Author Roundtable: Perspectives on Law and Protestantism: The Legal Teachings of the Lutheran Reformation by John Witte, Jr.


Reformation historians, lawyers, and theologians all find they have a stake in a book such as Law and Protestantism. Here you will find a roundtable populated by reviewers Mary Gaebler, Scott Hendrix, Paul Hinlicky, and Mary Sommar, and aided by law scholar Robert Tuttle and Reformation scholar David Whitford which brings out the particular perspective of each discipline.

David Whitford, Claflin University:
I have but two brief comments as it relates to the reviews and to John's book.
First, I think that John's book is immensely important to the continuing work concerning the "Confessionalization" Thesis. By examining the role of magistrates in the formation of the cura religionis he both supports and undermines (at the same time!) the thesis.

Second, I think that Gaebler has, perhaps, over-read Witte on the point of the "priesthood of all believers." As I read him, he was merely asserting the fairly standard read of the theory that all people (regardless of station) are equal as it relates to their spiritual lives. Temporally, she is quite right that this was not the case -- but I don't think that John is making that point. I think he is making the more subtle point that by arguing for equality in one "kingdom," there was a perhaps unintended consequence of egalitarianism set in motion.

Finally, I think that sentences like the following represent a misconception:
"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."

Luther's reaction to the peasants was far more nuanced. The peasants he was responding to when he discussed the idea of temporal equality were not the "robbing and murdering hordes." Those peasants he attacked, not because they were claiming temporal equality, but because they were robbing and murdering.

Bob Tuttle, George Washington University Law School:
First, John has done a wonderful job of describing the legal and political context of the Reformation, and introducing many to the jurisprudence of Melanchthon, Eisermann, Oldendorp, and Bugenhagen.  I hope that Witte's book becomes standard reading in courses on the Reformation.

Second, John quite intentionally wades into a number of debates about the Lutheran Reformation, ranging from the significance and extent of Lutheranism's theological divergence from Roman Catholicism to the alleged ethical passivity (or statism) of Luther's heirs, and to the impact of the Reformation on women.  With respect to each of these debates, Witte generally concludes that the Reformation - perhaps unsurprisingly! - reflects the simul at its theological core, embodying both change and continuity in practice and doctrine.

Third, notwithstanding the book's reference to those debates, John does seem to have a basic question and answer.  The question: were the legal reforms advanced by Evangelical leaders a departure from, or consistent with, the heart of Luther's vision?  The answer: the reforms were not only consistent with, but required for the survival and success of the Evangelical movement.

John does a very nice job of tracing the legal developments in family law and education, and linking those developments to the Evangelical reforms in theology and ecclesiology.  (John has written elsewhere, and at greater length, of the reforms of marriage law, and the materials provided here capture the scholarly rigor and insight of his longer treatment of the subject.)

While I'm largely persuaded by John's argument about education and family law, I think the argument is less developed, and less persuasive, when applied to the broader question of the civil magistrate's authority to enforce the First Table of the Decalogue - an authority asserted by most of the Evangelical reformers discussed by John, but an authority quite in tension with Luther's writings during the 1520s. 

I found it interesting that, while he pointed to the apparent departure from Luther's thinking, John seems to endorse this broad account of temporal jurisdiction: "Sixteenth-century Lutherans and twenty-first-century Westerners seem to share the assumption 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" (296).  If "facilitation" consists of protecting religious liberty (as one of a panoply of human rights), then John is right about the assumption of contemporary Westerners - though I doubt if that is an assumption shared by sixteenth-century Lutherans.  If, on the other hand, "facilitation" suggests that the state has an affirmative role in promoting the piety of its citizens, then the point is far more controversial when applied to our contemporaries.

The question about the jurisdiction of civil authority is crucial.  In one sense, the reformers' turn to civil law is not surprising; having rejected Rome's exercise of temporal jurisdiction - particularly as expressed in canon law - the reformers needed a structure or structures that would establish order and pursue the common good.  The existing (and diverse) civil authorities provided an easy solution.  Indeed, Luther's early writings regularly accuse Rome of having inadequate respect for temporal authority, both in the claims of clerical immunity from civil process and the assertion of ecclesial jurisdiction over matters that should belong to the temporal government

Obvious solutions are not always (and perhaps not often) good solutions.  By the quick turn to civil government as the backbone of the Reformation - the move so elegantly depicted in John's book - the Evangelicals may have released the church from its Babylonian captivity, only to hand the prisoner over to a Persian bondage.  Cyrus rescued these exiles, but he didn't bring them back to Jerusalem.

What we have, in Witte's account of the Evangelicals' jurisprudence, is the gospel subordinated to the authority of the paterpoliticus - no doubt a subordination that should reflect the qualities of an entrustment, conditioned on faithful exercise of the ruler's office, but a subordination nonetheless.  Was this subordination inconsistent with Luther's understandings of the two reigns?  Perhaps; as John acknowledges, Luther typically limited the reach of temporal authority into matters of faith.  But the move is not a radical departure from Luther's thought on these matters.  Much of what John describes in this book happened during Luther's lifetime, and we have no record of Luther's objection to these efforts (to the contrary - as John notes, we have a number of instances in which Luther supports particular legal developments that reflect a broad reach of temporal jurisdiction into matters of faith).

As Benne and Hinlicky note in their reviews, the subordination of church to temporal authority is a legacy that contemporary Lutherans have good reason to question - and, I would argue, renounce.  While those who link Luther with National Socialism exaggerate the importance of Reformation theology on the early twentieth century, it's not an exaggeration to think that the inheritance of this part of Evangelical theology may have deprived some of a resource - both practical and theological - that might have helped them withstand the onrush of the Nazis and their German-Christian allies.

Though the reformers may have borrowed the content of canon law, they rejected the independent polity - the visible, institutional church - that represented a political alternative to the secular authority.  Surely those steeped in Luther's understanding of the doubleness of our human lives and institutions, simultaneously bearers of the divine commission and the satanic perversion of that commission, should have seen the flaw in eliminating the only viable check to the temporal power.

Paul Hinlicky:
I only have this brief comment to add.

Theologians and theological ethicists would do very well to evaluate Witte's work, especially on the three estates as forms of early modern republicanism, over against the opposing form of emerging political though associated with Hobbes' Leviathan -- an anti-Augustinian theological tract, which, as John Millbank demonstrated, stands behind the construction of a real 'secular' world which 'social theory' would study in the same way that emergent natural sciences would learn the book of nature. This is a world in which violence, not the three primal forms of human community, are written right into the book of nature, so that politics can be nothing other than the coercive management of endemic violent conflict.

In other words, to pose the issue as whether or not early Lutheran jurisprudence leads to us presumably enlightened, democratic, progressive moderns, begs the question whether we today owe more to Hobbesianism than to Lutheranism.

Scott Hendrix
I have enjoyed reading the various contributions and want to add one of my own.

In addition to my article, which should indicate both my appreciation of Witte's book and my perspective of the sharper ethical challenge offered by Luther's view of two kingdoms, I want to echo the importance that Mary Gaebler places upon the three estates or orders. I understand their origin and meaning on the basis of Part III of the Confession concerning Christ's Supper (1528; LW 37:363-365), in which they replace monastic and clerical orders as the domains of genuine Christian life in the world and are excelled only by the "common order of Christian love." The fact that these orders were for Luther "institutions established by God" in no way required believers to render unconditional obedience to civil rulers. Nor did Luther's appeal to Elector John of Saxony (1526) to authorize the visitation of parishes (because no Roman bishops turned evangelical and were available to do it) hand over the "church" or the "reformation" to civil authority. I have argued elsewhere that this appeal by Luther was consistent with his earlier ecclesiology and in particular with his Appeal to the Christian Nobility (who were to oversee reform because they were Christian, not just because they were German nobility).

I say this not so much to defend Luther but as a historian to argue that whatever later (German) Lutherans made out of the three orders and Luther's appeal to civil authority to oversee the organization of new evangelical churches can hardly be blamed on early Lutheran reformers or on the electors of Saxony who were, after all, defying the authority of Emperor Charles V throughout their lives. By the same token, they can hardly be given much if any credit for post-Enlightenment ideals of human equality and the rights of citizens. As ethicists, theologians, and historians both ecclesiastical and legal, we are certainly entitled to make judgments about what has happened since the Reformation and to regret and even to denounce the political and legal misuse of the reformers' writings, but the Lutheran Reformation was what it was, making use of the law (civil and revised canon) to secure a future which the reformers could in no way imagine and for the regrettable, even horrible, parts of which they should not be blamed. Most importantly to me, we are free to appropriate those elements that best serve the needs of the churches today - and to leave the rest in the past.

Mary Sommar:
Witte's metaphor of binoculars has been shown to be particularly apt by the various responses to his book, responses that have grown out of different disciplines.

Post-tridentine canon law is a very active area of research in legal history circles right now and Witte shows how both Protestant and Catholic understandings of law in that period fit into the "big picture." As an historian of canon law, what I found striking was Witte's realization that, despite his initial revulsion at the misuse of canon law, Martin Luther and his successors were able to redeem the useful kernels of medieval legal tradition and transform their social and political world using much of this old law to order the new structures of Reformation Germany. The most spectacular of these recycled ideas are the term "vicar of Christ" and the power to render decisions based on principles of equity and fairness instead of legalism that Luther transferred from the pope to the civil magistrates.  Theologians, however, naturally react to the new theological insights provided in Witte's book, e.g. the thorny question if the benefits gained from preserving some of these old legal concepts and structures limited the transformations effected by the Reformers. Legal historians are carefully trained to avoid value judgments and this habit frequently blinds us to the insights to be gained from weighing the moral or philosophical cost of an event or an idea. We often forget that weighing does not necessarily imply the assigning of worth.

This group endeavor has been very enjoyable, highlighting as it does the complexities of multi-disciplinary discussion.

Bob Tuttle:
I have also very much enjoyed reading your reviews and comments on Witte's book, and appreciate Scott's reading of Luther's appeal to the Christian nobility.  I do think, however, that Witte's book calls attention to a very important shift in authority -- the move from canon law to civil law is not just a migration of (some) content from one body to another, but a radical shift in authority over the core functions of the church.  This seems to me to involve a great deal more than just calling on the nobility who happen to exercise temporal authority -- it locates the proper jurisdiction over religious matters in the one who holds temporal authority, by virtue of his office.  Civil law, then, becomes the proper means of regulating the church -- because it is the instrument that belongs to the political authority.

Mary Gaebler:
Thanks for all your contributions.  I have a quick thought to add in response to the last two notes from Scott and Bob.

I wonder if the concept of authority underwent an important change of type as well as of location.  Scott says that the shift to temporal authorities was consistent with Luther's ecclesiology.  He reminds us that Luther's appeal to the Christian nobility to oversee reform was grounded in their baptism rather than in their noble birth.  Bob seems to be saying that it was neither their faith nor their nobility that was the critical issue, but rather the fixed, temporal office that they held. 

But are not all the offices associated with the estates something different than the sort of official authority the church had previously assumed?  With the priesthood of all believers there is an opening outward of God's presence, and ultimate authority.  The sacramental authority is no longer linked with the ordination (and re-creation) of priests.  The Church, which had been expressed through select persons with higher callings is no longer recognized as that narrow point of contact between heaven and earth.  The whole world has been sacramentalized by Luther, and every baptized believer has become a priest.

Now, there is an important distinction between transubstantiation and Luther's idea of Christ's body revealed relationally "in, with, and under" the real bread and wine, which is retained.  God's presence and authority works in, with, and under these temporal structures.  Similarly God's presence works in, with, and under the lives of the priesthood of all believers.  Is it the case, then, that for Luther the authority of the offices was assumed in a similarly paradoxical way?  Were not the bearers of authority retained in themselves, (even as the bread and wine is retained in the Eucharist)?  Without the transubstantiation of the office-bearer into the personal locus of authority, the office remains open to movement from one part of the whole body to another. 

If the baptized are all co-equal masks of God, and the temporal authority of the magistrate merely another expression of that single divine authority that works in, with, and under the whole, then offices can be shifted from one estate to another as circumstances require.  It was, as Scott says, because there were no bishops available that Luther turned to Elector John of Saxony.

This would mean that the oversight of the church is not "fixed" in some absolute way with the temporal authorities.  Since the authority of every office resides in God, and because every baptized believer is a bearer of Christ, the authority (which is single) can be expressed in, with, and under any one of these Christ-bearers if and when they assume the office of oversight. 

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