Mormon Law and Islamic Law

February 19, 2008 | 9 comments
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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 “the law of the Church” and “the law of the Lord,” it was unclear what rules – if any – 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 Accordingly, the council repealed the rule, however, they “also … imposed a fine of 25 dollars on any one of the Council who divulged the same as they wished to let the force of the law do all the good possible after it was repealed.”

One Mormon tried to explain the rules applied in church courts by saying “[t]he laws of the church are revelations … No rule, however, is of binding effect until it has been adopted by the people to whom it applies.” In actual practice, however, appeals to formally canonized revelations decided few cases. In 1870, a Gentile observed more accurately that bishop’s courts applied “a sort of wild equity that is generally not far from just.” 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 to“known and justly established usages of law and equity in civilized nations.” 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 church’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 church’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
courts.

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 Qur’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, “every 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.” 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 Islam’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 “no one shall be appointed to receive commandments and revelations in this church excepting my servant Joseph Smith, Jun., for he receiveth them as Moses.” Over time, Smith created an ever more elaborate ecclesiastical structure – of which the church courts were a key part – and endowed it with enormous theological significance, ultimately identifying the church as a corporate body with the kingdom of God in “the dispensation of the fullness of times.” 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 – “a sort of wild equity” – 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.)

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9 Responses to Mormon Law and Islamic Law

  1. CraigH on February 19, 2008 at 12:51 pm

    The still prevailing ad hoc approach may change over time, however. It might also be useful to compare the Mormon church courts to the church courts that emerged in the Middle Ages and continued beyond. These too had great authority: when states emerged, they made Christianity their official religion, then the law of the church courts was in theory the law of the state as well (didn’t always work that neatly though). The church courts were usually organized by diocese, and thus run by bishops. The Inquisitions that emerged in Rome, Venice, Spain, and beyond over the centuries were super-diocesan courts, but with the same function as church courts. In fact the Inquisition, for all its bad press, tended to be more sophisticated than either civil or ordinary church courts, and less brutal than civil courts; the various Inquisitions all regarded themselves as bodies to strengthen belief and orthodoxy among members, and in many senses would make an interesting comparison. Anyway, it took many centuries for a more formal legal system to emerge in Christianity, after centuries of rather ad hoc arrangements.

  2. Nate Oman on February 19, 2008 at 1:08 pm

    CraigH: Have you taken a look at Harold Berman’s _Law and Revolution: Religion and the Emergence of the Western Legal Tradition_, which looks at the emergence of the canon law. One the things that makes the canon law a tricky comparison is that it was so decisively influenced by the rediscovery of Roman law in the 11th and 12th centuries, and in many ways it was simply a reworking of the Corpus Juris Civilis for (Roman Catholic) christian purposes. I like the comparison to Islam because it was not self-consciously trying to “baptize” a previously existing legal tradition, but rather wanted to create a new one from whole cloth. This makes them similar to the Mormons, although there is a fair bit of evidence that the Islamic jurisists were sub silentio simply Islamicizing Roman law and perhaps silently modelling themselves on rabbinic law.

    BTW, one of the things that I try to do in my paper is show the continuity between the Mormon court system and the “church courts” developed in the strand of discipline oriented Protestantism coming out of Calvinism and the Radical Reformation, which in turn was a reaction against the percieved laxity of the canon law of the Roman church.

  3. CraigH on February 19, 2008 at 1:39 pm

    Thanks for the reference, it sounds interesting, as does your comparison between the Mormon courts and Protestant courts. Can you regard elements of the Church Handbook as an incipient body of church law? And even though the church wasn’t self-consciously trying to sacralize an existing legal tradition, the law that emerged and is still emerging didn’t really do so in a vacuum I suspect. Thus the comparisons to other Christian traditions may still have parallels (although I understand completely why you say the 19th century LDS courts look more Islamic). The main Protestant courts weren’t that much different in practice from Roman courts, once you look at practice, and even many bits of theory. Protestants always insisted that Catholics were lax, about everything, but this was not necessarily so; it just made Protestants feel more zealous to believe it. The Protestant courts I’ve studied sound tough, but in practice can only do so much, and they give up altogether on some things (like Sabbath-breaking).

  4. bfwebster on February 19, 2008 at 1:51 pm

    Nate:

    It strikes me that D&C 135:9-10 may have had at least a dampening influence on the development of LDS (civil) courts and jurisprudence, though it clearly didn’t prevent them from coming into existence in the 19th century.

    I also would find it interesting to research how often bishops and/or stake presidents still act today as non-binding mediators to help resolve civil issues between members, particularly in countries that do not have the same litigation infrastructure and legal traditions as the US. ..bruce..

  5. Kevinf on February 19, 2008 at 8:35 pm

    Anecdotal comment, Burce, about your # 4. In five years as a bishop, I only once had someone come to me to mediate a purely civil matter. Thank goodness.

    That one instance, though, was interesting. A ward member came to me, earnestly seeking to protect the good name of the church. It turns out that two neighbors, one LDS, the other not, were having a dispute over a fence that had been put in, allegedly, on the wrong side of the property line. A little discussion brought no results, and escalated into shouting. Our LDS member, great guy, but somewhat short tempered, finally decided that he was going to get the fence off his property, so he took a chainsaw and whacked down the fence, which ended up crushing the non-LDS neighbors’ shrubs.

    The ward member who had brought this to my attention asked, in all seriousness, “What are you going to do, Bishop? The good name of the church is at stake!”

    My response was to tell my ward member, “Bob (not his real name), you need to run as far away from this as you can. There is no place for me or you in this dispute, and it has nothing to do with the church”.

    Ultimately, the two neighbors eventually made up somewhat on their own, rebuilt the fence in the correct place together, and sort of peacefully co-existed after that.

  6. Craig Jolley on February 20, 2008 at 1:44 am

    I read an interesting book a few years back called \”Roots of Modern Mormonism\” by a non-LDS anthropologist named Mark P. Leone who studied a few wards in eastern Arizona. He compared the operation of church courts to Rabbinical law and noted that, in LDS church courts, precedent doesn\’t seem to matter much at all. Just because other bishops may have ruled a certain way in the past doesn\’t seem to place many constraints on present rulings. In effect, the common judge reasserts his (inspired) authority with each new ruling, without being able to use the inspiration of others as a crutch. Since we expect those who preside in church courts to be acting on revelation, the establishment of a formal jurisprudence could be seen as diminishing the charisma of their calling.

  7. Kevin Barney on February 20, 2008 at 2:23 pm

    Fascinating stuff, Nate.

  8. Raymond Takashi Swenson on February 20, 2008 at 5:24 pm

    Nathan: I love your perspective into the church courts process. Even having worked on this topic for a good part of my time in law school, and having read other works by scholars like Ed Firmage, I find your article brimming with new insights.

    While the proceedings of high council courts were (eventually) recorded verbatim in shorthand, and then transcribed in full text, the resulting record was, like the original hearing itself, not open to the public. In reading the transcripts in the Church archives (back in 1976-77), I do not recall the members of the high councils concerning themselves with setting a precedent for potential future cases with similar issues. How the decision in the specific dispute before them might affect the behavior of persons not before the high council did not seem to be a concern when they were deliberating how to rule on the specific case. There was no obvious sense that they were creating a body of common law that could guide either themselves, future high councils, bishops under the jurisdiction of the high council, or individual members. They understood that the record would be only that, and would not be published even in a limited way to other high councils or bishops, let alone members. The primary official function of the record was for use if an appeal should be made to the First Presidency. I do not recall, in the cases I read, the record ever being pulled out and consulted for comparison of a prior case and its resolution with a case then before the high council.

    Even if the transcript records had been open to the public, since attorneys were not allowed, by and large, to practice in front of a high council, there was no one who had an incentive to become familiar with case precedents and use that expertise to make arguments on behalf of a client. Ideally, a Latter-day Saint would never be in a dispute with another member. It seems likely that anyone who sought to be litigious in his dealings with other members would find himself being counseled against it by the high council. Thus, the possibility that anyone would ever know enough precedential decisions to use them in other cases seems slim.

    Another point is that, even in the Salt Lake high council, there were few enough cases that came before it, either as an original matter or on appeal from a bishop’s court, that the number of precedential cases in any single kind of dispute were limited. There was a great variety of disputes, but a limited number of cases that were repeats (mainly the simpler ones like ownership of strayed livestock). So as a practical matter, it probably did not seem worth the energy to create a system for establishing cases as precedents so they could be consulted in similar future cases. Anyone who has sought for case precedent in the decisions of the Utah Supreme Court knows this problem, that one often has to resort to precedents from other jurisdictions (especially California) since there simply are not enough reported Utah appellate court rulings that can act as precedents for many new cases.

    So basically it seems to me that the high council courts did not have a sense that there was a need to establish a referenceable body of common law within the church courts, and that the confidentiality of both church court proceedings and the record of the cases prevented the evolution of a common law.

  9. Nate Oman on February 20, 2008 at 8:07 pm

    Raymond: I basically agree with your analysis, but I would take exception to one point. I think that there is pretty good evidence that in the early days at least (say through the 1850s and perhaps the early 1860s) the Salt Lake High Council proceedings were open to the public. The minutes, at least, speak of “bystanders” and an audience. Also, Hosea Stout records in this period attending high council proceedings where, as near as I can tell from the context in his diary, he was a spectator. Still, I think you are right about precedent. There does seem to have been some attempt toward the end of the nineteenth century to create standard policy on some questions. (We know quite a bit about land disputes thanks to the Smoot Hearings) On the other hand, my sense is that they were not entirely successful in doing this and bishops and high councils tended to just decide the cases as they thought best regardless of what the counsel from headquarters was saying.