John Roberts and Mormon Theology

July 22, 2005 | 19 comments
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For those who haven’t noticed, John Roberts has been nominated to the U.S. Supreme Court. The next obvious question is what does his jurisprudence tell us about Mormon theology. As it stands, Roberts is a bit of an intellectual cipher (see this post by libertarian law prof Randy Barnett). We know that he is basically a conservative guy, but he has no corpus of theoretical writings on jurisprudence. In fact, he has even claimed skepticism about the value of theoretical jurisprudence, suggesting instead that each case should be decided on its own merits.

It is not at all clear how seriously we ought to take any of this. Roberts is nothing if not a savvy Washington insider, and he is well aware that in our current legal culture, expressing opinions about ideas is a dangerous thing to do. He may harbor some coherent set of jurisprudential theories — such as Scalia, Thomas, or Breyer, the most theoretically inclined of the current justices — or he may simply be a smart lawyer who will call ‘em as he sees ‘em without resort to theoretical constructs (Kennedy and Stevens are good examples of this, I think). Let us suppose, however, that Roberts is telling the truth and that he really is a theory skeptic.

This is, of course, an eminently respectable position to take, especially within the Anglo-American legal tradition. The continental legal tradition, tracing its roots to the Roman corpus juris civile, and now metastasized through much of the world, has always placed a greater premium on logical consistency and the importance of a coherent ratio juris than has the common law tradition, which has often been content to let the law emerge from the steady accumulation of largely ad hoc decisions. Holmes, that great intellectual pickpocket, claimed that the genius of the common law is that it decides the case first, and supplies the justification afterwards. In other words, the pragmatic solution to problems precedes the elucidation of theory. Theory is always a post hoc attempt to interpret what has happened, rather than a set of first principles from which one derives correct conclusions.

Which brings us to Mormon theology. What is it? One of the bed rock principles of our faith is the belief in modern prophets and continuing revelation. Hence, we insist that God acts in history, and that his Spirit infuses his work here below. From this belief flows a commitment to viewing what are essentially a set of ad hoc decisions and fragmentary texts as evidences of the mind of God. We have some continuum in which canonized texts operate as one pole of divine intervention and other phenomena, such as decisions of Church leaders, personal revelation, and the collective Mormon memory occupy a somewhat lesser status. Mormon theology, it seems to me, is the process of making sense out of these things. Like Holmes’s view of the common law, it is always post hoc, deciding the case first and supplying the reasons after wards. This suggests, in turn, that theology always occupies a secondary place in LDS thought. It is what one does after revelation to make sense of the experience. It is not a set of principles from which one deduces correct answers. Furthermore, because it is post hoc, Mormon theology is always open to revision. It is always open to the possibility that a new revelatory decision will require us to rethink and reinterpret everything. We look to the oracles of the law for change and progress, not to the elaboration of the ratio juris.

Roberts is almost certainly going to be confirmed, and we will get to find out what his jurisprudence is like. He obviously has the brain power to go in either directions. However, for better or for worse, there is a certain Mormoness to his stated understanding of the law.

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19 Responses to John Roberts and Mormon Theology

  1. Travis on July 22, 2005 at 10:51 am

    Nate, your link to Randy Barnett’s post doesn’t work. Can you fix?

  2. Nate Oman on July 22, 2005 at 10:52 am

    It should be fixed now.

  3. Karen on July 22, 2005 at 12:26 pm

    Nate, I give you 24 hours before I start hearing Mormon rumors about John Roberts being a Mormon. “Yeah, saw it on the internet….”

    I wonder if you are over-emphasizing the post-hoc nature of Mormon living. I think that more than most other religions, we have a pretty deep background in theology. (The hours I spent in Seminary and Institute spring to mind.) I think we are so steeped in our doctrine that we view the world through that lens, molding experiences to fit the expectation of the doctrine. Hence, for instance, when tragedy strikes us, we feel the comfort of the holy ghost, but our experience with the doctrine has taught us to expect that, and has provided the vocabulary to us to explain our experience.

  4. Clark on July 22, 2005 at 12:58 pm

    Nate, I have to confess all I’ve read about Holmes was from The Metaphysical Club. I’ve been told by various people that in terms of representing philosophy Menand isn’t that accurate. (Or is at least superficial) I know Peirce, the father of pragmatism thought that as we honestly inquire truth acts upon us. Thus from the inquiry of the community of inquirers truth will be made manifest. Is that basically what Holmes thought about the relationship between justice and the ad hoc decisions of common law?

    I should add that I think you’re right connecting this to Mormonism.

  5. Paul Mortensen on July 22, 2005 at 2:31 pm

    I’m having a difficult time following your line of thought in your penultimate paragraph due to your extensive use of pronouns. Are you making the assertion that what Mormons might consider “gospel principles” is little more that post hoc rationalization of emperical experience?

  6. Dave on July 22, 2005 at 2:32 pm

    Interesting model, Nate, but if this is the case, then what is the purpose of the canon? It seems like your approach makes canonical orthodoxy a restraint on rank-and-file members of the Church, but leaves leaders under no such restraint. Any leadership statements are presumed to be correct; the role of “theology” is simply to justify them post hoc using scripture, prior statements, redefinitions, clever reasoning, or whatever.

    An alternative view (and one that is heard in official LDS discourse) is that the canon can be used to “test” leadership statements. It is sometimes phrased as “leaders will never say anything inconsistent with canonized scripture” or something similar, a nicely ambiguous formulation which could go either way in terms of which source has primacy.

  7. Nate Oman on July 22, 2005 at 3:17 pm

    Clark: If I understand your question, you are suggesting that Holmes thought that justice would somehow act on those pursuing it, so that justice would result from the community of justice seekers. I am not quite sure how to answer this.

    The Holmes of _The Common Law_ seemed to have a vaguely evolutionary theory of legal development. (I think that Menad underplays the importance of _The Common Law_’s historical arguments.) Holmes purported to locate the genesis of a whole host of legal rules in essentially pre-modern and even pre-Christian animism and pantheism. He did not, however, deduce from this fact that these legal rules were silly, obsolete, or useless. Rather, he seems to suggest that the rules continue to have vitality because they produce good outcomes in present day cases. Perhaps an example makes this clearer:

    In admiralty law a civil action is commenced not against the captain or owner of a ship, but against the ship itself, and the ship is made to satisfy any judgements against it. For example, if a ship collided with a dock, damaging it, the dock owner would sue the ship and he could enforce his judgment by attaching the ship and selling it (or its cargo, I believe). Generally speaking there are two basic policy rationales for this rule. First, ships are inherently mobile and frequently their principles (owners, masters, etc.) live in different countries. Proceeding against the ship simplifies issues of jurisdiction and remedy so that the dock owner is not forced to travel far across the sea to sue the ship owner. Second, limiting the action to the ship provides a kind of limited liability, similar to the corporate form, and this is supposed to provide benefits in capital accumlation and financing. (In J.S. Mill’s formulation, it is a way of persuading rich men to join ventures with poor men.)

    Holmes would have no objection to either of these policy justifications. However, Holmes argued that the origin of the rule that a proceeding was commenced against the ship itself came from the pre-scientific belief that the ship was a living thing with a soul which was at fault. The rule continues to be applied not because of the original reason behind it — an animistic belief in the vitalism of ships — but because of contemporary concerns with administrative conveinence and capital formation. I suspect that he would have gone even farther than that. I think that he would have said, Judges apply the rule because it produces outcomes that seem intuitively correct. Only after the judges have done this for a while do we begin to discern the policies that underly the rule. This policies, in turn, have little or nothing to do with the historical genesis of the rule. Thus, a judge in admiralty would let the dock owner sue the ship because it seems unreasonable to force him to sue the owner across the sea, and it seems unwise to let him attach the owners residence in a foreign country to satisfy his judgement. Only later do we start thinking about administrative convienence and limited liability.

    Holmes contrasted the rule in admiralty with the rule in criminal law known as deodad. Under deodad a criminal inditment also proceeded against the object used in the crime. Hence, if a man killed another man with a sword, the man was indited but his sword was indited as well. If found guilty the man would be hung and the sword destroyed. The rule persisted for a long time and defendants were able to successfully argue that there was a flaw in their inditment when it did not also indite their weapon. The rule was eventually abandoned. Holmes would say that it was abandoned because judges decided that it was senseless to let the accused avoid trial because his weapon was not also on trial. This basic intuition would then be followed by modern penological theories about deterence, which of course, suggest that there is no need to punish inanimate objects.

    This, I think is what Holmes meant with aphorisms about the life of the law being history and experience rather than logic.

  8. Nate Oman on July 22, 2005 at 3:19 pm

    Paul: Here is the simplified version –

    Revelation is not the same thing as theology. Revelation comes first and theology are the interpretations that we offer to make sense of it. Both are necessary, but one is primary and one is secondary. It gets muddy because we often end up using theology to identify revelation.

  9. Clark on July 22, 2005 at 3:25 pm

    I guess what I’m suggesting is a kind of parallel to what I see in Mormonism. Peirce thought that truth was real and had a real impact that would lead the community towards it. Thus he held out that truth lead to the evolution of “knowledge.” In Heidegger there is something somewhat similar. His sense of “for the sake of.” The idea being that certain truths or universals affect us but we never fully have them, the way I think many truths have been historically treated. (i.e. that we have an idea of justice and use that idea to judge reality)

    It sounds like Holmes wasn’t really going down this line. However perhaps he argued that incorrect pantheistic and animist tendencies were used to judge truths that were actually manifesting themselves pragmatically? That is what you say, “the policies that underly the rule.”

  10. Nate Oman on July 22, 2005 at 3:26 pm

    Dave: I am not talking about orthodoxy but about theology, literally theories about God. I agree with you that there is a bit of a circularity problem. We often use theology to identify revelation, e.g. the standard works are inspired, general conference is inspired, but your Sunday school lessons are not. This means that the explanation is being used as the critieria for recognizing that which is being explained. I am not quite sure how to deal with this issue. However, it seems to me that our theology tends to come after our revelations rather than before them. This means that later decisions, as it were, have retroactive effect on meaning and significance. This, of course, just frustrates the hell out of the historians, who like to think of the original meaning as having priority and subsequent meanings as being distorted mythmaking. There is some truth to this, I am sure, but it occurs to me that the common law might be a better way of thinking about this. For example, in the twentieth century, American and English courts cited nineteenth century consideration cases to support the bargain theory of consideration. There is little doubt that this is not what these cases originally meant. Yet as a matter of law, this is what they actually mean today. The subsequent decisions have altered and changed their meaning.

  11. Nate Oman on July 22, 2005 at 3:28 pm

    Clark: At the end of the day, however, I think that there is pretty good evidence that Holmes was a nihilist. Certainly, Richard Posner reads him this way, and I think he makes a pretty good point. You ought to take a look at his introduction to the _Essential Holmes_ where he argues that Holmes was the American Nietzche, something that might interest you given your penchant for Continental philosophy.

  12. Clark on July 22, 2005 at 4:03 pm

    I tend to think that pragmatism without realism is nihilism. However I’m not sure I see Nietzsche as a nihilist. But that’s neither here nor there. But that does answer what I was getting at rather concisely.

  13. comet on July 23, 2005 at 11:23 am

    OK we theorize after the fact of revelation in the manner of Hegel’s owl of Minerva. I agree that Mormons don’t officially do theology and that whatever theology (making sense of things; attempting to systematize and extrapolate spiritual laws and metaphysical dimensions from essentially that which is ad hoc) individuals within the church can muster must compete in the informal marketplace of elders quorums, blogs, foyer small talk, etc. It may be that there are no ultimately untouchable doctrines in the church (certainly no creeds); I mean, if a doctrinal practice such as polygamy, something believed by many at the time to be a definitive doctrine worthy of every sacrifice and form of persecution, could be reversed why not any given doctrine in today’s church (theoretically speaking)? The idea of doctrine just seems to have more bark than bite in this church.

    That said, have you considered procedural theories in the church ? These always limit (institutional) revelation prior to the fact thereof, especially as to who is qualified to recieve a revelation. Here are a few obvious features that strike me as compelling:
    1.For example, revelations to the highest councils for obvious reasons never have an acknowledged source in the institutional ranks below or outside the church institution itself (which also includes the canonized lineage of prophet figures);
    2.no binding revelations have their source in a woman;
    3. decisions made at every level are to be assumed revelatory or inspired.
    4. revelations have limited jurisdictions of authority in the church (unless your the prophet);
    5. revelations have a half-life or shelf life i.e. who worries about toeing the line to Elder Richard L Evan’s revelations of yesteryear?;
    6. revelations must be submitted to a sustaining by common consent (as a body and individually in the case of callings and particulary in the case of marriage proposals).

    Nothing particularly new here but what we get in procedural revelation is less the rule of law than the rule of man (procedurally inspired).

  14. comet on July 23, 2005 at 11:36 am

    oopps…rule of law as an explicit body of doctrine. I think I basically agree with Nate’s assessment of church decisions as akin to common law but I guess I see the strong procedural nature of church revelation as constitutive of “revelation” rather than just as second order reflection.

  15. annegb on July 23, 2005 at 11:45 am

    The thing about Roberts that bothers me is that he won’t own up to his baldness. I think bald men are attractive and those who wear toupees (even good ones) are somehow less courageous and honest. I’m not being facetious, this really bothers me.

  16. Kelly on July 24, 2005 at 11:30 pm

    I’m sorry, but I always thought the theology was the “study” of God, not “theories” about God. Our theology, or study of God, is based on revelation from God, those things that He wants us to KNOW about Him, not those things He wants us to theorize about Him.

    Second, I hope, at least to some extent, that Roberts finds the basis for his decision making not In his religious upbringing- though difficult to separate from the person, I understand- but rather on his strict interpretation of the constitution, hopefully as an originalist. I would hope this of any jurist on the Supreme Court, Catholic, LDS, Jewish, or atheist for that matter, and in fact for any court, though wishful thinking it may be.

  17. Ed Enochs on July 27, 2005 at 3:38 pm

    John Roberts is a good and wise pick by President Bush. The problems that the GOP had in trying to get Judge Robert Bork (failed in 1987) and Clarrence Thomas (passed in 1991), demonstrates the difficult waters the GOP faces in attempting to get any conservative into the supreme court.

  18. Mark B. on July 27, 2005 at 3:46 pm

    A late note: Taking the in rem nature of admiralty actions one step further, the ship that is subject to a legal proceeding (whether arising out of an accident or for failure to pay the mortgage) is not “attached” (the word we dry land lawyers use to describe taking a piece of property to satisty a judgment or prevent the dissipation of the property prior to judgment) but “arrested.” That usage takes some getting used to, since I just can’t see Marshal Dillon pulling his Colt .45 on the Delta Queen.

  19. Kingsley on July 27, 2005 at 6:23 pm