Stare Decisis and the Prophets

Poor Wayfaring Man

The legalistic aspects of Mormonism are fascinating to me.  Here is one.

Stare decisis is a legal concept meant to establish consistency in decisions made by courts. The idea is that once a decision has been made by a court about a certain point of law, future courts should respect that decision and follow suit. This approach conserves judicial resources by obviating the need for people to bring the same legal dispute to court over and over again, because they can look at past cases and reliably predict what a court is going to say about the issue.   It also causes people to take more seriously the decisions of current courts, because today’s decisions are going to hold weight with other courts in the future. Thus, it is a way for courts to legitimize their own decisions by respecting the decisions of their predecessors. Stare decisis is a practical strategy for dealing with the fact that reasonable judges will disagree about what the law means, and even though it sometimes enshrines erroneous decisions into the law, it is generally considered a useful and effective element of the judicial system.

A similar concept is at work for the top leaders of the LDS Church (considered “prophets, seers, and revelators” by believing members of the faith), though the process goes largely unacknowledged. LDS prophets do not openly dispute or dismiss the doctrinal pronouncements of past prophets. This LDS version of stare decisis has an effect similar to judicial stare decisis: the prophets’ doctrinal declarations stay fairly consistent from one generation to the next, and current prophets are legitimized by the idea that the past prophets were always right. LDS stare decisis, however, is not exactly the same as its judicial counterpart, in that it is not presented to the Church as a practical solution for inevitably conflicting doctrinal interpretations of the prophets. As a believer, I knew that the reason the prophets’ doctrinal understandings never conflict was because they each have a special connection to God and are getting Truth straight from the source, not because they always defer to their predecessors.

So how does stare decisis work in a world that is always changing, where yesterday’s answers aren’t always right for today’s circumstances?  In the courts, when that kind of situation arises, judges typically have a couple of different options for handling it: (1) they can be bold, make an exception to stare decisis, and overrule the previous case, acknowledging that it was originally decided in error, or (2) they can pay lip service to stare decisis, but use their mad reasoning skills to make room for a new answer, usually by figuring out a way to relabel the current case as something different from (and therefore inapplicable to) the previous case.   Courts generally prefer option 2, and use option 1 only as a last resort, because overruling a previous case can destabilize the law and harm people who invested resources in complying with the rules established by the overruled case.

A famous example of a court explicitly overruling a clear precedent is the U.S. Supreme Court case Brown v. Board of Education of Topeka (1954), which overruled Plessy v. Ferguson (1896), holding that laws segregating blacks from whites violate the U.S. Constitution, and “separate-but-equal” accommodations are not equal in practice. Cases in which stare decisis is not honored often get very uncomfortable reactions from lawyers who value a system that is reliable and predictable. For example, one of my law school professors (who happened to be black) made a point of voicing his dismay at the departure from the principal that Brown represents. Most people, however, seem to think that Brown was a good call–an idea whose time had come.

As hard as it is for a court to overcome stare decisis, it may be even harder for a leader of the Church to overcome the LDS version. How does one go about overturning something that many people believe to be Truth from God? The backlash against attempts to do that could potentially fracture the Church. Additionally (and not insignificantly), current LDS prophets have a very strong incentive to avoid giving anybody the impression that doctrines taught by their predecessors were never really True–doing so undercuts their own claims to the prophetic mantle and the power and authority that comes with it.  Thus, to my knowledge, a Brown v. Board of Education-style doctrinal reversal has never happened in the LDS Church, and I wouldn’t expect one any time soon.  Like the courts, however, LDS Church leaders have found an option 2 for discarding bad doctrine.  Their mad reasoning skills have culminated in the development of two dueling concepts: “doctrine” and “policy”.

“Policy” consists of the practices and administrative rules by which the LDS Church operates. “Doctrine” is commonly thought of as the theological and philosophical beliefs of the LDS Church, a.k.a. the “Gospel of Jesus Christ”.  Policy is the stuff filling the spaces between and around the doctrines of the Church, giving the Church its recognizable form and enabling it to function in the world.  Policy, unlike doctrine, is not comprised of immutable Truth, and therefore can be changed by Church leaders when necessary.  Doctrine and policy work together seamlessly, and most Church members don’t see a difference between the two, until it is time to carefully retire a doctrinal pronouncement of a dead Prophet, at which time Church leaders relabel the unwanted doctrine as a “policy” (possibly over a period of years), and then simply change or cancel the policy. Using this method, any doctrine of the Church, no matter how basic or foundational, can be erased, without violating LDS stare decisis and diminishing the authority of Church leaders.

In future posts, I will provide examples of this doctrine-changing process at work.


Leave a Reply