Secret Laws, Theocracy, and Cows

December 12, 2006 | 26 comments
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In 1847, the Mormon pioneers arrived in the Salt Lake Valley and set up a frankly theocratic government. The highest legal authority was the High Council, which had the right to promulgate laws, as well as to try and punish criminal offenses (usually with fines or public whippings). Just as one would expect from a fanatical theocratic despotism, the High Council spent most of its time legislating about cows.

Initially this was done by passing a law whereby all stray livestock was impounded and the owner of the strays was required to pay a fixed fine. The rule was enforced by either the High Council itself or else by a bishop’s court. The initial rule, however, gave bishops very little flexibility in deciding cases, and the High Council ultimately decided that the fixed fine should be dropped in favor of a rule giving the bishops that right to decide each case “as justice requires.” The main effect of this seems to have been to reduce the fines paid for straying cattle.

This is the point in the story where it gets interesting. Hosea Stout records in his diary that when the High Council repealed the previous stray law, they made the decision not to publish the change, so as to still “get the benefit of the old law.” In other words, the High Council wanted people to think that they would be subject to big fines for straying cattle but didn’t want to actually fine them when their cattle strayed.

The Emperor Nero is supposed to have posted new laws on the top of very high columns so that no one could see them. The Soviet Union used to promulgate secret laws that they would not tell people about. In both cases the secret statutes created much harsher punishments than the older ones. Nero did it because he wanted to confiscate the property of rich Senators, and the Bolsheviks did it because they were creating a secret police state. The injustice of these laws has led some legal philosophers, most notably Lon Fuller, to argue that publicity is a basic condition of legality. You can’t have the rule of law if you don’t know what the law is.

We Mormons, it would seem, also have had our secret laws, but in this case they were designed to be more lenient than the public ones. Hence the classic legal problem of powerful ex ante threats against misbehavior versus mercifcul ex post treatment of lapses was solved with benevolent deception on the part of the authorities. In the end, however, it doesn’t seem to have worked. Word that the Mormon theocrats were softies about straying cattle got out.

[UPDATE: To ease the pain of Russell and the other cattle pedants, I have switched the picture from a Utah-located Texas longhorn to an ordinary ox of unknown location. Are you happy now?!]

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26 Responses to Secret Laws, Theocracy, and Cows

  1. Ardis Parshall on December 11, 2006 at 10:59 pm

    I love it, Nate! Oh, that we were as forward today in the repeal of other mandatory minimums!

  2. Jeremy on December 11, 2006 at 11:05 pm

    I’m relieved to discover an ecclesiastical validation of one of my most shameful professorial practices: writing a very strict attendance policy into my syllabii, and even ceremonially taking roll every once in a while, but rarely bothering to tabulate students’ attendance at the end of the semester. Their reaction to threat of penalty (very good attendance) seems to obviate the need for the actual penalty.

    So, my question relates to your last sentence: precisely how long did it take for the truth about the cattle laws to get out?

  3. Russell Arben Fox on December 11, 2006 at 11:34 pm

    Nate, your photo there is of a Texas longhorn. While some Texas longhorns were brought into the Utah Territory apparently as early as the 1850s (James Whitmore, a convert from Texas, brought about 500 head with him when he relocated to St. George), they really weren’t widespread outside of Texas until 1870s, after the Civil War and once the great cowboy cattle drives began. Hence, the cattle most likely affected by the secret laws you mention were either oxen or various breeds of English cattle (like Hereford or Angus) that the original Mormon pioneers may have brought with them.

    Other than that, cool post.

  4. Nate Oman on December 11, 2006 at 11:58 pm

    RAF: The texas long horn in question is actually located in Utah, Delta to be precise.

  5. Russell Arben Fox on December 12, 2006 at 12:17 am

    Well sure, there are plenty of longhorn cattle in Utah now; the longhorns were specifically bred by the vaqueros and other Texas settlers to survive in the southwest. I’m talking then.

    I like being pedantic about cows.

  6. Dave on December 12, 2006 at 1:12 am

    “Benevolent deception” might work for cows, but there’s no guarantee the deception is benevolent for all transgressions. I could see, for example, such judges being benevolent on property damage but extra harsh on personal injuries or some transgressions against public morals. Not to mention they have to zing some poor sucker with a harsh penalty every so often just to make sure people don’t take mercy for granted.

  7. endlessnegotiation on December 12, 2006 at 9:40 am

    Glad to see Ardis lobbying now for the repeal of the minimum wage. After her quixotic defense of the minimum wage on Frank’s post a couple weeks ago it’s nice to see she’s changed her mind about mandatory minimums.

  8. Mark B. on December 12, 2006 at 11:21 am

    If you’re being pedantic about “cows” Russell, perhaps you should use the more inclusive term “cattle.”

    When I first read your post, Nate, I misread one sentence as follows:

    “Nero did it because he wanted to confiscate the property of rich Senators and the Bolsheviks . . . .”

    This is, I believe, the earliest appearance in world history of the Bolsheviks. I just wondered for a minute if they were the ones that set the fires. Then I read the rest of the sentence and was disappointed yet again.

    An ancestor’s journal from SLC in the 1850s tells often of “Spent most of today looking for lost cattle.” The searches were ultimately successful, although sometimes the cattle weren’t found for a few days. He never mentions any legal problems arising from his straying animals. Perhaps they never got into the neighbors’ corn, choosing instead to graze the bottom lands near the Jordan River.

  9. Ivan Wolfe on December 12, 2006 at 12:07 pm

    I can’t recall where I read it, but this reminds me of a series of either temple recommend or home teacher questions from the Utah era – and one of the questions went something like: “Have you ever knowingly branded cattle that wasn’t your own?”

    That should still be in the Temple recommend questions now, IMHO. ;-)

  10. Last Lemming on December 12, 2006 at 12:18 pm

    You can’t have the rule of law if you don’t know what the law is.

    Is it valid, in light of this principle, to have an “unwritten order of things” as Boyd K. Packer claims.

  11. Frank McIntyre on December 12, 2006 at 12:46 pm

    “Word that the Mormon theocrats were softies about straying cattle got out.”

    It always does…

  12. Nate Oman on December 12, 2006 at 1:01 pm

    Last Lemming: One of the problems of the Fuller approach to the Rule of Law — a problem that Fuller himself realized — is that if taken to its logical extreme, the entire common law system is invalid because appellate adjudication on a case of first impression always involves the application of ex post facto (ie unknown) laws, and in any case the cost of discovering the law in a common law system is sometimes so prohibitively high (ie you have to hire a lawyer) that the line between public and secret law is blurred. Needless to say, the common law represents the highest jurisprudential achievment of the human race and any attempt to prove that it is fundamentally at odds with the rule of law can only be regarded as a reductio ad absurdum ;->.

    Furthermore, the fact that a set of rules is unwritten does not mean that it is unknown. For example, the core rules of contract, tort, and property law in the United States are unwritten in the sense that there is no clear authoritative formulation of the rules to which one can refer. On the other hand, they are quite well known.

  13. Nate Oman on December 12, 2006 at 1:10 pm

    Note: I have changed the picture for RAF and added an “Update” notice at the end of the post.

  14. J. Stapley on December 12, 2006 at 1:18 pm

    Ivan, I think that you are probably thinking of the catechism employed during the Reformation as a prerequisite for re-baptism. A few of the questions were:

    Have you cut hay where you had no right to or turned your animals into another persons grain or field, without his knowledge and consent?

    Have you found lost property and not returned it to the owner, or used all diligence to do so?

    Have you branded an animal that you did not know to be your own?

    Have you taken another’s horse our mule from the range and rode it without the owner’s consent?

  15. Ardis Parshall on December 12, 2006 at 2:18 pm

    endlessnegotiation (#7): Be careful — be really careful — about twisting my words to make me appear to say something different than you know I believe. I have the “edit” button now and could easily alter any of your comments to make you appear foolish. Not that I ever would. Would I? No. No, of course not … hmmm …

  16. Russell Arben Fox on December 12, 2006 at 2:30 pm

    “Furthermore, the fact that a set of rules is unwritten does not mean that it is unknown. For example, the core rules of contract, tort, and property law in the United States are unwritten in the sense that there is no clear authoritative formulation of the rules to which one can refer. On the other hand, they are quite well known.”

    I’m pretty certain we’ve discussed this topic before, back when Elder Packer gave his “unwritten order of things” sermon, but it’s worth revisiting. Having a set of norms that unofficially guide a community, even a set of rather elite norms (known, for example, only to a subset of members of a community), is not, I think, by any means necessarily a total impediment to democracy or civic virtue or righteousness or any other collective goal. It can be such an impediment, especially when those unwritten rules are so obviously being created on the fly in response to particular controversies that, by simple virtue of them being controversial, have already become “public.” (Think of BYU’s treatment of Cecelia Konchar Farr, for example, and the attempt by some in the administration to make use of supposedly “implied” elements of the BYU contract when the situation to which those implications seemingly applied was already being argued out in the media.) But, if you have some assumptions about how laws ought to be enforced, and they are longstanding and administered relatively fairly, then the fact such laws are secret doesn’t automatically hurt anyone, and the communal benefits can be great. (One thing that mustn’t be done, though, is to ever codify the “unwritten rules” in some specific manner. That defeats the whole purpose, and one of the reasons I found Elder Packer’s sermon so strange–when a public authority states openly, so it can be written down in the Ensign, what the unwritten order of things are, then you’ve completely changed the flexible role which such laws, like the one’s Nate identifies regarding lost cows, can play.)

    (And thanks, Nate, for the correction. We don’t want millions of impressionable T&S readers to look at your post and go away thinking that Texas Longhorns were typical in the Utah Territory in the late 1840s. That would be a case of misinformation much too horrible to contemplate.)

  17. manaen on December 12, 2006 at 3:28 pm

    With advance apologies in abundance — this post and #15 in particular are an interesting exposition of how to cow people into compliance without intending to impose the threatened affliction.

  18. Ardis Parshall on December 12, 2006 at 3:38 pm

    Bull, manaen. You’re milking this for more than it’s worth. I never herd of such a thing. Someone might leave T&S in a hoof; I say, just leat-her go. This is the kine of comment we can do without.

    Ah, that feels good. Thanks manaen!

  19. Matt W. on December 12, 2006 at 5:58 pm

    (is embarrassed to be laughing at cow puns)

  20. TMD on December 12, 2006 at 7:49 pm

    A municipality I once lived in did something similar–they raised the speed limit on residential streets from 20 to 25 mph, but intentionally decided to leave the signs up. You only knew if you read the newspaper…

  21. ed42 on December 13, 2006 at 12:33 am

    “You can’t have the rule of law if you don’t know what the law is.” describes the federal code to a tee doesn’t it all several million (billion?) words of it.

  22. a random John on December 13, 2006 at 12:56 am

    Next time you’re at the airport ask to see the law that mandates that you show ID before you fly. Recently they’ve begun to allow you to fly without ID, but you’ll get the full treatment from the TSA. However they still won’t show you the law or regulations in question.

  23. manaen on December 13, 2006 at 10:32 pm

    17, 18, & 19. “utter waist” still is available to punish readers

  24. manaen on December 14, 2006 at 2:23 pm

    23 should be “udder waist”

  25. Katie P. on December 15, 2006 at 5:02 pm

    Last summer, I few without ID. I realized as soon as I got to the airport that I had left my driver’s license in the car at home, so I told the checking in agent that I didn’t have an ID and what the story was. I did have a various credit and library cards with my name on it, but nothing with a picture. I was apologetic, but she said it would be fine. She flagged my boarding pass with “must be searched” on it and I went on through. The same thing happened coming home – no ID required. Very interesting.

  26. grego on December 23, 2006 at 10:06 pm

    “You can’t have the rule of law if you don’t know what the law is.”

    In Italy, all new laws must be posted on the govt. announcement boards for all to read. Of course, the language is impossible to read, but still, it’s a step ahead of most nations…