Lutheran Theology and Secular Law: The Work of the Modern State edited by Marie A. Failinger and Ronald W. Duty

[1] John Witte, Jr. broke significant ground in 2002 with his book Law and Protestantism: The Legal Teachings of the Reformation (Cambridge University Press).  Witte demonstrated that the Lutheran reformers not only thought theologically about matters such as civil society, marriage, and education but also used their theological lens to shape actual laws for their communities.  For this reviewer, Witte’s book was an important stimulus for the insight that Lutherans name Luther’s distinction between the civil and political uses of the law but have not typically paid sufficient theological attention to the civil use of the law.  Doubtless for U.S. Lutherans this lack of attention has been shaped by popular conceptions of the separation of church and state.

[2] Lutheran Theology and Secular Law is the second of two volumes edited by Marie Failinger and Ron Duty that boldly take on the task of bringing Lutheran theology and legal theory and practice into conversation.  The first volume was On Secular Government: Lutheran Perspectives on Contemporary Legal Issues (Eerdmans, 2016, $45).  This second volume was published by Routledge in its ICLARS (International Consortium for Law and Religion Studies) Series on Law and Religion.  Unfortunately, that has resulted in a price more appropriate for libraries than for individuals, but the book itself is an accessible collection of essays – some more theoretical, some more practical – and deserves a wide reading.

[3] The fifteen essays in the volume are divided into six parts:  (1) Our secular age, (2) Lutheran theology and legal philosophy, (3) The individual and the state, (4) International law and human rights, (5) Domestic legal issues, and (6) Professionals, law, and neighbor-love.  The three essays in the first two parts of the book are the most theoretical.  For this reason, readers might consider jumping in midway through the volume, with the more topical essays, and circling back to the introductory essays later.

[4] The sixteen authors (one essay is co-authored) draw on a shared understanding of what has traditionally been called Luther’s “two kingdoms doctrine.”  Rather than separating the “spiritual kingdom” from the “kingdom of the world,” the authors argue for a dynamic interpretation of God’s twofold activity in the world, working on the one hand through the Gospel to bring about faith and on the other hand through the law to establish and maintain justice and peace.  Within this framework, “secular” does not mean irreligious; rather, “secular” describes the real world that God created and in which we (Christians and non-Christians alike) live.  Indeed, in the first essay in the volume, Stefan Heuser argues that the secularization of politics is an essential protective against idolatrous understandings of worldly power.

[5] Craig Nessan’s essay, “Luther’s two strategies and political advocacy,” grounds this interpretation of God’s twofold activity solidly within the core of Luther’s theology.  God’s twofold activity in the world encompasses two uses of the law (civil and theological), two kinds of righteousness (alien and proper), two uses of reason (fallen in its attempts to understand God on its own terms but useful in dealing with civil affairs), two dimensions of the human will (bound with respect to salvation but having agency in worldly matters), and two understandings of human works (useless for justification before God but necessary for serving our neighbors).

[6] Nessan’s essay is one of several in the volume that present Lutheran theology as offering a “third way” between often polarized positions.  For Nessan, “neighbor politics” is an approach to political engagement and advocacy by Christians that resists both the pull of quietism and the pull of religious identity politics.  In their essay, Failinger and Pat Keifert argue that a Lutheran perspective on family law avoids the false dichotomy of viewing marriage either as status or as contract.  Carl-Henric Grenholm shows how a Lutheran legal theory draws on the strengths of both legal positivism and natural law approaches in order to affirm the internal validity of civil law while providing warrants for an ethical critique of the content of civil law. 

[7] I, too, have argued that a Lutheran perspective grounded in the proper distinction (but not separation!) of God’s twofold governance offers a much-needed voice in the current political context.[1]  One still encounters critics who claim that any theological discussion of law or politics that goes beyond encouraging individual engagement by Christians is an illegitimate attempt to cloak a particular political agenda in religious language.  For such critics, Mary Jane Haemig’s essay on “Economic justice and the seventh commandment” offers evidence of a strong Lutheran social ethics already within the first generations of reformers.

[8] Haemig examines sixteenth-century German Lutheran sermons on the seventh commandment, “Thou shalt not steal.”  In almost every case, she finds, preachers did not limit themselves to condemning individual violations of the commandment but named issues of social and economic injustice as violations of the commandment.  One of these preachers, B. Sebastian Froeschel, named refusal to contribute to the common good as a form of theft – a pointed critique of the individualistic, competitive capitalism that is so prevalent today.

[9] Ron Duty’s essay critiquing “The Doctrine of Discovery in American Indian law” is a concrete example of the kind of legally and socially sanctioned theft that Haemig’s sixteenth-century preachers condemned. 

[10] Duty’s essay, along with Mary Streufert’s essay on rape law and Kelly Denton-Borhaug’s essay on U.S. treatment of “unlawful alien combatants,” exemplify the theological approach to human rights set forth by Ted Peters in his essay, “Liberation, law and proleptic dignity.”  Peters’ argument for the recognition of human dignity is grounded eschatologically:  trust in the belief that all persons are created in the image of God allows Christians to anticipate God’s intended future, conferring dignity here and now on those whose dignity is not recognized by others or even by laws and social structures.  Recognition of this common human dignity should be reflected and embodied in American Indian law, in laws dealing with sexual violence and abuse, and in the so-called “war on terror.”  Where dignity is not yet recognized, it must be conferred and defended!

[11] Deanna Thompson and Brad Wendel address the challenging areas of medical and legal ethics, respectively.  Each wrestles with the conflicting claims of duty to a patient or client and duty to one’s profession.  How does a physician participating in a clinical trial relate to a patient in light of her duty to give the patient a placebo rather than a medicine that might improve the patient’s health?   How does a lawyer function with the knowledge that honoring the confidentiality of a guilty client may result in the punishment of an innocent third party?  Medical ethics, particularly the ethics of medical research, do not always serve individual health.  Legal ethics, particularly attorney-client privilege, do not always serve justice.  Neither Thompson nor Wendel offers an easy resolution to these dilemmas.  Thompson lifts up Luther’s neighbor ethic, suggesting that physician and patient each be invited beyond the requirements of duty to see and relate to each other as neighbor.  Wendel, whose essay is the last in the volume, simply names the irresolvable ethical tensions that may arise between personal and professional ethics on this side of the Kingdom.

[12] Paul Hinlicky’s essay, “Antinomianism—the ‘Lutheran’ heresy,” in a way offers a frame or a rationale for the project as a whole.  One typically thinks of antinomianism as a personal vice:  disregard for the law in the name of Christian freedom, best captured in St. Paul’s rejection of the position, “What then are we to say? Should we continue in sin in order that grace may abound?  By no means!” (Romans 6:1-2a).  The object of Hinlicky’s critique, however, is a corporate and even ecclesial antinomianism, a cheap grace characterized by H. Richard Niebuhr as a “God without wrath who brings men without sin into a kingdom without judgment by the ministrations of a Christ without a cross.”[2]  Most theologians and pastors I know would agree with Niebuhr’s criticism; however, I not infrequently encounter this kind of antinomianism in preaching and teaching that conflate God’s justice and God’s mercy.  God’s grace is not an a priori principle but a faith claim known a posteriori, on this side of the cross and resurrection.  Lutheran Theology and Secular Law is a powerful resource for those of us who understand that the proper distinction between justice and mercy, both theologically and civilly, is essential to maintain the integrity of both.

Rev. Dr. Kathryn A. Kleinhans is Dean of Trinity Lutheran Seminary at Capital University.