Mormon Halacha and Common Law

In kosher law, wine is only kosher when it has been produced and handled by Jews. In this way this kosher law is distinctive from the LDS “Word of Wisdom” in that it is not about the substance of the drink, but how it is handled. There is one exception to this rule, however. If the wine produced by Gentiles is boiled, it becomes kosher. On its face, there is no logical principle why boiling the wine would render it ritually clean, but that is not the point. Rather, the point is that the law is such, and one determines whether or not one has observed the law by an examination of the practices involved.

Latter-day Saints have a similar prohibition against wine, but it is not with respect to how it is prepared or handled, but with its alcohol content. In this way, there is a similar exception to halachic law that once the alcohol has been purged the wine is safe to consume. Most Latter-day Saints that I know will eat a meal that has been cooked with wine, provided that the meal was cooked at a sufficient temperature to boil out the alcohol. However, I don’t know any Latter-day Saint that would cook an entire bottle of wine, and then cool it for drinking. There seems to be something wrong with the drinking of cooked wine, but not with the eating of it.

The point is not whether drinking cooked wine would taste good, but about the principle involved in observing the law. It is possible that someone would object to drinking boiled wine because it doesn’t taste good, but my guess is that this is not the reason that Mormons don’t do so. Rather, there is some other principle involved in determining the reasons that one may consume boiled wine if it is eaten, but not drunk. The problem is not in determining the principle involved in not drinking cooked wine (we could imagine any number), the problem is that the principle is bound to be different from the one that permits one to eat cooked wine. And the reason for this inconsistency is that we have no legal tradition, no established norms for determining “doctrine,” and little need for principles at all, since we can just ask our priesthood leader what he thinks and be secure that as long as we are following his answer, even if it is wrong, we are justified. This means that Mormons are both seeking for “truth,” as opposed to halacha, which is about seeking to know whether one has complied with the law, as well as justification in the absence of truth. In neither case does the Latter-day Saint seek for coherent principles with which explain their actions.

Clearly, if one wants to understand how to follow religious laws, no tradition does it better than Judaism. But, why has an interpretive tradition that is similar in style not developed in Mormonism? Part of the reason is that we have living prophets to interpret the “law,” as Nate Oman has argued in is recent article, “‘The Living Oracles’: Legal Interpretation and Mormon Thought,” Dialogue, v42n2, (2009):1-19. This renders useless the search for actual principles in Mormon practice since, at worst, the standards reflect the personal preferences of the chosen oracle. Oman wisely, and I think rightly, suggests that LDS scholars look to LDS practices as “the way in which one can extract fairly abstract ideas from a concrete set of practices that do not themselves articulate the abstract ideas” (14). This, coincidentally, is precisely the ways in which social historians of Judaism have proceeded by analyzing Talmud passages.

When one turns to Mormonism, however, adopting the same methodological move that Oman advocates, my worry is that one searches for an “abstract principle” in the practices where there isn’t one, or at least where such a principle isn’t ultimately coherent. The case of the boiled wine reveals that scholarly abstraction of a principle to explain Mormon actions ultimately fails to provide a universal explanation since inevitably Mormon practices will emerge from contradictory principles. In this way, it seems that legal interpretation does not offer anything more stable than before in that it rests on a similar hermeneutic of single, correct principle in its normative analysis. While Oman’s approach seeks to ground the complexity of Mormonism by sidestepping the historigraphical questions, ironically, it is historiography rather than legal thought that has attempted to account for the richness of competing normative discourses. Mormonism, as does pretty much everything, ultimately resists this kind of legal analysis, and instead must be seen in its raw complexity, which includes contradictory principles.

29 Replies to “Mormon Halacha and Common Law”

  1. If I drink some boiled wine would you feel better?

    I don’t think Nate’s idea of the way in which one can extract fairly abstract ideas from a concrete set of practices that do not themselves articulate the abstract ideas will work for the simple reason that it’s pretty much impossible to find a concrete set of practices, practiced by enough people over a long enough period of time, to have any reasonable assurance that any principles extracted by them would qualify as permanent and/or doctrinal (whatever that means, “It’s a policy”, “No, it’s a doctrine”, “No, it’s a policy”…).

    Our practices don’t exhibit stability because we are not grounded in a rich liturgy and long tradition. Once you have those you have the stability needed to extract “abstract ideas.” Only you don’t need to extract them anymore, the liturgy, tradition, etc. gives you a fairly good idea of why people are doing things. Even reinterpretations become more transparent because the reinterpretation is grounded in the tradition so it becomes much more clear through comparing and contrasting why the reinterpretation took place.

  2. I remember my father trying to convince my mom that he should be able to cook with wine because the alcohol cooks out of it, and her not buying it. My mother’s authority won that particular argument.

  3. I remember my father trying to convince my mom that he should be able to cook with wine because the alcohol cooks out of it, and her not buying it. My mother’s authority won that particular argument.

    I think Kevin has nailed what Mormon halacha boils down to, “Ask your wife.” Male sexual drives, our puritanical views on sex (no pr0n, no masturbation, abstinence before marriage etc.), and the resulting imbalance of sexual power in a Mormon relationship should have enough explanatory power to cover pretty much every legal dispute.

  4. David: I agree with your critique of Oman’s view of doctrine being like law derived from concrete kinds of common laws cases. I just don’t see how it works or how to derive abstract ideas from such particular practices. It seems to me that common law works in the other direction — there is an interplay between general rules and particular acts where the particular is subsumed under the general rules to begin with. How could one derive anything more than a rule of orthopraxis from conduct? Could anyone derive anything about the atonement from individual practices? In fact, it seems to me that the practices are in fact acted out because of prior beliefs. I engage in eating the way I do (without alcohol or coffee) because of my prior beliefs about there goodness or permissibility.

  5. I have nothing of substance to add except that heat invariably alters the flavor of wine. A serious bottle of wine involves both taste and bouquet (both of which are priced into the sale and are pretty much the point of good wine), and the boiling process affects all of the related chemical properties. Which is to say that you’re ripping yourself off by purchasing wine for boiling instead of a non-alcoholic beverage.

    Thus while cooking wine is fine (nay, delicious!) for sauces due to its use as a concentrated base flavor, it is simply silly to boil it for drinking straight. Unless it’s one of those German holiday wines, in which case you may indeed serve it warm. (But don’t let that fool you…the alcohol is still there.)

  6. The obligation to follow the counsel of a priesthood leader has no bearing against the proposition for abstract legal principles, any more than the implicit obligation of citizens to follow the law as it has been interpreted by judges, or for lower courts to follow the precedents set by higher courts (in common law jurisdictions).

    Ultimately, only the court of last resort can affirm a radical innovation in the common law – the First Presidency and Quorum of the Twelve does this every bit as much (and with considerably more formal justification) as the Supreme Court does.

    When the question is reduced to what standing precedents and principles are likely to guide future decisions and proclamations made by the highest councils of the Church, I think Nate Oman has a very strong case. Where practical matters are concerned, the Church is as much a precedent following organization as there ever was, and the historical record is open enough to make the reasoning behind virtually every significant practical precedent readily apparent.

    The large area of ambiguity surrounds theological questions that are not trivially associated with the actual practices of the Church and for which the teaching record of the Church is sparse or inconsistent enough that no reliable answer can be found. In such cases I would say (especially these days) that we don’t have “halacha” – what we have is a purposeful decision not to have doctrine on such questions at all.

  7. After another day of thinking through this, I’d like to clarify my argument a bit more and distinguish it from other critiques of Oman’s article. I’d like to say that I pretty much fully agree with Oman that LDS thinkers need to engage practices as a locus of meaning, but I offer in essence the post-structuralist critique of his potentially structuralist assumptions. Part of my hesitancy is that we are coming at this from different disciplinary approaches, him from legal theory and me from those disciplines which have been dedicated to the analysis of practices, such as anthropology, sociology, ethnography, and history. In a way, I am somewhat puzzled by his application of common law as an analogy [this point was stated, but also unclear since Oman engages in actual legal analysis for the most part] for thinking about Mormonism, partly because there are entire fields that have already developed methodologies for thinking about the questions that he raises. Pierre Boudieu’s An Outline of a Theory of Practice comes to mind as a particularly relevant work for getting at the kind of methodological shift that he sees as a corrective to the positivist historiography that has dominated Mormon Studies. As a result of my puzzlement, I concede that Oman’s argument may not in fact be dependent on a kind of structuralism at all. Yet, it struck me that in the search for “generalized” and “abstract ideas” that little room was left for the kinds of tensions, contradictions, and instability that ultimately unwound the elegant structuralism of mid-20th century thought. These aporia pose a potential problem in the construction of abstract ideas as normative principles, and it seems like this point needs to be remembered when one engages in the kind of work that Oman advocates. Again, I fully support exactly the kind of work that Oman advocates, with this I think ultimately minor caveat, which I believe opens up much richer possibilities.

    In this way, I disagree with David Clark’s assessment that the practices of Mormonism are not stable enough for evaluation, because it is their very instability that can then become the site for analysis. Further, I don’t think that the goal needs to be universality, but simply generality, or even less, a point of interest in analysis. I’d also disagree that one must accept the “official” explanations of rituals as they’ve developed over time. Rather, it is the work of the anthropologist to interpret them, certainly taking “native” explanations into account, but also to see the misrecognition that is necessary for many practices to be successful.

    I’d say that the same thing to Blake, that there are whole disciplines that have been thinking about how to interpret human practices for the last 130 years, and have become quite sophisticated and insightful. The possibility of interpreting practices for me doesn’t faulter on the problem of the lack of a method for doing so, since I believe that there are plenty of great thinkers who have laid out a way. In this way, I am not sure that Oman’s analysis excludes “prior beliefs” as a point of inquiry for the interpretation of practices, only that we not consider such “prior beliefs” as rational, first principles. They are not. I’d also add that anthropologists like Bourdieu have blurred the lines between “beliefs” and “practices,” a point which has been hugely influential in ritual theory. Catherine Bell’s Ritual Theory, Ritual Pratice is indebted entirely to Bourdieu on this particular insight.

    Whitney, thanks for the info! I did not know that.

    Mark, I can’t tell if I agree with you or not. You seem to be introducing “precedent” as a predictor of LDS action, and that this is in fact an “abstract principle.” In my reading, this doesn’t seem to be Oman’s point, though I might have missed something, and I don’t see it as refuting to my point that there will be times where no single “abstract principle” is at work behind Mormon practices, but often multiple, even conflicting ones. Can you clarify your argument?

  8. TT, There are always multiple conflicting principles that are factors in the construction of any real world practice or policy. A precedent generally has force by indicating that some of these factors are to be given priority over other ones.

    To be “halacha” the justification of a practice or doctrine would have to be essentially accidental or non-existent. I claim that real world doctrines and practices in the Mormon world rarely if ever lack reasoned justification, and that those reasons are readily apparent in almost all cases.

    A precedent itself does not make a doctrine or practice reasoned. The adoption of a precedent elevates the reasoning behind the precedent to semi-authoritative status. Again, I claim that arbitrary, unreasoned precedents in LDS practice are essentially non-existent. One might well disagree with the reasoning behind many of them, but reasoning there is.

    Off the top of my head I cannot think of any significant doctrine or practice without some sort of readily apparent reasoning behind it. Doctrines and practices, even ancient doctrines and practices almost universally survive do to some internal logic or reasoning, even if often controversial. This “halacha” stuff is if anything the exception that proves the rule, and I don’t think virtually any of it rises to the level of a doctrine of the Church, i.e. a doctrine the Church spends actual effort teaching, preserving, and promoting in its own publications and authoritative speeches.

  9. TT: Thanks for taking the time to read the article and make this post. If I understand your critique correctly, it rests on two claims:

    1) Oman’s approach seems to assume an underlying coherence or univocality that just can’t be found in any set of religious practices, so the project is doomed from the outset.

    2) Why should we look to legal theory to do this when we already have all these really sophisticated anthropological, sociological, and historical tools for doing this?

    I suppose that I would respond to the first point by saying that there is nothing in my approach that assumes that there is any sort of global coherence to practices. Nor do I assume that all practices can be reduced to a single normative principle. I think that one simply engages in the project of normative reconstruction, working as hard as possible to make as much as possible fit together. At some point the attempt to do so will, of course, fail, but the process itself is what allows us to understand what practices are saying. I certainly don’t subscribe to some sunny view under which all practices are univocal and coherent. Certainly, this is NOT how lawyers, judges, or legal scholars have thought about the interpretation of legal practices. Nevertheless, we work very hard to wring as much meaning and coherence out of the practices as we can. Arabic has a nice term for this process of legal interpretation — ijtihad — which shares the same root as jihad or “struggle.” In the usul al-fiqh it is in part the process of struggle with the law itself that provides illumination.

    As to your second point — why legal theory when we do this better in divinity schools any way? — I would offer three answers. First, I am attracted to legal theory simply because I am a professional legal scholar. This is what I know and I do, so I am inclined to use the skills and tools where I already have some expertise. Second, it is not as though legal theory is a barren realm inhabited by ignorant rubes. 130 years of intellectual practice is all well and good, but I would point out that the academic discipline of jurisprudence as a self-conscious academic discipline is at least 800 years old, the first European universities at Bologna and elsewhere having been set up as law schools to study the Digests of Justinian. Third, my interest is not simply interpretative. It is also normative, in the sense that I am looking for a Mormonism with some critical resources. I am also interested in thinking about Mormonism in ways that take its claims of authority seriously. In its attention to the notions of authority and normativity, I think that legal theory is useful. Of course, none of this is meant to dismiss other approaches to interpretation. Indeed, even legal theory itself — particularlly in the United States — has been unusually permeable and opprotunistic about borrowing approaches from other disciplines.

    I am unsure that I really understand David and Blake’s criticisms. As to the question of church doctrine in particular, in my Element article I thought I made it clear that we had to look not only at practice, but also at principles, narrative, and all the rest. My central claim was two fold: 1. There is no rule of recognition for discovering church doctrine; and, 2. law (particularlly common law) teaches us that the absence of a rule of recognition is not such a big problem, provided that one is willing to accept that any debate about the content of church doctrine is also necessarily in part a normative argument about what the content of church doctrine should be.

  10. Although this is not really related to your post, I actually think that the analogy to Halacha (as well as Shar’ia, which I know a bit better) is very interesting. One interesting question to ask is why Mormonism DIDN’T develop a tradition of legal interpretation of its own texts, even, for example, when church courts provided mechanisms for the resolution of civil disputes? I talk a bit about this in my BYU Law Review article on church courts, but I think that the answer is that interpretative methodology and a magesterium are in a sense substitutes for one another. Halacha and the usul al-fiqh developed precisely because there was no living authority to whom one could turn to answer some pressing question of practice or interpretation. The result was a turn to the texts themselves and the development of an elaborate jurisprudential theory to govern the approach to the texts. Incidentally, I don’t think that the development of canon law in the Catholic tradition is a counter example, because canon law is less an attempt to extract the legal meaning from Christian texts than to Christianize certain aspects of Roman law, particularlly the Roman law of corporations (very broadly conceived). It is interesting here that to the extent that the modern church has appropriated and Mormonized outside legal concepts, it has generally drawn them from corporate law.

  11. Nate,

    I am unsure that I really understand David and Blake’s criticisms.

    And earlier you said this:

    think that one simply engages in the project of normative reconstruction, working as hard as possible to make as much as possible fit together. At some point the attempt to do so will, of course, fail

    Which I take to be the point of my criticism, that the process will fail. Since it seems we are in agreement about that, it looks my criticism is invalid. I can’t criticize that which is already admitted to be a limitation of the process.

    However, in continuing the previous citation you say, but the process itself is what allows us to understand what practices are saying.

    At that I remain dumbfounded. How does a process which ends in failure explain anything when the process, by it’s own failure, merely shows that it was insufficient to complete the task at hand? Please don’t take this as a criticism, I sincerely want to know.

  12. David: The short answer is because we know more after we have engaged in the process than we did before we engaged in the process. Just because I don’t think that there is any absolute coherence to practice doesn’t mean that there is no possibility of finding local and illuminating coherence. In this sense, I may be more optimistic than you are. I think that we are likely to get a lot of very useful insights out of the process of normative reconstruction, even if I don’t think that such a process will reveal that all of our practices are coherent and consistent.

  13. Nate,

    I suspect we just have different goals. The set of questions I am interested in (theological, philosophical, and historical) simply can’t be resolved by appealing to common sets of practices engaged in by members of the church. I think this may be why Blake’s critique may not make sense, he’s looking at a different set of questions. At least that’s what I take from his example of the Atonement. How could what members of the church do ever adjudicate between an objective theory of atonement and a subjective theory of atonement? At best you would find out what the majority believe about it, which seems to be reducing doctrine to an indirect form of democracy (i.e. the objective theory of atonement is to be preferred because the practices of the majority of church members are most coherent with that theory). It doesn’t even address the question.

    Of course, this leaves open the possibility of your methodology addressing some types of questions. Do you give any examples of what kinds of questions would be amenable to this analysis, or is this methodology a general procedure to be applied to any type of question?

  14. David: I disagree. I suspect that part of the problem here is the equivicol meaning of the word “practice.” First, let at the outset say that I think that Blake is confusing two kinds of claims that I have made in print. The first is that Mormon doctrine is discovered through a process of interpretation rather than by recourse to a rule of recognition. I am at a loss as to why on earth Blake would disagree with this claim, particularlly as I believe that this is exactly what he himself does when he talks about church doctrine. I have some issues with HOW he does it, but I don’t see that there is much disagreement at the level of concept as opposed to conception. My second claim — put forward in the Dialogue article TT references — is that Mormon practices and institutions can be subject to a kind of normative reconstruction similar to what one sees in legal theory in order to render them articulate. My assumption here, however, is that Mormon practice does not refer to practices that happen to be carried on by people who are Mormon. Rather, I am referring first of all to practices and institutions that are regarded as normative by the institutional church and the body of the membership. There is a real sense in which these practices and institutions ARE Mormonism, or at least some very important part of it, a part that Mormons regard as infected with the divine, then their normative reconstruction ought to produces principles that have some kind of normative or authoritative claim on the Latter-day Saints.

    As for examples of what I am talking about, I provide two fairly lengthy examples in the Dialogue paper. The first tries to recover a Mormon theory of property and the second tries to recover a Mormon theory of contract.

  15. Nate, that’s fine if you think we disagree. To be honest I think we have actually come to an agreement. I had two points in the last post. First, to suggest that the questions we are interested in are different and second to ask for examples of what questions your methodology answers. You never took issue with the first and the examples you gave are the kinds I expected you to give.

    The examples you gave, that of property and contract, are something that a legal scholar like yourself would be interested in. You address legal issues using legal theories in a legal framework. Seems fine and dandy to me, just not very useful outside of that context.

    And I do think it’s a much more limited context inside Mormonism than it would be inside of Judaism. This is because Mormons have pretty much accepted the legal/ethical distinction that Christians have historically used to determine which parts of the Mosaic law one has to obey and those which one does not. In other words one doesn’t have to obey kosher laws because there is nothing ethical in doing this, while one has to obey the 10 commandments because they make ethical demands. Jewish halacha of course makes no (or much less) distinction, so the room for “legal” theories is much wider, and halachic analysis gets you much farther in understanding Judaism than something similar in Mormonism could hope to do. Though, perhaps you take issue with that as well.

  16. Coming late:

    David, it seems to me that instabilities are just as interesting as stabilities if one can tie them to context. I agree with you regarding stabilities and even agree some of these reflect the subjective biases of leadership. I disagree that isn’t helpful. The fact that Mormon practice can radically be overturned is its strength and I think the context situational nature of LDS conceptions of doctrine is actually powerful (and correct). I just think that this doesn’t pose a problem for Nate’s hermeneutic. Rather it’s just that instead of talking about universals you talk about context-dependent generalities.

    I also think that Mormonism as a practical matter adopts a radical fallibilism. So maybe we see an abstract idea but it gets trumped by later revelation. (I think Blacks and the priesthood being the obvious example)

  17. Whoops. TT said almost the same thing I did… (Sorry, should have first read the comments)

    Nate (#11) I really like your point about normative practice as what legal analysis is after. I think there is clearly a religious use for that and that was (me) are too myopic at times by trying to draw out natural theological structures. It’s what I’m interested in (and it looks, from David’s #15, that he’s like me) but I err when I assume it’s all we should be interested in.

    Regarding why this didn’t arise, I think there is that narrative distrust of scribes. That is there still is a strong anti-rabbinical tradition in Mormonism (bad mouthing the “hedge”) that is probably stronger than the tradition against early Catholic theological development. That is it seems a practice along with speculative Greek metaphysics which when applied to religious texts produces an apostasy. There is that narrative running through Mormon thought of the two apostasies: the Hebrew scribal apostasy which produced the OT and Talmud and the Catholic philosophical theology. I think the way these narrative traditions developed is fairly naive I think. But one can’t discount their social influence. Combine it for the need to get individual revelation or at least inspiration and I think Mormonism isn’t ultimately conducive to that approach.

    So the question becomes, while we learn something from the process Nate outlines one has to ask what its use is. Don’t get me wrong. I don’t think the value of knowledge is necessarily tied to practical utility. But if we discover objective facts about existence or more long term theological structures it seems somewhat more relevant to us than normative patterns. Indeed the danger of normative patterns (like say a Mormon theory of property) is that they take on more strength and life than they otherwise would have thereby making reform more difficult. (On the other hand would could argue that if it makes apparent structural problems that reform would be more likely – so it could go both ways)

  18. David (#17) …Mormons have pretty much accepted the legal/ethical distinction that Christians have historically used to determine which parts of the Mosaic law one has to obey and those which one does not. In other words one doesn’t have to obey kosher laws because there is nothing ethical in doing this, while one has to obey the 10 commandments because they make ethical demands.

    This seems wrong and one need only point to the Word of Wisdom to see this. I think the reason Mormons reject Kosher laws is because they feel (rightly or wrongly) that they were done away with the coming of Christ. That is it isn’t an ethical issue but more a theological point.

    With the Word of Wisdom the blurriness of the distinction in Mormon thought becomes apparent. There are lots of Mormons who do see the Word of Wisdom as ethical (and are forever looking for scientific justifications) as well as excusing away scriptural uses of wine. There are those who see it as purely a legal question tied to a test of faith with no ethical overtones. There are those who can’t tell.

    The point being that if there were this legal/ethical distinction this problem wouldn’t pop up at all in Mormonism. It’s muddled. Which may mean that Nate’s approach raises interesting questions.

    The counter-move is the common LDS view that any scriptural text is at best an approximation of the real law. That is Paul’s spirit/letter distinction as commonly applied in popular LDS thought. The spirit is taken to be a law specific for every circumstance and very context dependent. The letter is always at some level of generality which entails it often gives the wrong answer simply because of the problem of context or because of the weakness of the people in question. (The common justification for the law of Moses in its entirety)

  19. Nate (11),
    Thank you for your characteristically insightful response. I think that your summary of my two points is right on. I’d like to briefly expand on them.

    First, concerning whether or not there is an underlying logic to explain practices:

    I think that one simply engages in the project of normative reconstruction, working as hard as possible to make as much as possible fit together. As I understand what you mean by “normative reconstruction,” you mean to discover the norms that are operative as the hidden logic behind the practices. I don’t think that you mean that there is a single one at work in all times and all places, but it does seem that you see this at least in analogous ways as structuralism’s search for the hidden structure behind the practices.

    I certainly don’t subscribe to some sunny view under which all practices are univocal and coherent. This I take to be an important point, and I think that this can greatly contribute to a more rich analysis. For instance, how might we uncover Mormon theories of contract or property? I take for granted that you acknowledge diversity of thinking within Mormonism, but it seems to me that ultimately this runs into conflict with your robust notion of authority in Mormonism (“take its claims of authority seriously”), because it seems to require you to privilege only one, ultimately, whichever is more “authoritative,” whether it reflects the “majority” of cases you analyze, or the “official” doctrine. The way that the analysis of practices has developed in anthropology, for instance, is to resist the authority, or majority, or official version as representative of THE X view of Y. Michel de Certeau’s Practice of Everyday Life has been influential for my thinking on this. As an example, he describes walking from point A to point B. If one looks at a map of the roads, one sees how to get there, but if one lives in the area, and knows the practices of how to get there, it may look quite different from the official, or even majority way of getting there. It seems that a theory of practices needs to take into account the multiplicity, which entails a desconstructive element, of Mormon practice.

    As for the second point, my point is not to suggest that legal theory (as broad of a term as that may be) lacks the august heritage of anthropology, nor that it is some impermeable mass that cannot take account of anthropology or other disciplinary insights, but rather that legal theory as you describe it may have limited utility for doing the kinds of work that you want to put it to use in, especially in the case of Mormonism, which we both seem to agree is not a legal culture. I fully agree with your analysis of the particular cases that you offer in your article, and it seems to me that legal theory is especially adept at accounting for these kinds of legal issues in Mormonism. However, I am not sure that legal theory can offer the fulness of what you suggest you’d like to do in terms of turning to Mormon practices as a site of analysis. (Though my ignorance on this issue may very well be wrong, and it is quite possible that “legal theory” as you’re thinking of it is a branch of anthropology anyway). Certainly, not all practices involve legal thought, and my point that Mormonism lacks a culture of halacha or ijtihad (I think that we can use these concepts interchangeably as analogies here) is where I think that we might be limited. I agree with your assessment of why Mormonism lacks a legal tradition, and I appreciate the work that you’ve done in showing that there are significant interactions between Mormonism and legal thought, but I still wonder if the project you’ve outlined as a turn to Mormon practices doesn’t exceed the limits of the kind of legal thought you see as relevant.

  20. TT: Okay if I understand you correctly your criticisms take two forms in your surreply.

    1. You believe that acknowledging any pluralism or polyvocality presents problems for any notion of authority because either (a) it demonstrates the absence of authority because what is authoritative must be unitary; or, (b) authority will require the privileging of one position over others, which will impoverish and flatten out our understanding.

    2. You believe that while legal theory may be useful for analyzing legal issues within Mormonism, you believe that Mormonism lacks enough legal content for the approach to be particularlly fruitful.

    Assuming that I have the gist of your arguments right, let me respond. First, I see no particular reason why authority must be univocal. It depends on how the authority is used. For some purposes we may need a single authoritative answer, but it seems to me that in many situations no such unitary answer is necessary. This doesn’t mean, however, that the notion of authority is doing no work at all. For example, a plurality of positions may nevertheless foreclose certain positions. For example, I take it that any reasonable reading of Mormon approaches to property would foreclose a Mormon from adopting the philosophy of Ayn Rand. Authority may also serve to orient our thinking in certain directions, even if its polyvocality means that it ultimately cannot adjudicate between all alternatives. In the end, I think that we need some notion of authority to make sense of the way in which Mormonism has a claim on Latter-day Saints beyond the merely aesthetic or nostalgic. Finally, I think that many of the critiques of authority are ultimately motivated less by the conceptual difficulties of thinking authority per se, than by the creeping force of philosophical liberalism. Hence, I think that there is a tendency to dismiss the notion of authority based on liberal assumptions about its inevitably reactionary tendency and the evil of reactionary tendecies. While I consider myself a philosophical liberal, I think that it is important to retain a healthy amount of critical distance, otherwise one runs the danger of falling into constantly dismissing the notion of authority on the basis of straw man assumptions about what a theory of authority might mean. Indeed, liberalism in general does a pretty awful job of thinking about authority, with the tendency that authority, from a liberal point of view, is virtually always incoherent and pernicious. This, however, tells us more about the limitations of liberalism than it does about the idea of authority. In short, I think that while polyvocality may present a problem for certain models of authority, I think that the concept is quite a bit richer than is generally assumed.

    As to your second point, I disagree with your assumption. I actually think that in many important ways Mormonism IS a legalistic tradition. The problem here arises, I think, for an overly narrow vision of what constitutes legal phenomena or concepts. Certainly the concept of law is enormously important in Mormon scripture and theology. The Restoration scriptures, for example, are rife with references to “the law of the church”, “the law of God”, “a law irrevocably decreed in heaven” and the like. What exactly law means in this context. I think that the assumption that legal theory has nothing to say about this rests on the mistaken assumption that for the law at issue to be the kind of law that legal thought might be useful in addressing it must either take the rather positivist form associated with the modern state or else the intensely exegetical form taken by the Halacha or the Usul al-fiqh. There are, however, many other possibilities within legal thought and it makes sense to me that we use these to think about Mormonism. Likewise, legal practices have had an enormous effect on the growth and form of Mormonism, both in terms of external pressures and contexts and also in terms of internally organizing ideas. The relatively small place of such discussions in Mormon studies thus far reflects more about the interests and expertise of scholars interested in Mormonism than it does about Mormonism. Finally, I think that legal thinking has a great deal to say about any practice that utilizes rules or norms. Indeed, Lon Fuller went so far as to define law as the direction of human behavior through the use of rules, where rule is given a capacious meaning. In short, I think that there is an enormous amount of legal stuff in Mormonism that we simply haven’t thought about very well.

    As for discplinary boundaries, there is always the danger when one tries interdisciplinary work of reinventing the wheel or missing important or key issues. There is, however, a counterveiling danger of defending one’s disciplinary turf at the cost of being able to learn something from the outsider. For what is worth, a lot of the earliest anthropologists were jurists. Remember that Maine and Savigny were lawyers before they were anthropologists/historians ;->.

  21. David: I guess that I am not sure exactly what it is you are referring to when you say that you are interested in other things. I would, however, want to resist the notion that concepts like property or contract constitute a kind of narrow subject of interest only to lawyers. If one pushes very far into any kind of thinking about economics, politics, or ethics the concepts of property and contract will pop up rather quickly. Likewise, if one pushes very far into any kind of thinking about property and contract one rapidly becomes enmeshed in complex discussions about history, human nature, moral obligation, and the like.

  22. TT: Note, in my last post I wasn’t trying to accuse you of surpressed biases or turf defending. Sorry if the comments came off that way.

  23. Nate (22),
    You’ve pretty much persuaded me that my initial concerns are not warranted, that your method allows for conflicting notions of what is “normative,” and that legal theory holds some value as an analytic tool for examining practices. I want to thank you for helping me clarify my own ideas, and also addressing these questions.

    I would, at some point, like to have a more full discussion with you about a sub-issue here concerning authority. I recall many years ago our conversations about the nature of Mormon authority and its normative value, and I am pleased that you’ve been working on this issue which confounded me back then, and still does. Perhaps you’ve worked this out elsewhere (should I reread your Element article?), but I am not totally sure I understand what you mean when you say: “I see no particular reason why authority must be univocal.” Isn’t this the very nature of Mormonism’s authoritative claim? As examples of this, you note “in many situations no such unitary answer is necessary,” but this suggests that in at least some situations a unitary answer is necessary. However, the methodological claim that I am making is that single, authoritative answers never exist if one de-centers power and authority, which is precisely what a look to practices will always entail. In this case, when you claim “any reasonable reading of Mormon approaches to property would foreclose a Mormon from adopting the philosophy of Ayn Rand,” you are simply putting forth as authoritatively “Mormon” theories of property that oppose Rand, while much of 20th century Mormon thinking about property from Skousen and other political conservatives (like anti-tax movements) would probably be quite compatible with Rand. I think that the tensions and competing practices and ideologies within Mormonism resist singular accounts of what is “normative” for Mormonism.

  24. Mark D! I totally forgot to respond to your #10. Please excuse this oversight.

    I think that much of the discussion has moved on, and hopefully addressed some of the points in your comment. However, I am puzzled by one claim:

    “To be “halacha” the justification of a practice or doctrine would have to be essentially accidental or non-existent. I claim that real world doctrines and practices in the Mormon world rarely if ever lack reasoned justification, and that those reasons are readily apparent in almost all cases.”

    I am not sure that I follow you here. You seem to be saying that halacha lacks reasoning, but that Mormon thinking has reasoning. While I think that the first claim is either a misunderstanding of halacha or simply wrong, I don’t disagree with the second claim at all. The question is to what degree is the “reasoning” taken. In the example that I give concerning boiled wine, I admit that one can think of reasons why it shouldn’t be done. I claim that these reasons will in fact contradict the reasons that wine may be eaten. What I’m saying is that when one looks at a broader totality of Mormon practices, there is inevitably going to be tensions, contradictions, and aporia.

  25. TT: I would like to continue our discussions of authority some time as well, preferably in the real world. Two points for now. First, I think that authority is a form of reason giving and one should begin the analysis by trying to get straight on the nature of the reason giving. Second in most cases I don’t think the purpose of authority i to avoid mistaken beliefs. Rather I think that more often it is a solution to some fairly practical problem. Frequently it is combined with other possible solutions such as ethical norms and institutions. I talk about this a bit in my Element article where I try to analyze how the pluralism of church doctrine is managed. FWIW I think that for far too long Mormon intellectuals have punted on the question of authority, either pretending that the issue doesn’t exist or more often falling back on liberal bromides that give them little more that stories of oppression or prejudice. We need to do better if we are going to be serious about understanding our religion.

  26. TT: my response to the Skousenites would be that they are mistaken and my interpretations are better than theirs. Why does the plurality of Mormon beliefs and practices disable me from making judgements? Perhaps this is one of the differences between jurisprudence and anthropology. If done well legal arguements will be extremely attentive to detail and ambiguity but in the end they will nevertheless be willing to make a judgement. The old common law judges used to rule on some questions “dubitante” but they still ruled, God bless them. There is a fun Islamic proverb on this “of three qaddis (judges) two are in the fire”

  27. I agree that authority is typically more about practical issues rather than beliefs. I’ve never understood the appeal to beliefs. I also agree that it (as a defense) is a kind of reasons giving but I don’t think that means we have to get reasons-giving straight. But maybe I’m not sure what you mean?

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