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Photography by Matt Hagen
October 26, 2022
President Peñalver delivered the following reflection on Oct. 24 at the School of Law’s Red Mass, a traditional gathering to ask for blessings and guidance on all judicial proceedings and academic endeavors.
Lawyers have a special appreciation of the challenges involved in translating broad principles into concrete actions. We understand from experience that, as we move from vague generalities to the specificity of individual cases or contextualized decisions, complexity increases exponentially.
If we were to ask people whether they believe in fairness, or justice, or equality, we would receive universal assent. At least, I hope we would. Conversely, and drawing from the broad and sweeping language of today’s reading from Ephesians, if we were to ask people whether they are opposed to immorality, greed, or obscenity, virtually everyone would say that they are.
But these abstractions are only a starting point for the more challenging task of making decisions about what we ought to do; how we ought to act. As we descend to the level of particulars, disagreement ensues.
Some people prefer to remain safely at the level of generalities. They become uncomfortable when confronted with the uncertain and sometimes counterintuitive consequences of bringing them into dialogue with the unruly complexity of the real world.
The process of moving from abstract principle to concrete prescription is known as “casuistry.” If you search the dictionary definition of casuistry, you will find two senses of the word: one negative and one positive. The negative sense, which is arguably the dominant one these days, defines casuistry as a kind of “specious argument,” an exercise in “rationalization,” “sophistry” or even “trickery.”
As contemplatives in action, the Jesuits have always operated at the boundary between the general principles of our faith commitments and the specifics of our chaotic world. For this reason, they became known for their skill in casuistry. Indeed, the hostility that Jesuits have attracted throughout history from their intellectual opponents has led their name to become synonymous with the concept. One well-known pejorative for casuistic reasoning makes this connection explicit: “Jesuitical.”
The second, and (to my mind) more accurate definition of casuistry, is: “that part of ethics which resolves cases of conscience, applying the general rules of religion and morality to particular instances in which circumstances alter the cases.”
As lawyers, we know all too well that the details matter, that “circumstances alter the cases.” A prohibition or mandate that might at first glance seem to govern a situation can, when considered in connection with the specifics of the case, turn out to be inapt.
Even though this positive definition of casuisitry is the better one, the pejorative definition does gesture towards a genuine moral hazard. Details do matter but attending excessively to details can become a dodge – a way of avoiding the inconvenient demands of our core commitments, our first principles. Getting lost in the details can lead us towards a vague relativism or a crippling skepticism in which anything goes. “The devil is in the details” can be both figuratively and literally true.
In today’s Gospel, we see Jesus engaging in a bit of casuistry in the best sense of the word. Responding to the head of the synagogue, he reconciles the general prohibition against working on the Sabbath with his decision to cure the woman “crippled by a spirit.”
The story calls to mind two earlier passages in the Gospel in which Jesus is criticized for apparently violating the Sabbath – in one instance, he and his disciples eat grain from some fields they are passing through. In another, he heals a man with a withered hand. All these cases involve Jesus’s deciding to place human well-being above strict religious observance.
The reasoning Jesus uses to justify his Sabbath behavior in today’s Gospel is particularly lawyerly. He deploys what we would call a “reductio ad absurdum,” appealing to uncontroversial examples involving animals to justify working on the Sabbath in the service of human beings.
Jesus doesn’t deny the importance of honoring the Sabbath. He adds texture and depth to what it means. Another law-related pejorative is frequently applied to those who – like the synagogue leader in today’s Gospel – remain stubbornly at the level of the general prohibition, refusing to acknowledge the importance of context. Jesus calls them hypocrites, but we also call such people, and such reasoning, “legalistic.” I am reminded of the legal theorist Grant Gilmore’s famous aphorism: “In Heaven, there will be no law, and the lion will lie down with the lamb. In Hell, there will be nothing but law, and due process will be meticulously observed.”
Like situational relativism, rigid legalism is a professional hazard for lawyers. It is also a personal and spiritual danger for us outside of our professional lives.
A dual insight that “circumstances alter the cases,” but – at the same time – that general principles still have real bite, is the fundamental genius of our common law. That insight is also at the heart of the common law’s pedagogical cousin: the case method of legal education.
For the common law lawyer, sound legal reasoning starts with general principles, but it never ends there. It carefully brings the general into conversation with the untidy particulars of an actual case or controversy. And, through the institution of the judicial opinion, the impact of that conversation on the outcome of the case then feeds back into our understanding of the principle itself, adding depth and complexity its meaning going forward.
The common law and the case method push us to be attentive to the messiness and complexity of particulars even while we give general principles their due. They push us to become contemplatives in action – to become more Jesuitical. That is, they push us to conscientiously avoid the opposed hazards of contextual relativism and rigid legalism, to embrace the virtues of casuistry, properly understood.
If we can succeed in this challenging task, we will become better lawyers . . . and better disciples of Christ.