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As medicine in the US finds itself in an increasingly troubled state,
medical ethics is prospering as never before. While health services flounder,
doctors grow unhappier and medical school admissions drop, a new breed of
moral philosophers, known as medical ethicists, has been delighted to find
a steadily growing demand for its skills. These trends are not, of course,
unrelated. Like undertakers and pathologists, medical ethicists have found
that the health of their profession and the health of their subjects are
related in inverse proportion.

The recent trends in medical ethics also contain ironies. Several developments
have conspired to widen the gap between American doctors and their patients:
sophisticated diagnostic technology is replacing the medical history and
physical examination, hospital care is replacing primary care, and profit-oriented
medical centres are replacing the family doctor. But while the worlds of
the doctor and the patient are moving further apart, the worlds of the ethicist
and the patient are moving closer. It is not rare in the US these days to
find moral philosophers accompanying clinicians and medical students as
they do their rounds in hospital wards. Philosophers seem to be discovering
that in ethics, armchair expertise is no substitute for clinical experience.

At the heart of this emphasis toward closer contact with patients is
a final irony. As medicine moves further toward technological solutions
to medical problems, medical ethics is returning to a method of moral reasoning
which was discarded in the Renaissance and has rarely made an appearance
since.

Only five years ago the term ‘casuistry’ was barely heard outside academic
departments of history or religion, much less in hospitals and medical schools.
Those who did use the term did not intend it to be a compliment. Rather
like the term ‘sophistry’, ‘casuistry’ had come to refer to skilled but
specious ethical reasoning. It implied the devious misuse of a philosophical
art, a superior talent put to malicious ends.

But the casuistry that is emerging in medical ethics has somehow shed
these implications of malevolence. It refers rather to a method of reasoning
on a case-by-case basis, avoiding abstractions and concentrating on practical
action. Like clinical medicine, it is a pragmatic enterprise, relying less
on moral theory than on case histories and rules of thumb.

Though casuistry has fallen into disrepute over the past three centuries,
at one time it was a respectable method of addressing moral perplexities.
Casuistry evolved in the Christian theology of the early Middle Ages as
a way of solving ‘cases of conscience’. Sometimes called ‘case morality’
or ‘case divinity’, casuistry was driven by a need for practical action
in situations of moral uncertainty. Typical of the casuistic enterprise
would be efforts of a Church scholar to interpret religious prohibitions
against lying in cases where telling the truth might lead to great harm.
At its zenith in the 16th and 17th centuries, casuistry produced a large
body of work on a broad range of moral problems. Many of these problems
are still relevant today, such as questions of sexual morality or the justification
of violence; others, thankfully, have all but disappeared – for instance,
questions regarding the use of judicial torture.

The disrepute into which casuistry eventually fell is usually attributed
at least in part to the French philosopher and mathematician Blaise Pascal,
who in 1656 published a blistering, satirical attack on casuistry in his
Provincial Letter. Writing anonymously on behalf of a small French Catholic
sect called the Jansenists, Pascal caricatured the Jesuit casuists (the
Jansenists’ political enemies) as ingenious defenders of moral laxity, capable
of justifying virtually any outrage by way of shrewd moral manoeuvring.
Casuistry never really recovered from Pascal’s brilliant polemic. In later
academic debate, even serious discussion of casuistry was conducted in derisive
tones. One hundred years after Pascal’s attack, Adam Smith closed his discussion
of casuistry in the Theory of Moral Sentiments with this dismissal: ‘Books
of casuistry, therefore, are generally as useless as they are commonly tiresome.’

But recently, casuistry has been resurrected. And in its current incarnation,
casuistry is being turned not towards matters of church doctrine but to
moral questions in the hospital and the laboratory. The revival of casuistry
in medicine is, in turn, part of a more general swing of philosophical interest
in recent decades toward ethical dilemmas in the public domain. For the
first half of the 20th century, moral philosophers largely occupied themselves
not with practical moral problems (what action would be morally best in
this situation?) but with questions concerning the logic and method of moral
reasoning (what is the nature of moral judgements?). Actual cases were rarely
discussed and the ones that were debated were usually hypothetical scenarios
invented to demonstrate a philosophical point.

This began to change in the 1960s and 1970s, when moral issues such
as civil rights, conscientious objection and nuclear war were debated and
American academics were drawn into the arguments. Technological advances
such as intensive-units and organ transplants brought medical ethics to
the foreground. At first, ‘bioethics’ was mainly an extension of the work
of moral theologians, who were involved in sensitive medical situations
as part of their pastoral work in hospitals and clinics; bioethical issues
later began to attract the attention of moral philosophers. Years later
an even wider range of people joined the debate on ethical questions in
medicine and biology: specialists in literature, history, law, sociology
and anthropology. As a result the study of ‘cases of conscience’ once again
acquired an air of academic respectability.

The term ‘casuistry’, however, was rarely used to describe this sort
of practical ethics until the late 1980s, when philosopher Stephen Toulmin
and theologian Albert Jonsen began to rehabilitate the term. In a number
of separate articles and later in their book The Abuse of Casuistry, Toulmin
and Jonsen argue that what practical ethicists find themselves doing today
is quite similar to what the casuists were doing in the Middle Ages – and
rightly so. Ethics cannot be abstracted from the concrete situations in
which moral problems arise, and the pressing concerns engendered by medicine
and biology have brought moral philosophers back down to earth. Medicine,
says Toulmin, ‘saved the life of ethics’.

However, what distinguishes Toulmin, Jonsen and their followers from
the mainstream of moral philosophy is not so much their insistence on attention
to cases as their method of moral reasoning about those cases. Much of moral
philosophy over the past two centuries has focused on developing moral theories:
guidelines as to how one ought, morally, to act. Philosophers took science
as their model: so, in much the same way that scientists might develop a
theory and then use it to explain and predict physical phenomena, it was
thought that philosophers should develop moral theories, which, when applied
to particular situations, could tell people the morally right way to behave.
If philosophers could just develop or discover fundamental moral principles,
abstract and general moral truths on which a theory could be built, then
how one ought to act in particular cases would follow logically.

In this view, the job of philosophers was to construct the moral theories,
not to apply them. Even philosophers sympathetic to the view that ethics
must aim at practical application generally thought that application must
come after the development of the theory. In his Principia Ethica, the English
philosopher G. E. Moore wrote: ‘Casuistry is the goal of ethical investigation.
It cannot be safely attempted at the beginning of our studies, but only
at the end.’

The new casuists, on the other hand, argue that this view of ethics
is hopelessly misguided; that we cannot expect to find moral laws from which
to deduce logically how to act in particular cases. Toulmin and Jonsen trace
the view of ethics as systematised, abstract theory to Isaac Newton’s Philosophiae
Naturalis Principia Mathematica, which put forward a set of three ‘Axioms,
or Laws of Motion’, which, it was thought, could theoretically explain (eventually)
all the phenomena of the natural world. The influence of this work spread
beyond the natural sciences to virtually all subjects, and scholars in ethics
took its mathematical precision as a model for their own endeavour. Toulmin
and Jonsen call this a ‘geometrical’ view of ethics: a search for universal
first principles, from which specific courses of action can be logically
deduced.

In contrast, the new casuists anchor their method not in abstract theory,
but in concrete particulars. In a morally difficult situation, instead of
attempting to reason from universal first principles, the casuists look
to ‘paradigm cases’ – examples of right and wrong about which there is little
or no moral disagreement, and which bear similarities to the case at hand.
For instance, doctors looking after newborn babies often face the dilemma
of deciding whether or not to resuscitate a premature infant whose chances
of long-term survival are small, and whose brief life may be handicapped
by mental or physical disabilities. Is it morally justifiable to withhold
treatment? A casuist might begin to think about such a case by examining
paradigms to which the case is similar. How is this case similar to and
different from, for example, infanticide, which virtually everyone agrees
is morally wrong? How is it similar to and different from the case of a
terminally ill adult, who asks not to be resuscitated if her heart stops?
Casuistry sees ethics as a matter not of logical deduction, but of rational
persuasion. By reasoning from like cases, about which there is little disagreement,
casuists bypass the traditional leap to general theory. Their approach is
to argue about morally fuzzy cases by comparing them to morally clear ones.

One rationale for bypassing the step up to theory is that our moral
experience is rooted in actual circumstances, not in abstractions. As children
we are taught first of all about right and wrong in real, concrete situations,
and from those individual situations we learn to generalise. Even as adults,
we rarely possess coherent, systematised moral theories. Our generalisations
usually take the form of rough moral maxims such as lying is wrong and one
ought to keep one’s promises. But these maxims are far from all-encompassing
and straightforward. They often conflict with each other, and they require
judicious interpretation when they are applied.

Philosophers have long debated and long disagreed on the nature of ‘moral
knowledge’. Is my knowledge that needless killing is wrong like my knowledge
that my sweater is green? Are there moral principles that are like scientific
principles, moral facts that are like scientific facts? The casuists argue
that whatever the answer to these sorts of questions – if, indeed, such
questions even make sense – any moral knowledge that we do have is not knowledge
of general moral principles or abstractions, but knowledge of what one ought
to do in specific situations.

An anecdote demonstrates the casuists’ point. In the mid-1970s, both
Toulmin and Jonsen served on the National Commission for the Protection
of Human Subjects of Biomedical and Behavioral Research in the US, a panel
set up to produce ethical guidelines for scientific research on human beings.
Serving on the commission were 11 people of varying occupations, races,
religions and interests: men and women, Catholics and Jews, atheists and
theologians, lawyers and medical scientists – in short, not a group that
one would immediately expect to reach consensus on ethical issues. Yet while
the members of the commission brought to their decisions vastly different
points of view, they rarely found themselves in disagreement when they had
to decide how to handle particular cases. They began to disagree only when
they started to give the reasons for their decisions – that is, when they
made the implicit leap to moral ‘theory’.

One point of this story is that if ethical investigation aims to reach
a consensus upon which all members of a society can agree, then a more efficient
way of reaching that consensus is to work not from the top down, as philosophers
such as Moore have long suggested, but from the bottom up: to start from
cases, not principles. The experience of the commission suggests that even
people with very different moral principles can agree on how best to act
in particular cases. And in fact, Toulmin and Jonsen report that the members
of the commission reached consensus on particular cases before they developed
the general guidelines that they were charged to produce.

Medicine in the US is beginning to feel the impact of the case-based
method. One obvious consequence has been the growing prominence in medical
ethics departments of medical doctors trained in ethics. For a number of
years now a majority of American medical schools have employed ethicists
to teach ethics and the humanities to medical students and house staff and
to offer advice on problematic medical cases. But oddly enough, in the early
days of medical ethics only a few of the major figures in the field were
medical doctors. The result was often a yawning gap between ethicists’ abstract
method and doctors’ clinical practice. Doctors, however, are generally much
more comfortable with the case-based method, which emphasises the skills
of clinical practice: pragmatic reasoning, teaching in wards and dealing
with patients.

A popular term for this clinically based approach is, aptly enough,
‘clinical ethics’. One of the most recent additions to the expanding list
of bioethics journals is the Journal of Clinical Ethics, which emphasises
a practical, action-oriented approach to ethical difficulties. A similar
approach characterises the University of Chicago’s Center for Clinical Medical
Ethics, which offers a training programme in ethics for physicians. And
whereas until recently most scholars in ethics were employed primarily to
teach ethics to students in medical schools or philosophy departments, more
and more ‘clinical ethicists’ are being assigned to hospital wards to advise
on clinical dilemmas.

A more controversial development has been the growing popularity of
‘ethics consultants’. In much the same way that a rheumatologist or a dermatologist
might be called in by a GP to consult on a patient with especially puzzling
joint or skin problems, an ethics consultant is called in to give advice
on cases which present particularly difficult ethical problems. The consultant
will typically interview and perhaps examine the patient, review the case
with the health care team, and consult with the patient’s family. Like any
other consultant, he or she will usually leave a note in the patient’s chart
with recommendations for the patient’s management.

Many observers are bothered by a change implicit in the notion of ethics
consultation: a shift in decision making from the primary physician to the
consultant. In American medicine, when a specialist consultant is called
in to advise on a case, it is ordinarily because the primary physician is
not equipped to deal with problems of a very specialised nature. Formal
ethics consultation seems to suggest to doctors that they are not capable
of making ethical decisions on their own – that a specialist is better qualified
to make these decisions for them.

Many ethicists worry that instead of encouraging doctors to make more
sensitive, thoughtful decisions, which is clearly the goal, ethics consultation
encourages them to turn their ethical problems over to someone else. So
far the revival of casuistry has been most influential in clinical circles:
among those whose work revolves around dilemmas in the hospital, such as
the termination of life-sustaining treatment or do-not-resuscitate orders.
It is natural that practitioners whose work brings them in touch every day
with clinical cases should be attracted to a case-based method of moral
reasoning. But casuistry has not yet had much impact on bioethical problems
outside the immediate clinical realm, such as those created by new reproductive
technologies, or those generated by efforts to map the human genome. Nor
does casuistry lend itself as easily to matters of health policy, where
attention must be focused on the general rule, rather than the particular
case. Despite its limitations, however, casuistry has proven itself a refreshing
alternative to more traditional methods of moral reasoning in the clinical
domain. What remains to be seen is whether its methods will spread, as in
the days of the medieval casuists, to an even broader spectrum of moral
dilemmas.

Carl Elliott has degrees in medicine and philosophy and lectures in
the Department of Medical Humanities at East Carolina University Medical
School in Greenville, North Carolina.