Karen Hall has an interesting post on church courts that’s worth reading. Her basic point is that church courts fail to comply with some rule of law norms. I would quibble with some of her points. For example I think she slips from the idea of rule of law to the narrower idea of an adversarial judicial process involving juries. Most of the world, however, uses the civil law system which has no juries and uses an inquisitorial rather than adversarial structure. (I do not mean inquisitorial to be pejorative. It simply means a system where the judge actively inquires into the case rather than passively judging a contest.) Still, I think that she makes some valid points about how procedures might be improved.
In some important ways, however, I think it misses some key issues. The kind of process Karen lauds serves two functions. First, it generates legitimacy for judicial outcomes. Second, it improves the quality of judicial determinations. In the context of church courts, however, I am not convinced that greater due process of the kind that Karen calls for would do either. First, for most Latter-day Saints, the legitimacy of church courts arises from the belief that the decision makers are guided by revelation and motivated by love and concern. Furthermore, because much of the structure of the church judiciary comes from canonized revelations, its legitimacy also flows from the idea that the system has a divine origin. As a practical matter, for most members I don’t think that elaborate due process is a necessary condition for the legitimacy of church courts. For example, I would not regard a church court presided over by a procedurally punctilious but selfish and uninspired bishop legitimate, regardless of its compliance with international rule of law standards.
There is still the question of whether greater due process would improve the quality of decisions. It might, but I doubt that this would be true in most cases. When they were first set up in the nineteenth century, church courts functioned mainly as a dispute resolution mechanism between members. Brother Smith would make some accusation against Brother Jones, and the bishop would resolve the issue. They weren’t pastoral in the sense of helping individuals repent. Rather they were communal mechanisms for managing interpersonal conflict in a way that emphasized Christian fellowship over what was seen as a captious litigiousness.
Today church courts are never used as dispute resolution mechanisms. Instead they are overwhelmingly used as a pastoral tool, mainly for cases involving sexual sins. I doubt that they would be more effective if they were infused with more rule of law values. Indeed, if you look at the evolution of the church court system over the last forty years or so, I think that you see a very, very gradual retreat from the use of church discipline as a pastoral tool. The procedures for adversarial proceedings were eliminated from the Handbook in the early 1970s. In the 1980s there was a major overhaul of the whole system prompted, as I understand it, by an internal church study showing that excommunicated and disfellowshiped members often fell away from activity completely. The result is a system that was designed to be less judicial and more pastoral. In the last round of edits to the Church handbook, I think that we saw a very incremental continuation of this trend, with new instructions on cases where formal church discipline was inappropriate.
At the end of the day, I am not convinced that church discipline is a very effective pastoral tool in most cases. I think that there is a place for it in cases of grievous sexual misconduct — adultery and rape for example — but in most cases I worry that even when discipline is successful it can break the spiritual self-confidence of those that go through the process. I fully understand that in some cases it is successful and a powerful tool that people use as part of the repentance process. Understanding how discipline can be used effectively in this pastoral dynamic is the central question for structuring the church judiciary, and I am frankly skeptical that international rule of law standards are going to be much help in thinking through these issues.
Today there are very very few instances of church discipline that do not flow out of ecclesiastical counseling, and there are very few instances where the proceeding is adversarial. Because the social practice of church discipline differs so widely in almost all cases from secular trials, I don’t think that more rule of law values would make much difference. I suspect that even if such procedures were implemented they would fall into disuse simply because they would be so inappropriate in most cases. (The law had a term for this: desuetude)
Which brings us to those few cases where the proceeding is adversarial. These will often be cases of apostasy. Here I think that Karen makes some fair points about how the procedures in church courts could be improved. I do want to resist the idea that the standards for apostasy in the Handbook — acting in opposition to the Church and its leaders, etc. — is inherently vague. I don’t think that it is more open ended than the sort of rules that show up in the secular legal system pretty frequently. For example, section 90 of the Restatement (Second) of Contracts provides:
A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.
Millions of dollars regularly turn on the application of this rule, which includes such nebulous elements as “reasonable” and “injustice.”
The real problem with church discipline for apostasy, it seems to me, is less the procedures than that our pastoral model of Church discipline is simply ill-suited in most cases for preserving “purity of church doctrine.” Remember that in the nineteenth century church courts were often conducted in public. Brother A would accuse Brother B of teaching false doctrine, and the case would land before a bishop or high council, which would resolve it and announce its decision. Church discipline, however, is no longer a public and communal ritual. Suppose that Brother Jones is teaching false doctrine and is then excommunicated for apostasy. Because the pastoral model of church discipline requires silence from the church about the conduct of the court it’s simply a bad mechanism for correcting doctrinal errors. The errors can never be articulated and publicly corrected through church discipline. It seems much better to just have church leaders articulate the problems with some teaching publicly without discipline.
The other problem is that the pastoral model places a premium on flexibility and treating each case as sui generis. The problem, however, is that this model cannot really generate consistent norms for public discussion across the Church. The solution to this problem, it seems to me, is not to create lots of procedure or more rule of law values in church discipline. It’s simply to articulate broader norms of discussion at the general level, and then rely on informal social pressure to police the boundaries. In the end, I think it may make more sense to limit discipline for apostasy to cases like the misuse of priesthood authority or members that proselytize for other religions, where discipline is not being used to police doctrinal boundaries.