On Casuistry

However, the answer is not some kind of local unaccountable justice system where a judge basically rules based either on the will of the crowd or his own personal interests, and then calls it "community reconciliation" or some such bullshit. It's like the person who wrote the article literally never contemplated the reason for written law to exist in the first place.

> The unpleasant truth is that if you live in a community whose members are not good people, you won't have good outcomes, no matter what kind of system you design.

I think this is also basically undeniably true. But across all of history, I really don't know of any politcal system that had a noticable positive effect on the moral quality of the individual humans it ruled over. So this just leaves me with a sense of metahistorical pessimism.

Such a claim might be valid for crimes such as murder, where we would indeed expect sentencing to fit the crime and not to be adjusted for certain individuals because of factors irrelevant to the crime.

But most cases aren't like that. Most cases involve civil disputes between parties based on non-repeatable individual circumstances that don't lend themselves to one-size-fits-all, bright-line rules the way criminal prosecutions usually do. In cases like that, if there's going to be fairness at all, it has to involve judges and juries exercising non-repeatable individual judgment based on the non-repeatable individual circumstances of the case. Yes, there will be legal principles involved that could apply to many cases, but there will always be unique aspects to the facts of an individual case that can only be assessed by human judgment.

There is no reason why a local justice system can't be accountable to the people who live in the community. But, as I said in another comment upthread, if the people in the community aren't good people, you aren't going to have good outcomes no matter what kind of system you set up, or what kind of laws you write.

> It's like the person who wrote the article literally never contemplated the reason for written law to exist in the first place.

Sure they did; they just recognize that written laws are attempts to achieve an unachievable ideal. It is impossible to capture "fairness" and "justice" in any written set of rules. There will always be human judgment required in individual cases, and human judgment is (a) subjective, and (b) depends on the humans doing the judging. If you have corrupt humans, you will get corrupt outcomes, and you can't fix that by writing laws, because corrupt people will just figure out loopholes in the laws, and writing guaranteed loophole-free laws is impossible.

That is not the original meaning of casuistry. It is the meaning given to the word by casuistry's critics, or rather probably the critics of the Jesuits, as they used the technique a lot in the past.

A 'fuller' defintion:

> Casuistry (/ˈkæzjuɪstri/) is a process of reasoning that seeks to resolve moral problems by extracting or extending theoretical rules from a particular case, and reapplying those rules to new instances.[1] This method occurs in applied ethics and jurisprudence. The term is also commonly used as a pejorative to criticize the use of clever but unsound reasoning, especially in relation to moral questions (as in sophistry).[2] The word casuistry derives from the Latin noun casus ("case" or "occurrence").

[…]

> Certain kinds of casuistry were criticized by early Protestant theologians, because it was used in order to justify many of the abuses that they sought to reform. It was famously attacked by the Catholic and Jansenist philosopher Pascal, during the formulary controversy against the Jesuits, in his Provincial Letters as the use of rhetorics to justify moral laxity, which became identified by the public with Jesuitism; hence the everyday use of the term to mean complex and sophistic reasoning to justify moral laxity.[14] By the mid-18th century, "casuistry" had become a synonym for specious moral reasoning.[15] However, Puritans were known for their own development of casuistry.[citation needed]

* https://en.wikipedia.org/wiki/Casuistry

This is/was a pretty good overview of the technique through ages:

* https://www.ucpress.edu/book/9780520069602/the-abuse-of-casu...

* https://www.goodreads.com/en/book/show/954645.The_Abuse_of_C...

Old review:

* https://www.journals.uchicago.edu/doi/10.1086/293127