigms and analogies, leading to the formulation of expert opinion about the existence and stringency of particular moral obligations, framed in terms of rules or maxims that are general but not universal or invariable, since they hold good with certainty only in the typical conditions of the agent and circumstances of action.

(Abuse, p. 257)

Jonsen posits that his reflections on the methodology of casuistry led him to the conclusion that the form of reasoning constitutive of classical casuistry is rhetorical reasoning. Whereas Abuse sketches how rhetorical doctrine contributed to the formulation of casuistry, “Methodology” explains how rhetorical reasoning drives its practice. This yeoman work advances the project begun in Abuse by highlighting how circumstances, topics, and maxims work in clinical judgments.

“A case,” Jonsen writes, “derived from the Latin verb ‘cadere,’ is literally an event or a happening.”

The happening is a collection of circumstances and the circumstances, literally, “what surrounds or stands around,” stands around the center of the case. That center is constituted of certain maxims, brief rule-like sayings that give moral identity to the case. A maxim was, for the rhetoricians, “maxima sententia,” a leading or important proposition. Sometimes they referred to them as “gnomoi” or wise sayings, because they seemed to distill, in a pithy way, experience reflected upon by wise men.

(“Methodology,” p. 298)

Casuistry then, works to order the circumstances of the case relative to the center (or crux) of the case, which is constituted of conflicting maxims. Thus, Jonsen takes a sharp rhetorical turn when revitalizing clinical casuistry. His reliance on classical rhetorical constructs to elucidate the methodology of casuistry bespeaks a deep and pervasive interrelatedness.

Considering his audience when his aim is to illustrate in practical terms how casuistry works, Jonsen employs three nonrhetorical constructs: morphology, taxonomy, and kinetics. In so doing, Jonsen’s project contributes to rhetorical theorists’ own understanding of the methods of rhetorical reasoning. Rhetoricians can learn a great deal by observing how this medical ethicist teases out the role of topical logic, of reasoning by analogy, of stasis, and of maxims in the resolution of moral dilemmas.

Morphology is a biological term having to do with form and structure. The analogy to case reasoning is that the “interplay of circumstances and maxims constitute the structure of a case” (“Methodology,” p. 299). Hence, the first task of the casuist is to discern the structure of the case, or to “parse” it. Sound judgment is rendered relative to the center, but, in difficult cases, the center is not easily grasped. Jonsen further elucidates how the center is arrived at by means of special topics.

Clinical-ethical activity has its proper special topics, the invariant constituents of that form of discourse. These consist of statements about the medical indications of the case, about the preferences of the patient, about the quality of the patient’s life and about the social and economic factors external to the patient, but affected by the case. Mark Seigler, William Winslade and I originally proposed these as a means of analysis of a clinical case in our book, Clinical Ethics. I now believe that they represent the special topics of clinical medicine, always relevant to the clinical decision and with an invariant structure, although variable content.

(“Methodology,” p. 300)

When Jonsen writes “I now believe ...” it is because he was beginning, by the late 1980s, to realize how utterly rhetorical is casuistry. Jonsen, Siegler, and Winslade’s Clinical Ethics (1982) is a practical handbook, that brings together practical moral guidelines (topically arranged) with pertinent medical principles and legal and professional precedents. Jonsen and his associates utilize there the four special topics of clinical medicine, without identifying them as such, because the link to rhetorical doctrine had not yet been firmly established in Jonsen’s own mind. Jonsen’s first attempt at explaining his topology in rhetorical terms appears in print in the debut issue of The Journal of Clinical Ethics (“Case Analysis in Clinical Ethics,” 1990, pp. 63–65; hereafter “Case Analysis”). That explanation is noteworthy for the way it brilliantly explicates how topics work to guide inquiry.

After introducing classical lore on topics, and distinguishing between common and special topics, Jonsen writes, “It is my opinion that the method of analysis I am about to explain represents the ‘special topics’ of clinical ethics, that is, the concepts that are basic to, and indelibly present in, any ethical problem that presents itself in a clinical case” (“Case Analysis,” p. 63). The topics may vary in degree of relevance, depending on the circumstances of the case, but they must be reviewed if an adequate analysis of the case is to be made. Jonsen then elucidates how each of the four topics works as a guide to moral inquiry. In so doing, he shows how the internal logic of each topic informs the discussion of the case and guides its direction.

Jonsen’s treatment of Patient Preferences is illustrative in this regard. The patient’s wishes are, of course, an ethically relevant component in all medical decisions. However, one must not only raise the question, “What does the patient want?” but the logic of this topic requires further questions: “Does the patient comprehend?” “Is the patient being coerced?” Each topic has an inner logic that suggests subtopics, and by following the lines of question suggested by the subtopics, the case analyst parses the case in order to reveal the issue. Jonsen then notes how “The ancient rhetoricians used the term issue in its literal sense, namely, the point at which various streams of logic, the topics, converge. The issue is the matter to be discussed in detail, the focus of attention, the knot that must be untied” (“Case Analysis,” p. 65). Jonsen proceeds no further; however, rhetoricians will recognize that he has now hit upon the notion of stasis. Morphology may be understood, then, as parsing the case in order to discover its form and rhetorical structure. Jonsen then introduces another crucial component of the casuistic method: The lining up of relevant cases in a certain order, taxis.

Taxis is the Greek word meaning the marshaling of soldiers in a battle line. When offering a defense for a moral judgment in a difficult case, the casuist arranges cases from the least ambiguous paradigm case to the present case. The Holocaust is the prime example of a paradigm case for morally repugnant racial atrocities. It was clearly wrong for the Nazis to practice genocide, but, as one moves farther away from the paradigm case, one can arrive at cases that are not clear cut and, therefore, require the taxonomical move in order to contextualize them. Taxis in casuistry is vital because “it puts the instant case into its moral context and reveals the weight of argument that might countervail a presumption of rightness or wrongness” (“Methodology,” p. 302). In short, taxonomy is the act of reasoning by analogy that saves casuistry from lapsing into mere situationism.

Jonsen offers an illustration from bioethics of how this interaction of paradigm and analogy provides a clear line of reasoning about the problem of foregoing life support. The determination of death by brain criteria initiates the taxonomy: one is not obliged to treat a dead body. Next come cases that involve persistent vegetative state, then cases of diminished mental capacity. As the case analyst moves by analogy from the paradigm to the less severe cases, the circumstances, coupled with their proximity to the paradigm, suggest the degree of obligation to provide medical care. At the beginning of the taxonomy, moral consensus prevails; as the analogous cases are lined up, more disagreement appears, and the taxonomy allows the differences between the instant case and the paradigm case to suggest which judgment is most appropriate.

A more germane feature of casuistic method is how the taxonomy is utilized to ground moral judgments. This dynamic Jonsen dubs “kinetics” in casuistry. Jonsen borrows the term kinetics from classical physics as he borrowed the term morphology from classical biology. Jonsen observes that, when rendering a moral judgment, the paradigm case imparts a kind of moral movement to the taxonomical line of cases, as a moving billiard ball imparts motion to the stationary one it hits. So casuistry relies upon a “moral movement” of certitude between paradigm and analogous cases. Jonsen associates kinesis in casuistry fully with prudential reasoning, or phronesis. The association between kinesis in casuistry and phronesis is complete because, in casuistry one reflects upon the relation between maxims (which are general rules of prudential conduct) and circumstances (which are the particulars that abide in the instant case) in light of analogous cases.

Phronesis in Casuistry and Rhetorical Reason

In his Rhetoric, Aristotle (384–322 BCE) identifies the three canonical modes of artistic proof — ethos, pathos, and logos — on grounds that, in order to persuade, one must evince good character, move the audience by appealing to emotions, and, of course, advance good reasons. Aristotle further asserts that a trustworthy character is one of the requisites of persuading because persons are more readily persuaded by those whom they can trust. At the beginning of Book 2, Aristotle subdivides ethos into phronesis, arete, and eunoia because, in order to establish credibility, the rhetor’s words must project practical wisdom, virtue, and good sense. Aristotle discusses this tripartite division wholly in terms of the techne of rhetoric. However, despite Aristotle’s limited aim in the Rhetoric, a fuller conception of phronesis emerges in the course of the sort of nuanced reading, across the Aristotelian corpus, conducted by, among others, Hans-Georg Gadamer, Alisdaire MacIntyre, Martha Nussbaum, and Joseph Dunne. That is, when one reflects upon the dynamics of rhetorical reasoning, which constitutes the faculty of discovering the crux of the matter (heuresis) that precedes the art of argumentation (techne) explicated in the Rhetoric, and simultaneously brings it to bear on the act of choosing the mean between extremes, elucidated in Aristotle’s Nicomachean Ethics, one begins to appreciate the potential yield of understanding phronesis and rhetorical reasoning in light of Jonsen’s casuistry.

Phronesis has not traditionally been associated as directly with rhetoric as the concepts of stasis and topics, but, as the above sketch underscores, its role in rhetorical reasoning is ubiquitous indeed. Understood with precision, rhetorical reasoning guides and phronesis drives moral inquiry. The aim of moral inquiry is to render sound judgment, but judgment in hard cases is frustrated because the crux of the matter is hedged in by a potentially limitless parade of particulars. Rhetorical reason manages particulars by systematically determining the relevance of issues and identifying the stasis, or the most relevant of the relevant issues. Now ascribing relevance, per se, is an act of phronesis.

Phronesis drives practical judgment in at least five distinct, discernible, and nuanced ways: (1) by bringing to bear ethical principles where appropriate; (2) by bringing to bear past experience on present situations; (3) by generalizing from analogous cases to present ones; (4) by working in tandem with special topics to guide inquiry by determining which issues are most relevant; and (5) by combining all four aspects above to bring together probabilities in their convergence in order to facilitate praxis. Enumerating these should clarify what Jonsen means when he writes, “above all, casuistic reasoning is prudential reasoning: appreciation of the relationship between paradigm and analogy, between maxim and circumstances, between the greater and less of circumstances as they bear on the claim and the rebuttals” (“Methodology,” p. 306). Let us recall Jonsen’s earlier statement, that “the form of reasoning constitutive of casuistry is rhetorical reasoning.” These two statements suggest that, for Jonsen, rhetorical reasoning and phronesis are nearly synonymous. By explicating the manner in which phronesis accomplishes its work of “appreciating” the various issues that converge to facilitate moral judgment, we will better understand how rhetorical reasoning itself operates as a guide to judgment in the practical arena.

The casuistical view of the relation of rhetorical reasoning to phronesis, then, is a valuable contribution to understanding the work of each as guides to moral judgment. But that is not all: The above also sheds light on why Aristotle considered rhetorical reason an antistrophe of dialectic.

Dialectic in Casuistry

Aristotle’s Topica is about dialectical competition, or disputation. However, his final exhortation to the would-be disputant indicates a concern that supersedes mere competition: “Moreover, as contributing to knowledge and to philosophic wisdom the power of discerning and holding in one view the results of either of two hypotheses is no mean instrument; for it only remains to make a right choice of one of them” (163b9). Since virtue “is a state of character concerned with choice, lying in a mean” (Nicomachean Ethics, 1107a) dialectic, insofar as it provides clarity in deliberations, contributes a great deal to moral decision making. The distinction between dialectical disputation and dialectical inquiry obtains throughout Aristotle’s Topica.

Dialectic is exemplified by the Socratic method. It is a three-step process: Socrates always begins with a proposition; pushes it to its conclusion, drawing out implications by means of question and answer; and applies the law of contradiction, which is later penned by Aristotle in Metaphysics, 1011b, “The most undisputable of all beliefs is that contradictory statements are not at the same time true.” The law of contradiction is a statement about the manner in which the mind operates during the meaning-making process, and it is at the operational core of dialectical reasoning.

Let us take, for example, a certain case involving the wife of a man with a terminal heart condition. The particular situation that I have in mind was such that the husband was being kept alive on a ventilator, but the vent tube bothered him so much that he had to be heavily sedated. The doctors had tried unsuccessfully to wean him of the ventilator on a prior occasion, which precipitated cardiac arrest. Now, the attending physician explained, the wife had to decide whether she wanted to leave her husband in a heavily sedated (and incoherent) state to prolong his life, or allow him to live a few days in a state where he could communicate with his family. Her response to the physician is telling, and is based on an implicit dialectical distinction, one that helps illustrate how the law of contradiction works. After some deliberation with her son, she concluded that if her husband could speak for himself, he would choose to be removed from the ventilator and the sedation because “he’s not really living, he’s just existing.” Implicit in the distinction is the premise that, for her husband, living entails the capacity to communicate with family and that any state of being that incapacitates one to such an extent is more like existing than living. In other words, merely existing contradicts the husband’s likely preference for and understanding of life. So, the law of contradiction informs choice making by “holding in one view the results of either of two hypotheses,” as Aristotle put it. It only remained for the wife to make a right choice of one of them.

Dialectical reasoning (as a mode of inquiry rather than as a method of disputation) parallels rhetorical reasoning. Robert Price (1968) argues, by exploring the parallel nature of Aristotle’s Analytics, Topics, and Rhetoric, that analytic, rhetoric, dialectic, and deliberation all share a common methodology, but that they are concerned with varying degrees of abstractness. Hence, insofar as the woman in the above illustration was concerned with deciding on behalf of her husband, she exercises rhetorical reasoning, but is led to her decision based on a dialectical inference. Dialectic illumines the contraries among which she chooses. The above explication of Jonsen’s casuistry illustrates how rhetorical reasoning situates her at a vantage point from which those contraries may be fully appreciated and also how phronesis guides her choosing. And that is why Jonsen’s casuistry helps one understand more fully why rhetoric is a counterpart of both dialectic and ethics.

Bibliography

Dunne, Joseph. Back to the Rough Ground: “Phronesis” and “Techne” in Modern Philosophy and in Aristotle. Notre Dame, Ind., 1993.

Dunne’s reading of Aristotle and of modern practical philosophers. This work has not received the attention it deserves from rhetorical scholars.

Golden, James L., and Joseph J. Pilotta, eds. Practical Reasoning in Human Affairs. Dordrecht, Netherlands, 1986.

Collection of illuminating essays on various aspects of practical wisdom.

Jonsen, Albert R. “Of Balloons and Bicycles — or — The Relationship between Ethical Theory and Practical Judgment.” The Hastings Center Report 21 (1991), pp. 14–16.

Jonsen, Albert R., and Stephen Toulmin. The Abuse of Casuistry. Berkeley, 1988.

MacIntyre, Alisdaire. After Virtue. Notre Dame, Ind., 1984.

MacIntyre argues that the restoration of community, made necessary by the failure of the Enlightenment project to replace Aristotelian rationalism must entail, in part, the restoration of Aristotelian phronesis.

MacIntyre, Alisdaire. Whose Justice? Which Rationality? Notre Dame, Ind., 1988.

Argues for the need to recover the Thomistic tradition of practical rationality grounded in Aristotelian phronesis. Refinement of the argument in After Virtue.

Miller, Carolyn R. “Aristotle’s ‘Special Topics’ in Rhetorical Practice and Pedagogy.” Rhetoric Society Quarterly 17 (1987), pp. 61–70.

An excellent source for those interested in revitalizing topical logic.

Nussbaum, Martha C. Love’s Knowledge: Essays on Philosophy and Literature. New York, 1990.

See especially “The Priority of the Particular” and chapter 2.

Perelman, Chaim. The Realm of Rhetoric. Notre Dame, Ind., 1982.

Trenchant examination of dialectic, practical argumentation and rhetoric.

Price, Robert. “Some Antistrophes to the Rhetoric.” Philosophy and Rhetoric 1 (1968), pp. 145–164.

Stump, Eleonore. Boethius’s De topicis differentiis. Ithaca, N.Y., 1978.

Boethius illuminates dialectic, rhetoric, and topics all at a glance.

Tallmon, James M. “How Jonsen Really Views Casuistry: A Note on the Abuse of Father Wildes.” The Journal of Medicine and Philosophy 13 (1994), pp.103–113.

Tallmon, James M. “Casuistry and the Role of Rhetorical Reason in Ethical Inquiry.” Philosophy and Rhetoric 28 (1995), pp. 377–387.

Warnick, Barbara. “Judgment, Probability, and Aristotle’s Rhetoric.” Quarterly Journal of Speech 9 (1989), pp. 299–311.

One interested in pursuing further the relationship of rhetoric and phronesis would do well to begin with Warnick’s essay.

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