People often get upset with members who sue the Church. Why? As you might expect, I think that the answer lies in contract disputes between commodity traders. In particular, in a University of Pennsylvania Law Review article by Lisa Bernstein (Law — University of Chicago) entitled “Merchant Law in a Merchant Court.”
Here is the background to the insight: There is a long-running debate in contract law about how one ought to interpret contracts. In particular, should judges who interpret contracts try to understand norms and practices within the business or should they simply read contracts according to their plain meaning. At issue here is the extent to which one should think of contracts as governing long-term reciprocal relationships or as self-contained, one-shot events. The Uniform Commercial Code, which is the law of every state in the Union, governs a lot of commercial contracts (hence the name), and under certain circumstances it requires judges to look at business norms and practices in interpreting contracts. No one really knows if this is a good idea.
This is where Bernstein’s article comes in. It turns out that lots of merchants operate what are in effect their own court systems, using trade associations and the like to resolve — among other things — contract disputes. Bernstein looked at one of these private legal systems — the one operated by certain agricultural commodity traders — and found, somewhat surprisingly, that these merchant courts don’t seem to give a fig about business norms or practices in the trade. They don’t seem to care about contracts as long term reciprocal relationship. Instead, they adopt what is — by legal standards — a hyper-formalist reading of contracts. In essence, they say, “To hell with your implicit understandings, good faith in business dealings, and usage in the trade. You have to do what you said you would do when you signed on the bottom line. The other guy gets his pound of flesh and if you don’t like it tough.” Or words to that effect. What is really interesting, however, is that Bernstein found that commodity traders don’t ordinarily view their relationships with other traders in these terms. In other words, outside of the confines of their private court system, commodity traders do care about business norms, long-term reciprocal relationships, good faith dealing, and the like.
Bernstein explained this apparent puzzle by identifying what she saw as two sets of norms. One set of norms are what she called relationship-maintaining norms. The idea here is that people tend to be charitable and flexible in order to maintain long-term relationships. The other set of norms are what she called end-game norms. The idea here is that when things go south and people are no longer in long-term relationships they want to be governed by a different set of norms, those dominated by notions of formal rights, duties, and obligations. According to Bernstein, the commodity traders have neatly divided these norms into different institutional contexts. The world of the market is largely a world of relationship-maintaining norms, while the world of litigation is largely one of end-game norms.
Now back to Church: Active members of the Church regard themselves as being in a long-term relationship with the Church. As a result, they tend to conceptualize proper interaction with the Church in terms of relationship-maintaining norms. At some implicit level, people instinctively recognize that litigation involves a different set of norms, namely end-game norms. The perception is that by moving into the world of litigation — the world of formal rights and wrongs — the plaintiff has abandoned relationship-maintaining norms in favor of the rules that are supposed to govern the just terms of exit from a relationship. And hence, the plaintiff, for better or for worse, finds themselves cast in the role of outsider, forced — if they desire to maintain insider status — to fight rhetorically against the force of the end-game norms that they have invoked.