LDS Perspectives on the Law: Part II

November 24, 2004 | 10 comments
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I think that there are basically three ways in which law and Mormonism can shed light on one another.

First, we can simply study the legal aspects of Mormon experience. Historically, there has been some very interesting legal stuff in Mormonism’s story. The most obvious example is the legal crusade against polygamy in the nineteenth century. The scope of the legal battle was massive and it produced a slew of important Supreme Court opinions. There are other stories, however. For example, the legal problems created by early attempts to live the United Order and how traditional ideas of property ultimately undermined them has not yet been fully studied. The legal aspects of the Church’s international expansion in the twentieth century have garnered even less attention. Finally, while Zion in the Courts provides a great summary of how Mormons used ecclesiastical courts to resolve civil disputes, there is much that can be done here as well. For example, what was the relationship between ecclesiastical resolution of civil disputes in Mormon courts and the ecclesiastical resolution of civil disputes in 17th, 18th, and early 19th century New England. To what extent were New England born Latter-day Saints implicitly or explicitly using earlier Puritan examples of legal pluralism. Nor is the universe of Mormon legal phenomena exhausted by Mormon legal history. For example, Jack Welch has persuasively identified stories in the Book of Mormon that can be fruitfully studied as legal narratives.

Second, we can use Mormonism as a way of thinking about legal issues that are not explicitly Mormon. This, I take it, is what Gordon is interested in when he talks about “LDS perspectives� on the law. What we are looking for is something like a Mormon theory of contract or the like. It is very difficult to figure out how this works, but methodologically I do think that there is one road that is probably a dead-end: morality or ethics.

The Life in the Law book published out of BYU Law School assumed to a large degree that the unique Mormon insight into lawyering somehow consisted of higher ethical standards or a commitment to some unique sense of morality. My problem with this approach is that Mormons don’t seem to have unique ethical positions. To be sure there is a puritanical streak in our thinking, but it is not difficult to find puritanical morality. Furthermore, there does not seem to be much in the way of a unique Mormon meta-ethical theory. In other words, not only do we take common moral positions (e.g. stealing is bad), we don’t seem to have any unique approach to ethics in general (e.g. utilitarianism, virtue ethics, etc.). At best, we might argue that the Gospel commits us to some particular ethical approach, but even this seems doubtful.

The issue of methodology is something that I need to think more about, but here are a couple of ideas. First, it may be that Mormonism is going to have the most traction on those legal issues pitched at a very high level of abstraction. For example, I think it unlikely that you are going to find a Mormon theory of the mail-box rule in contract law. On the other hand, you may be able to find Mormon theories of something like the basis of legal obligation or the nature of law. To a certain extent these are issues about morality, but more than that I think that they are issues of what might be called law’s ontology. It what sense does the law exist and what purposes does it serve. Here, I think that our scriptures may have something to say. Second, we can look to Mormon theories of law in the past. In particular, the Journal of Discourses and other 19th century sources contain a fair amount of constitutional theorizing. Almost all of this is “bad� in the sense that it is not very legally or theoretically sophisticated. The question is whether or not one can find in this material a few key assumptions or ideas from which could be built a legally or theoretically sophisticated theory. Third, we can leverage Mormon legal experience itself. For example, let’s study the 19th century Mormon court system not out of mere self-fascination but rather as an important legal phenomena that teaches us something about the law generally. Robert Ellickson wrote a great book called Order Without Law in which he used the dispute resolution practices of Shasta County ranchers in California to discuss the role of law in social ordering. Frankly, the Mormon court system was longer-lived, more broadly used, and more sophisticated than the system of the Shasta County ranchers. It does not seem unreasonable to suppose that it might provide a similarly fruitful source of material. These are just some opening thoughts on methodology. Obviously, we are going to need more than this.

The final way in which law and Mormonism might illuminate one another is to use legal concepts as a way of thinking about non-legal aspects of Mormonism. My favorite example here is the way that one can use the philosophy of law, which is largely concerned with identifying and understanding a particular body of authoritative statements, as a way of thinking about the concept of “Church Doctrine,� which is generally understood as a body of authoritative statements. There are, I think, other bits of Mormonism that could be illuminated by jurisprudence. For example, our theological concept of covenant can be more deeply understood when we look at how it is – and is not – like a legal contract.

Obviously these three categories are only types. Any attempt to think about law and Mormonism is going to involve all of them to one extent or another. However, it is useful to think carefully about what it is that we are trying to explain and what it is we are using to do the explanation.

Next, what might Mormon legal thought be good for…

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10 Responses to LDS Perspectives on the Law: Part II

  1. Kaimi on November 24, 2004 at 12:16 pm

    This three-part formula sounds a lot like an article I read a while back about what “law and literature” means.

  2. Kevin Barney on November 24, 2004 at 1:21 pm

    When I was on my mission in Colorado about 25 years ago (and obviously long before becoming a lawyer), one of the best priesthood lessons I have ever experienced was taught by the ward EQP. He wasn’t a lawyer, either; as I recall, he was a pharmeceutical representative or something. But he gave a great exposition of the law of agency, complete with case studies, examples and diagrams, “frolic and detour,” the whole nine yards, and then related the whole panoply of ideas and concepts to the priesthood. And I still remembered all of that agency stuff when I went to law school (and I think that EQP taught it better and more clearly than my law school prof did!).

  3. Adam Greenwood on November 24, 2004 at 2:14 pm

    Your point three is very interesting. I’ve been thinking for a bit that Finnis’ work on why laws and governments exist and command our obedience could be adapted into a justification for a One True Church.

  4. Nate Oman on November 24, 2004 at 2:34 pm

    Adam: How so?

    I confess that Finnis is not a thinker I know well, to my everlasting shame. What do you see as the outlines of the argument?

  5. Adam Greenwood on November 25, 2004 at 1:06 am

    If you ever do get familiar with Finnis, Nate O., I would be very interested in hearing your take on him. I admit that some of what he says seems very persuasive, some not, but I don’t feel I have enough knowledge to judge well either way.

    Given that lack of knowledge, you’ll probably want to discount what I am about to say a little. I’m probably giving a kind of Veronica’s Veil version of his actual argument.

    Here goes: When I was reading Natural Law and Natural Right I was struck by Finnis’ argument that government would still be necessary even if men were angels. He got there by arguing (though I might be missing a step or two)
    (1) that human existence has certain ‘goods’ or ‘objects’, the pursuit of which is morally obligatory (things like learning, love, freedom, and so forth. He elaborates quite a bit, though without attempting to prove that these are in fact the ‘goods.’ They just are.)
    (2) that the goods to be sought are numerous enough and their application to different circumstances different enough that good and reasonable people can disagree about how best to achieve them in many circumstance
    (3) that these goods are nonetheless best achieved in cooperation (in a loose sense. Cooperation could include things like marking spheres for your individual, unfettered action and spheres for mine)
    (4) and that cooperation is itself a good (if I recall, it’s the good of ‘friendship,’ which is the good of joint effort towards a good, or something like that)

    Given all that, once a mechanism for cooperation becomes predominant (majority voting, kingly will, a council of elders, dice rolling,) its morally obligatory on everyone to abide by that mechanism.

    How does this apply to the Church? I guess you’d say that we seek salvation and exaltation as our end, that said end cannot be achieved without some kind of community, unity, cooperation, and mutual effort toward the goal, but that because there are actually perhaps a number of different ways to proceed towards the goal from where we are at now we need some way of deciding which way to go and to what extent going that way will be mandatory. Enter the prophet. God can approve of ideas the prophet has and though become binding on us even though our different ideas are also reasonable and perhaps God would have been perfectly willing to approve them if we were in the prophet’s position. Lots of (possible) examples come to mind: r-rated movies, the Word of Wisdom, the ‘plainness’ of church services, local leaders asking people to shave their beards, Family Home Evening, the hometeaching program, political neutrality, correlation, two-year missions, and so on. They are all within the wide range of reasonable ways of reaching good goals.

    Anyway, this is my first go and coming up with a comparison. I’ll try and refine it

  6. Jeremiah J. on November 25, 2004 at 11:26 pm

    Nate: Your discussion of the various types is very helpful. I don’t know much about the Mormonism and law literature, only somewhat more about Mormon political thought generally. In that literature, it seems that some kind of narrative/ historical thinking predominates. I know of a few articles which try to do something different, e.g. start from the Mormon thought of free agency or body and then draw a few political conclusions. But these investigations usually stay at a high level of abstraction, and often don’t lead to a uniquely Mormon conclusion. For example, Jim F.’s paper on divine embodiment, which I like very much, comes to the conclusion that politics is unavoidable (I hope I’m not remembering it incorrectly). Not quite as much bite as one expects in political theology.

    Historians and historically minded political thinkers seem to have been more concrete. Bushman and Quinn come to mind, both of them focusing on some of the communitarian aspects of Navuoo and other early Mormon communities. But this narrative theology, if you will, seems to be continually undercut by the thought that the narrative can change, indeed quite radically, though revelation or historical circumstance. The undercutting is not explicit in these writings, but it seems to present a limit to how far this kind of theorizing can go.

    One solution has been to remark that Mormons are all about practice, so practice is our unique thing, as opposed to all these other denominations which emphasize variously theory, intellectual knowledge of God, or faith only. Besides being based on caricatures in some cases, this approach is ambiguous regarding what further can then be said about Mormonism. I don’t think that this is a dead end, I just don’t know where it’s going.

    Adam: The part of Finnis you refer to is very interesting, perhaps Finnis’ most orthodox Thomist moment. But in Thomas you almost certainly (I think Finnis disagrees) have a hierarchy of goods, at the top of which you have salvation through the sacraments of the church. Finnis on the other hand has a doctrine of value pluralism–no hierarchy of goods, and some goods are incommensurable. This is the part of Finnis which is least traditionally Catholic, and indeed I think least Mormon (specifically regarding a justification for a One True Church).

  7. obi-wan on November 26, 2004 at 1:07 am

    On the other hand, you may be able to find Mormon theories of something like the basis of legal obligation or the nature of law.

    I think this is correct, and probably the richest vein that could be mined in “LDS persepectives” on law. To give a concrete example, working around Washington, I repeatedly find that Mormons have a very distinct view of the derivation of authority and of authorization — as in, for example, determining where an agency derives its authority for certain rulemaking, or where the president or Congress derive their authority for particular acts.

    This seems to me to arise out of our theological preoccupation with lines of priesthood authority and with keys — sometimes I almost expect Mormon attorneys to begin talking about the keys held by the president or by this or that agency head. It strikes me that this could be the basis for a fairly interesting, and probably unique, approach to statutory and constitutional authority.

    The final way in which law and Mormonism might illuminate one another is to use legal concepts as a way of thinking about non-legal aspects of Mormonism.

    This also seems to me useful, although a little less so than the previous approach. We’ve talked before here about how an understanding of legal covenant illuminates the understanding of sacred covenent. I think the same is true of agency; so far as I can tell most Mormons have no real grasp of the scriptural concept of moral agency, in part because they know little about the law of agency.

    Interestingly, I find that some of Dallin Oakes’ early talks, particularly within the first few years of apostleship, are infused with this kind of approach.

    In the same vein, I cannot help but remember with some amusement a visitor to a Gospel Doctrine class that I was teaching several years ago, who proposed a fairly absurd reading of the Genesis Tower of Babel story. When I queried him as to his basis for the comment, he confidently pointed to the wording of the synopsis at the beginning of the chapter in the LDS King James Bible. I was strongly tempted to admonish him that you cannot cite headnotes as authority, but then remembered that he hadn’t been through the first year (or any year) of law school . . .

  8. Adam Greenwood on November 27, 2004 at 7:40 pm

    Jeremiah J.,
    I noticed in my untutored way what you were referring to. I thought it was odd, since at least to me the goods did seem to have a rough commensurability. I thought I could at least say that, for instance, an extra iota of learning would not be worth a lifetime without friendship. In fact, his insistence that the goods could not be compared or weighed seemed to undercut his own argument a little, since he seemed to be saying that a person in some circumstances should forgo some of what they see as the best good in order to cooperate with others (with the ‘compensating’ good of friendship). I could never figure out what it was he was trying to avoid by insisting on incommensurability like he did. Perhaps he felt that if the goods were commensurable then he could not make his point that one should never actively act against one good in order to promote another, or perhaps he felt that if the goods were commensurable there must be some ultimate good that laid beyond them. I was having a hard enough time grasping what was going on, let alone getting answers to questions like these.

  9. Jeremiah J. on November 28, 2004 at 12:50 am

    Adam: I agree with you. I don’t like the incommensurability argument. Perhaps that is because I first read it in a bad book by John Gray, _Two Faces of Liberalism_. I think the pedigree of the idea goes back to Berlin. Berlin is of course the proverbial unavoidable gorilla in British political thought, so it’s not a surprise that you find it, even in a Catholic “Thomist” like Finnis.

    The idea seems to be a way to avoid a kind of utilitarianism–thinking of human flourishing as compatibile with unlimited trade offs. But it also ends up being a way to justify liberalism, since the idea is that there are a considerable variety of good lives. But then John Gray makes the very maddening argument that it is impossible to judge between a life dedicated to money and a life dedicated to friendship. According to Gray, no one can say that the latter is better than the former, even though it seems to me that that money is by its very nature merely a means and therefore cannot serve an ultimate end. Finnis is surely more careful and does not make this claim. But the idea of the kingdom of God, wherein all goods are put in proper priority, seems somewhat problematic for Finnis. More specifically, the law of consecration seems anathema to a pluralism of goods as Finnis presents it.

  10. Adam Greenwood on November 29, 2004 at 3:57 pm

    “The idea of the kingdom of God, wherein all goods are put in proper priority, seems somewhat problematic for Finnis.”

    Precisely. I suppose there are other definitions of sin, but the one that has made the most sense to me is valuing certain goods disproportionately, which does suggest that the goods, if not exactly fungible, can be related to each other.