{"id":2055,"date":"2005-03-08T14:35:47","date_gmt":"2005-03-08T19:35:47","guid":{"rendered":"\/?p=2055"},"modified":"2005-03-08T14:35:47","modified_gmt":"2005-03-08T19:35:47","slug":"mormon-doctrine-and-the-path-of-the-law","status":"publish","type":"post","link":"https:\/\/timesandseasons.org\/index.php\/2005\/03\/mormon-doctrine-and-the-path-of-the-law\/","title":{"rendered":"Mormon Doctrine and the Path of the Law"},"content":{"rendered":"

Margaret Toscano’s recent remarks at UVSC have garnered a few bloggernacle links<\/a> and generated an interesting discussion at DMI<\/a>. I missed her remarks, but I did read her paper<\/a> from a couple of issues ago in Sunstone, and was invited to respond to it here in a long ago comment<\/a>. My response — not surprisingly — is disciplinary snobbery. I think that Toscano should go to law school.<\/p>\n

In her Sunstone paper, Toscano argues that the way in which Mormons construct their theology of a Mother in Heaven, by finding goofy justifications for the lacuna about her, e.g., God didn’t reveal anything about Mother in Heaven in order to prevent her name from being taken in vain, reinforces bad male hierarchies, rendering women powerless, etc. etc. I actually thought that there was quite a bit of merit to her claim with regard to folk theologies of Mother in Heaven, although as I have posted elsewhere, I am skeptical that stories are as institutionally powerful<\/a> as Toscano and other lit crit types frequently assume. She thinks that one should respond to these problems in at least two ways. First, we ought to historicize the scriptures, realizing that they are products (at least in part) of particular cultural contexts and hence contain the unfortunate relics of those contexts, things like sexism, patriarchy, etc. Second, we ought to creatively read into texts ideas that will serve the forces of progress and equality. As an example of a bad reading of a text, she offers a recent sermon by President Hinckley, in which he responds to a letter from a young woman asking him if the scriptures constant use of male pronouns to refer to those who receive the blessings of the gospel excludes women. President Hinckley said that they do not. These blessings are open to all, and the scriptures’ use of the male pronoun should be understood in a universal sense. Just as the Declaration of Independence speaks of “all men are created equal” but we understand it to refer to all human beings, we should read the scriptures as containing promises open to all. According to Toscano, the sermon illustrates the problem of women in Mormon theology. The young woman’s letter is taken as evidence of the powerful and damaging stories that Toscano means to criticize and President Hinckley’s sermon is held up as an example of the current inadequacy of the Mormon response.<\/p>\n

There are any number of problems with Toscanos article’s (as well as some virtues, as I have pointed out above). Although issues of the authority of scriptures and prophets are clearly central to the issue that she discusses, there is no hint of a theory of authority<\/a> in her paper. (Why should I care about the interpretation of scriptural texts? Is it a matter of historical accident — these happen to be the powerful texts in Mormon society — or is there some reason that these texts have a special claim on us beyond history?) I am more interested, however, in her methodology and her attitude toward interpretation. On the issue of methodology, I find her criticism of President Hinckley’s response extremely ironic, since he seems to be modeling precisely the methodology that she advocates. First he historicizes, at least implicitly, the language of scriptures by comparison to another archaic document — the Declaration of Independence — and then he reads into the text the egalitarian universalism of philosophical liberalism as a way of coping with an undesirable meaning that cuts against gender equality. It strikes me that it would have been much more rhetorically powerful to read President Hinckley’s sermon as a positive example of the methodology that she advocates.<\/p>\n

Her critical stance is understandable of course. This is the normal stance of scholarship and intellectuals. I don’t mean this in a demeaning way. Criticism is an enormously powerful thing, and I don’t think that we can advance our understanding on most issues without it. The critical stance, however, is by no means the only one from which one can creatively read and interpret texts. And this, of course, is why Toscano should go to law school. The common law is one of the longest prolonged efforts at interpretation in our culture. Essentially, it is an exercise in change and continuity. Common law judges — good ones at least — care passionately about what the previous cases said and held. It matters a great deal to them. On the other hand, they realize that the precedents are not an iron cage. The law is always developing to meet new social problems and conditions. The skill and artistry of a great common law judge — Cardozo (especially during his time on the New York Court of Appeals) and Learned Hand in the United States and Mansfield and Denning in the UK come to mind — is to weave out of the old cases new law that neither breaks from the past nor remains chained to it. The legal philosopher Ronald Dworkin famously described the process as akin to writing a chain novel, in which the most recent chapter must make sense within the plot of the previous chapters and in which the endeavor is ultimately judged on the basis of the whole novel rather than the last chapter. In short, the common law is a medium in which creativity is always embedded in an imperative of continuity.<\/p>\n

Most of modern intellectual discussion celebrates discontinuity. Our models are Galileo (the mythic rather than the historical one) and the French Revolution, and we expect progress to be heroic, critical, and discontinuitous. Mormonism has the capacity, of course, for rather dramatic discontinuities, and not surprisingly this is how Mormon change generally gets imagined (pessimistically for some — “When, oh, when will that revelation on same sex marriage come!?”). I would submit, however, that more frequently our doctrines and practices evolve along in a process that looks much more like the common law than the Code Napoleon. This is a process that the law, it seems to me, models rather well, and one for which legal training provides a useful set of mental habits and tools. What Toscano and her ilk need is a bit more in the way of legalistic thought. Legalistic not in the sense of rule obsessed or narrow minded — this is a vice that lawyers refer to as “formalism” and in theory it is supposed to be beaten out of you by the end of your first semester of law school — but in the sense of finely balancing continuity and creativity. Certainly, a gratuitous attack on the prophet for using more or less exactly the methodology that you advance is poor advocacy.<\/p>\n","protected":false},"excerpt":{"rendered":"

Margaret Toscano’s recent remarks at UVSC have garnered a few bloggernacle links and generated an interesting discussion at DMI. I missed her remarks, but I did read her paper from a couple of issues ago in Sunstone, and was invited to respond to it here in a long ago comment. My response — not surprisingly — is disciplinary snobbery. I think that Toscano should go to law school.<\/p>\n","protected":false},"author":10,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-2055","post","type-post","status-publish","format-standard","hentry","category-corn"],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts\/2055","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/comments?post=2055"}],"version-history":[{"count":0,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts\/2055\/revisions"}],"wp:attachment":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/media?parent=2055"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/categories?post=2055"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/tags?post=2055"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}