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.

I now have a completed draft of a paper that I am interested in workshopping at any school that might be interested in having an outside presenter during the summer. Here is an abstract:

Preaching in the Court House and Judging in the Temple

A number of American religious denominations – Quakers, Baptists, Mormons, and others – tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Scholars of alternative dispute resolution have studied these ecclesiastical judiciaries as a chapter in the perpetual quest for low-cost alternatives to the expense and technicality of the common-law courts. Using the rise and decline of civil litigation in Mormon ecclesiastical courts during the nineteenth century as a case study, this paper argues that the move to bring civil litigation within the fold of the church must be understood against a much richer background of theological development and civic symbolism. Ultimately the Mormon courts emerged as a result of theological ideas with roots in the early sixteenth century and as a religious critique of the legal profession and the symbolic status of litigation in civic life. Likewise, their decline resulted from a combination of rising economic and legal complexity and the symbolic renegotiation of law’s meaning within the Mormon community.

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5 Responses

  1. Haninah says:

    I know little about either the Mormon church or law in general, but I’ve read with fascination your series of posts on this topic. It’s wonderful to see such an unusual weaving together of early modern religious history, law, sociology and US history.

    I have a thought on the subject that may just be a restatement of the obvious or may not be relevant to the direction you’re taking this in, but what the heck.

    Maintaining parallel ecclesiastical (or “traditional”) court systems alongside a secular legal system is an approach that’s still tried in many democratic or quasi-democratic societies today, usually when there is a sense that the society is not “ready” to leave behind its traditional religious identities (in some of the more liberal Muslim countries, for example, and in Israel). In societies which make a serious attempt to balance the system of religious law with liberal democratic ideals, there has to be a tacit assumption that it is possible to define certain areas in which religious law can operate in parallel to, and without conflict with, secular law, so that neither has to be privileged over the other. The typical “last preserve” for ecclesiastical law, it seems, is family law, but in some places, particularly in Africa and Southeast Asia, “traditional” legal systems have been drafted to deal with post-conflict mediation/prosecution, for example. Of course, the system of isolating “preserves” of law is not always successful, since conflicts will regularly emerge, typically between traditional family law and constitutional statements on the rights of women and children.

    The relevance to your subject is that, from what I understand from your posts, the Mormon ecclesiastical system, in its heyday, was NOT restricted to family law issues, yet its downfall, whose complexities you’ve begun to draw out, stem in large part from a disagreement with the secular law of the land over family law, and in particular over polygamy. This raises the question for me of how come it is that the very same area of law that in other societies today is considered a “safe” (or perhaps simply non-negotiable) preserve for traditional and ecclesiastical legal systems in so many states is the one that brought down the uneasy coexistence between the two legal systems in the case that interests you? And what can we learn from this about the future of the family law “preserve” in places like Israel?

  2. Nate Oman says:

    I think that you are right to point out that the relationship of civil and religious legal systems remains a live issue today. Likewise, in the case of Jewish and Islamic courts my understanding is that family law is the big flashpoint.

    For the Mormon courts family law was a concern, as they courts handled issues related polygamy. (Divorce was relatively common among 19th century Mormon polygamists, with the resulting legal issues.) On the other hand, the ecclesiastical courts always handled much more than cases related to polygamy. Indeed, their use to resolve “civil” disputes — issues of tort, contract, and property — both predates the introduction of polygamy in the late 1840s and its abandonment in the 1890s. Interestingly, the courts seemed to have floundered on more prosiac problems like their inability to provide in rem remedies, although to be sure there was sporadic opposition to their expansive jurisdiction by the secular courts and politicians.

  3. StClair says:

    Cross-cultural comparisons are always complex, the moreso one wanders into political territory. The gradual dissolution of the Mormon legal system coincides as well with the development of the political capacity of the United States government.

    As someone who spent part of his life living in the Mormon community I find your thesis of great interest, and wish you the best in developing it. I would invite you to consider the wider social-political context–as a matter of constant growth and change–in your ponderings.

  4. StClair says:

    Rereading your post I see I’ve gotten distracted by the content of your presentation, rather than responding to the thrust of your post.

    I would hope that the audience you wish to reach with your blogging cum advertising would be selective and persistent enough to slog their way through the muck and grime that constitutes so much of the blogworld to find a the treasure you’re offering.

    Concurring Opinions is a potent platform to speak from, and I hope you’re becoming a student as well of the technology behind effective marketing in this world–e.g., the necessity of being linked to other blogs, knowledge of the algorithm driving Google, etc.

  5. Eric says:


    Why does architecture not have first amendment recognition? Currently, the government appears to reserve the right to architectural expression to itself, as an administrative matter, while denying the same right of expression to individuals.

    One leading (unnamed) constitional scholar recently said that that architecture “…lacks the capacity to convey ideas…” that other forms of art and entertainment – and he included pornography in this category of art and entertainment – do.

    One other thought is that architecture affects property values and is therefore derived from the commerce clause. Racial property covenants also affect real estate values, but that does not mean that issues of race are commercial issues. In fact, we find the concept repugnant.

    Is there anyone who posts in this category who has a more credible response? I’m posting this same question as a comment to several bloggers, and if it is slightly off topic to the post that it follows, that is because it is intended to address the larger issue.

    Thanks in advance.