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 LAW AND PROTESTANTISM

The Lutheran Reformation catalyzed immense and far-reaching

change in both Church and state and in both religious and secular
ideas. This book investigates the transformation of law and theol-
ogy born of Lutheran teachings of the sixteenth century. Profound
changes in legal theory, political organization, marriage, education,
and social welfare were inscribed in the legal and confessional sys-
tems of that period and have had an enduring effect on the modern
Protestant world and beyond.
John Witte, Jr. uses the “binocular”of law and theology to present
a panoramic picture of the Lutheran Reformation as an integrated
legal and theological movement that continues to influence mod-
ern institutions of public and private law, and modern ideas of
liberty, equality, and dignity. His book should be essential reading
for scholars and students of Church history, legal history, Refor-
mation history, and in adjacent areas such as theology, ethics, law,
anthropology, and history of ideas.

J O H N W I T T E , J R . is the Jonas Robitscher Professor of Law, Direc-

tor of the Law and Religion Program, and Director of the Center
for the Interdisciplinary Study of Religion at Emory University.
A specialist in legal history and religious liberty, he has published
 articles and twelve books, including From Sacrament to Contract:
Marriage, Religion, and Law in the Western Tradition () and Religion
and the American Constitutional Experiment ().
LAW AND PROTESTANTISM
The Legal Teachings of the Lutheran Reformation

JOHN WITTE, Jr.

Emory University

With a foreword by
MARTIN E. MARTY
University of Chicago
         
The Pitt Building, Trumpington Street, Cambridge, United Kingdom

  

The Edinburgh Building, Cambridge CB2 2RU, UK
40 West 20th Street, New York, NY 10011-4211, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
Ruiz de Alarcón 13, 28014 Madrid, Spain
Dock House, The Waterfront, Cape Town 8001, South Africa

http://www.cambridge.org

© John Witte, Jr. 2004

First published in printed format 2002

ISBN 0-511-03076-2 eBook (Adobe Reader)

ISBN 0-521-78132-9 hardback
ISBN 0-521-01299-6 paperback
 To Harold J. Berman
Mentor, colleague, and friend
 Contents

List of illustrations page ix

Foreword by Martin E. Marty x
Acknowledgments xvi
List of Abbreviations xviii

Introduction 
Law and theology in the Lutheran Reformation 
Ernst Troeltsch and the historiography of the Lutheran Reformation 

 Canon law and civil law on the eve of the Reformation 

Canon law 
Civil law 
Canon law and civil law 
Conclusions 

 Loving thine enemy’s law: The Evangelical conversion

of Catholic canon law 
The battle over the canon law 
Crisis and criticism 
Compromise: The Evangelical conversion of the canon law 
Summary and conclusions 

 A mighty fortress: Luther and the two-kingdoms

framework 
A wilderness of casuistry 
Theory of being 
Theory of the person 
Theory of the Church 
Theory of knowledge 
Theory of righteousness 
Implications for theories of law, politics, and society 
Summary and conclusions 

vii
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viii Contents
 Perhaps jurists are good Christians after all: Lutheran
theories of law, politics, and society 
Luther and the jurists 
The legal philosophy of Philip Melanchthon 
Johannes Eisermann on law and the common good 
Johann Oldendorp on law and equity 
Summary and conclusions 

 From Gospel to Law: The Lutheran reformation laws 

The early legal reformations 
The Lutheran reformation laws 

 The mother of all earthly laws: The reformation

of marriage law 
The inheritance 
The new Evangelical theology of marriage 
The new civil law of marriage 
Summary and conclusions 

 The civic seminary: The reformation of education law 

The inheritance 
The new Lutheran theology of education 
The new civil law of public education 
Summary and conclusions 

Concluding reflections 

The legal legacy of the Lutheran Reformation 
The theological legacy of the Lutheran Reformation 

Bibliography 
Index 
 Illustrations

Copyright on all illustrations used herein is held by the Pitts Theological

Library, Emory University, and they are used with express written
permission.

Woodcut from Der stat Nuremberg verneute Reformation (Nuremberg,

) frontispiece

. Title Page from Der stat Nuremberg verneute Reformation

(Nuremberg, ) page 
. Woodcut from Johann Freiherr von Schwarzenberg, Beschwerung
der alten Teüefelischen Schlangen mit dem Götlichen wort (Augsburg,
) 
. Woodcut from Martin Luther, Das allte Testament deutsch
(Wittenberg, ) 
. Woodcut from Johannes Cogelerus, Imagines elegantissimae: quae
multum lucis ad intelligendos doctrinae Christianae locos adferre possunt,
Collectae, partim ex praelectionibus Domini Philippi Melanthonis, partim
ex scriptis Patrum a Iohanne Cogelero, Verbi diuini ministro Stetini cum
praefatione D. Georgij Maioris (Wittenberg, ) 
. Cover Page of Johannes Bugenhagen, Der erbaren
Stadt Braunschwyg Christelich Ordenung: zu dienst dem heiligen
Euangelio, Christlicher lieb, zucht, fride, vnd eynigkeit: Auch darunter
vil Christlicher lere für die Bürger (Nuremberg, ) 
. Woodcut from Johannes Cogelerus, Imagines elegantissimae: quae
multum lucis ad intelligendos doctrinae Christianae locos adferre possunt,
Collectae, partim ex praelectionibus Domini Philippi Melanthonis, partim
ex scriptis Patrum a Iohanne Cogelero, Verbi diuini ministro Stetini cum
praefatione D. Georgij Maioris (Wittenberg, ) 
. Cover page of Martin Luther, Eine Predigt Marti. Luther das man
Kinder zur Schulen halten solle (Wittenberg, ) 
ix
 Foreword

Millions of people have only one eye, and still can see rather well. Some of
them wear an eye-patch over the blind orb. Others with only one good
eye in rare instances choose to work an effect by wearing a monocle
to improve their vision and express style. For all the adjustments such
improvisers make, it is hard to picture any of them – any of you, because
you may be a reader of this book – preferring monocular to binocular
vision.
If what I have just described is the case in the literal world of seeing,
so it often is in the figurative or metaphorical world that John Witte
inhabits. It is a world he would have readers share on the pages that
follow. Borrowing the concept of “binocular vision” from historian of
doctrine Jaroslav Pelikan, Witte asks not so much what are we to see but
through what lenses should we look.
In the present case, his subject combines the two determinative sub-
jects of “law” and “theology” in the case of sixteenth-century reformers
within the Christian community in the lands that make up much of
modern Germany. Too many historians, he notes, look through only the
lens of law or the lens of theology when dealing with these conjoined
topics. Fine, in some circumstances, but when a scientist looks through
a microscope, only one eye gets put to work.
What happens, however, when a person wants to look at a panorama
painted by figures who were in a situation where they could make few
important legal moves without connecting them with theology? And vice
versa: how should we regard the same persons, whether they were jurists
or theologians, who were in circumstances where they were not in a
position to make any theological moves without also seeing their legal
implications?
Now Witte himself is painting a panorama. As a scholar he is equipped
to include both law and theology on the vast scene he surveys in this
volume. No, his scope is not vast in the global or cosmic sense. The
x
 Foreword xi
German territories whose legal and theological records he has plumbed
and brought to view with such vigor and accuracy were themselves quite
small. They remain remote from most of our experience most of the
time. Yet they loom large in respect to their effect on later European
and, yes, world history.
We need perspective on the choice of topics such as these. So: people
in Sri Lanka or Cape Town or Boise, let us agree, are not likely to wake
up in the morning thinking about the reform of law and theology. If they
are, it is hard to conceive of them applying this thought to the judicial
system and the ecclesiastical framework of Germany half a millennium
ago. Would the latter subject ever come up in the ordinary course of their
lives? Not likely, at least not in any direct way, unless one or another of
them were a graduate student in the history of law who had been assigned
an apparently irrelevant and certainly uncongenial topic having to do
with theology.
In these paragraphs we have been looking at the larger world through
binoculars turned around the wrong way. Such reversing effectively
miniaturizes the topics of this book. In that case we will find perspective
on them ever harder to gain. Witte’s Germany in the sixteenth century
was small, chaotic. The place to which he invites readers to pay atten-
tion was not the modern German state, patented in . It was not the
ominous giant that was capable of being a party to the generating of two
horrible “world wars” in the century just past. His Germany had not yet
become the ambitious place, imperial in outlook, and culturally ready
to show off its glories: think Goethe and Beethoven and Heisenberg and
Barth.
Now, it did have some claim to grandeur back in the s because its
territories made up a significant part of the Holy Roman Empire. Yet
this collection of petty jurisdictions also can be seen as an archipelago
of fiefdoms, principalities, and duchies, ruled by dukes and princes and
bishops who might at times form coalitions and at other times make war
on each other. Why pay attention to them in our century when nations
like China and India use the word “billion” when speaking of their pop-
ulations, not “thousands” as they did in sixteenth-century Germany?
And why turn from them to Europe when the policies of the modern
titans can immediately affect the whole world, directly? Why not study
Chinese law and Indian religious thought to get our bearings and direc-
tions in the West?
Further risking reduction of the topic to the microscopic, notice that
Witte is not even talking about all that went on in those German
xii Foreword
territories so long ago. Law and theology; theology and law; legal re-
form and church reform; church edict and legal adjustment: these are
his topics. Aware as he is of what social historians write about, he does
not have the burden or pleasure here of examining the details of home
life, street lighting and waste disposal, such as they were, or changes in
weaponry. He is not even being the intellectual historian writing simply
about Catholicism, which was stronger and more organized then than
were Witte’s Lutherans, and is at home today in so many parts of our
world as it summons the loyalty of a thousand million souls.
Over against the Catholicism of that day were poised two emerging
forces that called themselves “evangelical” or, thanks to a minor event
in , often came almost accidentally to be called “Protestant” and,
by their enemies, “Lutheran.” It is these movements that Witte subjects
to binocular vision. (Even that term “Lutheran” did not encompass the
whole evangelical reality of the time. In other writings past, and still
more promised, the author has turned and will turn to other Protestant
themes marked “Reformed” or “Calvinist.”)
While Lutherans are at home in many places of the globe and, by
some reckoning, they remain the largest Evangelical or Protestant com-
munion, their political, social, and cultural influence is dwarfed by many
other religious and secular forces. Quick, now: name a Lutheran presi-
dent of the United States. Answer: there have been none. It would seem
easy to pass Lutherans by and therefore to strand Professor Witte some-
where amid the pages of this superbly researched and elegantly written
work.
Philosopher Alfred North Whitehead did not help Witte’s cause when
he spoke some decades ago of not just the Lutheran but also the whole
Catholic, Anglican, Reformed, and Anabaptist ventures in reform as
being nothing but a domestic quarrel of northwest European peoples.
New styles of scientific thought were emerging concurrently, and the
reformers hardly noticed. Even the Orthodox Christians of the East
tended to ignore what looked to them to be squabbles though, I think
Witte demonstrates, they turned out to be of epochal significance.
Whitehead also pointed out that in many respects the once-
dominating voice of Protestantism had become muffled. Its doctrines
were no longer defined. Its divisions were no longer the sundering
ones. Think Muslim/Jewish, rich/poor, nonwhite/white, straight/gay,
women/men, if you want to find the defining and dividing issues that
matter now. Not “justification by grace through faith,” the Lutheran
issue. You won’t find it ranked high in contemporary culture.
 Foreword xiii
Stop all this! John Witte is not the sort of scholar to make immodest
claims, so he does not make too much of his themes by constantly stressing
their relevance, their universal appeal, their urgency. But he does have an
important story, and we do well to notice it from the beginning, though
he waits until the closing pages to state the case for seeing some of the
long-range and the wide-scope implications of his story.
It is not the purpose of writers of forewords to do the work of the
authors whose pages they forward to readers, so I will not anticipate
those modern implications that Witte draws out. But even the secular,
Jewish, Roman Catholic, other-religious or other-Protestant citizens of
the twenty-first century, if they bother to track back through history here,
can come to see that some ideas about freedom and individuality, nursed
in Lutheran Germany, are taken for granted in battles about freedom
and the person today. Their origins deserve to be understood. Indeed,
they demand it.
As for the potential universal character of Witte’s story: Muslims,
Hindus, and Buddhists alike have been on the receiving end and eventu-
ally have come into the zones of regular interaction with the Europeans
who, after the times about which Witte writes, went into all the world
with guns, products, missions, notions. How different these moves would
have been had the Europeans made all their imperial and market moves
of recent centuries as expressions of united Catholicism, reformed or not.
How significant, we add, was the break-up of Christendom that started
to become so evident in Martin Luther’s day, long before the develop-
ment of the Enlightenment in the West or before modern revolutions
there and elsewhere completed the task of breaking up the world as it
had been in .
To speak in such sweeping terms does not do justice to the subtlety
with which Witte traces themes and effects. The best case in what follows
has to do with the reform of marriage laws by Luther, as well as by the
theologians and jurists around him, and their immediate successors.
To medieval Catholic eyes, what these leaders effected in respect to
marriage looked like mere secularization. These Lutherans, however,
did de-sacramentalize marriage and did make it a matter of civil law. So
they did work to break the hold of hierarchical Catholicism on that most
intimate and profound zone of life. How and why they did so are key
elements in the Witte story; he is the master of this topic, and he handles
it here masterfully.
Binocular vision, which in this case means using the two lenses of law
and theology as Witte’s main characters did, has not led him to isolate
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