Nephite Legal Reasoning

October 31, 2006 | 9 comments
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There are lots of legal stories in the Book of Mormon, but there is not much in the way of legal reasoning. One of the few exceptions is found in Alma 30, which tells the story of Korihor the Anti-Christ. Verses 7-10 read:

Now there was no law against a man’s belief; for it was strictly contrary to the commands of God that there should be a law which should bring men on to unequal grounds. For thus saith the scripture: “Choose ye this day, whom ye will serve.� Now if a man desired to serve God, it was his privilege; or rather, if he believed in God it was his privilege to serve him; but if he did not believe in him there was no law to punish him.

The passage is interesting because as far as I know it is the only place in the Book of Mormon where a concrete legal rule is derived from some authoritative text. In other words, it is the only explicit legal hermeneutic in the book.

The scripture quoted is Joshua 24:15, which says:

And if it seem evil unto you to serve the Lord, choose you this day whom ye will serve; whether the gods which your fathers served that were on the other side of the flood, or the gods of the Amorites, in whose land you dwell; but as for me and my house, we will serve the Lord.

This passage, in turn, is part of a speech that Joshua gives to the Children of Israel at the end of his life. Actually, the closing chapters of Joshua contain two final speeches side by side. In the first speech, Joshua recounts how the Children of Israel have driven the Canaanites from the land, and warns that if they forget God they will no longer be able to stand against them. In other words, the first speech is situated in an extermination narrative in which Israel utterly destroys the pre-Israelite populations of Palestine.

The passage relied on by the Nephite lawyers, however, comes from Joshua’s second speech, delivered at Shechem. This speech does not seem to be part of the extermination narrative, but rather shares the same assumptions that one finds in the opening chapters of Judges, namely that the Israelite occupation of the Promised Land was a gradual process that involved Israelites living cheek by jowl with the Canaanites. Furthermore, the second speech recapitulates the early history of Israel claiming – in contravention of Genesis and Exodus but in agreement with the Pearl of Great Price – that the children of Israel worshipped other gods while in Egypt and before that in Mesopotamia.

Finally, Joshua’s second speech is not simply a final sermon; it is a legal event. He asks the Children of Israel whether they will agree to follow God. When they say “yes� Joshua then tries to dissuade them, saying “Ye cannot serve the Lord: for he is an holy God; he is a jealous God; he will not forgive your transgressions nor your sins.� (v.19) The Children of Israel insist, and Joshua then drops into legalisms:

Ye are witnesses against yourselves that ye have chosen the Lord, to serve him. And they said, we are witnesses. . . . So Joshua made a covenant with the people that day, and set them a statute and an ordinance in Shechem. (vv.22; 25)

The requirement of witnesses to the covenant is a legal formality, one that was observed, for example, when two kings made a treaty. The legal import of the agreement is made explicit by Joshua recording it “in the book of the law of God.� (v.26) (Also, Joshua sets up a stone to commemorate the covenant, saying “Behold, this stone shall be a witness unto us; for it hath heard all the words of the Lord which he spake unto us: it shall be therefore a witness unto you, lest you deny your God.� (v.27))

This passage is about as close as you come in the Old Testament to a voluntaristic approach to religious pluralism. Generally speaking, the order of the day is to slaughter the idolaters. The covenant at Shechem, however, is made in the presence of religious pluralism – in the land of the Amorites – but deals with that pluralism in legal rather than military terms. Rather than preserving Israel by slaying the idolaters, Israel is preserved by a witnessed covenant to follow God.

The Nephite lawyers apparently tweak the import of this story in a number of ways. They are inheritors of the scriptures, which they acknowledge as authoritative, but they don’t seem to see themselves as inheritors of the covenant at Shechem. They are not bound by the choices taken there. Rather, their law assumes that a person stands at the beginning of the story rather than at the end of it. There is no witnessed promise to follow God that controls one’s behavior. Rather, one can choose or not choose to believe and follow God.

The other shift that the Nephite lawyers make is to turn the choice from a communal to an individual one. At Shecham it was the entire people of Israel that make the covenant. Their choice is collective. In contrast, under Nephite law the choice is personal, individual. (There is some sense in which this turn inward is foreshadowed in the covenant at Shecham in that the Children of Israel are allowed to act as witnesses of their own contract.)

There are a number of other points that one might make about the way in which the Nephite rule is derived from Joshua. For example, one might try to find the underlying hints of pluralism within the text that the rule was meant to cope with. (For my money, in the middle of Alma there are at least three possible groups: Mulekites, those who trace their religion back to King Benjamin, those that trace their religion back to Alma and – ultimately – Abinadi.) One of the most important, however, is the source of the rule itself.

The Nephites insist that they follow the law of Moses, and in the later stories in Helaman and 3 Nephi before the coming of Christ legal innovation is cited as evidence of spiritual degeneration. Yet the one concrete legal rule that we have discussed is not from the Law of Moses at all. It is drawn from a legal source, to be sure, but only analogously. The Book of Joshua has claim on the Nephite lawyers not as a binding legal document, but as a story from which their own law springs. In other words, they look at the covenant at Shecham not as the origin of a contract that binds them, but rather as a story from which they analogously draw a rule. This, in turn, suggests a fundamental tension in their legal thinking. On one hand, they generally speaking insist that their laws are drawn from Moses, but on the other hand there is not a single discussion in the Book of Mormon of which I am aware of a concrete rule drawn from the legal materials related to Moses. In a sense they create an illusion of continuity by drawing novel normative conclusions from particular stories. Put another way, they have narrative rather than legal continuity with Moses, so that keeping the law of Moses is less a matter of following concrete rules than remaining under the call of particular stories.

The Nephite legal model, in turn, is very much our legal model. We are not bound by the rules of the scriptures, per se. However, we are expected to be under the sway of their stories.

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9 Responses to Nephite Legal Reasoning

  1. Mark Butler on October 31, 2006 at 1:03 am

    One might consider the legal implications of having made a covenant to follow God in the pre-mortal life, and being brought to a remembrance of it. Paul wrote quite a bit on that topic, with regard to calling, election, and (for)ordination.

  2. Brett on October 31, 2006 at 11:25 am

    Interesting post, Nate.

    “The Nephite legal model, in turn, is very much our legal model. We are not bound by the rules of the scriptures, per se. However, we are expected to be under the sway of their stories.”

    I like this, because it’s true. I’m big believer in the seperation of church and state, but I really don’t get the uproar with ten commandments being posted in court houses. I guess if the intent of the judge was to show his religious affiliaition, then that can be a problem. But what if it’s just used as a reminder of one of the stories that have “swayed” our legal system? I see no problem in that.

  3. Just a question on October 31, 2006 at 12:33 pm

    Does this mean the legal perspective of the Alma passage originates in Joseph Smith’s world and not the world of pre-exile Jews?

  4. Nate Oman on October 31, 2006 at 1:32 pm

    just a question: I don’t think that my analysis tells you anything about that question either way, nor am I trying to make an apologetic or a debunking claim. I could imagine you spinning out arguments either way, but I am less interested in that project than in figuring out what the text says.

    FWIW, I personally subscribe to some version of Blake Ostler’s expansion thesis, in that I believe that there really was an angel and that there really were plates, but I suspect that there was a strong compositional element to the translation process so that I expect to find bits and pieces of Joseph Smith and his world in the text. On the other hand, in doing an exegesis of this bit of text I am not sure that this assumption matters all that much, as you get intertexuality between the Bible and the Book of Mormon regardless of the position that you adopt on the ultimate origins of the text.

  5. Anita on October 31, 2006 at 3:41 pm

    You might be interested in the work that Jack Welch has done on this topic, he has written several articles and a book (which may not be published but is, I believe, a text for his Biblical Law class at BYU) entitled something like “Nephite Court Cases” (Rosalynde, correct the details here if you know them). Lots of legal issues with Alma, Sherem, Korihor, Nehor, Zeezrom, etc and how they tie into OT law.

  6. Mark Butler on November 1, 2006 at 2:29 am

    Brett (#2),

    The fundamentals of legal reasoning in half a dozen and one variations (familial, feudal, monarchical, martial, conciliar, commercial, eccelesiastical) or so are pretty common to civilization from the beginning of recorded history, i.e. since Adam was born into the world.

  7. Ian on November 1, 2006 at 7:39 pm

    Wonderful post Nate.

    “In a sense they create an illusion of continuity by drawing novel normative conclusions from particular stories. Put another way, they have narrative rather than legal continuity with Moses, so that keeping the law of Moses is less a matter of following concrete rules than remaining under the call of particular stories.”

    Is it just me, or is there an element of Dworkinian jurisprudence in this approach?

  8. Nate Oman on November 1, 2006 at 9:08 pm

    I don’t know. What exactly do you mean?

  9. Ian on November 6, 2006 at 6:07 pm

    I am not sure, but it sounds similar to my understanding of constructive interpretation.

    Consider the example of the chain novel. Dworkin’s theory of law as integrity requires the jurist to achieve principled coherence. If the scriptures make bare the institutional history, and the present is included in that narative, it ends up sounding constructive. The difference is, the institutional history is justified by more than just political morality.

    Here the “particular stories” from the scriptures are the long-running moral threads that underly any particular rules.

    Maybe it is too much of a stretch.