Today’s NYT features a story on law schools that promote a religious perspective on law. Not surprisingly, BYU isn’t mentioned.
Jerry Falwell is training “ministers of justice” at Liberty University. At Pat Robertson’s Regent Law School, the website proclaims, “Law is more than a profession. It’s a calling.” According to the NYT article, these schools are part of a “movement” towards integrating legal and religious studies. Other schools that are part of the so-called movement include two Catholic schools — Ave Maria School of Law in Ann Arbor, Mich., and the University of St. Thomas School of Law in Minneapolis.
What is to be gained by taking a religious perspective on law? The article offers several examples, from wacky (one professor suggesting that the U.S. Supreme Court was misguided in Erie v. Thompkins because it denied the possibility of “a law that’s fixed, that’s uniform, that applies to everybody, everyplace, for all time”) to clever (Jerry Falwell’s suggestion that “We will not be committed, for instance, to being good divorce lawyers; we’ll be reconciliation lawyers”) to, well, interesting (a professor arguing that “Christian lawyers should counsel clients not to walk away from oral contracts even where the law allows it”).
My first encounter with an attempt to integrate law and religion on a school-wide basis was an interview with Notre Dame. I was a young professor, and they needed someone to teach corporations. When they called, I laughed openly, “You know that I’m Mormon, right?” “That’s one reason we are calling,” they claimed. “We are looking for ‘Professors of Faith.'” Hmm. “Professors of Faith.” Interesting enough that I accepted the invitation to interview, and I was quite taken with the university. Adam could say a lot more about it than I, because I eventually decided that South Bend, Indiana was no place for someone who studies venture capital, but the image of having a faculty filled with “Professors of Faith” stayed with me.
Indeed, it was the impetus for a conference on LDS Perspectives on Law, which I helped to organize several years ago. When I originally pitched the idea to a professor at BYU, he responded flatly, “there is no such thing as an LDS perspective on law.” Although he was certainly not alone in that view, neither was this view unanimous. Eventually, the conference was held, and several of the papers were published by the BYU Law Review, but with a few exceptions, LDS perspectives on law remain almost wholly undeveloped.
So I am still wondering whether taking an LDS perspective on law would add anything significant to our understanding of law or the Gospel. What would be the foundational ideas of a such a perspective? What would the research agenda look like?
My initial impression is that “LDS legal scholarship” would be more influenced by an appreciation for LDS history than it would be by any particular doctrines of the restoration. That said, I think a natural law jurisprudential outlook could certainly find doctrinal support.
I am not sure such a phenomenon would be a good thing. As a discipline, Law is so inextricably tied to politics. “LDS legal scholarship” could end up being a vehicle for tacitly imposing a greater uniformity of political persuasion and discourse amongst the saints.
Do you really think that BYU was left off that list because there is “no such thing as an LDS perspective on law?” As a BYU law grad, I would very much dispute that. Anyway, how would those who did the study or wrote the article have any idea whether or not there was an LDS perspective on law or not? There certainly have been highly visible and influential LDS lawyers, so lack of visibility can’t be the reason. Don’t you think that BYU being left off the list is merely a typical snub towards Latter-day Saints more than a message about whether or not there is an LDS perspective on law? I would argue that BYU Law School, a well-established and respected law school (or at least it should be respected for its quality), much more deserves to be on that list than Ave Maria law school in Ann Arbor.
Interesting thread. I’m a BYU Law grad (one of the early classes), and very much appreciate the manner in which my religion influenced my legal education. But it didn’t really occur to me, when reading about Liberty Law early this morning before seeing this post, that the article might mention my alma mater. Liberty and Regent, and perhaps Ave Maria and St. Thomas, seem to have more than just a perspective; they have agendas. They seem determined to produce lawyers with a particular point of view. BYU Law, by contrast, seems determined to produce lawyers who are able to deal equally well with the religious and the legal — which might lead them to a wide variety of results, not just the ones deemed orthodox by a particular religion or religious leader. Maybe the real difference is that at least Liberty and Regent were organized by individuals who themselves had a particular view of the law. I can still count the number of political issues on which the Church has taken a position in my lifetime on my fingers (though perhaps no longer on one hand, as I used to say). I’m certain that neither Pat Robertson (Regent) now Jerry Falwell (Liberty) could say that. Because the Church that created BYU Law has no predefined legal and public policy agenda, it makes sense that the law school lacks such an agenda.
John,
What is the LDS perspective on the law?
I think Gordon Smith’s point, John Fowles, one with which I largely agree, is that BYU is trying hard NOT to be a religious law school. Oh, they’re definitely the Church’s law school–good luck with your plans to have beer served. I’m just saying that JRCLS doesn’t seem to want to be the seedbed for specifically LDS natural law approaches.
Professors of Faith.
I regret very much that Notre Dame didn’t have the ideal environment for VC legal work. We’re the poorer for it. I do believe that your faith was part of the reason why they contacted you. Three reasons: first, the law school makes a real effort to get ‘law students of faith.’ Besides the Catholics, they have lots of kids from Wheaton, for example. They also try and get Mormons (though not nearly as many apply as they’d like)–among other things, LDS mission service is a substantial plus factor in their admissions system. Military service is the only other factor that gets as high a bonus that I know of.
Second, they really do try to attract Professors of Faith, at least if one may judge by the results. I had several devout Catholic professors, a devout Catholic professor who belonged to the People of Praise, a practicing Jew, a couple of Evangelicals, etc. (the Evangelical, btw, wrote a great article on Noah and the Endangered Species Act for the Michigan Law Review). They had an LDS professor, Steve Smith, but he left the year before I came. A goodish number of Professors of No Discernible Faith were also there too, of course.
Third, attracting law Professors of Faith would be consistent with Notre Dame’s MO in other fields. In both history and philosophy, for example, they have many of the best people who are doing specifically Christian or Jewish work.
I agree that some variants of natural law thinking would be a natural fit for mormons (though my judgment is worth little, since everything I know about the subject could dance on the head of a pin).
I disagree that natural law thinking would end up committing the Church to the ‘one best political position’ in every field. Many varieties of natural law are trying to set boundaries on permissible ends and permissible means without pretending to specify within those boundaries what ends are actually to be pursued and which means used.
I am also a BYU law grad who has been practising for a little over 20 years. I would be hard pressed to see any difference between my perspective as an LDS lawyer and the perspective of the large majority of my peers. I would agree that there is a big distinction between the schools named in the article, who seem to have a real political agenda, and BYU. I too would be interested to learn what others believe an LDS perspective would look like. Of course I have a limited perspective–religious principles do not often intrude into the world of corporate finance, which is where I spend my time.
John: Notre Dame wasn’t on “the list” either. There was no study; it was just a NYT story. But Adam has it exactly right. My point is that “BYU is trying hard NOT to be a religious law school.” At least in its communications with other law professors. When recruiting and training students, perhaps they have a different approach. As to whether it makes sense to think about an LDS perspective on law, I think you would get a split vote on the BYU law faculty. But that is just a guess based on limited data.
As Gordon and others know, this topic is one of my personal obsessions, so I have quite a bit that I could spout about, but for now I don’t have time. I have a brief filing today and life is hectic. I would however, make two points:
1. We should be glad that BYU is not included on the list with Regents. There are, in my opinion, good ways of thinking about law and religion, and I am doubtful that Pat Robertsen’s school represents the best method. Ave Maria is, of course, to be praised for the simple fact that the first issue of their law review contained a citation (the first ever!) to a note that I published in law school.
2. One things Mormons thinking about law should do is quit reinventing the wheel. There have actually been a fair number of Mormon-themed law review articles. (I will try posting a list when I get a moment.) They are not great (although some are quite good) and they repeat themselves a bit. Still, there is a least a nascent literature on LDS legal perspectives. Few LDS lawyers are familiar with any of it. (Of course most lawyers are not really familiar with any scholarlly literature on the law, so I am not sure that this is such an inditment. One can be a perfectly good lawyer without worrying a great deal about legal theory. I am less convinced that one can be a great lawyer without worrying a least a little bit about legal theory, but that is a different issue.)
As to which law schools are “religious,” FYI there’s an interesting article in a recent issue of the Journal of Legal Education (published by the Association of American Law Schools — apparently not available on line, but the table of contents is at http://www.law.georgetown.edu/jle/Volume54_1.cfm ). It is, in some respects, an argument for BYU Law to have a higher US News ranking. The part that fits here is that in looking for bias against “religious” law schools, the authors polled law profs as to their perception of religiosity of various schools. I don’t recall now just where BYU Law came in, but it wasn’t at the top. I do recall chatting with a colleague who graduated from Campbell, who was surprised that her school was on the list at all.
Nate, I was wondering when you were going to show up. Good luck with the brief!
I am not sure whether Nate has attempted this, but one thing that would be of great interest to those who are interested in developing LDS legal perspectives is an articulation of the foundational principles of such an approach. Reflections on method would be most welcome. Some Catholic law professors are blogging about “Catholic legal theory” over at Mirror of Justice, but I am not sure whether they have thought much about methodology.
Mirror of Justice had a bit to say about the article JL references back in June.
http://www.mirrorofjustice.com/mirrorofjustice/2004/06/religiously_aff.html
Randy, I can’t, sitting here in my office with legal work to do, write a treatise for you on what the LDS perspective on law would look like. My comment was against the assertion that there is no such thing as an LDS perspective on law.
I agree wholeheartedly that BYU Law does not have the type of agenda as the other schools on the list. So, you all are right, BYU does not really belong on that list after all, but it is not for want of LDS perspectives on law, as Gordon implied in his original post. Rather, JL and Adam have articulated why BYU Law does not belong on the list.
I’m not a legal student and never will be so that probably makes my comment useless. But I’ll just throw in a thought about law and Mormons and some observations of other religions.
I’ve seen that particularly religious or fundamentalist Jews and Muslims have made arguments that the Torah or the Quran should be the constitution of a nation. But I’ve never heard anyone argue that the Book of Mormon could stand as the constitution of a nation.
Maybe this is due to the fact that we have been taught that the U.S. Constitution itself was inspired? Since we know of a divinely inspired legal document that is still extra-scriptural, we don’t have a need to place a unique book of scripture in that position.
I now respectfully remove myself from the discussion among legal scholars and law students.
John, I wasn’t looking for a treatise from you. I can wait ’till Nate finishes his brief for that. But I still don’t know what you mean when you say, in such strident terms, there is an LDS perspective on the law. Do you mean something general (e.g., “treat your clients as you would like to be treated”), or something quasi-political (e.g., “outlaw abortion,” “down with penumbras”), or perhaps something completely different?
I suppose there is something to be said about looking to the Golden Rule for insight as to how we ought to construe the UCC, but is there anything unique to our faith that provides key insights into contract law (blatant Nate baiting here), or tort law, or corporate law? Do you take issue with Gary’s statement that “religious principles do not often intrude into the world of corporate finance.” (I don’t practice corporate finance, but that has been my experience generally as well). There surely must be something to this idea or Nate would not be so excited about it.
Here’s hoping that Nate has an early filing deadline.
John: “it is not for want of LDS perspectives on law, as Gordon implied in his original post.”
Just to be clear, I did not mean to imply that LDS persepectives on law are not possible, only that they are not well developed. Notice that I was the person who proposed the conference on LDS Perspectives, which I would not have done if I had thought they didn’t exist.
Randy, I would guess that there isn’t a single LDS perspective on law. Even if Nate did write a treatise, it wouldn’t be the LDS perspective on law. So I never asserted, stridently or otherwise, that there is an LDS perspective on law, that is, a single perspective that seems to encompass LDS doctrine or whatever. There are many LDS perspectives on law and I would agree with Gordon that they are still, perhaps, undeveloped, academically speaking (until Nate finishes his brief, there is no LDS Dworkin writing Law’s Empire from an LDS Perspective.) All LDS lawyers could put aside their bread-winning activities and write essays on their LDS perspective on law. Some of them, as you suggest, might simply apply the golden rule to our legal system. Others might, as suggested earlier on this thread and as Professor Gedicks aptly does, focus on natural law/rights as the fitting approach to law from an LDS perspective. Still others might analyze it and create other types of jurisprudential models to explain an LDS perspective on law. But just because there isn’t one overall LDS perspective on law doesn’t mean there aren’t already LDS perspectives on law, even some that have been analyzed academically and published. True, a lot of work needs to be done if a coherent LDS jurisprudence is ever to emerge (if I’m not mistaken, this is the type of project that Nate is interested in)–but even that will not speak with one voice for all LDS perspectives on the law.
My hasty comment # 2 has already been dealt with by JL and Adam: BYU does not belong on that list because it lacks the affirmative (religious jurisprudential) agenda of the other schools, and, I would add, not because BYU law school lacks in LDS perspectives on the law.
This brings us back to the real questions: the foundational principles of such a perspective and the research agenda for it. I would guess that the foundational ideas would be principles of the gospel supplemented by commentaries and theories of thinkers in the Church and Church leaders (i.e. things that aren’t necessarily doctrine but which are uniquely “Mormon”). I’m not sure, however, that there could be a single research agenda for it. This is something that I have discussed with several people, and the field seems wide open (white, already to harvest, to employ a cheesy metaphor). Historical (doctrinal) sources would have to be on that agenda. I think the BoM would have to be taken very seriously as a source for such principles, and (in my own opinion) the truth of that book or at least its authoritativeness in the LDS community would have to be taken for granted as a starting premise for such an agenda.
Etc., etc., none of this covers any ground that anyone interested in LDS perspectives on law hasn’t already covered. Gordon mentioned the LDS Perspectives on Law Symposium and the publication of many of the papers presented in the BYU Law Review. I was fortunate to participate as a member of the Law Review’s editorial board on that issue and gained a lot of insight on different LDS perspectives on law from that experience. But looking around the blogs, there is no lack of thinking about LDS perspectives on law. Some of us should indeed take it more seriously and really try to produce writing that explores this area. Why aren’t people doing it? I don’t know, but I don’t think it’s because of a lack of LDS perspectives on law.
Gordon,
Perhaps ND’s interest stemmed from the church-affiliated school from which you received your JD.
Greenfrog: To my knowledge the University of Chicago is not a church affiliated school…
Chicago was started by Baptists, but it is not a Church-affiliated school. I am pretty sure greenfrog was joking.
Well, I would think, that to the extent it is possible, Life in the Law, Answering God’s Interrogatories is a book on LDS perspectives on law.
As a member of the “tireless selection committee” (cf page 266) I think it captures things well, but there is a problem.
When I was at Cal State LA I ran for student government, and got elected, on the simple platform of “I’ll figure out and do the right thing.” People who knew me voted for me. What was interesting was that my platform (so to speak, I’m not sure it was that solidified) was not one that was assumed to be true about candidates. It was also something that someone at a different school could not have used (“but we would all do the right thing.”).
The LDS perspective on the law consists of two things. The first is not only recognizing the right thing, but really doing it.
The second I intend to blog on when I get around to the two law professors who influenced me the most, Jacobs and Neeleman (and, I still regret the distance that was created between I and Neeleman. Of the two professors who made public apologies to me, he was the only one I was not able to connect with afterwards. But that is a long story, one that I’ll have to write about some other time).
Interestingly enough, the NYTs probably skipped ND and BYU because of the problem they have which prevents them from ever conflating “legitimate” and “religious” in any fashion.
Just to throw in 2 cents worth (and that’s probably about all. . .)
It always irked me to no end, and still does, that a school (JRCLS) populated by a student body that has, on any given year, 20-40% of the student body who are generally fluent (not conversant, mind you, but really fluent) in one of who-knows-how-many foreign languages, and has a collective experience in overseas cultures calculated possibly in the man(/woman)-centuries doesn’t produce a niche ranking among International Law programs that looks like this:
1. — J. Rebuen Clark Law School (BYU)
2. — J. Rebuen Clark Law School (BYU)
3. — J. Rebuen Clark Law School (BYU)
4. — J. Rebuen Clark Law School (BYU)
5. — . . . *well, there are thos also-rans; maybe Princeton could sort of fill fifth place*
I guess since we’ve produced our share of S/C clerks, our priorities must have been elsewhere.
There is a lot to be said about international law as an area, but a law student that announces that they plan to go into that area is much like one who announces that he or she intends to become Peter Pan.
On the other hand, like the business school, BYU’s law school could pick up more of a focus there, though they have quite a serious program, with externships, etc. Much of it is convincing kids that they want to go to places like Saudia to work upon graduation.
Onthe other hand, typical editor on law review with very strong family connections (multiple millionaires in the close family) friend of mine had a hard time getting an associate’s position in international law with a law firm in the United States.
Speaking of justice, this post bears reading:
http://www.kevinsites.net/2004_11_21_archive.html#110107420331292115
XON:
I think you misspelled “Reuben” four times. Also, Princeton doesn’t have a law school. Ok, that was too easy. Sorry.
Seriously though, language and culture aren’t really at the heart of “international law,” as one might think, so much as studies in international politics and institutions (ie international criminal court, U.N., Kyoto protocol, treaties, etc.), These issues are most “legitimately” treated in mainstream legal academia when approached with a leftist-euro-socialist worldview in mind (one in relatively short supply at BYU). I suppose there may also be a comparative law component depending on how you define the international law discipline. But the LDS missionary program really doesn’t prepare BYU law students in any of these areas, so it should not be surprising that BYU is not a leader in international law. (On the other hand, it is surprising that the University of Iowa is . . . I mean c’mon, IOWA?). BYU (read: Cole Durham et al.) has done a nice job hosting an annual international law and religion symposium.
John, I looked through the articles you pointed to. As they demonstrate, there certainly are some unique points of LDS doctrine — such as D&C 134 and the 11th AOF — that speak to interesting and important legal questions. It just strikes me that the number of *unique* LDS insights here is few in number, particularly when it comes to the actual practice of law as opposed to legal theorizing. Even as to legal theory, I simply cannot envision what the LDS equivalent of Dworkin’s book Law’s Empire would look like. (Even as to natural rights/natural law, it seems more like we are largely piggy-backing on the insights of others as opposed to adding much of our own.) In short, when you see a wide open field ready to harvest, I see a small backyard garden plot with a few exotic vegetables. Perhaps I’ve just not caught the vision.
Ethesis says that “The LDS perspective on the law consists of two things. The first is not only recognizing the right thing, but really doing it.” If that is all we are talking about, then I don’t see anything new here. That’s not to say that doing the right thing is not an important message. But Mormons don’t have a corner on goodness. You don’t have to go to BYU, or be LDS, to be a good person. To the extent that the Church or the Church’s law school encourage people to be good lawyers, that is a great thing, and something that they share in common with many, many others.
I’m looking for unique LDS insights here. Concepts such as “choose the right” don’t cut it.
Randy, I suppose that is why you are not the LDS Dworkin waiting in the wings (and neither am I). I find the claim that you are continuing to support–an assumption that there just aren’t any LDS perspectives on law–difficult to maintain. After all, just because such perspectives might not have yet been academically articulated doesn’t mean they don’t exist. An argument from silence is really very weak in a context like this.
John, I’ve never said that there aren’t *any* LDS perspectives on the law. No doubt there are some LDS insights to be made, here and there, as I expressly note above. Contrary to your suggestion otherwise, I have not ruled out the possibility that there may be an LDS Dworkin waiting in the wings who will articulate a grand vision of how LDS teachings impact the law. Given what I know about church doctrine, it’s hard for me to imagine what this vision might be.
I am not pointing to the silence of LDS perspectives on the law as evidence that there is no hope of articularing such a perspective. I am instead pointing to LDS doctrine and wonderning where would a Dworkin’esque vision of the law could come from. I still don’t see it.
I hope that there will be no Dworkin for an LDS perspective on law. Some of Dworkin’s assertions that make his work so well known (and followed, inasmuch as anyone follows Dworkin) are in fact inconsistent with gospel principles. A Latter-day Saint perspective as well known in LDS legal circles as Dworkin’s is in jurisprudence will have to reach that position by means quite different than Dworkin’s work reached its.
Natural law has a different problem. It is primarily apologetic: “You see, nature supports us.” Like most apology, it defends but does not lead. Contemporary natural law tradition theorists, such as Finnis, fall prey to this same criticism.
“Contemporary natural law tradition theorists, such as Finnis, fall prey to this same criticism.”
I’m not much of a champion here–my philosophical ineptitude makes me a bit of Sancho Panza here–but I don’t think this accurately describes Finnis’ views.
He attempts to show how, once you accept some ends as good and morally desirable, you must accept, within parameters, a moral obligation to obey laws and rulers. If I recall, Finnis thinks ‘natural law’ is a deceptive and unfortunate name for what he does, but he sticks to it for tradition’s sake.
Val,
I’m curious about your assertion — I’m no Dworkin-ologist, and I certainly have my share of disagreements with his work, but I’m not aware of general principles of his that are counter to gospel principles.
In certain areas of application — e.g., abortion — he advocates a position that is counter to what most church members believe. But even that seems to be a limited disagreement; after all, as some people have argued, there is nothing in church teachings that holds that one cannot believe that abortion should be legally permitted. (Abortion is clearly labeled a wrongful act in church doctrine, but not all wringful acts are legally proscribed).
Hi Val. Just for the record, I merely used the name Dworkin as a place holder for a legal theorist, not in the sense that any LDS perspective on law or LDS jurisprudence, for that matter, would necessarily follow Dworkin–that is certainly up for debate. I would be interested in your answer to Kaimi’s questions.
Regarding Adam’s comment: Take a legal problem carefully through Finnis’s jurisprudence to find a concrete solution to it. There is no real guidance there. I am no enemy of Finnis’s. I think his is easily the best articulation around from the natural law tradition, enjoyable reading, and extremely careful. But at its heart it is filled with principle and counter-principle, and the solutions lie in balancing the two (or ten, in some cases), with no guidance how to balance. “Human flourishing” just does not provide that much guidance. As a defense, it is fine, but it does not lead well.
As to Kaimi’s: I did not claim that LDS doctrine is inconsistent with Dworkin’s resolutions of specific issues (though they probably often are) but with his principles. Dworkin’s principles fail in many respects. Most prominent, however, is that Dworkin’s is at bottom a thoroughly humanist jurisprudence. It is trust in man alone, as Law’s Empire makes abundantly clear. Dworkin in an earlier work denies both the possibility and relevance of revelation, and on this ground sought to separate himself from the natural law tradition.
Now, I must away. I’m driving tomorrow. I don’t mean to pitch my own work, but this discussion matters to me. My own rather agonized-over views on the LDS perspective on law (else how would I know what in the law to criticize? I ask myself) are outlined in the BYU article Nate mentions on the other thread. Only the first section of the paper is historical. The second is philosophical, and the last is theological. None of it is very thoroughly set forth, but the scriptures and principles articulated by prophets are there. I would be delighted to see any thorough comments or response, likewise supported by scripture and the writings of prophets, which is all I’m interested in on this issue.
Perhaps responses can be directed to the Journal of Law and Religion, care of that anonymous Mormon-topics editor . . .
Princeton doesn’t have a law school which is why it is used as a control for ratings, all the time, and often involved in them. I thought everyone knew that …
Val Ricks criticism of Finnis is true. His method will not get you to the little things like how the mailbox rule should apply to options nor even the somewhat bigger things like, say, whether Erie was correctly decided. It does answer certain questions but not many.
I see this as a strength. The advantage of Finnis’ approach is that it is very flexible, so something like it can be adapted to our own knowledge easily, and second, that it doesn’t straightjacket us into the one true legal position for all time. It simply gives us an approach to resolving these questions give the particularities and traditions of our time.
More importantly, I think the questions he answers are the most important ones: why is there law? Why does it bind me? I think when it comes to law many of us Mormons are like gentiles with marriage. We know its important, we know that its good, but we don’t understand how it fits.