Category: Religion

11

Of Foxes, Hedgehogs, and Splitting Babies

kingsolomon 1.jpgLarry Solum takes the interesting continuing cross-blog discussion of foxes and hedgehogs started by Belle Lettre — including this blog’s own entry from Dan Filler — in a new direction by pointing out, politely, that the fox/hedgehog imagery is being used incorrectly. Go read Larry’s explanation, and then be sure to stay around for his delightful integration of the refined definition back into the discussion.

It made me think of other historical or literary images that are misused in modern legal discourse because so many of us are insufficiently familiar with them. I claim absolutely no high ground here — surely I do it myself. But the one that drives me crazy is “splitting the baby.” It may be objectionable as a cliche anyway, but it is even worse when used incorrectly.

In general “split the baby” gets used as a substitute for “split the difference,” “half a loaf,” or, more simply, “compromise.” (Thus explaining its frequent occurrence in legal discussions…) It shows up in that sense in places I otherwise love, like the Wall Street Journal Law Blog and NPR reports by Nina Totenberg.

The phrase originates in the Bible, specifically 1 Kings 3:16-28. Two women come before wise King Solomon, both claiming fervently to be the mother of an infant. Solomon calls for his sword and declares that he will cut the baby in two and give one half to each woman. When the true mother cries out in anguish, Solomon knows which woman should keep the child. If he had actually cut the child in half, of course, he would be remembered as a mad tyrant like Caligula and not the epitome of wise judicial temperament. Yet you might think from some lawyers’ metaphorical uses of the phrase that cutting a baby in half was laudable. One of the oldest literary or historical models of good judging deserves better from us.

Any other nominees?

[Cross-posted at Info/Law]

21

More on Quasi-Official Policies of Not Prosecuting Polygamists

From a fascinating Reuters article:

The attorneys general of Utah and Arizona said in separate interviews they had no intention of prosecuting polygamists unless they commit other crimes such as taking underage brides — a practice authorities said was rampant in a Utah-Arizona border community run by Warren Jeffs before his arrest in August.

“We are not going to go out there and persecute people for their beliefs,” said Arizona Attorney General Terry Goddard.

Adds Utah Attorney General Mark Shurtleff: “We determined six or seven years ago that there was no way we could prosecute 10,000 polygamists and put the kids into foster care. There’s no way that we have the money or the resources to do that.”

I can see why pragmatic considerations would weigh against broad criminal enforcement here. It kinda sounds like the widespread pre-Lawrence environment of mostly non-prosecution of stand-alone violation of anti-sodomy laws. I wonder if that’s a sign of the eventual fate of criminal bigamy laws . . .

2

Tribal Scholarship

I have put up a couple of posts here on my on-going research on the resolution of civil disputes in ecclesiastical courts and Mormon legal history. Earlier this week, I presented my research to a faculty workshop at William & Mary. (I’ve also put up a copy of my preliminary research on SSRN.) In addition to ordinary trepidation of the untenured presenting research before the future members of the tenure committee, I had an extra level of anxiety as I presented my paper.

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1

Three Generations of Mormon Legal History

In the shameless self-promotion category, I have a new paper up on SSRN for your enjoyment. I have put up a couple of posts in the past here and elsewhere on Mormon legal history. My new SSRN paper — “Three Generations of Mormon Legal History: A Historiographic Introduction” — is meant as a primer on the subject for legal scholars interested in legal history or law and religion, as well as an argument about how I think the practice of Mormon legal history could be improved. Here is the abstract:

This is an essay on the past practice and future possibilities of Mormon legal history. For most legal scholars, the fact that there even is such a thing as “Mormon legal history” comes as a surprise, and the idea that it “should be proved . . . to be worthy of the interest of an intelligent man” may sound dubious at best. In part, such a reaction stems from the marginal status of Mormons. At a broader level, however, the invisibility of Mormon legal history is simply part of the broader problem of the discussion of religion within the legal academy. The thesis of this essay, however, is that the relative invisibility of Mormon legal history lies mainly in the idiosyncratic intellectual development of Mormon legal historiography itself. By explaining that development and introducing the work that has already been done on Mormon legal history, I hope to assist future scholars to better integrate Mormon legal experience into the mainstream discussions of the legal academy.

6

The Secularist Argument for Establishment

unitarian.jpgThose who worry about the Religious Right or who fall over themselves in support of faith-based initiatives ought to consider that the last formally established churches in America were . . . the Unitarians. After Justice Lemuel Shaw’s decision in Stebins v. Jennings, which transferred state-owned churches from Congregationalists to Unitarians, they were functionally the state church of Massachusetts until disestablishment.

Now when people wring their hands about the coming theocracy or call believers to the ramparts to defend America from the forces of godlessness, I doubt that they have in mind an army of Unitarians marching into the breach. Religious stereotypes are dangerous things to deal in, but I can’t divorce Unitarianism in my mind from a vision of well-educated, exquisitely tolerant and liberal Volvo drivers who assiduously contribute to PBS and NPR. In short, it seems to me that progressives have very little to fear from a Unitarian theocracy.

There is a point here that is lost in many of our discussion of church and state. Good eighteenth-century pagans like Hume and Gibbon were supporters of establishment precisely because they saw it as an important way of moderating religious impulses. They wanted well-behaved and tolerant citizens, and they saw the enemies as dissenters like Methodists whose enthusiasm they regarded as unseemly and socially dangerous. England has an established church, as do a number of other northern European countries, yet we do not think of the UK or Europe as being hotbeds of theocracy. (Although to be sure, the treatment of religious minorities by some European states leaves something to be desired from an American point of view.) In short, Hume and Gibbon seem to have been right: establishment had a moderating influence on religion. Indeed, one might even push the argument farther, and argue that establishment was the hand maiden to secularism. Iceland, Finland, Denmark, Sweden, most of the cantons of Switzerland, and Norway all have formally established churches. Yet this is hardly a catalog of the planet’s most religious societies.

In American politics establishment is not a position that anyone can openly avow, and as a result the arguments in its defense have largely slipped out of our political and legal discussions. Somewhat, ironically, however, the argument for establishment should have greater appeal to the enemies of the Religious Right than to its supporters. Indeed, I suspect that in their heart-of-hearts many a glum surveyor of religious politics in America today would prefer a bit of state-sponsored Unitarianism to George W. Bush.

5

Preaching in the Court House: An Experiment in Blog Advertising

At last January’s AALS meetings, Larry Solum gave advice to new scholars on the use of SSRN, suggesting that it was a good idea to post short, initial versions of an article as a way of generating interest and invitations to workshop one’s piece at other schools. Perhaps blogs can be used in the same way. Hence this post.

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1

Law, Revelation, and the Power of Interpretation

MormonsInJail.jpgI realize that this is antediluvian in blog time, but last Friday Paul Horwitz had a very interesting post at Prawfs about teaching the Mormon Cases in his Law & Religion class. The Mormon Cases, of course, are the series of the decisions issued by the U.S. Supreme Court at the end of the nineteenth century holding that various laws designed to punish Mormons for polygamy — criminal sanctions, disenfranchisment, and confiscation of property — did not violate the Free Exercise Clause. These cases hold a special place in my heart, in part because it was in first studying them that I became interested in law and second because of my family and religious history, I can’t help but think of these cases as my constitutional patrimony. (Paul’s post also reminds me that I really need to get my paper on the Reynolds case finished and sent off to the law reviews!)

His provocative suggestion is that profs who teach these cases ought to include in their materials the Revelation that Wilford Woodruff, then president of the Mormon Church, published in 1890 announcing the Church’s abandonment of polygamy. He writes:

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6

Shechem and Consideration

biblepage.jpgI have been thinking about the value of the Bible as a pedagogical tool. I am not much of a fan of the notion that the common law somehow rests on the Judeo-Christian tradition or that the Ten Commandments are the basis of our modern legal system. To be sure, I do think that the Bible has had its influence on our law, but if one is seeking for origins of the common law, I think that feuding norms among the pagan barbarians of northern Europe is a better bet. Still, the Bible is full of law, and I think that this law is useful for its very strangeness. (Also, as a Mormon, I labor under some religious guilt due to the fact that Brigham Young and other early Mormon authorities taught repeatedly that lawyers were the spawn of Satan and essentially on the road to hell. I take comfort in the fact that God is clearly a lawyer.)

For example, a few days ago I gave a brief lecture on the history of contract to my students. One of the points I wanted to make is that contract law is a relatively late development. Early legal systems seem to go to work immediately on issues like ownership of land, inheritance, and crime. Contract comes only later. I illustrated the point by noting that there is an enormous amount of law in the Pentateuch governing everything from ritual purity to what oxen may or may not eat while plowing the fields. There is not much in there, however, on contracts. To be sure there are rules about debt, and covenant, which is a vaguely contract-y idea, figures prominently in Biblical stories. Still, you’ll search Exodus to Deuteronomy in vain for anything like a general theory of contract.

Here is another possible example: Understanding the usefulness of consideration as a formality can be tricky. Fuller argued that forms serve an evidentiary function, but what exactly do we mean by an evidentiary function? Consider the following story from the Book of Joshua. At the end of his life, Joshua gathers the Children of Israel together at Shechem and offers them a choice: Will they promise to serve the God of Israel or not? The Children of Israel insist that they want to covenant to follow Yahweh, and Joshua then leads them through various formalities to make the commitment binding. The text says:

So Joshua made a covenant with the people that day, and made statutes and ordinances for them at Shechem. . . . And he took a great stone, and set it up there under the oak in the sanctuary of the Lord. And Joshua said to all the people, “Behold, this stone shall be a witness against us; for it has heard all the words of the Lord which he spoke to us; therefore it shall be a witness against you, lest you deal falsely with your God.” (Joshua 24:25-27 (RSV))

Why the rock? It is a formality that Joshua goes through to make the promise binding, and its purpose is to provide future evidence of the covenant. Should any Israelite in the future try to serve other gods, then Yahweh can insist that he or she has promised to serve only him. Should the erring Israelite have a convenient lapse of memory, then God can point to the rock. “Look,” he can say, “that rock stands there under the oak tree because you made the promise at Shechem with Joshua.” The formality reduces the problem of proving the contract ex post.

I love this story because of its strangeness. (I always imagine Dell and Microsoft entering into a licensing agreement and setting up a sacred rock someplace in Seattle to memorialize the deal.) Furthermore, it is precisely the strangeness of the story that makes it useful for thinking about the law. Our problem is that we forget how weird our own laws are and therefore can have a hard time seeing clearly what they are doing. In this sense, the Bible is pedagogically useful precisely because it has lost most of its salience in our culture. Most students (even in southern Virginia) are unlike to have the story of the Shechem Covenant at their fingertips. It sounds wierd to them, and that is useful.

Or it may simply be my perverse love of legal anachronism.

2

Going to Church to Sue Your Neighbor

puritan_men.jpgOf late I have been doing research on the resolution of civil disputes — tort, contract, and property cases — in ecclesiastical courts. Of course there are still religious communities that handle all intra-member litigation “in house.” I am surprised, however, how common this was among Americans in the 17th, 18th, and 19th centuries. It turns out that many American denominations are descended from either Calvinists or Anabaptists. Despite various nasty theological disputes in the 16th century, both groups were enthusiastic about the idea of church discipline and thought that one of the things that true Christian churches needed to do was excommunicate members who misbehaved. It was only a hop, skip, and a jump from this basic commitment to discipling members to a literal reading of passages in Matthew and Paul’s Letters to the Corinthians where the New Testament insists that disputes between brethren ought to be brought before the church rather than being taken before the ungodly. The result is that groups like the Quakers, the early Baptists, and the Mormons were all at one time or another quite aggressive about disciplining church members who sued other church members in secular court. However, rather than simply punishing members for hiring a lawyer, these disciplinary proceedings became a way in which congregations took jurisdiction over the underlying dispute, provding an ultimate settlement on the merits.

I wonder, however, if there was something more than theology and the perennial quest for low-cost dispute resolution at issue here. In particular, early Americans seem to have been a litigious lot. Roger Williams, for example, described one of his neighbors as “the salamander always delighting to live in the fire of contention as witnesses his several suits in law.” (In the folk cosmology of early America, the salamander was a creature that could live the heart of a fire.) Many of his compatriots seems to have shared this trait. That being the case, litigation was, if not a major life activity for many early Americans, at the very least was a very significant one. By shifting the forum in which this activity occurred from secular to ecclesiastical courts, religious groups were able create yet another bond with their members. Home is not only where the heart it. It is also where you litigate, particularlly if you are a salamander.

Finally, there seems to have been theatrical component to the interaction between litigation and religion. Brigham Young, for example, delivered a facinating sermon in 1856 denouncing litigation not only for the way in which it created discord among litigants but also as a demoralizing spectacle that tempted people to the courthouse to watch the show. Indeed, his denunciation of litigation sounds in many ways like contemporary denunciations of the theatre by Evangelical Protestants. The Mormon reaction to courts was much like the Mormon reaction to theatres (or dancing, another moral bugbear of the Second Great Awakening): rather than prohibiting it, they brought it in-house. Hence, dances were held in temples and church houses, plays were sponsored by ecclesiastical associations, and litigation was brought before “judges in Israel.” Once within the religious fold, however, litigation continued to be a spectacle and a show. Religious groups, however, radically changed the moral content of the performance. The amoral tourney of wits between trickster lawyers was transformed into a passion play of confession, repentance, and reconciliation as parties in ecclesiastical cases were frequently required as part of their settlements to perform acts of public atonement before their congregations.