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 Mormonismâ€™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 Churchâ€™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 â€œLDS perspectivesâ€? 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 donâ€™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 donâ€™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 lawâ€™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 â€œbadâ€? 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, letâ€™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 â€œChurch Doctrine,â€? 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 â€“ and is not â€“ 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 forâ€¦