COMPLIANCE AND RULE-FOLLOWING UNDER LEGAL UNCERTAINTY: TOWARDS A THEOLOGY-INSPIRED NEW LEGAL CASUISTRY

Abstract

A modern theory of casuistry has not been developed or paid much attention to in legal scholarship in Europe lately, since the partial failure of Viehweg to reintroduce the casuistic (topical) approach in 1950s. Yet, the related problems have not withered away and even today many legal professionals (attorneys and judges alike) still face the same dilemmas as already the medieval confessors and casuists did. This contribution thus ponders upon the question as to whether any new solid theory of legal casuistry – building either on the casuistry employed by theologians and confessors, or casuistry employed nowadays by ethicists, especially in bioethics – can be helpful to modern continental lawyers, who are used rather to systematic instead of casuistic thinking, but still either doubt the one-right-answer theory, or find themselves in a situation of legal uncertainty for whichever reason.