A Review of Law and Protestantism: The Legal Teachings of the Lutheran Reformation by John Witte, Jr.


[1] John Witte is a well known and accomplished legal historian and the present volume does not disappoint. His thesis, explicitly stated in the Introduction is that: "It was the combination of theological and legal reforms that rendered the Lutheran Reformation so resolute and resilient" (p. 4). And he argues against those 20th century historians who would place the historical divide between the modern and pre-modern worlds somewhere in the late 18th century, saying that the watershed can be found in the new institutions grounded in the new Protestant law of 16th century Germany.

[2] The book begins with a brief, but excellent, summary of the medieval legal world, especially the canon law administered by the Church, and shows that even before Luther, many city governments were reforming their local laws away from custom and the will of the prince, to embrace the principles of ancient Roman law that had been rediscovered and newly implemented in much ecclesiastical jurisprudence. Witte shows that Martin Luther's dramatic rejection of canon law expressed via the bonfire of 1520 was mostly a rejection of the abuses resulting from the canon law's concentration of authority in the person of the pope whose "tyranny" was the end result of his power to render decisions according to principles of equity, in the place of law. A society without any norms was clearly not viable and Luther found himself, ironically, functioning as the "de facto Protestant pope" (p. 69) because his opinion was sought as the ultimate authority on matters both spiritual and temporal.

[3] Although the invisible church in heaven was perfect, the members of the earthly church needed laws to keep them in line (since the law found in the Bible could only be fully implemented in the heavenly kingdom). Thus Roman law and even canon law, insofar as they were grounded in the law of nature, provided useful models for the earthly kingdom where law could restrain sinful impulses, as well as instill in people an awareness of what God wants and of the human inability to meets these expectations without divine assistance. While the leaders of the family and the church also had legitimate authority from God, it was the secular magistrate who was now "God's vice-regent" (p.111), replacing the pope who had claimed to be the vicar of Christ.

[4] Witte next sets out several theories of "law, politics, and society" in some detail (ch. 4). Melanchthon was concerned to show how the natural law is the basis for all subsequent systems of positive law. Eisermann introduced a sort of "Lutheran social contract theory"  (p. 143), based on Greco-Roman and Pauline thought. And Oldendorp had no use at all for canon law, except for its principles of equity that he said should be employed in every legal judgment. While Luther himself had emphasized the distinction between the two kingdoms, the Evangelical jurists emphasized their cooperation, especially through the role of the Bible and the Decalogue as sources of law and the expansion of the magistrates' authority through newly developed Evangelical theories of equity.

[5] The actual laws of Reformation Germany form the third section of the book. There were laws regulating religious matters and public morals that had changed only superficially from their medieval predecessors. However, the regulation of charity as a secular, social institution for the aid of only the worthy poor was an innovation. Education law had also changed a great deal, providing for some rudimentary education of all members of society, at civic expense, in order to prepare them for their vocations in a Christian society. But the most sweeping changes of all came in marriage legislation, a subject on which Witte has previously written. No longer a sacrament, but a civic institution, marriage was now not under church control. There were fewer impediments to contracting a valid marriage, but mutual consent of the parties was no longer sufficient for the contract to be binding. As a social institution, marriage now required parental consent and community witnesses, but could also be dissolved by the decision of the magistrate.

[6] Witte also adds that the new public nature of marriage, education, and charity in the Lutheran Protestant society resulted in sweeping changes, not only in these central institutions, but also in such fundamental areas as the role of women in society and the relationship of state and church. In a world without the convent as a refuge for intellectual women, the subordinate role of wife was the only option. And in a world where the state controlled the ecclesiastical structures, for the first time the concept of a state established religion was now possible. Our modern struggles for the freedom and equality of all religions and both sexes, he says, have their roots in this period.

[7] The only disappointing note is the oddly confessional nature of the concluding chapter that doesn't seem to fit the tone of the rest of the book. However, this is a minor complaint.

[8] Overall this is a wonderful book. It is readable, erudite, and persuasive. The scholarly apparatus are rich and easily used. The abundance of useful source material found in the footnotes is a valuable resource that ensures that this work will continue to be consulted as a major reference for all who are interested in these questions. And the simple, but inevitable progression to Witte's conclusion leads the reader to agree, "Well of course he is right! Now why didn't I ever realize that?"

[9] But this is more than a mere scholarly examination of a fascinating problem. The popular understanding of canon law is that it was an ancient system corrupted by evil medieval clerics and that it was eliminated by the Protestant Reformation. Witte has demonstrated most convincingly that this understanding is not well grounded. As Sieghard Mühlmann has pointed out ("Luther und das Corpus Iuris Canonici bis zum Jahre 1540," Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanische Abtheilung 58 [1972] 235-405) the final papal decretal of the Corpus Iuris Canonici dates from 1484, that is, within Luther's lifetime. So to Martin Luther, these questions of corruption and the canon law were living and pertinent questions. Witte has taken up the arguments introduced by such scholars as Kuttner, Tierney, Pelikan, and more recently Helmholz, and provides a concrete and detailed explanation of the very real struggle between the desire to reject an unwieldy and somewhat corrupt canon legal system, and the need to provide structure and order for the people of Christendom.


© February 2004
Journal of Lutheran Ethics
Volume 4, Issue 2