LDS Perspectives on the Law: Part I

November 23, 2004 | 17 comments
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In response to Gordon’s post below, I am going to sketch out some of my thoughts on how one might bring Mormonism and legal thought together. The first step, I think, is to become aware of the attempts that have already been made to do so. There is actually a fair amount of stuff dealing with law and Mormonism scattered through the the law reviews and other legal journals. In addition, there have been a couple of book that have dealt with Mormon legal history or Mormon legal thought in a scholarly way. Below is an incomplete bibliography of this stuff, but it provides a place to start and gives you a feel for the sorts of things that have been done. Two points. First, you will note that the vast majority of this stuff is historical and focuses in some way on the anti-polygamy battles. Second, you will note that none of this stuff was published in Mormon-themed journals. This is not to say that there isn’t some very good stuff in the Mormon-themed journals, but it is worth noting that (the heavy preponderence of cites to the Utah L. Rev. and BYU L. Rev. notwithstanding) it is possible to have discussions of Mormonism and the law in mainstream scholarly publications. For example, I know for a fact that the Journal of Law and Religion has a peer-reviewer devoted solely to articles dealing with law and Mormonism, although sadly the reviewer has yet to see a single submission since he or she was appointed.

Selected Books

R. COLLIN MANGRUM & EDWIN FIRMAGE, ZION IN THE COURT (2d ed. 2001)

SARAH BARRINGER GORDON, THE MORMON QUESTION (2002)

DALE MORGAN, THE STATE OF DESERET (1987)

RAY COLE HILLMAN, ED., BY THE HANDS OF WISE MEN (1980)

Selected Articles

Ray Jay Davis, “The Polygamous Prelude,� 6 AM. J. LEGAL HIST. 1 (1962)

Orma Linford, “The Mormons and the Law: The Polygamy Cases,� 9 UTAH L. REV. 308, 543 (1964) (Two Parts)

Dallin H. Oaks, “The Suppression of the Nauvoo Expositor,� 9 UTAH L. REV. 863 (1965)

J.D. Williams, “The Separation of Church and State in Mormon Theory and Practice,� 9 J. CHURCH & ST. 238 (1967)

Dallin H. Oaks & Joseph I. Bentley, “Joseph Smith And Legal Process: In the Wake of The Steamboat Nauvoo,� 1976 BYU L. REV. 735 (1976)

Raymond T. Swenson, “Resolution of Civil Disputes by Mormon Ecclesiastical Courts, “ 1978 UTAH L. REV. 573 (1978)

Malcolm R. Thorp, “The British Government and the Mormon Question, 1910-1922,� 21 J. CHURCH & ST. 306 (1979)

Orma Linford, “The Mormons, the Law, and the Territory of Utah,� 23 AM. J. LEGAL HIST. 213 (1979)

Kenneth David Driggs, “The Mormon Church-State Confrontation in Nineteenth-Century America,� 30 J. CHURCH & ST. 274 (1988)

Edwin B. Firmage, “Free Exercise of Religion in Nineteenth Century America: The Mormon Cases,� 7 J.L. & RELIGION 281 (1989)

Reed D. Slack, “The Mormon Belief of an Inspired Constitution,� 36 J. CHURCH & ST. 35 (1994)

Elizabeth Harmer-Dionne, “Once a Peculiar People: Cognitive Dissonance and the Suppression of Mormon Polygamy As a Case Study Negating the Belief-Action Distinction,� 50 STAN. L. REV. 1295 (1998)

Kif Augustine-Adams, “The Web of Membership: The Consonance and Conflict of Being American and Latter-day Saint,� 13 J. L. & RELIGION 567 (1998)

Eric G. Andersen, “Three Degrees of Promising,� 2003 BYU L. REV. 101

Martin R. Gardner, “Viewing the Criminal Sanction Through Latter-day Saint Thought,� 2003 BYU L. REV. 861

Rodney K. Smith, “James Madison, John Witherspoon, and Oliver Cowdery: The First Amendment and the 134th Section of the Doctrine and Covenants,� 2003 BYU L. REV. 891

Marguerite A. Driessen, “Not for the Sake of Punishment Alone: Comments on Viewing the Criminal Sanction Through Latter-day Saint Thought,� 2003 BYU L. REV. 941

Frederick Mark Gedicks, “The “Embarrassing” Section 134,â€? 2003 BYU L. REV. 959

Steven F. Huefner, “Reservations About Retribution in Secular Society,� 2003 BYU L. REV. 973

Val D. Ricks, “Contract Law and Christian Conscience ,� 2003 BYU L. REV. 993

Steven D. Smith, “The Promise and Perils of Conscience ,� 2003 BYU L. REV. 1057

Michael K. Young, “Legal Scholarship and Membership in the Church of Jesus Christ of Latter-day Saints: Have They Buried Both an Honest Man and a Law Professor in the Same Grave?� 2003 BYU L. REV. 1069

Next up, a typology of Mormon perspectives on the law…

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17 Responses to LDS Perspectives on the Law: Part I

  1. Kaimi on November 23, 2004 at 9:48 am

    How about selected cases as well? Amos, Reynolds, et al.

  2. john fowles on November 23, 2004 at 11:34 am

    Nate, you already noted one of the defining characteristics of most of these sources: they are historical, relating something legal that happened and trying to analyze it. I agree that this is a necessary first step in articulating LDS perspectives on law, but it cannot be the focus of an LDS jurisprudence–legal theories that are uniquely LDS and that contribute to our overall understanding of law. But they are indeed necessary because such a jurisprudence would need the momentum lent to it by such historical studies as background to the unique perspectives that Latter-day Saint jurists can bring to the law.

    On the other thread, Ethesis mentioned the book published by the JRCLS and BYU Studies called Life in the Law. I have read and enjoyed that book and wonder what role that type of writing plays in building up LDS perspectives on law. I think it is a useful contribution, though not in the sense that it constructs an LDS jurisprudence as such.

    Also, what about LDS legal academics who are publishing in their fields? Take Cole Durham, for example. He is LDS through and through and has no lack of publications that deal with law and religion generally and separation of church and state issues rather than specifically about LDS legal perspectives. Still, couldn’t his writings also be seen as contributing to LDS perspectives on law or even an LDS jurisprudence? The legal theory is sound and the application is necessary, so why isn’t it valid as an LDS perspective on law (coming, as it does, from an LDS author)? I know that it does not explicitly draw from LDS sources, but I still wonder what value it has in identifying LDS perspectives on law.

  3. john fowles on November 23, 2004 at 11:46 am

    Also, don’t be modest by ignoring your own contributions so far to the field in the BYU Law Review (also published in BYU Studies) and in the pages of FARMS? If these do not count as contributing to the creation of LDS perspectives on law (or even in the long term to more theoretical discussions of an LDS jurisprudence), then why don’t they? What are your criteria in defining what makes such a contribution and what doesn’t? For example, Jack Welch is working on a book about all the trials in the BoM–would that make the list?

  4. Aaron Brown on November 23, 2004 at 12:20 pm

    “I know for a fact that the Journal of Law and Religion has a peer-reviewer devoted solely to articles dealing with law and Mormonism, although sadly the reviewer has yet to see a single submission since he or she was appointed.”

    Yeah, I’ve heard about this reviewer. And it’s just as well he’s had no submissions, since rumor has it he spends all his time blogging. :)

    Aaron B

  5. Pete on November 23, 2004 at 1:53 pm

    Nate (or anyone):

    “Zion in the Courts” is deservedly at the top of the list (even if by happenstance). Is the 2001 edition simply a reprint of the ’88 edition or does it add new substance as well?

  6. Nate Oman on November 23, 2004 at 2:16 pm

    The 2d ed adds one new chapter as a prologue (or something like that), but is otherwise identical with the earlier version. Also, it is paperback and therefore cheaper.

    My take on _Zion in the Courts_ is that its treatment of the anti-polygamy cases is quite weak (compare it to Sally Gordon’s book and you get a sense of how much more there is there). The stuff on the early church’s legal history (basically legal stuff during the life of Joseph Smith) is suggestive, but I suspect will have to be largely reconsidered once Joseph Smith’s legal papers are published. The best part of that book, and the part that is unlikely to be replaced soon, is its discussion of the 19th century Mormon court system. The whole section is undertheorized, but the basic material is great.

  7. Adam Greenwood on November 23, 2004 at 2:38 pm

    “The best part of that book, and the part that is unlikely to be replaced soon, is its discussion of the 19th century Mormon court system.”

    I completely agree. I also think this is the section most suggestive for an LDS jurisprudence. Joseph Smith’s legal battles and the defense of polygamy were pressing enough needs that I’ve no doubt that any legal principle that seemed to help would be siezed on, whether it fit within some nascent LDS approach to law or not. Any port in a storm.

    The 19th century court system, while also responding to peculiar needs (how to split up the land and the irrigation, e.g.) was much more at our discretion.

    Of course, the whole polygamy and Joseph Smith thing might be helpful in a naturalistic explanation of LDS legal ideas, or in giving them context, but I don’t see them as very helpful sources of ideas themselves.

  8. J. Dinger on November 23, 2004 at 3:24 pm

    I took an evidence class from Colin Mangrum this past summer and he said he is working on a follow up to Zion in the Courts. The new book would start where he finished, 1900 and continue until today.

  9. Rob Briggs on November 23, 2004 at 4:02 pm

    Nate, a very fine list of sources which form the backdrop for LDS perspectives. Here are a few random thots.

    Let’s keep in mind the EVOLVING nature of LDS perspectives on the law. After all, shifting from the People’s &/or Democratic parties to the Republican party — the party of our oppressors — hints at profound changes over time in LDS perspectives toward law & government.

    Also this: “I’m from Missouri – the Show-Me State.” I’ll believe there is an LDS jurisprudence when I see one, but not until.

    What Gandhi famously said about civilization I say about LDS jurisprudence, “I think it would be a good idea.”

  10. Gordon Smith on November 23, 2004 at 4:37 pm

    I am still holding out for your next post, Nate. I am not so much interested in papers about Mormonism or legal institutions of Mormonism, but rather about Mormon perspectives. And in that regard, the big question is method: what tools do we bring to the table?

  11. Jeremiah J. on November 23, 2004 at 6:09 pm

    Thanks much for this list, Nate. Much of this I have not read yet, and need to soon.

  12. Ethesis (Stephen M) on November 23, 2004 at 7:51 pm

    A couple of thoughts.

    A rather unique precursor to an LDS jurisprudence, if you substitute “religious entity” for “tribe” can be found in the new dean’s works. Kevin has written some very interesting and provoking work. Mostly of interest to the governments of other states than our own, but very significant. I’ve been following it somewhat, since I encountered it what seems like ages ago (at least BR “before Robin”).

    Next, “doing the truly ethical thing” and “not getting submerged so that we don’t notice the truly ethical thing” is no where near as common as it should be. Admittedly, you will find a lot of people who subsume that position, but think back on serving as a missionary and the number of people you knew who had reputations for real integrity. Sure, it is a communal virtue, but is it really one that is shared by the communityin action? It is more likely to come up in litigation and family law, than in other areas of law (as far as I can tell, I don’t run into transactional lawyers who just noticed that opposing counsel submitted an order than is different from the one he proved up and hurts his case and have to decide whether or not to bring it to his attention). My experience says that it is not.

    Finally, there is a sort of jurisprudence which is the reason BYU has a law school, which is reflected in the second point above more than the first. Not so much to come up with uniquely LDS approaches to law as it is to promote LDS approaches to life — sort of Elder Oaks “I’m an apostle who used to be an attorney vs. I’m an attorney who is also an apostle” approach. People who can take strong approaches, like Cole Durham does.

    The real purpose of the law school, at least as expressed by General Authorities I’ve heard discuss it, fits well within #

    I am still holding out for your next post, Nate. I am not so much interested in papers about Mormonism or legal institutions of Mormonism, but rather about Mormon perspectives. And in that regard, the big question is method: what tools do we bring to the table?

    Comment by Gordon Smith — 11/23/2004 : 4:37 pm

  13. Ethesis (Stephen M) on November 23, 2004 at 9:04 pm

    Hmm, lets go into an LDS issue, that can only be answered from an LDS perspective.

    What level of encryption is required to create a sacred space? Given that, what level of enforcement of rights, and methodology, is required to preserve a sacred space?

  14. Gordon Smith on November 24, 2004 at 1:48 am

    Looks like someone has been reading my articles, even if they are about corporate governance. Thanks, Ethesis.

  15. Kaimi on November 24, 2004 at 11:37 am

    Mark Sargent has some interesting thoughts at Mirror of Justice about trying to continue to foster Catholic legal thought.

    See http://www.mirrorofjustice.com/mirrorofjustice/2004/11/whither_religio.html

  16. Randy on November 24, 2004 at 12:05 pm

    What’s interesting to me is that Mar’s comments seem to pertain primarily to recruiting professors whose beliefs are in line with the church’s on “hot button” social issues. To the extent that people mean something along these same lines when they talk about “LDS perspectives on the law,” this endeavor does not strike me as all that unique or (to be honest) interesting. Am I the only one underwhelmed?

  17. Adam Greenwood on November 24, 2004 at 12:10 pm

    That wasn’t how I read the comment. But to the extent you’re going to develop a perspective on something you have to start form a point of view. Maybe that’s what Mark Sargent (not ‘Mar’, Kaimi) is talking about.