Moral Dilemmas
I first became interested in casuistry in 1990, after reading Jonsen and Toulmin attempting to rescue the approach, which had fallen into disrepute. [i] To introduce their theme, the authors began with a discussion of an incident in the 1984 Presidential campaign. Geraldine Ferraro, a nominee for Vice President, was asked to state her position on abortion. She declined to stand on one or other side of the divisive positions. In fact, she made it clear that she was personally opposed to abortion, but that she believed it was a matter of choice and supported the right of women to make their own individual decisions. To remind you of the timing here, this was eleven years after the Supreme Court’s decision on Roe v. Wade. [ii]
Her response set off a storm of controversy over her views as a lay person in the Roman Catholic Church, as compared to the views of the Vatican and Catholic priests and nuns. Arguments swirled about the extent to which the church had the right to impose moral rules, as opposed to the right of individuals to exercise their individual conscience (supporters of that view included not just Geraldine Ferraro but many nuns who joined the debate). The dispute also reminded people of an old problem for the church, its past commitment to casuistry to resolve specific moral dilemmas arising from conflicting general moral rules. Casuistry had been used to examine moral issues, but, over time, it had been largely rejected, on the grounds that it led to justifying not examining, and was regarded as specious, misleading, or overly subtle.
Thirty four years later, the debate about the rights of the fetus and the rights of women to choose has continued unabated. At one level, it is a debate that readily slips into zealotry. Each side stands by an absolute right, their entrenched positions allowing no room for compromise. From there, it is a short step to justifying shooting doctors and bombing women’s health centres that perform abortions. It is a topic where a casuist’s approach should be invaluable.
To begin with, it is worth going back to look at what the Supreme Court said. It ruled, 7–2, that a right to privacy under the ‘Due Process Clause’ of the 14th Amendment extended to a woman’s decision to have an abortion, but that this right must be balanced against the state’s interests in regulating abortions, namely protecting women’s health and protecting the potentiality of human life. Arguing that these state interests became stronger over the course of a pregnancy, the Court came up with a ‘balancing test’, limiting state regulation of abortion to the third trimester. This determination was revisited in 1992 in another case, Planned Parenthood v. Casey,[iii] where the Court rejected Roe‘s trimester framework while affirming its central decision that a woman has a right to abortion until ‘fetal viability’. It defined this as “potentially able to live outside the mother’s womb, albeit with artificial aid” and acknowledged that viability may occur at 23 or 24 weeks, or sometimes even earlier, in light of medical advances.
What was the Supreme Court doing? It was following a procedure that courts use all the time. The justices were relying on the familiar English legal process of judicial reasoning that sought to resolve a problem by an almost forensic examination of a case, extracting or extending rules from each decision, and reapplying those rules to new instances. This is the method of jurisprudence, the basis of common law. The questions the Supreme Court had to examine (among many, many others) included: What have courts determined in the past about the implications of the 14th Amendment? How have courts previously circumscribed the rights of states to intervene in matters to do with the right to life? What is meant by privacy?
In fact, they were practicing casuistry.
Jonsen and Toulmin deliberately choose the Geraldine Ferraro story, as it was casuistry that had been developed and used in the Catholic Church over the centuries to resolve moral issues. At the same time, it was the use of casuistry by the Catholic church that led the word to be disparaged. Catholic casuistry was seen as the way in which the church got around otherwise problematic standards. Specious was a good word to describe it: superficially plausible, but actually wrong, misleading, deceptive, or spurious. When I read all the definitions of specious, I could see why Jonsen and Toulmin’s desire to resurrect the word was doomed.
Casuistry has such bad connotations that today we prefer to call this approach practical reasoning, since it avoids the pejorative sense of the word. Casuistry takes a clearly ‘applied’ approach to morality. Rather than beginning with, or over-emphasising theoretical issues or general moral principles, it assesses how to draw on the resolution of previous cases and to derive ways to address new and problematic moral conundrums, building a body of ‘moral case law’. The Supreme Court draws on, and adds to, that set of precedents all the time.
The starting point for practical reasoning is that we cannot imagine living in a world where there are universal rules and principles that must be followed, categorical imperatives, to use Kant’s term. There are two reasons why not.
First, principles can and do conflict. We all know the old example: you are sheltering Jews in Germany during the Second World War. The Gestapo arrive, and ask if there are any Jews in your house. On the one hand, you have been told you should never tell a lie. On the other hand, you took in a Jewish family to protect them from certain death at the hands of the Nazis. The story is usually more complex than that, but even at this bare bones level, to tell the truth would be deny your commitment to protection, giving those to whom you promised shelter over to certain death; to tell a lie would be to break the principle of truthfulness. I will leave it to you to think of more complex versions of this situation.
Second universal rules deny the complexity of their application. You must never kill another human being, the principle of the sanctity of life. However, we train soldiers to kill people, and consider that to be a proper skill for them to acquire. In justify that, the response is usually along the lines of ‘but in that case …’.
This points to the heart of practical reasoning. Rather than arguing we should live by following inflexible universal rules and principles, the alternative is to ask for an examination of specific instances where ‘generally agreed principles’ might be at stake, and reason out what additional grounds for appropriate action might be found. As I have said, practical reasoning is exactly that: examine each case, to enable discretion to be applied and more equitable discrimination exercised. Each ‘new’ case adds to the body of issues, rules, precedents and prescriptions to be used.
One contemporary philosopher who demonstrates the power of practical reasoning, and in so doing forces us to consider some challenging possibilities is Peter Singer. I want to quote at some length from his book Practical Ethics. [iv] To be clear, this is an uncomfortable example of the approach, and not one with which you are expected to agree. However, it is an example that challenges your thinking.
An earlier chapter in Peter Singer’s looks at the issues involved in abortion, but this discussion moves on to taking the life of an independent human being. He doesn’t mince words. Based on an earlier discussion in chapters on abortion and killing animals, he turns to life or death decisions for disabled infants, and sets the scene in broad terms:
“the fact that a being is a human being, in the sense of a member of the species Homo sapiens, is not relevant to the wrongness of killing it; it is, rather, characteristics like rationality, autonomy, and self-consciousness that make a difference. Infants lack these characteristics. Killing them, therefore, cannot be equated with killing normal human beings, or any other self-conscious beings. This conclusion is not limited to infants who, because of irreversible intellectual disabilities, will never be rational, self-conscious beings. We saw in our discussion of abortion that the potential of a fetus to become a rational, self-conscious being cannot count against killing it at a stage when it lacks these characteristics – not, that is, unless we are also prepared to count the value of rational self-conscious life as a reason against contraception and celibacy. No infant – disabled or not – has as strong a claim to life as beings capable of seeing themselves as distinct entities, existing over time.” [v]
He continues:
“Infants are sentient beings who are neither rational nor self- conscious. So if we turn to consider the infants in themselves, independently of the attitudes of their parents, since their species is not relevant to their moral status, the principles that govern the wrongness of killing non-human animals who are sentient but not rational or self-conscious must apply here too. As we saw, the most plausible arguments for attributing a right to life to a being apply only if there is some awareness of oneself as a being existing over time, or as a continuing mental self. Nor can respect for autonomy apply where there is no capacity for autonomy.” [vi]
Finally, Peter Singer decides to consider timing:
“Prenatal diagnosis still cannot detect all major disabilities. Some disabilities, in fact, are not present before birth; they may be the result of extremely premature birth, or of something going wrong in the birth process itself. At present parents can choose to keep or destroy their disabled offspring only if the disability happens to be detected during pregnancy. There is no logical basis for restricting parents’ choice to these particular disabilities. If disabled newborn infants were not regarded as having a right to life until, say, a week or a month after birth it would allow parents, in consultation with their doctors, to choose on the basis of far greater knowledge of the infant’s condition than is possible before birth.” [vii]
Towards the end of his exploration of the issues, Singer goes on to consider the impact of infanticide on the parents, especially the mother. He suggests that:
“to go through the whole of pregnancy and labour, only to give birth to a child who one decides should not live, would be a difficult, perhaps heartbreaking, experience. For this reason, many women would prefer prenatal diagnosis and abortion rather than live birth with the possibility of infanticide; but if the latter is not morally worse than the former, this would seem to be a choice that the woman herself should be allowed to make.”
He ends his discussion with this clear statement:
“So the issue of ending life for disabled newborn infants is not without complications, which we do not have the space to discuss adequately. Nevertheless the main point is clear: killing a disabled infant is not morally equivalent to killing a person. Very often it is not wrong at all.” [viii]
I would love to give you more details from Peter Singer’s compelling, rigorous and sometimes disconcerting assessment. This is just one of many topics he explores in his book. He also addresses our treatment of animals, and why killing animals is wrong in many circumstances. He discusses abortion and euthanasia. He looks at differences between rich and poor, and people of different nationalities and ethnic backgrounds. Finally, he talks about the environment.
There is another side to Peter Singer, which merely reading his books might not make clear. Not only does he engage in public practical moral reasoning, but he lives his life by the cases he examines and the conclusions he draws. He is a vegan. He is one of the most environmentally aware people I know and is scrupulous in how he deals with resources and waste. For him, practical reasoning is centrally about practice, not just about the reasoning.
He has also had to confront situations where reasoning and emotion conflict. Peter Singer’s mother had Alzheimer’s disease. He said, “I think this has made me see how the issues of someone with these kinds of problems are really very difficult”. [ix] Having explained that his sister shares the responsibility of making decisions about his mother, he has admitted, “if he were solely responsible, his mother might not continue to live.” [x] A tough-minded thinker, but a person with feelings, too.
Sometimes, I resort to saying, “we need more philosophers like Peter Singer”. Perhaps. However, I think what I should be saying is that we need everyone in society to be better educated, so that they can read, discuss and argue – rationally – about the complexities of taking decisions, and recognise the value of practical reasoning. In saying that, I am not suggesting we have to agree with Peter Singer’s conclusions: in some of his arguments, I weigh the factors he addresses differently. But in every case, he makes me think, doing so on an informed basis.
As the events here in America over the past few decades have made clear, many people have retreated into unthinking and extreme positions. Many have lost the ability to listen to others, have abandoned the desire to seek for the facts behind the rhetoric, and have given up on thinking about what is happening. Surely those are the most basic things we would expect in a democratic society. Is that too much to ask for?
[i] Albert Jonsen and Stephen Toulmin, The Abuse of Casuistry: A History of Moral Reasoning, Berkeley, Univ. California Press, 1990
[ii] Supreme Court, Roe v Wade 410 U.S. 113 (1973)
[iii] Supreme Court, Planned Parenthood v. Casey, 505 U.S. 833 (1992)
[iv] Peter Singer, Practical Ethics, Cambridge University Press, 1993: Chapter 7, Taking Life: Human
[v] Ibid, page 182
[vi] Ibid, pages 183-4
[vii] Ibid, page 190
[viii] Ibid, 191
[ix] https://www.michaelspecter.com/1999/09/the-dangerous-philosopher/
[x] https://reason.com/archives/2000/12/01/the-pursuit-of-happiness-peter
