Luther on Natural Law
 Can Lutherans do ethics? No doubt Lutherans can act ethically, and there certainly are Lutherans who engage in ethical reflection and analysis. But can Lutherans do ethics as Lutherans; that is, can Lutherans articulate models of moral conduct, or render appropriate judgments in ethically congested situations, in ways that are strictly derived from Lutheran theology? In other words, is there a distinctive moral theology that emerges from within the Lutheran tradition? If so, what would that moral theology look like? One way to approach such a question would be to ask about the tradition of moral theology the sixteenth century Lutheran reformers inherited, to inspect how they received it and whether they adopted, modified or rejected that moral theology. That tradition was based on natural law, prompting then the question: did the early Lutheran reformers - in particular, Luther and Melanchthon - embrace natural law as the basis for a specifically Lutheran moral theology?
 In what follows, I intend to explore the natural law tradition as it would have been articulated in the first half of the sixteenth century, and then to examine the place of natural law in the thought of Luther and Melanchthon. By observing what these two seminal Lutheran theologians understood to be the role and significance of natural law theory for ethics, politics and jurisprudence, it may be possible to determine whether natural law may have any application in contemporary Lutheran deliberations on these matters. It will turn out that the most significant references to natural law in both Luther and Melanchthon are focused on a select number of texts, allowing us to evaluate their comments within the specific historical circumstances in which they were uttered.
 The first task will be to set forth the theory of natural law as it had developed prior to the early years of the sixteenth century (this is "classical natural law theory"). To do this, I will need to look at two traditions, one originating with Thomas Aquinas, who represents a culminating synthesis that establishes a benchmark for understanding natural law within Roman Catholic theology, the other emerging from nominalism, a philosophical and theological movement that had achieved considerable success by the sixteenth century, and was influential on Luther himself. I will then look carefully at the manner in which Luther and Melanchthon each employ the language and concepts of natural law in their writings. Finally, on the basis of this appraisal of traditions and texts, I will demonstrate that Luther and Melanchthon - and by extension, Lutheran theological practice in general - depart from the classical natural law tradition in significant ways.
 But what is this "classical natural law tradition," and what does it attempt to affirm?
 Classical natural law theory makes four closely interrelated claims. First, there is a natural moral order to the universe that is teleological in character; that is, all things in the cosmos, including human beings, seek to fulfill their basic and created purposes and functions, and doing so represents what is the "good" for each thing, including human beings. Second, that this teleological order is discernable in fundamental behavioral inclinations or tendencies in things. For human beings, this means our common human inclinations are indications of what is the "good" for us, and what it is that enhances human flourishing. Third, these inclinations, and the way they promote the genuine "good" for things, are rational, and can be discovered by human reason. Again, for human beings, this means that what is "good" for us - and the rightness and wrongness of actions related to pursuing that "good" - are known to us through reason. Indeed, the principles (or "precepts") of the natural law are embedded in our human reason - they are "written on the heart" - so that we "can't not know" them. Fourth, since the moral precepts of the natural law are also the moral precepts of human reason, expressed not only within individuals but also collectively, all of the civil laws and legal procedures of a "good" society will be derived from the precepts of the natural law.
 Thus, classical natural law theory argues that there exist objective, universal and eternal moral principles; that they apply to all persons in all times and places; that these principles are rational and devoted to the ends and purposes of human flourishing; that they are accessible to reason because they are expressed through specific human inclinations; that human reason is capable of knowing these natural law precepts clearly; and that political structures, social norms and civil laws ought to be grounded on natural law precepts if a society is to create conditions under which human flourishing can be accomplished.
 The origins of natural law lie deep in the ancient cultures of western civilization. Perhaps the most forceful of the early portrayals of natural law is presented in the familiar story of Sophocles' Antigone. Antigone is a young woman, sister to Polyneices, slain during a battle opposing the rule of Creon. Creon has ordered the body of Polyneices to remain unburied, without the proper religious rites which honor the gods. Antigone buries her brother in secret, arguing that there is a higher law of justice thanthe edicts of Creon, a law that has its source in the natural order of things established by the gods. This notion that there is a "higher law," with universal and eternal normative standards, superior to the positive law promulgated by a transient political authority, formed the basis of the moral and legal theories of the Greeks and Romans, from Plato through the Stoics of the later Roman Empire.
 It was the Roman jurists in particular - Cicero, Ulpian, and the legal specialists working under Justinian - who ratified this understanding of natural law into a moral and legal tradition. Cicero insisted that "there was one immutable, eternal and unchangeable law" that properly governed human affairs, while Ulpian distinguished between the "law of the nations" (ius gentium) from "natural law" (ius naturale) by specifying that natural law was what "nature teaches all animals," such as procreation and marriage, with the law of the nations being that aspect of the natural law particularly applicable to human governance. Although ius gentium and ius naturale are often collapsed into a generic natural law theory in the subsequent tradition, it is important to note this difference inasmuch as it turns out to be a distinction Luther will later take advantage of. Finally, Justinian's scholars, borrowing heavily on Ulpian, add to the definition of natural law the stipulation that the natural law is rational, and originates with the source of all reason, the Christian God.
 The development of natural law throughout the medieval period is an exceedingly complex story. By the eleventh century, a number of natural law traditions had grown up within Christianity, assembled from the Jewish and Christian scriptures, Greek philosophy, Roman legal codes, and scattered references in the early church Fathers. Most important for later discussions, Augustine introduces a new element into the treatment of natural law: while affirming that that the natural law is "the law that is written in the human heart," he also insists that the precepts of the natural law were applicable to human beings in their prelapsarian state, and that in our current sinful condition what was written on the heart is now obscured, and we must rely on the guidance of God's grace made available through the sacramental life of the Church. This will have the effect of minimizing the "natural" availability of natural law, and divert attention toward revealed sources of natural law.
 The diverse approaches to natural law were gathered and systematized in the twelfth century by Gratian, who sought to bring order to the multitude of local and different ecclesial practices and legal precedents that had become established throughout the various domains of western Christendom. At the outset of his Decretum, Gratian notes that "[t]he human race is ruled by two things, namely, natural law and customary usages." He then provides a definition of natural law:
 Natural law is common to all nations. It has its origins in nature and not in any constitution. Examples of natural law are the union of men and women, the procreation and raising of children, the common possessions of all persons, the equal liberty of all persons, the acquisition of things that are taken from the heavens, earth, or the sea, the return of property or money that has been deposited of entrusted. This also includes the right to repel violence by force.
 But Gratian adds his own rendering of what the natural law represents: "Natural law is what is contained in the law and the Gospels." What does this mean? Simply that, "Each person is commanded to do to other what he wants done to himself." Gratian here is adding a new element to natural law theory, which consists in laying down a single authoritative general principle which underlies all the other precepts of the natural law; and this principle is nothing other than the Golden Rule. The reduction of natural law down to its most essential formulation, the Golden Rule, will exercise a powerful influence on thinkers from Luther to Kant.
 By the time we reach the thirteenth century, we can see that a theoretical description of natural law can be constructed out of an assortment of philosophical rudiments: nature, reason, animal instinct, human inclination, scripture and the Golden Rule, among others. It is no surprise that there were several different accounts of natural law throughout the early medieval period, although most share a general family resemblance. But with Thomas Aquinas, we encounter a thoroughgoing approach to ordering dialectically these diverse treatments offering a polished presentation of natural law that has dominated analyses of the subject, both from secular and theological sources, ever since.
 For Aquinas, God is essentially reason; God's will is informed and directed by his reason. For human beings to achieve their final end state as decreed by God, they must conform to the system of rational law established by God. At this point, Aquinas relies on an important theological principle emerging forcefully during the thirteenth century, a distinction between God's "absolute power" (potentia absoluta) and God's "ordained power" (potentia ordinata). God's absolute power refers to God's Being as it is in itself, a reality known only to God. God's ordained power on the other hand, is the way that God discloses himself within his creation. This latter power, understood as the public presence of God, is manifest in creation and discernable by reason. Natural law, according to Aquinas, is the presentation of God's rational nature as that nature is revealed in creation; God has ordained that his creatures know him by means of his eternal law made accessible through natural law. Thus God, in his ordained power, is intelligible to human reason, and we must be reconciled to God rationally, through submission to his eternal and natural law.
 Further, since this is a hierarchy of created orders issuing from God and embracing all aspects of human life, it descends all the way to civil law, which necessarily must be based on natural law. All positive civil law is properly designed to enhance human flourishing, and so must constitute an ordered and rational system. In a sense, all civil law is descended from divine law, through eternal law, down to natural law, and finally reified in civil law.
 This is a weighty and comprehensive scheme of moral and positive law, and Aquinas argues that God's grace is necessary for humans to accomplish the goals of the system. Christ provides access to the resources of grace by which we can be reconciled to God through maturing into persons who are exemplars of fully realized human beings in the image of God. Since we are rational creatures, we possess the faculties necessary to engage the rational structure of the natural law, and to understand its precepts. The most critical faculty we are gifted with is synderesis, which is a power of conscience that is able to intuit the precepts of the natural law. If the natural law is written on the heart, then it is synderesis that reads the heart.
 There is in Aquinas no sense of a malignant force (i.e., sin) that might disturb the metaphysical tranquility of this schema: God creates in accordance with the divine law; the divine law is exhibited as eternal law operating in the dynamics of creation; eternal law becomes natural law when applied to human nature; and natural law is apprehended by human reason as the means by which persons may realize their fullest humanity as moral and social creatures. Because of the Fall, human beings may fail to acknowledge the natural law, and therefore make mistakes or otherwise succumb to human weakness, which is the real source of sin. But the system itself is uncontaminated by sin.
 The rendition of natural law provided by Aquinas is a complete natural ontology of law. There is no sense here that law is an artifact of human communities, manufactured for pragmatic political goals; there is no social contract in Aquinas. Nor is there the possibility that law is a provisional arrangement, always subject to change, owing to the variety of sinful proclivities continually expressed by human beings. Instead, the structures of law have ontological status as rooted in nature; sin is the name for those transgressions that occur when this ontological reality is neglected. We will soon see that Luther's understanding of natural law turns this model upside down.
 But was Luther even aware of the Thomistic account of natural law? There have been doubts about the scope and depth of Luther's familiarity with the works of Aquinas. There can be no question, however, that the Thomist portrayal of a moral and legal natural law was widespread among academics and humanists in Luther's day. Nonetheless, it was not Aquinas who immediately influenced Luther on this subject, but a movement whose point of departure was in important respects alien to that of the Thomists: nominalism.
 Many of the traditional depictions of late medieval nominalism have been shown by recent scholarship to be distortions. But the critical emphasis of nominalism on the will of God, rather than on divine reason, as the essential theological datum about God's nature, has remained secure. This stress on will rather than reason will have a decisive impact on the nominalist version of natural law. If the divine law issues from God's will rather than from his reason, then there is no cause to affirm that human reason is the obvious instrument for intuiting the natural law that follows from the divine law. God's law may not be rational in each particular, but we have an obligation to obey that law nonetheless, since the law represents God's will. But if it may be the case that God's law does not derive from God's reason, then those rational creatures unacquainted with God's will cannot be suspected of knowing God's law. For Aquinas, God's reason and human reason are sufficiently congruent to enable all persons to grasp the precepts of the natural law. But the nominalist will insist that only those whose will is adequately aligned with God's will can genuinely know the natural law. The natural law may be written on the human heart, but for the nominalist it is the Christian whose will moves in harmony with God's will who alone can appropriate what the natural law demands. The consequence here is a reduction in the role of reason in creating and apprehending natural law, and therefore a radical revision of the Thomist account of all law.
 The nominalist representation of natural law also diminishes the teleological element that is vital in the Thomist version. Aquinas adopted Aristotle's notion that everything seeks its own appropriate end, as the fulfillment of its particular membership in a species. For human beings as rational creatures, this end state is moral perfection and the beatific vision in the complete presence of God. But for the nominalist, any human connection with God is achievable only by means of obedience to the will of God. There is no naturally rational and teleological process of development into a fully realized being for nominalism; only a voluntary responsiveness to God's commands will accomplish a right relationship with God. This, too, represents a drastic departure from Thomist natural law. In the end, nominalism's rendition of natural law replaces reason with will, nature with commands, teleology with obedience.
 This, then, is the congested tradition of classical natural law the sixteenth century Lutheran reformers inherited. How do Luther and Melanchthon make use of it?
 It has been asserted that Luther employs locutions such as "natural law," "laws of nature," and "command of God" 583 times as translated in the American Edition of his works. These references cover Luther's writings from early to late, composed in a variety of contexts. Although Luther does indeed directly mention natural law in a number of his writings, he does not employ any vestige of the traditional apparatus of classical natural law theory as it existed prior to the nominalist movement. Exactly how he employs natural law can be seen in those texts that most frequently appeal to this idea, the majority of which come from the period around 1525, when Luther was dealing with violence and public disorder connected with the uprising of the peasants, and with the efforts of radical reformers such as Karlstadt and Muntzer. For the purpose of showing Luther's understanding of natural law, it is useful to reflect on his application of the concept in these various writings arising from circumstances where complex ethical and social justice issues were at stake. I will therefore focus on works written during the turbulent times surrounding the middle of the 1520s.
 Consider first Luther's words in the Admonition to Peace from 1525, subtitled A Reply to the Twelve Articles of the Peasants in Swabia, where he reproaches the peasants for their bloody revolt against the political authorities
 Now you cannot deny that your rebellion proceeds in such a way that you make yourselves your own judges, and avenge yourselves, and are unwilling to suffer any wrong. That is contrary not only to Christian law and the Gospel, but also to natural law and all equity.
 Now, all this has been said concerning the common, divine and natural law which even heathen, Turks, and Jews have to keep, if there is to be any peace or order in the world. Even though you were to keep this whole law, you would do no better and no more than heathen and Turks. For not to be one's own judge and avenger, but to leave this to the authorities and the rulers, makes no man a Christian; it is a thing that must eventually be done whether willingly or not. But because you are acting against this law, you see plainly that you are worse than heathen or Turks, to say nothing of the fact that you are not Christians. But what do you think that Christ will say to this? You bear His name, and call yourselves a "Christian assembly," and yet you are so far from Christian, and your actions and lives are so horribly contrary to His law, that you are not worthy to be called even heathen or Turks, but are much worse than these, because you rage and struggle against the divine and natural law, which all the heathen keep.
 In this passage, Luther is indicting the peasants for attempting to usurp the place of the local ruler in the community, passing judgment on the ruler's culpability when they are in no position to do so. To act as judges in the case of their own grievances is an affront to equity. In doing so, they also violate the "Christian law," which for Luther is generally the law of love. But Luther does not rest his judgment of the Swabian peasants on this "Christian law." He admonishes them on the basis of the natural law, which even the "heathen, Turks and the Jews" have to keep "if there is to be any peace or order in the world." There are two critical points here. First, doing the right thing - even the morally right thing - does not identify a person as a Christian. Indeed, it seems that Luther would claim doing the right thing as defined by the natural law is something anybody could do. Following the precepts of the natural law is not authentically distinctive of Christian morality, and should not be pursued because it promises to achieve some particular Christian good. There is clearly a different spirit at work here in Luther from that of Aquinas, or even of the nominalist partisans of natural law.
 Second, this passage underscores Luther's conviction that the value of the natural law is fundamentally instrumental. Natural law ought to be observed "if there is to be any peace or order in the world." It is not the case, Luther implies, that we should follow the precepts of the natural law because it is the way that each individual member of the human species can, in proper teleological fashion, realize the good for herself or himself. Instead, it is the case that we should adhere to the natural law because it produces a salutary outcome for society. I can find nowhere in Luther's writings an endorsement of the traditional notion that the value of natural law lies in the prospect that individual members of the human species can use reason to order their lives in accordance with the moral precepts of the natural law. On the contrary, Luther's counsel to Christian individuals is to hear what God's law demands of them, to repent of their sin, and to cling through faith to the promises of God in Christ. Natural law and equity have value for Luther primarily in order to accomplish a number of specific social purposes, such as maintaining public peace and order, so that justice may be secure.
 Earlier in the Admonition, Luther addresses another question related to natural law, that of conscience.
 Nevertheless, you, too, must have a care that you take up your cause with a good conscience and with justice. If you have a good conscience, you have the comforting advantage that God will be with you, and will help you through. Even though you were worsted for awhile, and though you suffered death, you would win in the end, and would preserve your soul eternally with all the saints. But if you have not justice and a good conscience, you will be worsted; and even though you were to win for awhile, and were to slay all the princes, yet in the end you would be lost eternally, body and soul. This is, therefore, no joking matter for you; it concerns your body and soul eternally. The thing that is most necessary to consider and that must be most seriously regarded, is not how strong you are and how completely wrong they are, but whether you have justice and a good conscience on your side.
 Luther's portrayal of conscience here is very different from that of Aquinas. Conscience was a natural faculty of the mind for Aquinas, an inherent power equipped with synderesis to intuit the precepts of the natural law. Conscience is a tool, an implement for "seeing" the natural law, and as such, has no positive or negative qualities; all properly functioning conscience is "good" conscience. But Luther's words above imply that conscience is vulnerable to the influence of sin and can be corrupted - there can be a "bad conscience" as well as a "good conscience." Conscience is not merely a neutral psychological faculty that can recognize and appropriate moral principles, as is the case with Aquinas. In Luther, a "good conscience" is a gift from God, imparted to the individual in a manner reminiscent of the description of faith, also a gift of God. A "good conscience" is the bearer of a divine promise, so that Luther can say such a conscience communicates the message, "God will be with you, and will help you through." There is nothing like Luther's treatment of conscience in either Aquinas, or in the later nominalists.
 Finally, Luther offers an argument in the midst of discussing the third of the twelve complaints of the Swabian peasants that demonstrates how far he has moved away from the traditional outlook of natural law theory. From the beginning, classical natural law theory held that all persons were equal on the basis of the "higher law," and that natural justice required that civil law recognize the fundamental equality of each human being, regardless of the political consequences. Luther disagrees.
ON THE THIRD ARTICLE: "There shall be no serfs, for Christ has made all men free." That is making Christian liberty an utterly carnal thing. Did not Abraham and other patriarchs and prophets have slaves? Read what St. Paul teaches about servants, who, at that time, were all slaves. Therefore this article is dead against the Gospel. It is a piece of robbery by which every man takes from his lord the body, which has become his lord's property. For a slave can be a Christian, and have Christian liberty, in the same way that a prisoner or a sick man is a Christian, and yet not free. This article would make all men equal, and turn the spiritual kingdom of Christ into a worldly, external kingdom; and that is impossible. For a worldly kingdom cannot stand unless there is in it an inequality of persons, so that some are free, some imprisoned, some lords, some subjects, etc.; and St. Paul says in Galatians 3:28, that in Christ master and servant are one thing.
 The notion that all human beings are equal, and possess a natural right to have the precepts of the natural law applied to them in the same way those precepts are imposed on everyone else - this notion is "dead against the Gospel"? It is certainly consistent with natural law, as we saw in Gratian's definition, but this is of no concern to Luther. The problem is that "a worldly kingdom cannot stand" if there is not a publicly maintained inequality of persons. Once again, we see that Luther's worry is for the instrumental effects of the natural law, and not with enshrining natural law as a necessary point of departure for establishing moral and civil rectitude. If invoking natural law proves to have deleterious social consequences in a given situation, so much the worse for natural law.
 Since Luther nowhere offers a systematic account of natural law, we are forced to cobble together a description of his attitude toward it from the fragmentary comments he makes in texts like the Admonition. Luther's stance, as presented in this source, is closely related to a contemporary populist version of the ius gentium, in which natural law is portrayed as the consensus position of human beings in all nations as they address the practical needs of their communities. Everyone cherishes peace and order, Luther believes, and thus natural law indicates that the ruler must do whatever is necessary to ensure peace and order. So natural law functions pragmatically to describe those conditions that the citizens of all nations are genuinely inclined to see instituted. As a result, there is no indication in Luther that he shared the conviction of Aquinas that the natural law descends from divine law via eternal law. Divine law has an entirely different function in Luther. For the Reformer, divine law expresses itself in two ways: first, as a set of strong commands which we cannot satisfy and through which we are confronted with our sin, and second, as the "Christian law," the law of love. Natural law becomes then an independent source of practical deliberation, rooted not in some metaphysical human nature, but in the common interest of all people for peace, order and equity.
 Another example of this attitude of Luther's is his reply to a question about bigamy - "Whether [a] person may have more than one wife" - which Luther takes up in a letter written to Joseph Levin Metzsch in December, 1526. His response here is a precursor of his action in the infamous case of Philip of Hesse some thirteen years later. Luther writes,
 Note the texture of Luther's argument here. He does not argue that bigamy is a violation of the natural law, that the practice would disturb a natural order in creation (i.e., marriage), or even that this arrangement is opposed to the common judgment of humankind. Instead, he argues against it largely on instrumental and practical grounds - there is no necessity for bigamy, it produces "no improvement" and provokes "great offense and trouble." In short, it generates negative effects, and those effects far outweigh any prospective benefits. To be sure, Luther adds that he can find no word of God to justify the practice. But he does not rest the argument on that point. However, even if he had built his contention on the lack of any word of God on this subject, that is not a natural law position. Proponents of natural law would have argued that the human inclination toward the practice of monogamous marriage was natural, and therefore promoted the teleological ends of human nature, which are discernable by reason; thus, there ought to be civil laws enshrining monogamy and prohibiting bigamy. But Luther goes nowhere near this line of reasoning. In fact, the absence of any recognizable claim from the natural law tradition in this letter from Luther is striking.
 Another source just prior to this time period that demonstrates Luther's free rearrangement of the natural law tradition is the treatise, On Temporal Authority (1523). In this text, Luther combines natural law, the law of love and the Golden Rule into a single principle that rides roughshod over the careful and elaborate construction of natural law theory he inherited.
 For nature teaches the same as love: I ought to do what I would have done unto me. And therefore I may not rob another, however good my claim, since I myself do not want to be robbed. What I would wish in such a case is that the other person should relinquish his right; and therefore I ought also to relinquish mine. And this is how ill-gotten gains should be treated, whether they were come by secretly or openly, so that love and natural law will always prevail. For when you judge in accordance with love, you will distinguish and decide all things easily, without law-books. But if you remove the law of love and nature, you will never hit on what is pleasing to God, even if you had swallowed all the law-books and the lawyers. On the contrary, the more you think about [what you learn from them], the more insane you become. Good judgment is not to be found in books, but from free good sense, as if there were no books. But it is love and natural law, with which all reason is filled, that confer such good judgment. From the books come oppressive and uncertain judgments.
 Both natural law and the law of love teach the same thing, namely, the Golden Rule. The Golden Rule, in turn, is a representation of reason, which manifests itself as "free good sense." The exercise of reason is nothing more than the activity of love and natural law, and this activity produces "good judgment," which is the application of the Golden Rule. So Luther's argument here is indelibly circular, but no matter; the point is that the Golden Rule is the fundamental moral principle at work in human interactions, and both nature and the requirements of neighbor-love teach this principle. Luther's argument here is substantially different from that of Gratian's position on the role of the Golden Rule. For Gratian, natural law does not perform the practical and instrumental function of picking out the Golden Rule as an independent norm that informs my proper conduct toward the neighbor, as it does for Luther. Gratian understands natural law in its classical sense, as the divinely established system of moral goodness, of which the Golden Rule may serve as a summary expression. This summary principle in no way replaces natural law as the mechanism by which all persons may reliably understand what is necessary for human flourishing. But for Luther, natural law plays exactly this kind of secondary role as pointing out the primary function of the Golden Rule in guiding the "good judgment" of persons acting in the public domain. Once again, natural law in Luther's hands describes, not a hallowed and rational moral order rightly governing human conduct, but a set of innate instincts that operate merely as a useful instrument for directing our attention toward appropriate actions that serve the neighbor. Thus, there is nothing in Luther that resembles the complete natural ontology of law we found in Aquinas; rather, natural law is for the Reformer a pragmatic tool employed to guide our practical judgments .
 So what does a "good judgment," informed by the Golden Rule and endorsed by natural law and the law of love, look like? Luther will illustrate.
Let me give you an example. There is a story told of Duke Charles of Burgundy. A nobleman captured his enemy. The wife of the captive came to ransom him. The nobleman said he would give the man back to her if she slept with him. The woman was virtuous, but wanted her husband released, and so she went and asked her husband whether she should do it to get him freed. The man wanted to be free and to save his life, and permitted it. But the day after the nobleman had slept with the woman, he had her husband beheaded, and gave him back to her dead. The woman complained of this to Duke Charles who summoned the nobleman and ordered him to take the woman as his wife. After the wedding day, he had the man beheaded, placed the woman in possession of his goods and restored her honor. A truly princely punishment on wickedness. Now no pope, no lawyer and no book could have taught him to give such a verdict. Rather it came from unfettered reason, which is greater than all the laws in books; it is so just a judgment that everyone is bound to approve it and find written in his heart that it is right. Augustine writes the same in his De sermone Domini in monte. And therefore written law is to be held in lower regard than reason, for indeed reason is the source of all laws, that from which they sprang. The source is not to be constricted by the stream, and reason is not to be held captive by letters.
 The sanction for this action of Duke Charles in the story is written in the hearts of all who hear it? The lex talionis is the natural law? What can Luther possibly mean here? Luther is presumably relying on some notion of equity as the basis for his approval of this episode, an equity that satisfies the primitive desire for retributive justice. This is the work of "unfettered reason," the reason that is not to be held captive to letters, nor even captive to the Word of God, but is instead captive to the popular and universal opinion of the public. Luther seems to have collapsed ius naturale completely into ius gentium, and to regard ius gentium as equivalent to the acceptable instincts of the people. But is it really the case that such a judgment as the one enacted by Duke Charles, which earns approbation from Luther, is the result of natural law and the law of love? The traditional teaching of natural law would only commend this type of action under the most extreme of circumstances. But Luther endorses it without hesitation. His understanding of natural law is obviously at variance with that of traditional position. Once again, we are led to suspect that natural law for Luther has essentially instrumental value. If natural law fosters an outcome that the general public will applaud for its crude equity, then appeals to natural law are appropriate.
 Luther's sermons during this period of social upheaval also contain references to the subject of natural law. But these sermons continue the themes Luther has already been sounding: natural law is a synopsis of the type of dispositions we happen to find in all persons; it is expressed in what moves and affects people and is not the product of reason; and it functions instrumentally to propose those decisions and actions that will generate the pragmatic goods of peace, order and justice. In a sermon preached in January, 1525, Luther reiterates his understanding that natural law rests on a single foundational principle that is logically prior to any of the precepts of the classical natural law, namely, the familiar principle of the Golden Rule. Luther says:
 Where are to be found any who comprehend the meaning of the little phrase "thy neighbor," notwithstanding there is, beside this commandment, the natural law of service written in the hearts of all men? Not an individual is there who does not realize, and who is not forced to confess, the justice and truth of the natural law outlined in the command (Matt 7:12), "All things therefore whatsoever ye would that men should do unto you, even so do ye also unto them." The light of this law shines in the inborn reason of all men. Did they but regard it, what need have they of books, teachers or laws? They carry with them in the depths of their hearts a living book, fitted to teach them fully what to do and what to omit, what to accept and what to reject, and what decision to make.
 It sounds at this point as if Luther is suggesting that all a person needs to do, in order to know explicitly what is morally required for service to "thy neighbor," is to inspect the inner workings of this law "written in the hearts of all men." However, as Luther continues, he will insist that this light of inborn reason has dimmed considerably, and that it is futile to attempt to construct an ethic out of the natural law thus instilled in human beings. Luther concludes his discussion of natural law with a theme that will resound in his writings on the topic from this point forward: the effects of the Fall on the human psyche. Luther says:
"But evil lust and sinful love obscure the light of natural law, and blind man, until he fails to perceive the guide- book in his heart and to follow the clear command of reason. Hence he must be restrained and repelled by external laws and material books, with the sword and by force. He must be reminded of his natural light and have his own heart revealed to him. Yet admonition does not avail; he does not see the light. Evil lust and sinful love blind him. With the sword and with political laws he must still be outwardly restrained from perpetrating actual crimes."
 In fact, this entire sermon is a polemic against the effort to establish a law-like model for human moral conduct. Luther argues that all people in their natural condition, including Christians, are unable because of sin -- "evil lust and sinful love" -- to utilize the resources of the natural law written on their hearts. Luther lectures his congregation in this sermon on the folly of legislating our response to the neighbor, whether by the natural law or any other system of moral rules. As he describes it, the law is purely negative in its function: it cannot tell us (because of our sin) what is the good that we should do, but can only work to prevent us from doing evil. Of course, one would need to read the entire sermon to see this recurring emphasis.
 This sermon is typical of Luther's scattered comments on natural law (and typical of such comments by the other sixteenth century Lutheran reformers). There is a natural law, but the practical reality is that, because the created order has been made so dysfunctional by sin, this natural law is useless to human beings as they seek to understand how to live rightly and serve the neighbor.
 It is sometimes argued that Luther's catechetical exposition of the Ten Commandments makes them into exemplars of natural law. But Luther was ambivalent about the precise relationship of the Decalogue and the natural law, particularly during the 1520s, when his thoughts were concentrated on questions of how Christians can know what is right and good when the structures of authority were crumbling all around them. In a typically blunt sermon preached in August, 1525, when Karlstadt had tentatively softened his extreme iconoclasm and doctrine of the Eucharist, and Luther was trying to separate the younger man from more radical elements, he took issue with those who insisted that observance of the Ten Commandments was a requirement of the faithful Christian life.
 To be sure, the Gentiles have certain laws in common with the Jews, such as these: there is one God, no one is to do wrong to another, no one is to commit adultery or murder or steal, and others like them. This is written by nature into their hearts; they did not hear it straight from heaven as the Jews did.
 We will regard Moses as a teacher, but we will not regard him as our lawgiver - unless he agrees with both the New Testament and the natural law.
Luther concludes this sermon with a threefold distinction: human desires expressed through the natural law, the law of Moses, and the teachings of Christ.
 So Luther treats natural law as a manifestation of human affective states implanted in us by creation, to which Mosaic law must conform if the latter is to be authoritative in the Christian life. The Mosaic law has no religious sanction of its own for Christians. But both natural law and Mosaic law are subordinated to the teachings of Christ, which are the normative standards for the Christian. It is possible to argue that in Luther, natural and Mosaic law are rudimentary forms of moral guidance, being derived from the mundane realms of nature and human history, and lack the supernatural authority of Christ's own words. Again we see that Luther avoids offering any kind of divine ontology for moral law, contrasting the earthbound claims of natural law with the spiritual mandates proclaimed by our Master, Christ.
 This will turn out to be the recurrent motif in Luther's account of the natural law. We have seen that this account consists of four related assertions. First, Luther's understanding of the "natural" element in natural law is reduced to something like "natural instinct," or the affective dimension of human life. There are things in life that we "naturally" seek out, and these include peace, prosperity, good order, family, friendship, and other similar goods (this is Luther's version of the "ius gentium"). But these are not rational precepts, and they do not require an unfallen reason to intuit them. For Luther, nature and reason have come apart, and thus natural law seems more aligned with animal instinct than with rational apprehension. So Luther agrees this far with Aquinas: human dispositions are signs of the natural law. But for Aquinas these dispositions are rationally construed to indicate a divine moral order; with Luther, these dispositions are natural only in the sense that all people agree on the common objects of their desires.
 Second, insofar as these natural instincts can be translated into moral maxims, they represent for Luther practical considerations rather than divine commands. The precepts of the natural law are ends to be pragmatically achieved within human communities, and not laws to be obeyed regardless of consequences. In our fallen condition, no law of divine origin can be adequately obeyed anyway. But human laws, provisionally designed and flexibly applied, can be observed under most conditions. All persons desire peace, and so Luther believes it incumbent upon the Prince to figure out suitable strategies for securing peace. This is the proper use of reason, as far as Luther is concerned: to reckon the best means for accomplishing the ends toward which we are naturally disposed. This is the instrumental value of the natural law, directing us to those basic human goods that are ends of human life.
 Third, the result of all this is that Luther refuses either to create or to approve an ontology of moral deliberation and action. He will not ratify the Thomist version of natural law, nor the nominalist rendition, and he will not construct his own system. It does not go too far to suggest that Luther thinks of ethics as fundamentally local and circumstantial. What is universal in ethics are the "natural instincts" of human persons. But the rendering of those instincts into a series of practical judgments applied to specific situations in order to realize the goods embedded in those instincts is something for Luther that can only take place on the ground, in the midst of the immediate context where the opportunities for right action actually present themselves.
 Finally, Luther understands natural law not as a Christian teaching, but as an observation of human nature in general. It is apparent that, since the Fall, human reason is disordered, and cannot be relied on for identifying those goods that lead to human flourishing. Instead, Luther holds that we must rely on our natural instincts for this purpose. But this is something that all persons have done, in every time and place, and continue to do, even now in the Christian era. The Jew, the Turk, and the heathen employ the same tactics of ethical deliberation, the same resources of the natural law, that Christians do. In this sense, there appears to be no such thing as a "Christian ethics" for Luther. There is just ethics, a human activity fueled by natural desires, satisfied by practical arrangements, enforced by political structures, producing at its best the conditions under which each one may serve the neighbor and live in peace.
 Ultimately, Luther creates a new account of natural law morality: instinctive, not rational; provisional, not ontologically secured; pragmatic, not divinely commanded; chastened by sin, not robust with natural human possibilities. When he invokes natural law, it is with a different insight than that supplied him by the classical natural law tradition.
Thomas D. Pearson
The University of Texas-Pan American
See Budziszewski, J., What We Can't Not Know (Dallas: Spence Publishing Company, 2003)
The best general treatment of the history of the natural law tradition is Michael Bertram Crowe's The Changing Profile of the Natural Law (Holland: Kluwer Law International, 1978).
Sophocles, Antigone (New York: Dover Publications, 1993)
Cicero, De Republica, 3:22.
Ulpian, Digest, I,1,1, 3.
Justinian, Institutes, I, 2, 11.
Augustine, Confessions, 2, 4, 9.
Gratian, Decretum, dictum before D. 1 c. 1.
Ibid., D.1 c. 7.
Ibid, dictum before D. 1 c. 1.
Aquinas, Summa Theologiae, I-II, Q. 90, a. 4.
Ibid, I-II, Q. 91, aa. 1-6.
The most complete account of the distinction between potential absoluta and potential ordinate is William J. Courtenay's Capacity and Volition: A History of the Distinction of Absolute and Ordained Power (Bergamo: Perluigi Lubrina, 1990).
Aquinas, Summa Theologiae, I, Q. 79, a. 12
See David C. Steinmetz's discussion in "Luther among the Anti-Thomists," in Luther in Context (Grand Rapids, Michigan: Baker Academic, 2002), pp. 47-58.
See, for instance, Heiko Oberman, The Harvest of Medieval Theology: Gabriel Biel and Late Medieval Nominalism (Grand Rapids, Michaigan: Baker Aacdemic, 2001).
For a fuller description of late medieval nominalist versions of natural law, see Crowe, op. cit, and Louis Dupre, The Enlightenment and the Intellectual Foundations of Modern Culture (New Haven, Connecticut: Yale University Press, 2004), especially chapters 5 and 6.
Whitford, David M., "Cura Religionis or Two Kingdoms: The Late Luther on Religion and the State in the Lectures on Genesis 1," Church History, Volume 73, Issue 1 (2004).
Luther, Martin Admonition to Peace: A Reply to the Twelve Articles of the Peasants in Swabia, translated by Charles M. Jacobs and revised by Robert C. Schultz, edited by Theodroe G. Tappert (Philadelphia: Fortress Press, 1967), Volume 3, pp. 325-327.
Ibid, p. 323.
Ibid., p. 339.
Luther, Martin, On Temporal Authority
Luther, Martin, "Sermon for the Fourth Sunday After the Epiphany, January 29, 1525," Weimar Ausgabe 17.1.2:88-104.
© December 2007
Journal of Lutheran Ethics
Volume 7, Issue 12