Systematic versus Casuistic Approach to Law: On the Benefits of Legal Casuistry

The period of 16th to 18th centuries has brought about significant changes in legal thought. In addition to looking for a system in conflicting Roman law and Canon law texts, late scholastics formulated the first general rules (regulae) that they derived from the Roman case law and which were to become the nucleus of current, predominantly systematic, approach to law in Europe – applying the rule prescribed by law, court practice or legal science onto the facts of the case via the so-called legal syllogism method. And although in the mid- 20th century there were also attempts to reinvigorate the casuistic approach to law known previously in the ancient Rome and in medieval moral theology (revived through Viehweg’s topics or Perelman’s new rhetoric), these efforts have ultimately not changed the prevailing way of legal thinking. However, current technological challenges as well as strongly perceived ambiguity of law, especially in the so-called hard cases (the most difficult legal cases), where there is no clear legal solution to be found in legal norms, the approaches and methods of problem-based (casuistic, topical) legal thinking resurface again. There seems to be thus a need for a new (and indeed beneficial) reconsidering of legal casuistry, helping to address the so far unclear legal problems, arising more often than ever before. This sort of new legal casuistry can be thereby built on the foundations taken from Roman law as well as from ethics, more specifically from the early modern moral theology.