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."
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. Far from
deserving historical obscurity, Reformation theologians and lawyers
are to be recognized for the pivotal contributions they have
 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…" 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." 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." 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
 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) 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
 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." "
. . . He who would confuse [these] two kingdoms . . . [is] putting
the devil in heaven and God in hell."
 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.
 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."
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.
 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." 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. . . .  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.
 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.
© February 2004
Journal of Lutheran Ethics (JLE)
Volume 4, Issue 2
 John Witte Jr., Law and
Protestantism: The Legal Teachings of the Lutheran Reformation
(Cambridge: Cambridge University Press, 2002) 28.
 Ibid. 29.
 Ibid. 88.
 Ibid. 106.
 Ibid. 107.
 Ibid. 301.
 Ibid. 302.
 Martin Luther, "Against the Robbing
and Murdering Hordes of Peasants, 1525," in The Christian in
Works (Philadelphia: Fortress, 1967), 49.
 Ibid. 70.
 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
Fortress, 1966), 130.
 John Witte Jr., Law and
Protestantism: The Legal Teachings of the Lutheran Reformation
(Cambridge: Cambridge University Press, 2002) 111.
 Ibid. 112.