[1] John Witte, Jr. concludes this superb study with a prophecy: “Heaven will exalt due process, and each will always receive what’s due. Hell will exalt pure caprice, and no one will ever know what’s coming” (303). That is literally a prophecy, but a well-founded one drawn from the story Witte tells in this book. “In a 1531 oration at the University of Wittenberg, Philip Melanchthon declared: ‘It is impossible to uphold civil discipline without religion, and jurisprudence is shaped most by religious doctrine.’ Indeed, only when ‘religion adds its voice to civil precepts’ does law have the authority to govern and the power to reform. These sentiments were the watchwords of sixteenth-century Lutheran jurisprudence. For the early Evangelical jurists, law and Gospel, justice and mercy, rule and equity, discipline and love, order and faith, structure and spirit, all properly belonged in the governance of the earthly kingdom. To separate one dimension from the other was to serve the Devil and get a foretaste of hell. To hold them in tension was to serve the Divine and to see a glimmer of heaven” (175).
[2] Witte’s book tells a tale of social transformation in lands that adopted the Lutheran reformation and applied its basic theological teachings to the reform of the temporal as well as spiritual sphere. It was one of the core Lutheran theological convictions that the Church has no sword, no temporal jurisdiction, except in the highly restricted sense of its organizational self-governance in regard to doctrine, liturgy, and ecclesiastical orders. Regarding this latter, Witte shows how beginning with Melanchthon’s Luther-endorsed Visitation Articles and continuing through many new “reformation laws” modeled after Bugenhagen’s Church Order, the early Lutherans quickly found their way back to ancient canon law as a sound source for the institutional church’s self-regulation. Canon law also provided a long history of carefully worked out jurisprudence with continuing relevance for matters like marriage that were now tranferred to the oversight of the civil magistrate. So considerable continuity with the antecedent tradition manifested even in regard to reformed uses of canon law.
[3] Yet the truly innovative thing that occurred under the impact of the Lutheran teaching was the new theological legitimation given to secular power and the specific reforms in civil law, political theory and judicial practice this produced. What were these reforms? In essence, the Ten Commandments provided the divinely clarified teaching of the natural law inscribed by God in creation and for this reason replaced the sacramental system as an over-arching moral framework for the organization of civil law. In political theory, the papacy’s claim to the hold two keys was replaced by the new doctrine of the Protestant magistrate, who not only held the sword as God’s “lofty viceroy” on earth, but was to represent God paternal care for his children in works of public welfare (the community chest and public education particularly). In judicial practice, the rule of law was strengthened, not subverted, by the further development of the theory of equity, which encouraged both new scholarly research in law and a definite judicial activism. Equity – the rational capacity to put oneself in the place of another, the Golden Rule-provided a rule for applying rules.
[4] While the results of this turn from Gospel to law, as we shall see shortly, were not wholly unambiguous, Witte’s detailed case goes a long way toward reframing Troeltsch’s judgment that the Lutheran reformation ‘simply continued the medieval conditions,’ was ‘no watershed in the Western tradition, and certainly not the font of modernity’ but only ‘new solutions to medieval problems.’ (23-26, passim). But Witte sees the origins of modern republicanism in a student of Melanchthon’s, Johannes Eisermann (1485-1558) whose tract 1533 tract On the Common Good, later expanded and retitled, On the Good Ordering of a Commonwealth was “the first detailed social contract theory of the Christian commonwealth to emerge in Evangelical Germany.” (153). Eisermann was concerned “to construct a theory of the common good out of a theology of total depravity.”
[5] Witte’s portrait here of one of the first of many great debates about the ‘state of nature’ that occupied Protestant political theorists in coming years is worth a closer look. In Eisermann’s view, “the state of nature began as a perfect realm of Paradise….” (143). “They were by their natures ‘civil and communal.’ They lived in perfect communion with God and perfect community with each other… In the perfect state of nature in Paradise, human life had been lovely and long. In the sinful state of nature after the Fall, human life had become ‘brutish’ and ‘short’ (ferus et brevis). Despite the fall into sin, however, God has allowed all people to retain a glimmer of those ‘inborn sparks’ of honesty, virtue, and community with which they were created: an innate knowledge of a natural law of love of God, neighbor, and self, and a natural sense of equity by which these laws must be applied… They could quickly be extinguished and forgotten through depraved and debased living. But they could also be ignited to give greater light if they were subject to ‘careful study.’ Throughout history, Eisermann argued, ‘God has always lifted up wise men,’ who have undertaken such ‘careful study’ of these ‘inborn sparks’ of natural law… Egyptians, Greeks, Romans and other ancient peoples of the West all saw that ‘man is by nature sociable and aspires to society and community of life, in order to curb vice and embrace virtue, to help others, and to find a way to help himself and his community.’ Accordingly, each of these ancient peoples has formed a ‘covenant of human society (foedus humanae societatis)…'” (144). “A commitment to the rule of law was the most essential provision of all these early social covenants” (145).
[6] According to Witte, Eisermann drew three conclusions for the construction of the new Christian republic: 1) “Christians have no monopoly on the understanding of natural law and natural reason,” 2) “there is no single foreordained or natural system of society, politics, and law…” and 3) “there is no single person -far less a single dynasty-in a commonwealth that should naturally rule” (146).
[7] The new legitimacy accorded to temporal power was thus generative of progressive political thought and reform. Witte correctly assigns that new legitimacy to Luther’s two kingdoms doctrine, which he keenly characterizes as a horizontalizing of the vertically imagined traditional notion of a ‘great chain of being.’ God is not to be depicted remotely at the pinnacle (and for that matter ‘located’ there at a safe distance), whose governance is then mediated by natural hierarchies of descending links in the great chain — some which function as vicars of the absent deity. Rather Luther’s God is at once the Creator of all that is other but for that very reason is immediately and omnipotently present to all levels of being in the various ‘masks’ he adopts. The two kingdoms are not two similar magnitudes of heavenly and earthly things aligned in a vertical series, but the kingship of God the Creator manifests its rule in earthly masks of three coeval estates established at the creation: the domestic economy, the church and the state. Before God these three estates are equal just as they are autonomous in relation to each other. Each has its own specific mandate, which collaborates with the others for earthly and heavenly welfare. In this view, secular power is not chiefly the state, nor is it chiefly characterized by possession of the sword. All three estates comprise the secular kingdom and mutually limit each other. Witte uses this theological scheme to describe legal reforms affecting not only the church, but also public morality, marriage, education, and poor relief.
[8] There is of course a dark side to this fusion of state paternalism with the monopoly on the means of coercion. The ancient commonwealths were, in the view of Melanchthon and Eisermann, “incomplete. They can speak only to a ‘civil goodness,’ not to a ‘spiritual goodness’… For none of these classical civilizations had the full biblical revelation of the heavenly kingdom on which the earthly kingdom must be partly modeled” (147). “For Eisermann, this meant that the law of the prince must coerce citizens to a ‘civil goodness,’ and also cultivate in them a ‘spiritual goodness'” (151). Eisermann was following his teacher, Melanchthon, who “went beyond Luther… in articulating the divinely imposed task of Christian magistrates to promulgate what he called ‘rational positive laws’ (‘rationes iuris positivi’) for the governance of the earthly kingdom” (129). Melanchthon regarded the Christian magistrate as “the ‘custodian’ of both tables of the Decalogue, ‘a voice of the Ten Commandments’ within the earthly kingdom… magistrates must pass laws against idolatry, blasphemy, and violations of the Sabbath – offense that the First Table prohibits on its face. Magistrates are also, however, to pass laws to ‘establish pure doctrine’ and right liturgy, ‘to prohibit all wrong doctrine,’ ‘to punish the obstinate,’ and to root out the heathen and the heterodox” ([citing CR 22:617-18] 131). Witte rightly notes that “Melanchthon’s move toward the establishment of religion by positive law was a marked departure from Luther’s original teaching…” (131). The cuius regio, eius religio principle of the Interim, and at length “the Peace of Westphalia (1648), rested ultimately on Melanchthon’s theory that the magistrate’s positive law was to use the First Table of the Decalogue to establish for his people proper Christian doctrine, liturgy, and spiritual morality” (132).
[9] Witte is well aware of the problem his scholarship uncovers here. On the positive side, he can conclude that “a good deal of our modern Western law of marriage, education, and social welfare, for example, still bears the unmistakable marks of Lutheran Reformation theology” (295). He emphasizes 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… law has not only a basic use of coercing citizens to accept a morality of duty but also a higher use of inducing citizens to pursue a morality of aspiration” (296). But on the negative side, he notes that ever since the Reformation times “Germany and other Protestant nations have been locked in a bitter legal struggle to eradicate state establishments of religion and to guarantee religious freedom for all…” In the end, he tips his assessment toward “an instinct for egalitarianism” rooted in the Reformation view of the equal value of all persons before God as “the Lutheran gene in the theological genetic code of Protestantism” (303), an emphasis which links together rights and duties, gospel and law in the Christian republic.