[1] John Witte, Jr. concludes this superb study with a prophecy:
"Heaven will exalt due process, and each will always receive what's
due. Hell will exalt pure caprice, and no one will ever know what's
coming" (303). That is literally a prophecy, but a well-founded one
drawn from the story Witte tells in this book. "In a 1531 oration
at the University of Wittenberg, Philip Melanchthon declared: 'It
is impossible to uphold civil discipline without religion, and
jurisprudence is shaped most by religious doctrine.' Indeed, only
when 'religion adds its voice to civil precepts' does law have the
authority to govern and the power to reform. These sentiments were
the watchwords of sixteenth-century Lutheran jurisprudence. For the
early Evangelical jurists, law and Gospel, justice and mercy, rule
and equity, discipline and love, order and faith, structure and
spirit, all properly belonged in the governance of the earthly
kingdom. To separate one dimension from the other was to serve the
Devil and get a foretaste of hell. To hold them in tension was to
serve the Divine and to see a glimmer of heaven" (175).
[2] Witte's book tells a tale of social transformation in lands
that adopted the Lutheran reformation and applied its basic
theological teachings to the reform of the temporal as well as
spiritual sphere. It was one of the core Lutheran theological
convictions that the Church has no sword, no temporal jurisdiction,
except in the highly restricted sense of its organizational
self-governance in regard to doctrine, liturgy, and ecclesiastical
orders. Regarding this latter, Witte shows how beginning with
Melanchthon's Luther-endorsed Visitation Articles and continuing
through many new "reformation laws" modeled after Bugenhagen's
Church Order, the early Lutherans quickly found their way back to
ancient canon law as a sound source for the institutional church's
self-regulation. Canon law also provided a long history of
carefully worked out jurisprudence with continuing relevance for
matters like marriage that were now tranferred to the oversight of
the civil magistrate. So considerable continuity with the
antecedent tradition manifested even in regard to reformed uses of
canon law.
[3] Yet the truly innovative thing that occurred under the impact
of the Lutheran teaching was the new theological legitimation given
to secular power and the specific reforms in civil law, political
theory and judicial practice this produced. What were these
reforms? In essence, the Ten Commandments provided the divinely
clarified teaching of the natural law inscribed by God in creation
and for this reason replaced the sacramental system as an
over-arching moral framework for the organization of civil law. In
political theory, the papacy's claim to the hold two keys was
replaced by the new doctrine of the Protestant magistrate, who not
only held the sword as God's "lofty viceroy" on earth, but was to
represent God paternal care for his children in works of public
welfare (the community chest and public education particularly). In
judicial practice, the rule of law was strengthened, not subverted,
by the further development of the theory of equity, which
encouraged both new scholarly research in law and a definite
judicial activism. Equity - the rational capacity to put oneself in
the place of another, the Golden Rule-provided a rule for applying
rules.
[4] While the results of this turn from Gospel to law, as we shall
see shortly, were not wholly unambiguous, Witte's detailed case
goes a long way toward reframing Troeltsch's judgment that the
Lutheran reformation 'simply continued the medieval conditions,'
was 'no watershed in the Western tradition, and certainly not the
font of modernity' but only 'new solutions to medieval problems.'
(23-26, passim). But Witte sees the origins of modern republicanism
in a student of Melanchthon's, Johannes Eisermann (1485-1558) whose
tract 1533 tract On the Common Good, later expanded and retitled,
On the Good Ordering of a Commonwealth was "the first detailed
social contract theory of the Christian commonwealth to emerge in
Evangelical Germany." (153). Eisermann was concerned "to construct
a theory of the common good out of a theology of total
depravity."
[5] Witte's portrait here of one of the first of many great debates
about the 'state of nature' that occupied Protestant political
theorists in coming years is worth a closer look. In Eisermann's
view, "the state of nature began as a perfect realm of
Paradise…." (143). "They were by their natures 'civil and
communal.' They lived in perfect communion with God and perfect
community with each other… In the perfect state of nature in
Paradise, human life had been lovely and long. In the sinful state
of nature after the Fall, human life had become 'brutish' and
'short' (ferus et brevis). Despite the fall into sin, however, God
has allowed all people to retain a glimmer of those 'inborn sparks'
of honesty, virtue, and community with which they were created: an
innate knowledge of a natural law of love of God, neighbor, and
self, and a natural sense of equity by which these laws must be
applied… They could quickly be extinguished and forgotten
through depraved and debased living. But they could also be ignited
to give greater light if they were subject to 'careful study.'
Throughout history, Eisermann argued, 'God has always lifted up
wise men,' who have undertaken such 'careful study' of these
'inborn sparks' of natural law… Egyptians, Greeks, Romans
and other ancient peoples of the West all saw that 'man is by
nature sociable and aspires to society and community of life, in
order to curb vice and embrace virtue, to help others, and to find
a way to help himself and his community.' Accordingly, each of
these ancient peoples has formed a 'covenant of human society
(foedus humanae societatis)…'" (144). "A commitment to the
rule of law was the most essential provision of all these early
social covenants" (145).
[6] According to Witte, Eisermann drew three conclusions for the
construction of the new Christian republic: 1) "Christians have no
monopoly on the understanding of natural law and natural reason,"
2) "there is no single foreordained or natural system of society,
politics, and law…" and 3) "there is no single person -far
less a single dynasty-in a commonwealth that should naturally rule"
(146).
[7] The new legitimacy accorded to temporal power was thus
generative of progressive political thought and reform. Witte
correctly assigns that new legitimacy to Luther's two kingdoms
doctrine, which he keenly characterizes as a horizontalizing of the
vertically imagined traditional notion of a 'great chain of being.'
God is not to be depicted remotely at the pinnacle (and for that
matter 'located' there at a safe distance), whose governance is
then mediated by natural hierarchies of descending links in the
great chain -- some which function as vicars of the absent deity.
Rather Luther's God is at once the Creator of all that is other but
for that very reason is immediately and omnipotently present to all
levels of being in the various 'masks' he adopts. The two kingdoms
are not two similar magnitudes of heavenly and earthly things
aligned in a vertical series, but the kingship of God the Creator
manifests its rule in earthly masks of three coeval estates
established at the creation: the domestic economy, the church and
the state. Before God these three estates are equal just as they
are autonomous in relation to each other. Each has its own specific
mandate, which collaborates with the others for earthly and
heavenly welfare. In this view, secular power is not chiefly the
state, nor is it chiefly characterized by possession of the sword.
All three estates comprise the secular kingdom and mutually limit
each other. Witte uses this theological scheme to describe legal
reforms affecting not only the church, but also public morality,
marriage, education, and poor relief.
[8] There is of course a dark side to this fusion of state
paternalism with the monopoly on the means of coercion. The ancient
commonwealths were, in the view of Melanchthon and Eisermann,
"incomplete. They can speak only to a 'civil goodness,' not to a
'spiritual goodness'… For none of these classical
civilizations had the full biblical revelation of the heavenly
kingdom on which the earthly kingdom must be partly modeled" (147).
"For Eisermann, this meant that the law of the prince must coerce
citizens to a 'civil goodness,' and also cultivate in them a
'spiritual goodness'" (151). Eisermann was following his teacher,
Melanchthon, who "went beyond Luther… in articulating the
divinely imposed task of Christian magistrates to promulgate what
he called 'rational positive laws' ('rationes iuris positivi') for
the governance of the earthly kingdom" (129). Melanchthon regarded
the Christian magistrate as "the 'custodian' of both tables of the
Decalogue, 'a voice of the Ten Commandments' within the earthly
kingdom… magistrates must pass laws against idolatry,
blasphemy, and violations of the Sabbath - offense that the First
Table prohibits on its face. Magistrates are also, however, to pass
laws to 'establish pure doctrine' and right liturgy, 'to prohibit
all wrong doctrine,' 'to punish the obstinate,' and to root out the
heathen and the heterodox" ([citing CR 22:617-18] 131). Witte
rightly notes that "Melanchthon's move toward the establishment of
religion by positive law was a marked departure from Luther's
original teaching…" (131). The cuius regio, eius religio
principle of the Interim, and at length "the Peace of Westphalia
(1648), rested ultimately on Melanchthon's theory that the
magistrate's positive law was to use the First Table of the
Decalogue to establish for his people proper Christian doctrine,
liturgy, and spiritual morality" (132).
[9] Witte is well aware of the problem his scholarship uncovers
here. On the positive side, he can conclude that "a good deal of
our modern Western law of marriage, education, and social welfare,
for example, still bears the unmistakable marks of Lutheran
Reformation theology" (295). He emphasizes that ".. the state has a
role to play not only in fighting wars, punishing crime, and
keeping peace, but also in providing education and welfare,
fostering charity and morality, facilitating worship and
piety… law has not only a basic use of coercing citizens to
accept a morality of duty but also a higher use of inducing
citizens to pursue a morality of aspiration" (296). But on the
negative side, he notes that ever since the Reformation times
"Germany and other Protestant nations have been locked in a bitter
legal struggle to eradicate state establishments of religion and to
guarantee religious freedom for all…" In the end, he tips
his assessment toward "an instinct for egalitarianism" rooted in
the Reformation view of the equal value of all persons before God
as "the Lutheran gene in the theological genetic code of
Protestantism" (303), an emphasis which links together rights and
duties, gospel and law in the Christian republic.
© February 2004
Journal of Lutheran Ethics
Volume 4, Issue 2