I think that much of the discussion has moved on, and hopefully addressed some of the points in your comment. However, I am puzzled by one claim:

“To be “halacha” the justification of a practice or doctrine would have to be essentially accidental or non-existent. I claim that real world doctrines and practices in the Mormon world rarely if ever lack reasoned justification, and that those reasons are readily apparent in almost all cases.”

I am not sure that I follow you here. You seem to be saying that halacha lacks reasoning, but that Mormon thinking has reasoning. While I think that the first claim is either a misunderstanding of halacha or simply wrong, I don’t disagree with the second claim at all. The question is to what degree is the “reasoning” taken. In the example that I give concerning boiled wine, I admit that one can think of reasons why it shouldn’t be done. I claim that these reasons will in fact contradict the reasons that wine may be eaten. What I’m saying is that when one looks at a broader totality of Mormon practices, there is inevitably going to be tensions, contradictions, and aporia.

I would, at some point, like to have a more full discussion with you about a sub-issue here concerning authority. I recall many years ago our conversations about the nature of Mormon authority and its normative value, and I am pleased that you’ve been working on this issue which confounded me back then, and still does. Perhaps you’ve worked this out elsewhere (should I reread your Element article?), but I am not totally sure I understand what you mean when you say: “I see no particular reason why authority must be univocal.” Isn’t this the very nature of Mormonism’s authoritative claim? As examples of this, you note “in many situations no such unitary answer is necessary,” but this suggests that in at least some situations a unitary answer is necessary. However, the methodological claim that I am making is that single, authoritative answers never exist if one de-centers power and authority, which is precisely what a look to practices will always entail. In this case, when you claim “any reasonable reading of Mormon approaches to property would foreclose a Mormon from adopting the philosophy of Ayn Rand,” you are simply putting forth as authoritatively “Mormon” theories of property that oppose Rand, while much of 20th century Mormon thinking about property from Skousen and other political conservatives (like anti-tax movements) would probably be quite compatible with Rand. I think that the tensions and competing practices and ideologies within Mormonism resist singular accounts of what is “normative” for Mormonism.

1. You believe that acknowledging any pluralism or polyvocality presents problems for any notion of authority because either (a) it demonstrates the absence of authority because what is authoritative must be unitary; or, (b) authority will require the privileging of one position over others, which will impoverish and flatten out our understanding.

2. You believe that while legal theory may be useful for analyzing legal issues within Mormonism, you believe that Mormonism lacks enough legal content for the approach to be particularlly fruitful.

Assuming that I have the gist of your arguments right, let me respond. First, I see no particular reason why authority must be univocal. It depends on how the authority is used. For some purposes we may need a single authoritative answer, but it seems to me that in many situations no such unitary answer is necessary. This doesn’t mean, however, that the notion of authority is doing no work at all. For example, a plurality of positions may nevertheless foreclose certain positions. For example, I take it that any reasonable reading of Mormon approaches to property would foreclose a Mormon from adopting the philosophy of Ayn Rand. Authority may also serve to orient our thinking in certain directions, even if its polyvocality means that it ultimately cannot adjudicate between all alternatives. In the end, I think that we need some notion of authority to make sense of the way in which Mormonism has a claim on Latter-day Saints beyond the merely aesthetic or nostalgic. Finally, I think that many of the critiques of authority are ultimately motivated less by the conceptual difficulties of thinking authority per se, than by the creeping force of philosophical liberalism. Hence, I think that there is a tendency to dismiss the notion of authority based on liberal assumptions about its inevitably reactionary tendency and the evil of reactionary tendecies. While I consider myself a philosophical liberal, I think that it is important to retain a healthy amount of critical distance, otherwise one runs the danger of falling into constantly dismissing the notion of authority on the basis of straw man assumptions about what a theory of authority might mean. Indeed, liberalism in general does a pretty awful job of thinking about authority, with the tendency that authority, from a liberal point of view, is virtually always incoherent and pernicious. This, however, tells us more about the limitations of liberalism than it does about the idea of authority. In short, I think that while polyvocality may present a problem for certain models of authority, I think that the concept is quite a bit richer than is generally assumed.

As to your second point, I disagree with your assumption. I actually think that in many important ways Mormonism IS a legalistic tradition. The problem here arises, I think, for an overly narrow vision of what constitutes legal phenomena or concepts. Certainly the concept of law is enormously important in Mormon scripture and theology. The Restoration scriptures, for example, are rife with references to “the law of the church”, “the law of God”, “a law irrevocably decreed in heaven” and the like. What exactly law means in this context. I think that the assumption that legal theory has nothing to say about this rests on the mistaken assumption that for the law at issue to be the kind of law that legal thought might be useful in addressing it must either take the rather positivist form associated with the modern state or else the intensely exegetical form taken by the Halacha or the Usul al-fiqh. There are, however, many other possibilities within legal thought and it makes sense to me that we use these to think about Mormonism. Likewise, legal practices have had an enormous effect on the growth and form of Mormonism, both in terms of external pressures and contexts and also in terms of internally organizing ideas. The relatively small place of such discussions in Mormon studies thus far reflects more about the interests and expertise of scholars interested in Mormonism than it does about Mormonism. Finally, I think that legal thinking has a great deal to say about any practice that utilizes rules or norms. Indeed, Lon Fuller went so far as to define law as the direction of human behavior through the use of rules, where rule is given a capacious meaning. In short, I think that there is an enormous amount of legal stuff in Mormonism that we simply haven’t thought about very well.

As for discplinary boundaries, there is always the danger when one tries interdisciplinary work of reinventing the wheel or missing important or key issues. There is, however, a counterveiling danger of defending one’s disciplinary turf at the cost of being able to learn something from the outsider. For what is worth, a lot of the earliest anthropologists were jurists. Remember that Maine and Savigny were lawyers before they were anthropologists/historians ;->.

First, concerning whether or not there is an underlying logic to explain practices:

I think that one simply engages in the project of normative reconstruction, working as hard as possible to make as much as possible fit together. As I understand what you mean by “normative reconstruction,” you mean to discover the norms that are operative as the hidden logic behind the practices. I don’t think that you mean that there is a single one at work in all times and all places, but it does seem that you see this at least in analogous ways as structuralism’s search for the hidden structure behind the practices.

I certainly don’t subscribe to some sunny view under which all practices are univocal and coherent. This I take to be an important point, and I think that this can greatly contribute to a more rich analysis. For instance, how might we uncover Mormon theories of contract or property? I take for granted that you acknowledge diversity of thinking within Mormonism, but it seems to me that ultimately this runs into conflict with your robust notion of authority in Mormonism (“take its claims of authority seriously”), because it seems to require you to privilege only one, ultimately, whichever is more “authoritative,” whether it reflects the “majority” of cases you analyze, or the “official” doctrine. The way that the analysis of practices has developed in anthropology, for instance, is to resist the authority, or majority, or official version as representative of THE X view of Y. Michel de Certeau’s Practice of Everyday Life has been influential for my thinking on this. As an example, he describes walking from point A to point B. If one looks at a map of the roads, one sees how to get there, but if one lives in the area, and knows the practices of how to get there, it may look quite different from the official, or even majority way of getting there. It seems that a theory of practices needs to take into account the multiplicity, which entails a desconstructive element, of Mormon practice.

As for the second point, my point is not to suggest that legal theory (as broad of a term as that may be) lacks the august heritage of anthropology, nor that it is some impermeable mass that cannot take account of anthropology or other disciplinary insights, but rather that legal theory as you describe it may have limited utility for doing the kinds of work that you want to put it to use in, especially in the case of Mormonism, which we both seem to agree is not a legal culture. I fully agree with your analysis of the particular cases that you offer in your article, and it seems to me that legal theory is especially adept at accounting for these kinds of legal issues in Mormonism. However, I am not sure that legal theory can offer the fulness of what you suggest you’d like to do in terms of turning to Mormon practices as a site of analysis. (Though my ignorance on this issue may very well be wrong, and it is quite possible that “legal theory” as you’re thinking of it is a branch of anthropology anyway). Certainly, not all practices involve legal thought, and my point that Mormonism lacks a culture of halacha or ijtihad (I think that we can use these concepts interchangeably as analogies here) is where I think that we might be limited. I agree with your assessment of why Mormonism lacks a legal tradition, and I appreciate the work that you’ve done in showing that there are significant interactions between Mormonism and legal thought, but I still wonder if the project you’ve outlined as a turn to Mormon practices doesn’t exceed the limits of the kind of legal thought you see as relevant.

This seems wrong and one need only point to the Word of Wisdom to see this. I think the reason Mormons reject Kosher laws is because they feel (rightly or wrongly) that they were done away with the coming of Christ. That is it isn’t an ethical issue but more a theological point.

With the Word of Wisdom the blurriness of the distinction in Mormon thought becomes apparent. There are lots of Mormons who do see the Word of Wisdom as ethical (and are forever looking for scientific justifications) as well as excusing away scriptural uses of wine. There are those who see it as purely a legal question tied to a test of faith with no ethical overtones. There are those who can’t tell.

The point being that if there were this legal/ethical distinction this problem wouldn’t pop up at all in Mormonism. It’s muddled. Which may mean that Nate’s approach raises interesting questions.

The counter-move is the common LDS view that any scriptural text is at best an approximation of the real law. That is Paul’s spirit/letter distinction as commonly applied in popular LDS thought. The spirit is taken to be a law specific for every circumstance and very context dependent. The letter is always at some level of generality which entails it often gives the wrong answer simply because of the problem of context or because of the weakness of the people in question. (The common justification for the law of Moses in its entirety)