Good Faith

June 30, 2004 | 27 comments
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The concept of good faith plays an important role in the law of contracts. Courts and commentators have long recognized that (many) contracts are incomplete, that parties cannot build meaningful, long-term relationships without some gaps in the initial framework. Such gaps, when discovered, might seem to allow one party to take advantage of the other. One method of preventing such behavior is the application of the duty to act in good faith. According to Judge Richard Posner, “The office of the doctrine of good faith is to forbid the kinds of opportunistic behavior that a mutually dependent, cooperative relationship might enable in the absence of rule.” If ever there was a legal concept ripe for Gospel application, this is it.

I have just spent considerable time reading about beards and white shirts, the dissemination of comments by Church leaders, and tests of obedience. Each of these threads includes substantial discussion of how members of the Church should interpret statements by Church leaders. Much of that discussion reads like a conversation among lawyers (no surprise there!) bickering over the proper reading of a contract. While I spend much of my time reading, thinking, and writing about contracts, I found some of the comments below quite breathtaking in their cynicism. My message here is simple, but I trust not uncontroversial: we need to cut Church leaders some slack.

I believe that the duty of good faith might offer some assistance on this thorny issue. Like the duty of good faith in contract law, the version of good faith that I am about to propose will not resolve all of our questions, but it will clear some options from the table.

My proposed duty of good faith goes like this: When interpreting statements from Church leaders, members should assume that the statements were made (1) with an honorable intention, (2) with a desire to serve the interests of the members and not (only) the interests of the Church leader, and (3) based on experiences (either spiritual or temporal) not necessarily shared by the members to whom the statements are directed.

While I suspect that many of us can think of examples of statements by Church leaders that would not pass all three tests, I believe that using those tests as a starting point will increase the likelihood that we will actually receive meaningful counsel. If, on the other hand, we listen to Church leaders with a belief that they are motivated only by selfish interests, we will miss some or all of what they have to offer.

One last note: the duty of good faith can be useful in thinking about alternative interpretive possibilities in the face of ambiguity. If a Church leader provides counsel that is susceptible to more than one interpretation, we might filter each of those potential interpretations through the duty of good faith (“would a leader who is honorable, sincere, and selfless approve of this interpretation?”). We needn’t bother with interpretations that are caught by the filter, and those interpretations that survive are all viable candidates. At that point, it seems to me that we have an obligation to choose the interpretation we think most closely tracks the intention of the Church leader. In the end, we are making lots of assumptions — or perhaps better, leaps of faith — but anyone who goes through this sort of process is likely to find some assistance from the Spirit.

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27 Responses to Good Faith

  1. lyle on June 30, 2004 at 9:31 am

    blogging law of good faith, re: multiple & alternative possible ways to interpret anothers post.

    statements are made (1) with the intent to contribute to the discussion, (2) without any intent to call anyone apostate, & (3) without any intent to insult. ergo:

    people can stop being offended/taking offense & discuss the issue, regardless of whether you feel like your faith(fulness) is being questioned, your intelligence, etc.

  2. Nate Oman on June 30, 2004 at 11:02 am

    Another possible analogy from legal theory is Joseph Raz’s concept of authority. Raz is concerned with questions about the nature of law. Lots of theories of law have been offered. Marxist, feminist, and other critical theorists have offered theories of law that argue that law is essentially a smoke screen that the powerful — e.g. capitalists, men, etc. — use to extract illegitimate benefits from the weak. (The original version of this argument is made by Thracymachus in Bk I of Plato’s Republic) Raz argues however that part of the phenomena of law is that it is presented and experienced (to some extent) as normative. According to Raz the idea of law itself contains a component that says that the law ought to be obeyed. (Raz’s claim here is analytic not ethical — he does not think that all laws actually should be obeyed) If Raz is right, then any theory of law must include some identifiably moral theory. The moral theory need not necessarily be a correct moral theory (this is the position of the natural lawyers), but it must be recognizably ethical. Hence, critical theories (eg Marxist or feminist) fail as an analytic matter because they do not grapple with or explain this key feature of the law. Again, it is important to realize that Raz’s claim is analytic. He is not suggesting that Marxists or feminists are necessarily incorrect as a matter of history of sociology. He is simply pointing out that whatever they have provided an account of, it cannot be the concept of law itself.

    Suppose that we say that the concept of prophetic counsel carries with it certain necessary characteristics similar to those outlined by Gordon. Hence, if we want to provide an account of any particular sermon, etc. as prophetic counsel then we need to apply Gordon’s interpretive categories.

  3. Frank McIntyre on June 30, 2004 at 11:08 am

    Nate,

    Although I am sympathetic to your pointing out that sophistry is not new to this century, I sincerely doubt that “The original version of this argument is made by Thracymachus in Bk I of Plato’s Republic”. That may be the oldest case we have found, but I bet the argument “rules are just here to keep me down and oppress me” goes all the way back to Adam and Eve’s first teenagers.

  4. greenfrog on June 30, 2004 at 11:48 am

    Gordon,

    I’m interested in the duty that you posit. It seems to me that the existence of a duty of good faith can be reasonably implied in the “common consent” practice the Church follows for calling persons to positions of responsibility. And, however, contoured, I wholeheartedly agree that it should include some variety of “give them a break (or the benefit of the doubt).”

    But the content of your proposed duties struck me as a bit unusual. Typically, the duty of good faith derived from contract law is interpreted to protect those who expose themselves to exploitation at the hands of another as a result of a contractual relationship. If the legal analogy is to be applied, it seems to me that the ones who are exposed to greater risk of bad faith exploitation are those not in positions of power, rather than those who are. I agree that such a duty should be reciprocal, and that it ought to protect the reputations of those called to positions of leadership, but the potential harm to reputation seems to me of lesser concern than the variety of harms the other group is exposed to. D&C 121 seems to pointedly suggest that the breach of the covenant of good faith occurs in almost all instances of authority.

    Setting to one side these concerns, as I read your proposed tenets of good faith, they sound less like rules of conduct for operating within the covenants we have made, and more like a set of evidentiary presumptions for evaluating the conduct of others. If that’s a correct understanding of your proposal, would you make those presumptions rebuttable? Upon what showing?

    gf

  5. Gordon Smith on June 30, 2004 at 12:23 pm

    greenfrog, The analogy of Church leaders-members to contracting parties isn’t really all that close, for the reasons you explain: in most circumstances, members reading counsel in bad faith are not able to take advantage of their leaders in the same way as contracting parties. Where I see the similarity is that in both instances, someone is reading an instruction for guidance about how to act or perform. In contract law, we require parties to read instructions in good faith, and it seems to me like a nice way to think about reading instructions from Church leaders. (Some of the comments below, in my view, were attempt to read the instructions of Church leaders a bit “too sharply.”)

    The D&C 121 issue is interesting, and I confess that I had not thought about that. My proposal is that we employ the duty of good faith as a “starting point” for interpretation. (Again reflecting the difference from contracts, where it is both the beginning and end of interpretation.) That seems to accommodate the possibility that some leaders in some instances will be acting in the manner contemplated by D&C 121.

    Finally, with regard to your last point about my duty of good faith being an “evidentiary presumption for evaluating the conduct of others.” Hmm. I can see that, though my goal was something quite different, I think. I am interested in the duty of good faith as a method of approaching the content of Church instruction. By setting questions of leader intent to one side, we can focus on content.

    Nate, help me out here. Where are you going with the Raz discussion?

  6. Adam Greenwood on June 30, 2004 at 12:41 pm

    Gordon,
    I think the real overlap between contracting parties and leaders-members is that both groups are entitled to see themselves as co-participants in an ongoing enterprise, as on the same side. So good faith means that the speaker (or the contracting party) is entitled to act as if the listener (or the other contracting party) was not an antagonist or at least a stranger.
    Members get the most hostile and suspicious about the Church when they see it as an entity over and apart from themselves. When they see ‘the Church’ as a synonym for ‘us,’ they can swallow things better.

  7. Nate Oman on June 30, 2004 at 1:00 pm

    gordon: my point is that in order for us to understand prophetic counsel as prophetic counsel it may be necessary to make the assumptions that you suggest. put another way, whatever it is that we are analyzing when we assume venal motives etc. on the part of the brethren it is not prophetic counsel. this seems to suggest that prophetic counsel may actually be something that is abstracted from the real intentions and motives of actual people (although not always). for example, when you analyze a judicial opinion you assume that the judge is acting in good faith and that the arguments put forth are the ones meant to justify the opinion. strictly speaking, i don’t care — as a legal matter — whether this is true as a matter of fact.

  8. Frank McIntyre on June 30, 2004 at 1:07 pm

    I am guessing that Gordon actually is interested in matters of fact; and not just the abstract notion of prophetic counsel.

  9. Gordon Smith on June 30, 2004 at 1:10 pm

    Adam, I like that view of the Church (even if I am not sure that contracting parties do or should feel that way). Sometimes people suggest that we should feel the same way about the federal government, but I have never been able to muster that sense of solidarity. As any institution grows, as the distance between the center and the edges expands, the feeling of us v. them necessarily takes hold. So while I like your view, I am not sure that it is viable for most people in the Church.

  10. Gordon Smith on June 30, 2004 at 1:32 pm

    Nate, That makes sense, and I think you are right. Of course, only a legal dilettante (or a legal scholar working 100 years ago) would allow the analysis to conclude with an assumption that the judge is acting in good faith and that the arguments put forth are the ones meant to justify the opinion. Especially if the opinion cannot be rationalized with prior learning. One issue that is still open for me (see my response to greenfrog above and my question below in Julie’s “Test” thread) is the extent to which we should examine the motives of the Church leader who is offering the instruction. Perhaps, unlike legal scholars, we should be content to rest on the assumption of the honorably intentions of the speaker, though I worry about greenfrog’s reference to D&C 121. How does that fit?

  11. Nate Oman on June 30, 2004 at 1:42 pm

    “Of course, only a legal dilettante (or a legal scholar working 100 years ago) would allow the analysis to conclude with an assumption that the judge is acting in good faith and that the arguments put forth are the ones meant to justify the opinion.”

    This is a bit off topic, but I think that this we-are-all-Realists-now attitude is a rather peculiarlly American one, and not one that has been universally healthy. If you read any Canadian or especially English jurisprudence you will find that they frequently lack the realist assumptions that American lawyers live and breath. One result is, I think, a markedly greater conceptual clarity and philosophical sophistication. American lawyers, on the other hand, always seem to be doing fourth-rate sociology or economics. Of course, given the fact that we all have Oliver Wendell Holmes, Jr. beaten into our skulls in the first year of law school, this is hardly surprising. Still, even though the ghost of Holmes perpetually wanders my brain, however, doesn’t mean that I have to always agree with him.

    There is a really interesing discussion of these issues is Ernest Weinrib’s article on “Formalism” in the Blackwell Companion of The Philsophy of Law and Legal Theory (Dennis Patterson, ed.). Also, Weinrib had a really interesting article on formalism in the Yale L.J. a while back, and I am currently working my way through his book _The Idea of Private Law_. Even though I don’t think that I ultimately agree with him, it is a good reminder that formalists are not simply ignorant and anachronistic reiterations of the cartoon version of Langdell presented by American law schools.

  12. Gordon Smith on June 30, 2004 at 1:49 pm

    Nate, Fair points, and I like reading Weinrib, too. Of course, you can’t expect someone at Wisconsin to get overly excited about legal formalism. On my recent trip to Germany, I caught a glimpse of how law must have been taught 100 years ago in the U.S. Frankly, I thought it was pretty dreadful.

  13. Jim F. on June 30, 2004 at 2:36 pm

    In philosophy we have a similar principle, “the principle of charity.” Though Augustine perhaps first formulated it–the chief requirement for the interpretation of a text (specifically the scriptures, but later broadened to include all texts) is love–in its most recent explanation (Donald Davidson) that principle means that if we interpret a claim or command to be unintelligible, then we have probably not interpreted it accurately. This doesn’t necessarily presume that the person making the claim is rational, nor does it require that we agree with the claim. I requires only that what that person says makes sense.

    I’ve found the work of Hans-Georg Gadamer on this topic most helpful. His way of putting the principle: if we want to understand what someone else says, we have to understand what they say as a response to a question. If we don’t understand the question their claim answers, we don’t understand them. For Gadamer, that leads ultimately to the question, “What question does the claim ask *us*?” The goal of understanding isn’t to reconstruct the intention of the person who said what we are interpreting, but to understand that question in its context as a genuine question, one that is also a question for us.

  14. Gordon Smith on June 30, 2004 at 2:56 pm

    Jim, Thanks for posting that. The jurisprudence on the duty of good faith bears many similarities to the principle you describe. For example, courts often say that they feel obligated to make sense of each of the provisions of a contract, which seems similar to Gadamer’s requirement of discovering the motivating question, though courts are more concerned with drafter’s intent than Gadamer would seem to be. Should we be interested in the Church leader’s intention? Or is that irrelevant?

  15. Mark Butler on June 30, 2004 at 3:29 pm

    It is not very helpful to think of the church as a legal person. The Church is the body of Christ. Jesus Christ is the head of the Church, and he has set first apostles, then prophets, then evangelists, teachers, and so on.

    When the presiding officers of the body speak as inspired by the Holy Ghost, their words are scripture, the mind of the Lord, the will of the Lord, and the power of God unto salvation. Within the scope of their proper stewardship their words have the presumption of divine authority, and any member who takes their counsel lightly runs the risk of being found on the left hand of God. That is the law of the Church – perhaps the law and the doctrine will develop subject to further revelation, but our obligation is always to honor, obey, and sustain the same by constraint of the Spirit.

    We might speculate about how things might be different in another day and age, but speaking as if the Lord sustains the authority of the sorely self-interested is silly. Judgments always start in the Lord’s own house – whom the Lord loveth he chasteneth – the life and vitality of the Church (or any uplifting organ for that matter), however undeveloped, is a sign of divine approbation.

  16. Randy on June 30, 2004 at 3:52 pm

    Gordon & Jim,

    I quite like both of your ideas as to how we ought to go about interpreting messages from our leaders. I’d be interested in seeing these ideas at work. If you were to apply these methods of interpretation to one of the several topics of discussion of late, what conclusions do you come to? What positions/interpretations can we safely reject using your methods of analysis?

  17. Gordon Smith on June 30, 2004 at 4:38 pm

    Mark, I am trying to use the principle of charity, but I honestly cannot understand what you are trying to say. Who is discussing “the church as a legal person”? I see lots of talk about Church leaders, but nothing about “the church as a legal person.”

    And what is your point about Church leaders?

    Despite my confusion, let me take a stab at this. My view is that most of what we hear from Church leaders is completely uncontroversial (at least for me).

    * God lives. Check.
    * Jesus is the Christ. Check.
    * Joseph Smith was a prophet. Check.
    * The Book of Mormon is the word of God. Check.
    * President Hinckley is a prophet. Check.

    Every once in awhile, however, we hear something that seems new or different. I love the fact that we are a Church of ongoing revelation, so I do not chafe at new instruction per se. But the very fact of newness requires some additional effort on my part. As an initial matter, I am forced to decide whether to embrace the new instruction.

    You seem to imply that this is an easy issue. We must embrace any new instruction “when the presiding officers of the body speak as inspired by the Holy Ghost.” Moreover, we should presume the divine origin of any instruction that is given “within the scope of their proper stewardship.” These rules seem like a nice starting point, but they do not answer many questions. Whether we conclude that a new instruction is “inspired by the Holy Ghost” or is “within the scope of [of a Church leader’s proper stewardship” will depend in part on what we understand the instruction to mean. My initial post was directed at that problem.

  18. Gordon Smith on June 30, 2004 at 5:00 pm

    Randy, I am tempted to refer you to the clinic, where all of our theory is applied by people who understand the real world. Unfortunately, we do not have a clinic here at T&S.

    So here is a short response re white shirts. Assume that next Sunday, my bishop asks all of the men in the ward to begin wearing white shirts on Sunday. As explained in my comment to Dan’s “Tonsorial Jihad” post, I am in the habit of not wearing white shirts on Sunday, so this would be a change for me. Moreover, I don’t particularly like wearing white shirts to Church because they look too uniformish and this command would play right into my objection. Nevertheless, if I assume that the bishop has an honorable intention, has a desire to serve the interests of the members (including me) and not (only) his own quirks, and that his request is based on experiences (either spiritual or temporal) that I do not necessarily share, then I read his instruction as an attempt to improve the spirituality of the ward rather than as a control freak in action. On this particular issue, therefore, my life becomes pretty simple. I start wearing white shirts.

    Tougher questions would arise as the costs of compliance increase. Greenfrog keeps reminding us of D&C 121, which suggests that Church leaders sometimes do not act with the motives ascribed to them in my duty of good faith. What this interpretive rule accomplishes, however, is that it gives the leaders the benefit of the doubt. It places the instruction in its best light, and that is the point at which the cost-benefit analysis should occur, in my view.

  19. Randy on June 30, 2004 at 5:34 pm

    Gordon, I suppose this works fine when the message is clear and the assumptions are correct–like you, I still don’t know what to do with D&C 121. But, for the moment anyway, I am more interested in how your method of interpretation works to resolve ambiguity, as you note in the final paragraph to your opening post. The guidance on wearing white shirts is pretty unambiguous, though I could envision some uncertainty in specific cases (e.g., white shirts that have lost their brightness with age, or that have become a bit dingy, shirts that are off-white, or ivory, etc.).

    But what are we to do with counsel that is less clear cut? Take the statement about circulating comments made by GAs at stake conference. Frank has one interpretation of the rule; Dan has another. Can we exclude either by using the rule of good faith? Seems to me that one could make a good faith argument to support either conclusion. I suppose this is not all that surprising–the rule of good faith does not resolve all conflicts in contract law; no reason to think it should resolve all conflicts in understanding church counsel.

  20. Gordon Smith on June 30, 2004 at 7:54 pm

    Randy, I don’t think that good faith can to more than eliminate some bad readings, like the kind commonly advanced by opponents of the Church. If an instruction is susceptible to two or more readings, both made in good faith, than I would hold that either is acceptable, absent further clarification. I think this is the way we treat tithing, for example, and it seems to work, more or less. Same goes for the debate between Dan and Frank. Absent further clarification, I think they are both inbounds.

  21. Jim F. on June 30, 2004 at 8:04 pm

    Gordon is right: there’s no rule that will eliminate all disagreements over readings. The principle of charity/good faith is only a means for eliminating some bad readings, not for choosing the best among good readings. If a reading doesn’t pass the principle’s test, then it isn’t a good reading, but only that negative conclusion follows.

  22. Mark Butler on June 30, 2004 at 10:08 pm

    Gordon, I do not mean to imply that following priesthood direction is easy – only that righteous disregard of it can only be based on direct personal revelation – either the principle of the inspired personal exception or the spirit of discernment to correctly know when a leader is out of harmony with the will of the Lord _and_ the proper behavior under such circumstances. The Doctrine and Covenants and the New Testament, in particular, are full of such principles.

    As far as a “legal person” goes I mean treating the Church as an abstract legal entity with anyone other than Jesus Christ at the head, and identifying the faults of the Church with any other than its own members. The leaders certainly bear responsibility, but generally speaking the failures of the Church are the failures of her collective membership, failures often reflected back into the pragmatism of existing practice and doctrine on numerous issues.

    Of course this extends to the Church at large, the body of God-fearing individuals everywhere, whose bivalence with regard to the traditions of their fathers delays both the propagation of the restored gospel and the publication of greater mysteries than are now normative doctrine. This will all change in the due time of the Lord, of course.

    As far as simple questions like the wearing of white shirts, there should be only one criteria: will it please the Lord to do so? Or alternatively, will it displease the Lord to do otherwise? That is the path to true sanctification, in my opinion. The fruits of justification alone are bitter indeed.

  23. Gordon Smith on July 1, 2004 at 12:42 am

    Mark, I am sure I am still missing a fair bit, but part of what motivates this discussion for me is that fact the Church leaders are in the habit of offering advice on all sorts of things, from child-reading to money management to scripture reading to sexual relations. When you talk about “priesthood direction,” do you include all of these things?

    In your earlier post, you spoke about “the scope of their proper stewardship,” and as far as I can tell that scope has no subject matter limits. At least I have never been told what they are. A Church leader’s stewardship often has geographical limits (another ward’s Bishop may not have authority to give me direction on this or that), but that has rarely been an issue in my life.

    The bottom line is that when I read your statements about following or disregarding “preisthood direction,” I am stuck on what should count as “preisthood direction.” I am as enthusiastic as you to obey something that I feel is inspired direction, but if its just a bit of advice from a guy who has lived a full life, seen a lot of things, is concerned about the spirit, etc., that’s a whole different thing for me.

  24. Kingsley on July 1, 2004 at 1:00 am

    If the advice is more or less a consistent bit of advice from a whole bunch of guys who’ve lived full lives, seen a lot of things, are concerned about the spirit, & are apostles, etc., does that make a difference? (I’m speaking of white shirts now.) I mean, does a thing’s seeming triviality take on more weight the more voices & time you add to it. If the majority of the Twelve said “White shirts are best” 50 years ago & the majority of the Twelve say it now, does that sort of “sex up” (to use the BBC’s infamous phrase) an otherwise prosaic & seemingly silly & unimportant issue. (I don’t know that white shirts have been an issue for 50 years or that the Twelve have spoken en masse about it during that time, it’s just an example.)

  25. Mark Butler on July 1, 2004 at 5:51 am

    Gordon, that is a complex and subtle issue. In my experience, the scriptures are the best guide on procedural matters. I have learned, regrettably, to regard what any leader says that is not in strict harmony with the doctrinal consensus of the presiding quorums of the Church and the thrust of the scriptural record with a fair bit of suspicion.

    Of course, the whole purpose of priesthood correlation is to keep members from having to do that. If one receives unusual direction, he needs unusual confirmation. At some point one must have enough of the Spirit to distinguish between personal idiosyncrasy and divine mandate. In the best of circumstances, the gift of the Holy Ghost allows the reception of such confirmation in real time. That requires an unusual amount of humility, sanctification, and all around open mindedness, of course.

  26. Chad too on July 1, 2004 at 9:06 pm

    At what point does accepting things in good faith violate our LDS idea of doctrinal purity? Since we don’t have jurisdictional doctrine (a la the nutty Ninth) we can’t say that beard-wearers are unworthy of stake callings in Georgia but not held to that same standard in Montana.

    If there is something inherently unworthy about beard-wearing (and I’m not saying there isn’t, though I have my doubts) then I would expect a Church that puts so much emphasis on being a house or order to publish that through the proverbial proper channels. My quick search through the Church Handbook of Instructions finds nothing about beards.

    If there isn’t really a worthiness issue with beards, then haven’t we allowed an impurity to enter in by not correcting what this authority said? There will certainly be people in that stake who will, despite scripture to the contrary, unrighteously judge anyone who comes in with facial hair. What’s worse, assuming that there is no real worthiness issue with beards, some will perpetuate the error by telling the newly-baptized and new move-ins of the policy. Heaven help the new bearded guy if he’s drinking a Diet Dr. Pepper at the same time ;-)

    My last Bishop was very diligent is his role to keep the doctrine pure. I’ve seen him stop sacrament speakers when their talks got into tangential matters. I’ll never forget the Sunday when he stopped a lesson in Priests Quorum (I was the YM pres) because the teacher has just told the Priests that the Sacrament must only be taken with the right hand. We waited while the Bishop consulted the CHI and, finding no such requirement, he set the doctrine straight. He also had me teach a 5th Sunday lesson once on the difference between doctrine and tradition; where one has the power of salvation and one does not.

    I’ve got no problem with there being a tradition of white-shirts and clean shaving as long as given as a tradition, not a doctrine. I don’t think one shouldn’t have to anticipate being released from a stake calling for not following a tradition.

    I have no doubt that the area-authority seventy in question has every good intention. I’m willing to extend good faith. I would even be willing to follow his counsel until I was shown that it was opinion rather than tenet. Shouldn’t good faith be a two-way street, though, so corrections can be made to keep the eternally-significant doctrines pure and separate from the non-saving traditions?

  27. Mark Butler on July 3, 2004 at 6:22 pm

    The whole idea that non-doctrinal precepts have no saving power is a _major_ problem. It is the practical equivalent of the doctrine of the Pharisees. Salvation comes by sanctification, not by justification alone. The doctrinally endorsed practices of the Church are the least common denominator – made for the weakest of all Saints.

    The Spirit has far, far more to teach about the principles of righteous living than what is found in the letter of the law. Focusing exclusively on the letter of the law kills the spirit of grace as fast as neglecting the law completely. Joseph Smith said something to the effect that if the Saints knew all the commandments, they would reject half through ignorance and prejudice.

    Of course, without proper authority, such extra-doctrinal precepts should never be taught as binding upon the Saints. However, it disturbs me to no end to see those trying to test the boundaries of the law rather than searching for the highest good within those boundaries, a good rarely found near the outer fences.