For a Revival of Mormon Private Law

Yesterday saw an interesting thread at BCC on the question of what sorts of procedures could we imagine for creating better feedback from members to leaders within the Church. On possibility that was not mentioned was revitalizing the tradition of suing each other in Church courts. There was a time when Mormons used to do this a lot. Most famously, in the 19th century, Mormons used the ecclesiastical charge of “un-Christianlike conduct” to get Church courts to take jurisdiction over otherwise secular disputes. For example, Brother A and Brother B have a contract. Brother A breaches, and Brother B sues him in a secular court. Brother A could then complain to his bishop about Brother B’s un-Christianlike conduct in suing him. The bishop would respond by taking jurisdiction over the entire underlying dispute. This spirit of suing one’s brother before the godly, however, extended well into the 20th century. For example, in my files I have a pamphlet produced by the Church as late as 1923 that provides fairly detailed discussions about how, as a member, you can institute a Church Court to deal with some infraction by a fellow member.

There are some advantages to suing one another. First, it can be confidential. Suppose that a bishop calls an abusive woman to be primary president. One could then sue the woman for unfitness in the Bishop’s court, presenting one’s reasons for her unfitness. The bishop could then make his decision. An appeal would follow from there to the Stake President and on the First Presidency if necessary. Likewise, one could sue one’s bishop before the High Council, and so on. Indeed, one can even institute a proceeding to excommunicate the President of the Church if need be. Because the underlying ur-structure of the Church’s institutional machinery is essentially judicial it is actually fairly well designed to deal with these sorts of procedures, all of which are already at least formally in place.

The current barrier to such a happily litigious future is the absence of a strong norm regarding the exercise of formal jurisdiction by Church courts. For example, if a person was to write a letter complaining about their bishop to their stake president, there is no real rule saying that the stake president must call the High Council for a formal trial. There are a couple of reasons for this. First, we have a strong aversion against adjudication. It seems like a nasty, un-Christ like way of dealing with things, something to be avoided. Second, Church courts today are seen as being almost exclusively inquisitorial (using this term in its formal, civil law sense) and “public law” oriented bodies, rather than adversarial and “private law” bodies. Hence, when we do see Church courts they function almost always as “disciplinary councils,” meting out some consequence for violation of a norm (most commonly, from what I gather, a sexual norm), rather than as forums that resolve grievances between two parties. Third, there is a decline in formality in instituting Church courts.

The last point is important. The 1923 pamphlet in my files actually contains example forms for making a complaint, issuing a summons to a Church court, and providing a record of the court’s final decision. In particular, having a highly formalized complaint allows an authority to clearly differentiate between a demand for a Church court and a mere letter expressing opinions. Mandatory jurisdiction makes more sense if you have some sort of formality as a gate keeper that forces people to seriously consider their actions before invoking the formal process.

3 comments for “For a Revival of Mormon Private Law

  1. Mark Butler
    May 17, 2006 at 3:50 am

    Nate, as Church judicial councils originally functioned, was the role of the council members advisory (as is the case now), or did they function with the authority of a jury, or was there some sort of balance between the opinion of the presiding officer and the opinion of the council members?

    Were decisions to be made as much as possible based on an appeal to the laws of the Church, e.g. as found in the Doctrine and Covenants, or was it primarily a function of the views of the council on the matter, or their inspiration or the presiding officers inspiration concerning it?

  2. May 17, 2006 at 2:03 pm

    Is there any scholarship on these courts around?

  3. May 18, 2006 at 9:30 am

    Mark and J.: There are a couple of sources for the functioning of Church courts. The most comprehensive is part III of Ed Firmage & Collin Mangrum’s _Zion in the Courts_. Another pretty good source is Raymond T. Swenson, “Resolution of Civil Disputes in Mormon Ecclesiastical Courts,” 1978 Utah L. Rev. 573 (1978).

    From what I have read there was quite a bit of inconsistency in terms of the substantive rules applied by these courts. In some areas — mainly having to do with the disolution of polygamous families through divorce and especially water rights — I get the feeling that there were pretty established rules (subject to a great deal of local discretion) while in other areas — commercial disputes, etc. — I get the feeling that it had a lot more to do with the individual equities of the case. My understanding is that the Stake President has always had final control over the decision with the high council acting in an advisory capacity. (It may have worked differently during Joseph Smith’s life time.) It is important to remember that Stake President used to be in some ways a much more important calling more analogous to contemporary GAs, eg stake presidents spoke in conference, etc.

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