I recently went through every version of the Church Handbook of Instructions, looking at what they have to say about the operation of church courts and how it has changed over time.
The earliest handbook was put out in the 1890s and dealt exclusively with the handling of church funds. In 1920 procedures governing church courts were added. Gradually, more instructions were included in successive editions, until it became the general compendium of policies that it has become. For most of its history, the section on church courts was based on what started out as a verbatim reproduction of the material on church courts from Widtsoe’s Priesthood and Church Government. Over time, however, the wording was changed subtly until the early 1980s, when the entire church court system was overhauled under the direction of Dallin H. Oaks and the term “disciplinary councils” was introduced.
There are a number of interesting changes in the procedure over the course of the twentieth century. For example, for a time the Handbook required that in a bishop’s court the counselors had to concur in the decision of the court. In the event that they did not concur then the case was to be referred to the stake high council. Under the current procedure the concurrence of bishop’s counselors is not necessary for the decision of a bishop’s court. The most interesting shifts, in my opinion, however, have come in the method by which church court procedures are commenced and the way in which remedies are conceptualized.
Until 1980, the Handbook, following the text of Widstoe’s book, distinguished between cases that were begun by a “complaint” and cases that were begun by a “summons.” A complaint consisted by an accusation lodged with one church member against another church member with his or her bishop or stake president. The handbook included a sample form on how to make such a complaint, and while the instructions were not explicit there was nothing to suggest that the bishop could decline jurisdiction over the case. A “summons” was a case that was commenced by the bishop or stake president instructing a member to appear before a church court. The procedural distinction should be familiar to those acquainted with the difference between adversarial and inquisitorial systems or, broadly speaking, the difference between common law and civil law systems. In 1980, however, the distinction between complaint and summons was dropped. The assumption in the new instructions was that all cases would begin with a summons. In other words, the inquisitorial/civilian model of church courts replaced the adversarial/common-law model of church courts.
The second interesting change has to do with remedies. Until the 1940 edition of the Handbook the remedial stage of the case was governed by this set of instructions:
The Penalty – The decision may specify compliance, or acts of restitution required of the guilty party, neglect of which will bring into operation certain penalties; or the penalty may be imposed unconditionally.
Notice that this contemplates that the outcome in many church court cases will be some sort of a remedial order. Excommunication and disfellowship were not necessarily the end of case. Rather, a member would be ordered to do something like providing restitution to a wronged party on pain of excommunication or disellowshipment. The excommunication or disfellowshipment was seen as a way of enforcing compliance with the remedial order, and the assumption was that in such cases the sanction would not be necessary because the member would comply with the order. In 1940, the section on penalties was re-written to read:
Church Punishments — A person who is disfellowshipped is denied the privileges of the Church. He is not to be admitted to priesthood meetings, nor to any assembly of Church officers; he is not to hold any office in the Church, nor in any of the auxiliary organizations; he is not entitled to partake of the sacrament, nor to speak in meetings. Of these restrictions the person should be specifically informed when the penalty of disfellowshipment is imposed.
Disfellowshipment may be terminated and the person restored to fellowship in the Church on evidence of sincere repentance and full compliance with the conditions imposed, only by action of the tribunal that dealt with the case, or by a tribunal having a superior jurisdiction. In ever instance of application for restoration, after disfellowshipment by a bishop’s court, the approval of the respective stake presidency must be obtained.
Excommunication means complete severance from the Church. The excommunicated person can regain membership only be baptism, as if he had never been a member before. A person who has been excommunicated should not be baptized until approval has first been obtained from the stake presidency and high council of the stake, or the bishopric of the ward in which the action against him was taken, and until permission is given by the president of the stake in which the person resides.
Members who have been disfellowshipped or excommunicated should not be avoided or persecuted by members of the Church. They should be dealt with kindly and prayerfully, in the hope that they may turn from their mistakes and receive again the full privileges of Church membership.
There are two things to note about this shift. The first is that the administrative effect of disciplinary actions is spelled out in much greater detail. This is what one would expect as, no doubt, the Brethren in Salt Lake City had to grapple with a myriad of detailed questions from local leaders. It also indicates, however, that more thought has been given to precisely what disfellowshipment or excommunication means to a disfellowshiped or excommunicated member. In other words, it is coming to be seen more as a particular spiritual and ecclesiastical status rather than simply a threat made as part of a remedial order.
Notice also how the notion of excommunication or disfellowshipment as a way of compelling compliance with a remedial order has been shifted. For example, the assumption is that a person will be disfellowshiped until they comply with a remedial order rather than being disfellowshipped only for failing to comply with such an order. Excommunication itself is no longer explicitly linked with compelling performance of a remedial order at all, only with personal repentance.
I would submit that what we are seeing in the 1940 General Handbook is the emergence of a new way of thinking about church discipline in general and excommunication in particular. During much of the 19th century, church discipline was primarily about remedying some concrete past wrong. The core case was a dispute between two members, adjudicated by a church tribunal, in which the threat of excommunication was used as a way of compelling compliance with the remedial order of the court. Of course there were always cases involving “summons” rather than “complaints” and sometimes excommunication was used as a punishment associated with a kind of cursing formula whereby the apostate and sinful were “given over to the buffetings of Satan.” Even in cases of summons, however, the assumption was often that the church court would impose some remedial order and excommunication or disfellowshipment was only a final means of coercing compliance.
In the twentieth century, however, we get a more pastoral view of church discipline. The purpose of church courts is less and less to coerce compliance with particular ecclesiastical decrees in particular cases. Indeed, the core case ceases to be a more or less public dispute between two members. Rather, it becomes a confidential encounter between an erring member and his or her priesthood leader. In this private, pastoral setting church discipline is no longer about forcing compliance with a particular decree of the court. Rather, discipline itself is increasingly seen as a pastoral tool. The idea is that being disfellowshipped and even excommunicated can itself be a salutary event, part of the process by which a person can repent of their sins by being given a paricular spiritual and ecclesiastical status for a time. This is seen most dramatically in the shift that occurs from church courts to disciplinary councils in the 1980s and the dropping of the complaint procedure from the Handbook, but I think that we can detect it as early as the 1940 commentary on church punishments.