A Review of Law and Protestantism: The Legal Teachings of the Lutheran Reformation


[1] John Witte, Jr. in his book Law and Protestantism notes that "many legal historians have tended to deprecate the 16th century in general and Lutheran theology in particular."  Some "have dismissed the 'Reformation' altogether as a historian's fiction and a historical failure."[1]  But this book invites us to take a second look at the theology and law of the Reformation, arguing that at the intersection of these two disciplines important "sources of ideas and institutions" emerged out of that particular historical context.[2]   Far from deserving historical obscurity, Reformation theologians and lawyers are to be recognized for the pivotal contributions they have made. 

[2] Of singular importance is Luther's teaching on the two realms.  "The structure of two-kingdoms," writes Witte, "provided the foundation for the reformation of German law, politics, and society…"[3]   Luther's radical reorganization of society on the basis of the two-kingdoms model constituted "a rejection of traditional hierarchical theories of being, authority, and society."[4]   What had been a vertical arrangement of church and world was reconceived as a "chain of being [that] was horizontal, not hierarchical"  "Before God," Witte explains "all persons and all institutions in the earthly realm were by nature equal."   Thus, he concludes "Clergy and laity were fundamentally equal before God and before all others."[5]   Instead of a society where select persons and institutions were sacramentally set apart in "higher" spiritual vocations, Luther taught that each baptized Christian is a citizen both of the spiritual realm and of the temporal.  All the baptized have a spiritual vocation, expressed through their work as shoemakers or maids or whatever else they might become by virtue of their talents and social station.  Through his or her vocation, each believer becomes a Christ-bearer in Luther's view.  "All are priests who must serve their neighbors" writes Witte.  "All are equal before God."   Indeed, he concludes, "the heart of the Protestant theory of equality is that we are all priests before God."[6]

[3] It is the often repeated "all" in Witte's analysis that gives one pause.  It looks very much as if Witte is finding a humanistic conception of universal equality in Luther's new understanding of the priesthood.  If so, this seems to me problematic.  Luther's two-kingdom conception does not cast all persons, regardless of baptismal identity, in the same egalitarian boat.  If the priesthood of all believers is grounded in belief, then it is hard to see how unbelievers are full members of the club-or even members at all!   Yet writes Witte, "This common calling of all to be priests transcends differences of culture, economy, gender and more."   His recourse here to Paul's famous remark that "among you there is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female" (Gal. 3:28)[7] hardly solves the problem.  For it is, of course, because "ye are all one in Christ Jesus"-a text Witte quotes-that a kind of equality reigns within the one body. This text "and many other biblical passages which Luther highlighted and glossed repeatedly," writes Witte, "have long inspired a reflexive egalitarian impulse in Protestants.  All are equal before God.  All are priests who must serve their neighbors.  All have gifts to be included."[8]

[4] Even if one restricts the "all" to baptized believers, it is still not clear that spiritual equality in Christ (expressed in the priesthood) implied for Luther a correlative political equality-the sort of political equality, that is, which might "inspire a reflexive egalitarian impulse" in later Protestants.   Indeed, Luther's vehement rejection of "the robbing and murdering hordes of peasants," when they boldly assumed a temporal equality on the basis of baptism, suggests that he was decidedly opposed to any such translation of spiritual equality into a temporal entitlement.  "For baptism," writes Luther, "does not make men free in body and property, but in soul; and the gospel does not make goods common."[9]  " . . . He who would confuse [these] two kingdoms . . . [is] putting the devil in heaven and God in hell."[10]

[5] I have no quibble with Witte on the question of whether modern Protestants have a particular resonance with egalitarianism, nor do I balk at the altogether plausible thesis that this resonance is the result of a trajectory rooted in Luther's two-kingdoms. What is implausible to me is that Luther's 'priesthood of all believers' embraces human beings qua human beings in that liberty and equality he identifies with membership in the body of Christ.  Not only are unbelievers not members of this priesthood, but even the insiders-the priests-have no claim on that temporal, political, equality that Witte identifies with Luther's priesthood of all believers.  

[6] When he turns to Luther's theology of the estates, however, Witte's assertion becomes more tenable.  Luther's treatise "To the Christian Nobility" does call for a more equitable distribution of justice in the temporal realm.  An obvious source for Witte's interpretation of Luther on the matter of equity, this treatise must also have been a catalyst to the peasants, who found there the same egalitarian ideas.   And in this they were not entirely mistaken despite Luther's vehement denial in his repudiation of the Peasants Rebellion.  In this piece from 1520 we do in fact find a temporal leveling, as "pope, bishops, priests, monks, and nuns," are subsumed under the authority of the magistrate, who, writes Luther, "should be left free to perform [his] office in the whole body of Christendom without restriction and without respect to persons."[11]  But notice, here it is the estate itself that is the source of a human equality, defined by the divinely ordained temporal authorities who punish and protect, "without respect for persons."  And, in relation to equity, it is also noteworthy that the authorities are to so govern throughout "the whole body of Christendom, without restriction."  Does "without respect for persons" mean that the law no longer distinguishes between the murder of an aristocrat and the murder of a peasant?  Whether it does or not, the critical principle of equity is now in place.   But, and I note it again, this is not derived from Luther's understanding of the priesthood of all believers.  This is not the kind of equality that comes from being one member among others in the one mystical body.  It is not the liberty that springs from participation in the alien righteousness of Christ, nor is it the attribution of personal value received in God's embrace.  These belong distinctively to believers who are rooted in Christ through faith.  For Luther, Christ was the unique and glorious "way" to liberty, and to a dignity born of righteousness.   Witte therefore is right when he claims that there is a kind of equity in Luther's two-kingdoms concept of the state; but it is derived solely from the application of the civil law by the governing authorities.   This legal equity, which applies to all persons, is qualitatively different from the kind of equality, liberty and personal value that Luther identifies with the baptized believer who is called in Christ to be a priest.

[7] But if Witte's attempt to locate modern concepts of human equality in Luther's priesthood of all believers fails to convince, his analysis of the three estates (which in itself is a welcome novelty) provides rich opportunities for further thought.  These estates-the church, the temporal authority, and the family-shared the reallocation of social responsibility in the Protestant states.  Derived from the most basic estate, the family, both the government and the church retain for Luther the loving paternalism he associates with the head of the household.  "The magistrate," writes Witte, "was the father of the community.  He was to care for his political subjects as if they were his children."[12]   Among other things "he was to nurture and sustain his subjects through the community chest, the public almshouse, the state-run hospice.  He was to educate them through the public school, the public library, the public lectern. . . . [13]   In short, the government Luther envisioned was hardly limited by the strictly negative power to restrain sin.   The emphasis on the paternalistic role that Witte clearly identifies with each of the three estates, expands the power of the civil authority in important ways.  It is no accident that those Protestant countries of Western Europe, historically influenced by Luther's two-kingdom theology, should be the ones with universal health care, state-supported universities, generous maternity leave, and numerous other programs aimed at the common good.  Lutherans on this side of the Atlantic might follow their lead.  In an age when our administration would be all too happy to relinquish civil responsibilities to "faith-based organizations" Luther's distinction between the three estates recalls us to the original vision of a government called and committed to the common good.

[8] Witte is eager to show the debt that our present legal system and civil institutions owe to the Reformers of the 16th Century.  His retrieval of Luther's three estates is particularly important.  In his illumination of Luther's civil realm as an early model of legal equity, and in reminding us that the "governing authorities" might be recalled to their original responsibility for the common good, Witte has provided a very helpful analysis.  Nor are his excellent descriptions of the development of education and marriage to be overlooked.  It is his tendency to obscure the centrality of Christ in Luther's thought that is troubling from a theological perspective.  Witte's reluctance to focus on Luther's faith, and the uncomfortable distinctions that this faith entailed, suggests (despite Witte's personal confession of faith) his discomfort with Christian particularity.  In a moment of Enlightenment optimism, Witte seems to lose sight of the wrathful God who excludes some, and the merciful God who inspires others, but not all.  Thus, Witte occasionally loses Luther too.  This is a weakness in his analysis, but not so great as to overshadow the extraordinary breadth and depth of his project.  Overall, Witte's interweaving of sources results in an impressive accomplishment, clarifying and widening the historical scope in significant ways-an achievement, indeed, for which his readers owe him a debt of gratitude.

[1]  John Witte Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge: Cambridge University Press, 2002) 28.

[2]  Ibid. 29.

[3]  Ibid. 88.

[4]  Ibid. 106.

[5]  Ibid. 107.

[6]  Ibid. 301.

[7]  Ibid. 302.

[8]  Ibid.

[9]  Martin Luther, "Against the Robbing and Murdering Hordes of Peasants, 1525," in The Christian in Society 3, ed. Robert Schultz, Luther&=javascript:goNote(39s Works (Philadelphia: Fortress, 1967), 49.

[10]  Ibid. 70.

[11]  Martin Luther, "To the Christian Nobility of the German Nation Concerning the Reform of the Christian Estate, 1520," in The Christian in Society 1, ed. James Atkinson, Luther&=javascript:goNote(39s Works (Philadelphia: Fortress, 1966), 130.

[12]  John Witte Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge: Cambridge University Press, 2002) 111.

[13]  Ibid. 112.


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