Legal and Religious Irony on the BYU Website

April 18, 2007 | 12 comments
By

I recently ran across the “Education for Eternity” website put together by the BYU Faculty Center, which collects materials on Mormonism and higher education. It is not a bad collection, and given that William & Mary has no comperable collection, I appreciate that it is online. I couldn’t help but laughing, however, when I clicked to the section on law only to find a picture of Oliver Wendell Holmes, Jr. staring at me. Holmes is a rightly iconic figure in the law, and I assume that he was added to provide a bit of jurisprudential ambiance. On the other hand, as an avowed and articulate atheist with a streak of moral skepticism amounting at times to nihilism, there is something a bit ironic about having his bewiskered mug presiding over a list of articles by J. Reuben Clark, Dallin H. Oaks, and Bruce Hafen.

Tags: ,

12 Responses to Legal and Religious Irony on the BYU Website

  1. Clark on April 18, 2007 at 1:56 pm

    Out of curiosity Nate, what do you think of Holmes? From what I’ve read he reached his decisions first and then tried to find legal justification for them. Not what I’d look for in a judge.

    Why was he on the website, do you know?

  2. Nate Oman on April 18, 2007 at 2:24 pm

    “From what I’ve read he reached his decisions first and then tried to find legal justification for them.”

    I don’t think that is true. His famous aphorism that the great virtue of the common law is that it decides the case first and provides the reason afterwards was a statement about the nature of legal development. His point was that common law judges decide cases causuisticly by analogy to earlier cases. It is only after we have a long line of cases decided on particular facts that we can discern and extract abstract principles. His point was that abstract statements of common law doctrine are intepretations that emerge from pre-existing particulars, rather than first principles from which the resolution of particular cases are deduced.

    As a legal thinking, I think that Holmes was incredibly important as an anticdote to thinkers like Langdell or Beale who insisted that the criteria for “good law” were purely logical, ie good law is law that is internally logically consistent. Holmes insisted that law was a social practice that produced consequences in the real world, and had to be evaluated as such. His inistence on viewing the law as historically and socially situated was very important. The success of his thinking, IMHO, has had some bad influences, however. First, it has badly distorted the view of most lawyers and judges about the legal past, so that there is a tendency to see everything before Holmes as sterile formalism. Second, his attacks on logic and the law have been so rhetorically powerful that I think legal intellectuals in America tend to seriously under-rate the value (even the insturmental value) of conceptual coherence in the law. (They also, again IMHO, tend to under estimate the actual coherence of the common law.) Third, there is a deep amorality at the heart of Holmes thought that once it is grasped is really breathtaking. Whaterver the virtues of seperating legal questions from moral questions (and there are quite a few), I do think that law has to have some inherent normativity or else it simply disappatites into mere force, the gun man writ large. Such a view is not only morally troubling, but is also philosophically unsustainable.

    As a judge, however, I think that Holmes actually did a pretty good job. He is a wonderful writer, and as H.L.A. Hart said one of his greatest virtues is that even when he was clearly wrong, he was always wrong clearly. I think that a lot of his common law decisions on the Massachusetts Supreme Court are really fabulous, even when I think they are wrong. He was an exceedly careful and diligent judge. I’ll leave his work on the U.S. Supreme Court to the constitutional law mavens. My con law prof, Larry Tribe, really disliked Holmes, which is something of a point in his favor in my book. His dissent in Lochner v. New York is the locus classicus for the arguments for judicial restraint. On the other hand, his decisions on race and other issues are not particularlly inspiring. (Heck, even Lochner wasn’t really the abomination that it has become for subsequent constitutional law thinkers — largely I might add because of the rhetorical force of Holmes’s dissent in Lochner and other substantive due process cases.)

    In short, Holmes was a brilliant thinker who got a lot of things right. I suspect that at the end of the day, we probably don’t really want a judiciary inhabited entirely by brilliant thinkers. On the other hand, I think that a couple of powerful thinkers on the bench from time to time is quite good for the law. I also think that Holmes was a great judge.

  3. Seth R. on April 18, 2007 at 2:45 pm

    Clark,

    EVERYONE reaches their conclusions first and then looks for ways to justify them. I haven’t read a Supreme Court Justice yet whom I didn’t think was doing exactly that.

    As long as the process is respected, I’m cool with it.

  4. Norbert on April 18, 2007 at 2:58 pm

    The Metaphysical Club by Louis Menand is an interesting look at pragmatism through the lives of William James, John Dewey, Holmes and others. I thought it was interesting, especially how Holmes’ attitudes were shaped by the Civil War, which he saw as the violent consequence of idealism. But clearly, pragmatism doesn’t mesh very well with Mormonism. It rejects truth or virtue for its own sake, relying instead on procedure and the utilitarian value of a specific concept.

  5. Leslie on April 18, 2007 at 3:11 pm

    Do you think maybe we sometimes have to separate our faith ( or religion) from our professional lives? What I mean by that is we don’t have to compromise our standards but we cant always police others. We need to recognize others for the professional greatness without criticizing there personal lives. Does this make sense to anyone? We need to give respect where it is due.

  6. Eugene V. Debs on April 18, 2007 at 3:31 pm

    Maybe whoever put the website together had it on good authority that Holmes appeared to Dallin Oaks and asked him to do his temple work? Who knows how many former nineteenth-century atheist intellectuals are out there waiting to enjoy the blessings of the temple and BYU server space?

  7. Nate Oman on April 18, 2007 at 4:18 pm

    Gene: I’d be happy to do your temple work for you if you want me to.

  8. Clark on April 18, 2007 at 6:39 pm

    “But clearly, pragmatism doesn’t mesh very well with Mormonism. It rejects truth or virtue for its own sake, relying instead on procedure and the utilitarian value of a specific concept.”

    Note that this is a pretty distorted view of what pragmatism asserts. Unfortunately one Menand doesn’t exactly help. I’d argue that Pragmatism actually is extremely compatible with Mormonism.

  9. Clark on April 18, 2007 at 10:13 pm

    Just to add, if all you know about pragmatism comes from Menand then I’d really suggest at a minimum checking out the SEP on C. S. Peirce, William James, Pragmatic Arguments for God (although that leaves out Peirce’s rather interesting argument), etc.

    Now admittedly Dewey’s ethics comes close to what you say. I’ll confess I don’t find Ethics interesting so I’m the last person to talk to about theory and Ethics. However while Dewey wants us to evaluate our ethics in terms of consequences and ultimately sees them in terms of human beings, I don’t think that is necessarily opposed to Mormonism, depending upon how one views it. I also think even Dewey’s moral philosophy is more complex than what you outline. Certainly Peirce’s and James is hard to reconcile to your comments though.

  10. JKC on April 19, 2007 at 12:13 pm

    I’d agree with Clark. The excerpts of President Woodruff’s sermons printed after “Official Declaration–1″ take a pretty pragmatic view of things. Without discredited folk doctrines, and without admitting that the prophets were wrong, it seems that the only (or perhaps the best, a la Occam’s razor) way to justify the priesthood ban is through some sort of pragmatic argument about the church not being able to survive Missouri had the saints been integrating abolitionists.

  11. Clark on April 19, 2007 at 3:41 pm

    JKC, note that sense of “pragmatic” isn’t the sense of pragmatic in its philosophical sense. Technical pragmatism is wrapped up in the notion that meaning is entailed by the practical effects or potential effects of how we measure it. Thus hardness’ meaning is wrapped up in the ways we’d measure hardness.

    The two senses are related since they both get at practicality. But they aren’t the same. The issue of pragmatism and ethics is more complex. And, as everyone knows, I shouldn’t be speaking on Ethics because I just don’t study it much. (90% of the time I end up embarrassing myself) For Dewey ethics is tied up with empirically considering the practical consequences of our actions. However for Peirce ethics is tied up with the “Summun Bonnum” or overall good to which things are heading.

  12. JKC on April 21, 2007 at 9:00 am

    Thanks for the info. But even in the more nuanced sense of pragmatism, I still think Mormonism is for the most part compatible.