Mormonism, so goes a well-worn trope, is more into orthopraxis than orthodoxy. That is, we tend to care more about right conduct — e.g. loyalty to the kingdom, keeping covenants, following commandments, etc. — than right belief — e.g. the precise nature of divine progression or the correct location of Kolob. This raises the question, however, of why Mormonism hasn’t really developed any sort of a formal jurisprudence. Looking at church courts in the nineteenth century and comparing Mormon “law” to Islamic law sharpens the issues
Although church courts in the nineteenth century referred to â€œthe law of the Churchâ€ and â€œthe law of the Lord,â€ it was unclear what rules â€“ if any â€“ they looked to in resolving cases. The basic procedures used by the high councils had been given by Joseph Smith in 1834 and remained quite stable. During the period of 1846 to 1850, high councils promulgated written rules to govern Mormon communities; however, they ceased to do so once the legislature was operating. Even the treatment of these rules, however, reveals ambivalence toward formal legislation. For example, the Salt Lake High Council promulgated a law dealing with strays that imposed substantial fines on the owners of the livestock. The council subsequently determined that the rule was too harsh and left the bishops who applied it with too little discretion. Accordingly, the council repealed the rule, however, they â€œalso â€¦ imposed a fine of 25 dollars on any one of the Council who divulged the same as they wished to let the force of the law do all the good possible after it was repealed.â€
One Mormon tried to explain the rules applied in church courts by saying â€œ[t]he laws of the church are revelations â€¦ No rule, however, is of binding effect until it has been adopted by the people to whom it applies.â€ In actual practice, however, appeals to formally canonized revelations decided few cases. In 1870, a Gentile observed more accurately that bishopâ€™s courts applied â€œa sort of wild equity that is generally not far from just.â€ Occasionally, to be sure, church courts looked to biblical rules, for example by requiring four-fold compensation for theft. In one case a party appealed toâ€œknown and justly established usages of law and equity in civilized nations.â€ In some instances church courts followed secular law, but they did not hesitate to abandon it, for example by enforcing debts discharged in bankruptcy or by forging a new system of water rights better suited to the arid Great Basin. The upper reaches of the churchâ€™s hierarchy did attempt to create some uniformity. For example, in some instances bishops or High Councils facing a difficult issue wrote the First Presidency, and the letters sent in reply evidence consistent positions on some points. The churchâ€™s then official organ, The Deseret News, also occasionally printed articles, presumably penned by church leaders, instructing that certain rules to be applied in particular situations. Finally, high church officials regularly traveled from stake to stake, preaching and instructing local leaders on, among other things, the proper way of conducting church courts and resolving disputes among the Latter-day Saints. These meetings also provided an opportunity to raise questions of substance and procedure with the visiting leader. Despite these mechanisms, however, the Mormons never came close to promulgating anything like a religious law code governing disputes in their
This Mormon ambivalence toward substantive legislation was linked to Mormon theology. On this point, Mormonism can be usefully compared with Islam. Both religions claim to be completions of the monotheistic tradition, and both were founded by prophets who offered the world new sacred texts. Islam, however, developed an elaborate jurisprudential theory, the usul al-fiqh, that sought to derive a comprehensive legal code from the Qurâ€™an and the example (sunna) of the prophet Mohammed. There was no comparable effort in Mormonism to derive detailed substantive rules from Mormon scripture. Of course, it took Islam several centuries to develop a fully elaborated jurisprudence. Hence, one might argue that Mormonism is still too young to invite useful comparison to Islam. There are deeper differences at work, however, than simply age. Islam never developed any corporate identity similar to the Christian idea of a church. Rather, as one scholar has written, â€œevery person, as such with no exceptions, was summoned in his own person to obey the commands of God: there could be no intermediary, no group responsibility, no evasion of any sort from direct confrontation with the divine will.â€ Despite this radically individualistic view of human relation to the divine, however, the notion of a unified community of the believers (ummah) remained a vital part of Islam. These seemingly incommensurable aspirations were mediated in part through the usul al-fiqh, which allowed a professional class of jurists to impose sufficient consistency to keep Islamâ€™s theological individualism from undermining the communal cohesion of the believers.
Mormonism faced many of the same tensions as Islam. Like Islam it contains a radically individualistic conception of the human relationship to the divine albeit on a very different metaphysical basis. Mormon scripture teaches that the human soul is uncreated and co-eternal with God, and that every individual is entitled to direct, personal revelation from God. The potentially fragmenting consequences of such ideas emerged early in Mormon history. In response to one early associate who had begun receiving revelations directed at the new church, Joseph Smith published a counterrevelation stating â€œno one shall be appointed to receive commandments and revelations in this church excepting my servant Joseph Smith, Jun., for he receiveth them as Moses.â€ Over time, Smith created an ever more elaborate ecclesiastical structure â€“ of which the church courts were a key part â€“ and endowed it with enormous theological significance, ultimately identifying the church as a corporate body with the kingdom of God in â€œthe dispensation of the fullness of times.â€ Thus, in Mormonism the living prophet and the institutional church performed the function that the usul al-fiqh performed in Islam, protecting the religious community from the anarchic forces of its own individualistic theology. Hence, Mormons felt no religious need to elaborate a clear body of substantive law. Indeed, to the extent that such a body of law would have placed the exegesis of sacred texts in competition with living prophets, or the church as an institution, it was anathema to Mormon theology. In contrast, the largely ad hoc approach that Mormon courts adopted â€“ â€œa sort of wild equityâ€ â€“ was both sufficient to the dispute resolution needs of frontier society and consonant with their own religious beliefs.
(This post comes in part from my paper on church courts.)