Where is the Mormon Jurisprudence?

June 8, 2004 | 14 comments
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People regularly make the observation that Mormons are more concerned with orthopraxis than orthodoxy. In other words, Mormons are more concerned with right behavior than with right belief. The evidence in support of this claim seems fairly overwhelming in my mind. The fact of the matter is that we allow a huge diversity of beliefs on fairly fundamental questions (the nature of God and the nature of man for example), even though we frequently paper over the pluralism with equivicol and vague language. One the other hand, we worry a great deal about proper behavior: The Law of Chastity, the Word of Wisdom, participation in the Church, etc. In this context, I have frequently heard Mormonism compared to Judaism, which is taken as a paradigmatically orthopraxic faith. Which leads to me question:

Why haven’t Mormons developed a jurisprudence.

When one compares Judaism to Christianity one of the remarkable things is the extent to which Jewish thinking has focused mainly on the juridical exposition of scripture while Christian thinking has focused to a much greater extent on speculative theology. I don’t want to over play this distinction. There have been Jewish thinkers who have produced subtle works of speculative philosophy and theology – Spinoza and Maimonides come to mind. Likewise, the cannon law of the Roman Catholic Church is one of the great legal achievements of western civilization.

If one looks at Mormonism, it seems that we have everything one would need to launch a religious jurisprudence. We have a strong emphasis on correct conduct. We have authoritative texts that specify that conduct. We even have ecclesiastical tribunals to decide cases, and for nearly a century they were quite active in resolving inter-member disputes and elaborating correct standards of conduct. Yet one will search Mormonism in vain for an LDS version of Rabbi Akiva, Maimonides, Abu Hanifa, al-Ghazali, or Ibn Rushd who are the great jurists of Judaism and Islam, which also has an incredibly rich jurisprudential tradition. Why isn’t there more Mormon jurisprudence? Let me suggest some possibilities:

1. Mormons simply haven’t been around long enough. We won’t know whether we need to ask this question for another couple of centuries. After all, it took Islam nearly two hundred years before it produced its first great jurist Muhammad Ibn Idris ash-Shafi’i

2. Mormons have not had a state of their own. At one time in their history both Islam and Judaism have been called upon to provide a full fledged legal regime for an entire society. It was this requirement that produced the body of law upon which the religious jurists went to work. Mormons had only a brief period of legal independence before outside authority in the form of the federal government intervened.

3. Mormons have a hierarchy that can authoritatively resolve disputes and hence jurisprudence is unnecessary. The argument here is related to some points I made in an earlier post. One might argue that the elaborate legal exegesis of Jewish and Islamic jurists came about because their “ecclesiastical” structure meant that the texts themselves had to resolve all disputes. There was no authority to give final rulings. One might point to the Catholic Cannon Law as a counter example of a jurisprudence developed within a centralized and hierarchical religion. There are two reasons that this is not an apt reply. First, historically the centralization and integration of the Catholic Church took a very long time. Much of the creation and exposition of the cannon law, therefore, took place not in the context a stable hierarchy of institutions, but rather in context of hotly contested debates about the creation of that hierarchy. Second, unlike Jewish and Islamic law, cannon law is not primarily a matter of the exegesis of sacred texts. Rather, it consisted mainly of the adaptation of the Roman law for ecclesiastical purposes. Initially, the synthesis and exposition of this law took place in medieval universities as a largely theoretical exercise. During the battles to integrate the church into a single legal entity, the popes and the bishops then appropriated and adapted this university created law, which happened to be lying around ready for use.

4. We tend to take a revelatory rather than exegetical approach to hermeneutics. What I mean is that rather than seeking to understand the scriptures using careful textual analysis, we rely instead on personal revelation. This revelatory approach to the scriptures then deadens our interest in the kind of careful attention to detail and synthesis that jurisprudence requires.

Perhaps we do have a kind of invisible cannon law that is embedded in the General Handbook of Instructions and other internal, proprietary documents. Certainly, to some extent these documents do rely on expositions of revelations. The same is true for the very top structures of the Church – e.g. the First Presidency, the Twelve, the Presiding Bishopric, the Council on the Disposition of Tithes, etc. What is interesting, however, is that these structures are largely built on practice – or early esoteric teachings – rather than on exegesis of authoritative texts. Most dramatically, the procedure for the succession of the presidency is not specified in any canonized text, but rather relies on esoteric teachings of Joseph to the Twelve in Nauvoo, an underlying theory of priesthood authority pieced together from disparate canonize texts, and practice developed over the course of the 19th century.

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14 Responses to Where is the Mormon Jurisprudence?

  1. Dave on June 8, 2004 at 6:13 pm

    Nate, I think you’re dead on with these comments. I’d vote for number 4, “revelation trumps jurisprudence,” as the primary factor. In a sense, we’ve adopted the British practice of just muddling through doctrinal or theological difficulties. But for practices there is less muddling and more specific guidance on what is or isn’t acceptable.

  2. lyle on June 8, 2004 at 6:28 pm

    happily, as the LDS church nears its 200 anniversy (Latter-day anniversary that is); I confidently predict that none other than…

    Nathan Oman will become the 1st Mormon Jurisprude. After he gets tenured of course (sometime in 2020)? That will give him 10 years to prepare a magnum opus for the 200th anniversary…

  3. Measure on June 8, 2004 at 7:22 pm

    Would “Mormon Doctrine” rate as an attempt to create Jurisprudece to some extent?

  4. Mark Butler on June 9, 2004 at 11:41 am

    Well, I tend to think that a developed canonical jurisprudence would be a good thing. There are dozens of reasons why we do not have one now – I think the biggest one is that we are desparately trying to avoid the legalism that Paul (not to mention Jesus Christ) so often preaches against. The big difference between LDS and secular legal practice is that in the Church, the judges (Bishops, Stake Presidents, etc.) have the right and the obligation to make their ultimate decision by inspiration, after weighing all the available facts as well as the pertinent doctrines and instructions on the matter.

    Unfortunately, sometimes the lack of legal tradition works against itself, as individual ecclesiastical leaders occasionally seem to adopt the worst form of legalism imaginable. So you have a conflict between the imperatives of growth (which demand radical federalization) and the inclinations of leaders who occasionally track a single tradition too closely at the expense of the true doctrinal consensus of the Church, let alone the whisperings of the Spirit. The dangers of excessive legalism and excessive literalism both are a leading theme, if not the leading theme, of the New Testament.

    Of course there are dozens of other factors that militate against the development of a documented common law jurisprudence in the Church – the need to protect the privacy and the reputations of the disciplined (and their heirs, filial and intellectual) is a big one, not to mention the enormous sensitivity of canon judicial matters in general.

    A major problem is that a strikingly large number of people do not take their covenantal obligations very seriously, not anywhere near seriously enough to be granted access to the records of the common law tradition in the Church. To put it bluntly, when some people leave the Church, they think that choice invalidates _all_ the promises and covenants they have ever made, notably those akin to fiduciary duty and responsibility. Who can trust an advocate who is at risk of defecting and writing an expose about matters that were entrusted to him in confidence? The Church has to trust hundreds of thousands of such advocates.

    Of course there are dozens of things that might be done to establish a more formalized common law jurisprudence without violating more pressing principles, but I suspect that we will not get a robust canon law tradition in the Church until well into the Millennium. Persecution (or prosecution) strongly militates against openness. When we are a majority Church again, things will likely be different.

  5. Nate Oman on June 9, 2004 at 11:55 am

    Mark,

    These are very interesting comments. Thanks. Let me make two points:

    1. Religious law need not be common law. In fact, most religious law is NOT common law. Rather, both Halakah (Jewish law) and Shar’ia (Islamic law) is at least nominally exegetical. The idea is that we have a set of authoritative texts, and our legal task consists of expounding them. This is done by creating hierarchies of authority (this have been very carefully done in Islam, for example), reconciling contradictions, etc. This kind of a jurisprudence would not requier that we have records of the outcomes of discrete cases at all. Rather, jurisprudence could consist of a particular way of reading the scriptures.

    2. At this late date, it is perhaps inevitable that we will read the entire New Testament discussion of law in Pauline terms, but I think that this is a mistake. For example, I think that the Sermon on the Mount in Matthew can be read as an anti-Pauline text that is essentially celebratory about the moral meaning of “legalism.” (I wrote a paper on this in law school for my philosophy of law class.) Hence, while I think that there is a lot of truth to what you say about Christian suspicion of law, I think that this suspicion gets overplayed. In particular, law and legalism tends to get identified almost exclusively with the vice of formalism. What is interesting, however, is that if you look at legal thinking no-one except Ernest Wientreb and some other wacky Canadian legal theorists actually espouse formalism as a creed. For everyone else it is the bete noir of legal thinking, and even jurists who claim from time to time to extoll the virtues of formalism (e.g. Justice Scalia) are actually concerned with things like predictability and formal realizablity rather than formalism per se. Perhaps this what you are getting at with your comment “individual ecclesiastical leaders occasionally seem to adopt the worst form of legalism imaginable.”

  6. danithew on June 9, 2004 at 3:48 pm

    Mormons probably haven’t developed “Mormon jurisprudence” because Mormons haven’t really governed a nation-state before … though Brigham Young’s rule over the Mormon community for a period of time might be examined to see what kind of laws were created (I’m thinking back to that post about there being a death penalty for abortion).

    Mormons are too busy with their jobs, families and callings to create a theoretical Mormon halakha or shari’a law that wouldn’t be accepted by those who attend general conference.

    If sufficient prophetic and scholarly commentary on the scriptures in the LDS canon were pulled together, and the First Presidency supported it, perhaps we’d have something approaching Mormon jurisprudence.

    Hey, we’ve only had a couple o’ hundred years so far. Usually a religious community takes takes that amount of time just to get their sacred texts compiled in an authoritative manner. Who knows what lies ahead.

  7. danithew on June 9, 2004 at 3:56 pm

    And I’m now realizing that what I thought was a short post was actually a pretty long one, that already contained at least one of my thoughts expressed.

    Thanks for the post though Nate. It’s really a very interesting question.

  8. Daniel Peterson on June 9, 2004 at 10:40 pm

    I don’t know that I WANT a Mormon canon law or a Mormon jurisprudence.

    Many years ago, Mark Leone wrote a book that was rather misleadingly entitled “The Roots of Modern Mormonism” but was actually a sociological study, as I recall, of a group of LDS settlements in Arizona. He examined records of church courts, and was bothered by the fact that the decisions made by those courts seemed to be inconsistent, showing leniency with an offense on one occasion while being very tough with precisely the same offense on another. I can certainly see why he would be concerned, but I also believe, or hope, that those inconsistencies might represent the influence of inspiration given to church leaders on those occasions.

    In any event, it seems to me that the concept of continuing revelation (not only, and perhaps not primarily, at the top, but down to local levels in the Church) would make the development of a Mormon shari‘a both unlikely and undesirable.

    Anyway, the shari‘a was still very much in its formative stages in the Muslim community at the stage of Islamic history comparable to our own (i.e., still within the second century following the beginning of the revelation), and, unlike Mormonism, it had the impetus behind it that Islam was both a state and and an “ecclesia.”

    Still, of course, I would be very pleased to see some disciplined thinking about statecraft, law, social theory, political philosophy, and related topics from an avowedly Mormon viewpoint. Heck, I’m hungry for ANY disciplined thinking — or art, or literature — undertaken in the light of the restored gospel.

  9. Mark Butler on June 10, 2004 at 2:49 am

    Nate: Freewheeling scriptural exegesis rather accurately characterizes much of federal common law, does it not? <smile>

    I am half inclined to say that legal formalism is the almost inevitable tendency and Achilles’ heel of every tradition that approximates absolutism. Historically speaking, humility and humiliation are among the few remedies for the twin titans of determinism and despair.

  10. Mark Butler on June 10, 2004 at 3:13 am

    Daniel: I agree. The bread of justification is stale indeed. More sanctification is what we need. The paradox of course is that justification is the road to sanctification. So let it be taken according to the Spirit of sense and soberness, lest our judgments return void on appeal to Higher authority.

  11. Nate Oman on June 10, 2004 at 11:50 am

    Dan: I am not saying that we necessarily want a cannon law. (Note, however, that having a cannon law and having a jurisprudence is not the same thing. Indeed, to the extent that you offer some theory justifying our current “legal” practice, it seems that you are offering a jurisprudence.) I simply find it potentially puzzling that we don’t really have one, and I was trying to figure out why. I think that all of the reasons that you suggest are correct.

    Mark: Ssshhh! There is not such thing as federal common law . See Erie Railroad v. Tompkins.

  12. Daniel Peterson on June 10, 2004 at 5:32 pm

    Well, okay. In that sense, a Mormon jurisprudential theory (or body of theories) would be exceedingly interesting.

    The ball is in your court. (As it were.)

  13. lyle on June 10, 2004 at 5:42 pm

    nate: any chance SCOTUS will kill Erie? It would increase the number of law students and/or decrease drop-outs at least. does anyone still believe the no fed common law? is there a good article about that, btw? i haven’t done a research lexis search on opinions, but would guess that judicial opinions w/in the last 20 years are more than pregnant with references to the non-existent, but cited & precedential, federal common law.

  14. Adam Greenwood on June 10, 2004 at 6:48 pm

    I hardly dare contradict the great Nate Oman, but I find that some of the canon lawyers at Notre Dame spell it with only one ‘n’ in the middle. Perhaps they err.

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