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Gottfried G. Krodel is professor emeritus of church historyat Valparaiso University.
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LEX CHARITATISA Juristic Disquisition on Law in the Theology of Martin Luther
By Johannes Heckel
William B. Eerdmans Publishing CompanyCopyright © 2010 William B. Eerdmans Publishing Company
All right reserved.
Chapter OneThe Problem
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According to the prevailing Protestant position, the Reformation was a struggle for the freedom of faith against the sovereignty of law in the church. Seen from a higher perspective, this is the same as the struggle for the righteousness of God (iustitia dei) against the justice of the jurists (iustitia iuristarum). As a result, the theological treatment of law, the term which in theology is used to deal with juridical topics, is totally removed from the doctrine of law found in jurisprudence. Instead of converging, theologians and jurists strictly separate the subject to be investigated in each discipline. Theologians and jurists together are convinced of the correctness of this method, and they mutually suppport each other. This is most obvious in their positions on the problem in Luther's doctrine of law, divine law. Because of its decisive significance for our work, we have to sum up, be it ever so briefly, the relevant research on this subject; this will enable us to evaluate the usefulness of the method used in the past and to gain insights for what perhaps may be a necessary new approach to the problem.
§ 1. The Present Situation in Research
Jurists dominate the scholarly discussion on divine law. Christian Thomasius, a famous jurist, began a campaign against it, and a second, equally famous jurist, Rudolph Sohm, concluded this campaign. For the history of ideas it would be instructive, and for theologians and jurists alike it would be rewarding, were one to investigate the reaction to Thomasius, and also when and for what reasons the concept 'divine law' disappeared from Lutheran theology, jurisprudence, and legal practice.
No branch of jurisprudence can be more interested in this task than ecclesiastical law, and no branch is more called upon to be engaged in this task. In every other field of law, divine law can either be rejected with the help of an exclusively secular jurisprudence, or it can be sidetracked to a large degree by a positivist theory of law — not so in ecclesiastical law! Here not only the legitimacy of individual commandments or actions is at stake but the very existence of law itself. If the church, for reasons of faith, does not acknowledge the existence of divine law, how could it justify a man-made law for its communal existence in the world? For this reason ecclesiastical law has to deal with divine law. In light of this situation it is understandable that ecclesiastical law became the bastion of divine law when in every other field of jurisprudence it succumbed to the attacks started by Thomasius.
Even this restriction of divine law to ecclesiastical law did not remain unopposed. Let me mention just one name in this scholarly battle, which marks the end of the earlier debate as well as the beginning of our current one. Who else could it be but Rudolph Sohm? He lives in the history of Protestant ecclesiastical law as the creator of a great truth and an equally great error — an error which nevertheless was fruitful because it still contained some truth. His lasting achievement was a new concept which he introduced into the previous discussion about the relationship between church and law. This concept was the kingdom of God.
For centuries, Protestant ecclesiology had used the Christian congregation as the starting point for making the transition from the concept 'church' to the concept 'man-made ecclesiastical law'. Justification for this argumentation was derived from the confessional writings of the Lutheran church; yet neither were they completely used nor was their original meaning totally understood. In the 1840s two forms of the church were differentiated, and in each was present a totally different position on law: the church of faith, the invisible church (ecclesia invisibilis), which, because of the demands of dogma, is free from law, and the church of law (ecclesia visibilis); because of empirical necessities, that visible church is constituted as a legal association. Zwingli was the first to make this differentiation; Melanchthon introduced it into Lutheran ecclesiology, and Lutheran Orthodoxy developed it further. This interpretation, or rather new interpretation, of classical concepts of the ecclesiastical law of the Reformation opened a new chapter in the history of Protestant ecclesiastical law. Positivist ecclesiastical law took control of the visible church just about at the time that Positivism in public law began to control the law of the secular commonwealth. Positivism succeeded in public law, but it did not gain much credibility in ecclesiastical law. Scholars were unable to eliminate the glaring contradiction that exists between one form of the church, in which law is detested, and another one, which demands law; their logic and theology obviously suffered from inconsistency.
Here Sohm made his move. With amazing intuition he more sensed than realized that the concept 'kingdom of God' was one of the strongest roots of the doctrine of law developed by the Wittenberg reformers, especially Luther. This concept, he believed, was the only basis for a doctrine of Lutheran ecclesiastical law. Who could possibly discuss the legal community of Christ's disciples before clarifying the legal relationship between the master and his disciples, between the king of Christ's kingdom and the Christians? This question is both a theological and a juristic one, and it is beyond the church in a legal sense. Emanuel Hirsch called the concept 'kingdom of God' the restless element in the history of the modern doctrine of the state. Since Sohm, the kingdom of God has been such an element of restlessness in the theory of Protestant ecclesiastical law as well. This was Sohm's lasting achievement. He has shaken the self-sufficiency and self-confidence of juristic Positivism in Lutheran ecclesiastical law. He only shook them, however; he did not dispose of them. A necessary consequence was the problem 'law' in the kingdom of God, that is, the problem 'divine ecclesiastical law'. And it had to become the chief part in the doctrine of Lutheran ecclesiastical law, though until now its significance has hardly been recognized. In any case, Sohm passed over it without much ado. Because of his theological framework he saw no need to deal with the problem 'divine law'. His theses were simple and, therefore, captivating: Law is hostile to the kingdom of God, a kingdom of freedom and love; law resides in the world, that is, among mankind which had fallen from God and declared its independence from him; the church is the manifestation of God's kingdom on earth and, therefore, has nothing in common with law. "Ecclesiastical law contradicts the essence of the church."
This ended all discrepancies among the previous positions on the relationship of church and law. It was a terrible end for the discipline of ecclesiastical law, and its representatives desperately tried to fight this death sentence. But those who agreed with Sohm's statements about the characteristics of God's kingdom on the one hand, and about the nature of law on the other, could not possibly reject his conclusions. Therefore all attempts to prove him wrong failed.
Unlike the scholars of ecclesiastical law, the majority of evangelical theologians gratefully accepted Sohm's theses because they gave the problem 'law' its proper place in the theological system. Instinctively, theologians had always disliked any kind of spiritual law, even when it was cloaked in Protestant thought; now they seemed to be fully justified, and this through the work of an eminent jurist. They no longer had to deal with a spiritual law. Law was no longer a topic in the faith, and faith no longer a topic in law. Spiritual law was now a concept without any significance for Salvation; it was contrary to faith and, therefore, an illegitimate concept, a symbol of the intrusion of the world into God's kingdom. Theologians withdrew to an area which was free from law, and thereby they thoroughly alienated themselves from law. Whenever they dealt with law, they worked with a concept 'law' which originated outside of their area, that is, the law of the world.
To that same area outside of theology Sohm exiled ecclesiastical law. He never doubted or even reinterpreted the secular concept 'law'. On the contrary! He exposed ecclesiastical law as a law originating in the wrong place, namely, the church. As a result, ecclesiastical law lost whatever special status it had had within general jurisprudence. The venerable term ius utrumque was unmasked as a lie. Ecclesiastical law was nothing other than secular law for religious matters, whether it was written by a secular governmental authority or the autonomous association of Christians.
Of necessity, Sohm's theological and juristic starting point caused the denial of the existence of divine law and, therefore, also of manmade ecclesiastical law. In light of Luther's theology, such a denial is contestable from the start. One has to remember only Luther's translation of Psalm 99:4, a passage which is famous in the history of law: "In the kingdom of this king one loves the law." Of which law did the psalmist speak? The law of fallen mankind, or the divine law of Christ's kingdom? Further, the authors of the confessional writings of the Lutheran church frequently mentioned divine law. Certainly, this was not the divine law of the canonistic doctrine of law. Yet by no means can one deny that they intended to make statements about law. These samples compel us to conclude that Sohm's theory, too, is flawed. From Luther he took only the concept 'kingdom of God', but he combined it with the concept 'law' of a much later period without realizing that Luther would not agree with that period's secular concept 'law'. In short: He failed because he ignored divine law; he never found the key to Luther's concept 'law'. He made the mistake of "brewing together faith and reason," to use Luther's words. Yet even this negative result was valuable for further research; it warns us not to date our present concept 'law' back to the thoughts of the Wittenberg reformers, and it challenges us to develop their concept 'law' on the basis of their understanding of faith.
Fortunately, soon after Sohm's battle cry against ecclesiastical law scholars of historical theology began to investigate biblical natural law, another main concept in Luther's doctrine of law. There was hope that this concept might shed more light on the relationship of faith and law than positive divine law had done before. For a long time Protestant textbooks of ethics had not contained a chapter on natural law. It emerged again at the turn of the nineteenth to the twentieth century, when social questions demanded answers. At the same time, Leo XIII vigorously revived the Roman Catholic doctrine of natural law, and this forced Protestants to reflect upon their own position critically. When scholars of historical theology traced the Protestant doctrine of natural law back to Luther, they, surprisingly, arrived at two rather different results. One could be called traditional, the other idealistic.
According to the first, Luther maintained a patristic-medieval concept of natural law, which he derived from the theological tradition. In the original revelation, God communicated 'absolute natural law' to human reason. After the Fall of Adam, that law was adjusted to man's sinful condition; it became 'relative natural law', and it has remained valid in the world ever since. In this way, divine dignity of origin was given back to the law of the world, its beginning being traced back to the Original Status of the Creation. Therefore it retains its validity even after the Fall, as Scripture testifies. Luther was understood as being under the spell of the natural-law theories of the pre-Reformation era. Whether these theories have been correctly understood does not concern us at this point. In any case, <in this thesis regarding Luther's supposed affirmation of pre-Reformation natural-law theories> not the reformer but the medieval man Martin Luther is the center of the argument. The thesis was first developed in 1901 by the French theologian Eugène Ehrhardt, and its historical orientation led to its success in Germany. Max Weber, and especially Ernst Troeltsch, Günther Holstein, and others supported it. Among jurists it may even today still be considered the dominant thesis.
The Luther expert Karl Holl, however, strongly opposed this thesis precisely because of its medieval, repristinating character. In connection with this thesis, he understood Luther as the great innovator, as he did in connection with other topics. According to Holl, Luther was "the first to cut a breach into the idea, handed down from antiquity, that all nations have the same natural law." Whenever Luther spoke of natural law, he did not deal with matters of law but rather with the Christian commandment of love as a moral norm. In short: According to Holl, Luther did not recognize natural law. Thus theology and the legal concept of the world remain dissociated, as described above. "The question whether natural law can exist concerns jurists," argued one of the most recent authors dealing with our subject; therefore theologians are not responsible for finding an answer to the question.
For the time being, the question how the controversy among Luther's interpreters has to be decided will be postponed. At this point it is important to see where they agree rather than disagree. They all are convinced that law has a secular quality. Some ascribe a thin halo of original holiness to law, others do not. But they are absolutely certain that according to Reformation principles a spiritual law cannot exist. They only cannot agree, however, whether Luther's position on natural law was a remnant of medieval theology, which was contrary to these principles, or something else, perhaps just a moral lecture in which the author used legal terminology.
This is the situation in research today. Scholars have come considerably closer to Luther's view of law. They are no longer satisfied with an abrupt confrontation of God's kingdom and the kingdom of the world; they see God's will for law at work also in the kingdom of the world. Nevertheless, the point which is decisive for our work remains: all law is secular. Therefore the author of the most recent study in the field of legal philosophy, which offers the deepest insights in Luther's thought, summarized: "Luther left all law, including ecclesiastical law, to the world. But this does not mean that he desacralized it, that is, completely secularized it, as the Neo-Protestants did later. For Luther law was simultaneously both secular and sacred."
However, if one uses this secular concept of law to interpret Luther's diverse statements about natural law, one soon is lost in a jungle of incomprehensible and incompatible assertions. Even if one grants Luther a truly immense freedom in the use of legal terms, even if one willingly accepts his serious or playful paradoxical theses, one cannot help thinking that a great mind is leading one astray into impenetrable underbrush. The most recent careful analysis of Luther's individual statements on natural law confirms this. Writes Hans Liermann, one of the experts on Protestant ecclesiastical law of our time:
If one approaches the complex of questions on Luther and natural law without any bias, one realizes the futility of any attempt to extract any system of legal philosophy from Luther's writings. In terms of legal philosophy one could call Luther a naive proponent of natural law, who uses natural-law phrases whenever they are convenient, now this way, now that way, as they flow from his pen. One cannot claim for him any consistency in legal philosophy. The more one tries to decipher and interpret his contradictory statements, the more contradictory they become, and the more unclear becomes the picture of the situation in the history of ideas — what really happened. Therefore it is better to admit frankly that one cannot at all use his writings for the problem productively. This statement does not minimize his religious genius. His greatness lies in a quite different area.
Excerpted from LEX CHARITATIS by Johannes Heckel Copyright © 2010 by William B. Eerdmans Publishing Company. Excerpted by permission of William B. Eerdmans Publishing Company. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
ContentsPreface by Martin Heckel....................xi
From Martin Heckel's Preface of the Second German Edition of Lex charitatis, 1973....................xiv
WHICH CONCEPT 'LAW' DID MARTIN LUTHER AFFIRM?....................1
1. The Problem....................5
2. The Theological Origin of Luther's Doctrine of Law and the Development of Luther's Doctrine of Law....................16
3. The Origin of Luther's Doctrine of the Two Kingdoms....................25
4. The Kingdom of the World....................27
5. The Kingdom of Christ....................30
6. The Kingdom of God at the Right and at the Left of God....................33
7. The Connection of the Doctrine of the Kingdoms with the Doctrine of Law....................39
8. The Divine Law in the Status of the Incorrupt Nature....................43
9. Human Law in the Status of the Corrupt Nature during the Age of Unwritten Law....................54
10. Written Law....................81
11. The Law of Christ....................84
12. The Christian as a Member of the Church in the World....................97
13. The Christian in the Estate of Marriage....................102
14. The Christian in the Politia....................105
WHAT HAPPENED TO LUTHER'S DOCTRINE OF LAW?....................129
I. Luther's Doctrine of the Right of Resistance to the Emperor....................133
II. The Cura Religionis of the Evangelical Prince....................140
III. In the Maze of Luther's Doctrine of the Two Kingdoms....................145
IV. Church and Ecclesiastical Law in the Frame of the Doctrine of the Two Kingdoms....................176
V. The Unfolding of the Doctrine of the Two Kingdoms as a Doctrine of Kingdoms and Governances....................204
VI. Announcement of Initia Iuris Ecclesiastici Protestantium....................216
VII. Announcement of Lex Charitatis and of "Widerstand gegen die Obrigkeit?"....................223
Titles of Cited Luther Texts....................506
Short Titles and Place of Full Citation....................512
Index of Bible Passages....................527
Index of Subjects....................531