The Essentially Judicial Structure of Mormon Institutions

September 4, 2006 | 22 comments
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Generally speaking, we tend to think that the institutional structure of the church is either administrative or pastoral. In other words, we think that the point of things like Bishoprics, High Councils, and Stake Presidencies is either to keep the congregational trains running on time, or else to reach out as the shepherd of the flock, leaving the 99 to find the sheep that has strayed, etc. etc. The odd thing is that both scripturally and historically, the ecclesiastical structure of the church is neither pastoral nor administrative. It is judicial.

Read the Doctrine and Covenants on Church government, and what you will see is that most of the discussion about the offices of bishop or stake president have to do with judging. Indeed, in some ways the ur-institution seems to be neither bishopric, stake presidency, first presidency, nor even Quorum of the Twelve. Rather, it is the stake High Council. (Indeed, I believe that the High Council predates both the first presidency and the stake presidency, with stake presidents initially serving as presidents of the High Council, rather than as presidents of a separate quorum.) Furthermore, what the High Councils seem to have spent most of their time doing during the first three or four generations of the Church was adjudicating disputes between members. Early Mormons seem to have been a quarrelsome bunch (further evidence of post-Puritanism, perhaps?), and the ecclesiastical structure of the Church seems to have been largely about chandelling this litigious energy into priesthood-controlled fora.

The central importance of the judicial role in church government seems to have waned during the administration of Lorenzo Snow, who actively discouraged Mormons from bringing their personal disputes into Church fora, counselling them instead to seek justice from the secular courts. This reverse more than a half-century of Mormon policy, which had been to funnel as much litigation as possible into church courts. It also, in a sense, left the institutional structure of the church bereft of much of its original work. To be sure, bishops, stake presidents, and high councillors retain their respective roles as “judges in Israel,” but these roles are now decisively subordinated to pastoral and administrative roles. Indeed, formal church adjudication is generally seen as a last resort in particularly difficult cases, rather than as an ordinary part of Mormons’ interactions with the Church and with one another. Most dramatically, the Mormon private-law tradition (that is the resolution of disputes among members rather than judging individual infractions of Church standards) has all but disappeared. We are left, however, English fashion, with a constitutional structure that is essentially adjudicative.

We are also left with a fun research question for would-be Mormon legal historians: Why did adjudication play such a central role in the foundation of Mormon institutions, and why has its centrality waned so dramatically?

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22 Responses to The Essentially Judicial Structure of Mormon Institutions

  1. Jefferson Kohn on September 4, 2006 at 2:59 pm

    Enough non-institutional judging still goes on in the church (and on the mommy blogs) to choke a horse. Just an observation.

  2. Wacky Hermit on September 4, 2006 at 4:18 pm

    Maybe there’s some sort of connection with the Book of Mormon, where after King Mosiah’s reforms (I think I remember it being King Mosiah, maybe it was King Benjamin?) the highest governing office is that of Chief Judge.

  3. Seth R. on September 4, 2006 at 5:26 pm

    Nate, that is just so… judgmental.

    I am affronted!

  4. Martin on September 4, 2006 at 6:59 pm

    Please define \”fora.\” It\’s not listed in a \”define:fora\” search on Google. It\’s likely a very specific legal term, but I\’m an engineer who\’s much better at F=MA than I am Latin or what ever.

  5. Heather O on September 4, 2006 at 9:26 pm

    fora=plural of forum

  6. J. Stapley on September 4, 2006 at 10:00 pm

    Why did adjudication play such a central role in the foundation of Mormon institutions, and why has its centrality waned so dramatically?

    I believe that the answer to this question is the answer to many of our questions regarding the development of our institutions. The Church was set up as the Kingdom of God, a government. Consequently there are legeslative and executive needs (I’m guessing this is what you mean by administrative activities). There is also a need for a judiciary in the government of God. It is interesting that presiding elders play all three roles.

    It is true that Brigham handed the territory over to the feds in the 1850’s, but the Mormons retained a tremendous amount of control and the rhetoric of a literal kindom didn’t quail. I haven’t read too much on the Snow presidency, but the loss of the judiciary in the Church would seem to be a natural ramification of the 1896 ascension into the union and subsequent americanization of the Saints. The kindom would have to be put on hold and replaced with the ultimacy of the spiritual kingdom and concomitant anticipation for a restoration of Zion.

  7. Mark Butler on September 5, 2006 at 12:17 am

    I would argue that the primary function of most ecclesiastical leaders on this earth isn’t governmental at all. It is prophetic, apostolic, didactic, or charismatic. In other words being a messenger, an ambassador, or a teacher.

    To a degree those roles are open to all, that is why being a priest technically outranks being a prophet. It is prophet, priest, and king right? Of course fathers and mothers are prototypes of kings and queens, but sons can see visions and daughters can prophesy.

    So what is being a priest? Well a priest is an authorized intermediary between God and man. In other words he doesn’t just teach, or prophesy, or set an example, he acts as a proxy for the King. For example Jesus Christ was not a King per se he was the great high priest – he came not to do his own will but the will of the Father. Likewise President Hinckley is the presiding high priest on the earth today.

    Of course being a priest is a lot like being a just judge or a righteous executive. Not to execute or decide things according to one’s own will, but according to the law, not just the letter of the law, but the spirit of the law. A priest, like any corporate president serves at the pleasure of the proprietors, whether the proprietor be a King or whether the proprietors be the body of the King’s heirs (shareholders in contemporary speak). The whole point being that a priest’s authority is not his own, but rather due to the mantle which he wears, and conditionally at that, serving at the will and pleasure of others.

  8. lamonte on September 5, 2006 at 8:21 am

    “Why did adjudication play such a central role in the foundation of Mormon institutions, and why has its centrality waned so dramatically?” – Could it be, and this is just a guess, that in the early days of the church there was no other governmental entity that the church members could trust to be fair and just. As the church grew within the United States they contintually encountered hostility, even from government leaders and so they relied on their church leaders to resolve even civil disputes. And after the Mormons arrived in the Salt Lake Valley, the governmental structure of the church was all there was until a secular governmental was set up.

    I can tell you from experience that today Bishops, Stake Presidents and High Counselors have plenty on their plates just dealing with pastoral and administrative matters. Bishops especially are often brought into petty disagreements among church members that they should be willing and able to resolve on their own. But the prideful nature of humans makes them unwilling to admit when they are wrong or unwilling to compromise their position for the good of all. And I think most church members would be surprised to learn of how much church disciplinary action is required among the members.

  9. greenfrog on September 5, 2006 at 12:06 pm

    More than a dozen years ago, I happened to be in a conference room at the law firm where I worked as a litigation team was devising strategies for a relatively big environmental case they were preparing to try a few weeks later in federal court in Utah.

    One of the partners on the case began to describe the jury pool research they’d done. He explained that Utah was filled with Mormons (!) and that the jury consultant they’d retained advised that Mormons had a very strong ecclesiastically-based aversion to using public judicial processes, preferring to resolve conflicts privately via the mediation of ecclesiastical leaders. Accordingly, he was planning for a jury that would look unfavorably on the plaintiffs for having turned what should have been a privately resolved matter into a public dispute.

    I suggested to him that his information was at least one generation out of date.

    On the specific questions, Why did adjudication play such a central role in the foundation of Mormon institutions, and why has its centrality waned so dramatically?

    I think some of the answer lies in the increasing integration of LDS members and the LDS Church into secular society, an effort that came into its own during the years of David O. McKay’s presidency, possibly assisted by Ernest Wilkinson’s success and prominence at the litigation bar.

  10. Clark on September 5, 2006 at 1:02 pm

    Slight tangent Nate, but do you think Snow’s move to secular courts rather than Church courts had a lot to do with the Church crying uncle to federal authorities? After all some have speculated that while polygamy was great for riling up the masses the big worry for many eastern elites was the shadow government and various communitarian economies by the Mormons. By moving conflict resolution to the secular government that really probably did more to ease tensions than anything else. Perhaps they even thought they could continue polygamy in secret (as they did through Joseph F. Smith) if they could placate the federal authorities over the theocratic government being disbanded.

    One should also note that while Snow started this change it took several decades to really set in. Although now I think there is definitely a sense that one ought not look to the Church.

  11. Clark on September 5, 2006 at 1:04 pm

    One other thing. One thing that I often wondered about is how on earth Stake Presidents and Bishops in the 19th century managed to find the time to do all that was asked of them. I think we all probably agree that there were some structural problems with the way the system was implemented in early Utah. (i.e. leaving Presidents and Bishops in power a tad too long and not keeping tabs on some that were out of control) But I honestly wonder with the Church effectively being the courts how the Bishops found time to do the things Bishops today do.

  12. J. Stapley on September 5, 2006 at 1:05 pm

    being a priest technically outranks being a prophet. It is prophet, priest, and king right?

    This is just insupportable, Mark. Prophet, Priest and King is a very specific title/office that relates to the Government of God on Earth. It has nothing to do with the aaronic priesthood priest. There is also King and Priest which is another title/office that relates neither to the Church or the Government of God on earth, except in the degree to which certain authorities to administrate are confered.

  13. J. Stapley on September 5, 2006 at 1:18 pm

    One thing that I often wondered about is how on earth Stake Presidents and Bishops in the 19th century managed to find the time to do all that was asked of them.

    Untill 1896 (same year as statehood), Bishops and Stake presidents were paid. In the earlier years in Utah, they devided 10% of the tithing revenues between them. How much this was, I am not certain, not a huge percentage paid tithing and most everyone was poor.

  14. Nate Oman on September 5, 2006 at 3:15 pm

    Clark: I suspect that part of Snow’s move was about the Church accomodating itself to American norms in the face of pressure. I think, however, that there may have been two other factors. First, I wonder if folks may have stopped taking their disputes to ecclesiastical courts, so that Snow’s move was in a sense simply a reaction to rank and file behavior. Second, I suspect part of it also had to do with a shift in the nature of litigation. The railroads and the telegraph created the first truely national economy in the United States. After the Civil War this economy became exponentially more complicated. Utah, of course, was slow to feel these changes but by the end of the 19th century they were showing up even their. What this meant, however, is that business transactions were becoming much more complicated. This meant that representative litigation shifted from something like two neighbors disputing over damage caused by a stray cow to the assignment of liability between two business entities in the face of a complex deal gone bad. I suspect that many Mormons were simply getting into arguments that were beyond the capacity of lay leaders to deal with. In other words, the turn to professional courts may have had something to do with the need for adjudicators with specialized professional knowledge. Certainly, in a modern economy there are lots of transactions that a priesthood leader without formal training is unlikely to be able to understand, let alone adjudicate.

  15. Mark Butler on September 5, 2006 at 3:51 pm

    J. Stapley (#12),

    I think you are confusing senses of these terms as they are used today with some ideal sense of how these terms ought to be used, which is what I am talking about, referring to a particular discourse of Joseph Smith, which wasn’t quite picked up on by the Saints.

    It has gone abroad that I [proclaimed myself] no longer a Prophet. I said it [last sabbath] ironically — I supposed you would all understand. It was not that I would renounce the idea of being a Prophet, but that I would renounce the idea of proclaiming myself such [at this time. Nevertheless I will] say that I [continue to] bear the testimony of Jesus [which is the spirit of prophecy] (Rev. 19:10). . . . . .

    Last Monday morning, certain men came to me [and said:] “Brother Joseph, Hyrum is no Prophet — he can’t lead the Church — you must lead the Church! If you resign, {all things will go wrong; you must not resign; if you do the Church will be scattered.”}

    I felt [to make them] curious and said — “Have we [not] learned in [the scriptures about] a Priesthood after the Order of Melchizedek, [which includes the offices of] Prophet, Priest and King” (Gen 14:18; Psalms 110:4; Heb. 7:1; 1 Peter 2:9; Rev. 1:6; D&C 76:56; 110:11-16).

    (TPJS 318, WoJS 234)

    See http://www.zianet.com/collier/apostles.htm about half way down.

  16. J. Stapley on September 5, 2006 at 4:23 pm

    I like how you don’t site the text as Collier’s amalgamation. :) I prefer the WoJS entries. So, this was a couple moths after Hyrum was finally converted to all of Joseph’s teachings and designated the heir to the presidency. Joseph inaugurated the event by re-endowing the the original nine. Joseph had yet to reveal the offic of “Priest and King” and the office of “Prophet, Priest and King.” Which he did in that order. Most commentators believe that Joseph started as “Prophet” then recieved “Priest and King” then lastly was officially “Prophet, Priest and King.”

    Interestingly, I recently read an account of the funerals of Joseph and Hyrum by Brigham Youngs nephew that described it as the funeral of the prophets. Interesting stuff.

  17. J. Stapley on September 5, 2006 at 4:25 pm

    I would also add that whatever Joseph stated in that discourse before all was revealed, he made quite clear after it was.

  18. lawguy on September 5, 2006 at 4:26 pm

    Re: greenfrog\’s post #9:

    I don\’t want to divert this topic into a discussion on lawyers and lawsuits, but I do feel compelled to at least offer a brief response to the idea that church members are no longer institutionally averse to lawsuits as a means of settling conflict.

    I began working as a lawyer for a Utah firm a few years ago. The firm that I work for does a lot of plaintiff\’s work. In my few short years of practice, I have already had several experiences where, during the jury selection process, we had prospective jurors tell us that they had a specific, religiously-based objection to church members filing lawsuits against other church members.

    Additionally, I\’m aware of a situation that occurred in my stake in the last year where a member\’s five year old daughter was pretty viciously attacked by a neighbor\’s dog. Both families are church members and belong to the same ward, but the dog owner was less active at the time. The girl\’s family ultimately sued the dogowner. They were subsequently pulled into a meeting with the bishop wherein he told them that he didn\’t think it would be good if they sued a less active member, that he didn\’t think law suits in general were appropriate of a church member, and asked them to drop it. When they refused to drop the suit, the stake president got involved and made the same request.

    My own anecdotal experiences are obviously insufficient to make any blanket statement about how common this belief is. That said, I know from conversation with other LDS plaintiff\’s lawyers that they, too, regularly deal with this problem. In my view, the opinion of your jury consultant would be perfectly consistent with my own experiences.

    Re: High Councils and law suits:

    I don\’t have the book in front of me right now, but Elder Oaks has a full essay about the Church\’s historical developments regarding civil lawsuits in his book entitled \”The Lord\’s Way.\” The book is about 10 or 15 years old but is still available in Deseret Book. It\’s been awhile since I read it, but my memory is that he too indicates that the High Councils stopped acting as civil courts around the turn of the century.

  19. greenfrog on September 5, 2006 at 6:16 pm

    Interesting, lawguy.

    I’d never, ever, heard of Church leaders intervening in civil litigation, but perhaps my views were skewed by my non-Utahnic upbringing.

  20. Clark on September 5, 2006 at 7:08 pm

    Nate: (#14) The bit about the railways and what one could call something akin to current globalization but on a national scale is quite interesting. I think you are partially right there although I think at best that was but one trend. I could have sworn Momonism in Transition mentions all this but its been years since I last read it and am too lazy to look it up.

  21. Mark Butler on September 5, 2006 at 7:29 pm

    J. Stapely (#15),

    I do not have access to Words of Joseph Smith, unfortunately, but I trust it by reputation greater than Collier’s amalgamation. Collier seems to have lots of very insightful things to say, but on the other hand it seems to me he has a Mormon ‘fundamentalist’ undertone that is a little disturbing. However, I really haven’t read enough of his work to give a proper review.

    Personally, I think the doctrine of divine kingship took a turn for the worse (or continued on a improperly established path) following the death of Joseph Smith. I am not an expert on the Mormon apocrypha, but to me it seems that divine kingship is no more and no less than being a heavenly father or a heavenly mother in a society of heavenly fathers and mothers – and not ruling independently in any case, but in cooperation with those who are your own fathers and mothers, and those whom you are a father or a mother to. i.e. more like Abraham and Sarah (who paid tithes to Melchizedek) and less like what we normally think of Adam and Eve. The search for the “top” (except in equality and shared participation with all the others up there) is corrupting in my opinion.

  22. Ardis on September 11, 2006 at 5:15 pm

    I know this comment is waaaay late, but I thought of this thread yesterday when we sang “The Spirit of God Like a Fire Is Burning.” To the early saints who sang those verses, one of the primary signs of the restoration and a new dispensation was “restoring their judges and all as at first.”