On Casuistry

Jason Morgan advocates justice without legislation.

- Jason Morgan

We have largely forgotten that there is another way to pursue justice than by deciding what the answer to every problem is going to be ahead of time through legislation. Casuistry or case-centric jurisprudence is anti-legislation. It is the practice of taking each case as it comes, using judgment to discern the right outcome, while allowing plenty of room for mitigating or exacerbating circumstances. It is not a technique, but a state of mind. It involves taking a few steps back and thinking about what we see and hear with our own eyes and ears instead of trying to fit circumstances into the tight definitions in lawbooks. Judges who practice casuistry put their own intuition and, yes, judgment, ahead of what’s written down in laws compiled by people in faraway places.

Casuistry requires a major conceptual shift, from ‘classical’ to ‘quantum’ jurisprudence we might say. We are used to seeing court cases as equations where legal formulas are filled in with information and the results issue forth in ‘Guilty’ or ‘Innocent’ verdicts. However, casuistry sees cases in terms of relationships among people connected by a common injustice and requiring the careful, attentive, thoughtful, and imaginative application of fair judgment in order to right the wrong and restore all parties to good graces with one another as best as can be done. Under casuistry, justice is a work in progress, with a lot of gray mixed in with the black and white. There are no Newtonian certainties, only Heisenbergian approximations.

Ancient Judgments