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The Reformation of Marriage Law in Martin Luther's Germany: Its Significance then and Now


John Witte Jr.


Emory University School of Law

1987

Journal of Law and Religion, Vol. 4, 1987

Abstract:     
Luther felt the marriage law had fallen into terrible disrepute. His feelings were not unfounded; there was a great deal of immorality within Luther’s Germany, and the small fines discouraged no one. Luther’s calls for reformation were well received by Protestants and Catholics alike. Protestants attributed the decay of marriage to negligence and arbitrariness of authority due to the Catholic theology of marriage that discouraged mature persons to marry, encouraged celibacy, and created impediments to marriage.

The doctrine of marriage was important to the Roman Catholic tradition from the beginning of Christian theology. A systematic theology emerged in the 11th to 13th century, which defined marriage as a natural institution subject to the laws of nature, as a sacrament of faith subject to the laws of Scripture, and as a contract subject to the general canon laws of contract formation and dissolution.

The Lutheran Reformation led to marriage as a duty to God and remedy to lust established at creation. Family was considered a sphere of authority, and institution of the earthly kingdom with civil and social uses, and marriage was within the authority of the church. These Lutheran doctrines changed the civil law within Germany. However, the laws were not consistent, mostly due to the failure of professors and draftsmen to agree. Three positions emerged: Luther proposed an eclectic, uncritical theory based on Scripture, reason, natural law, and church history; jurists advocated that provinces should adopt the law of the prince of the local province; and radical reformers argued for a wholesale repudiation of human marriage laws to return to Scriptural and early church marriage laws.

The new civil law modified traditional covenant doctrine and required participation of others in the marriage formation process, sharply curtailed the number of impediments to marriage, and introduced a new doctrine of divorce. The marriage bond must be formed by consent of the parties, but Luther did not differentiate between present and future promises.
Finally, Lutherans reformed the Catholic approach to divorce. Catholic doctrine taught that divorce only meant separation of room and board, because the sacramental bond of marriage would permanently remain intact. The Lutheran theologians argued that marriage was a natural institution, and that irreconcilable separation of two parties was tantamount to the dissolution of marriage. Divorce was not prohibited in Scripture; thus, Lutherans permitted a more liberal law of divorce for valid reasons, such as adultery.

Number of Pages in PDF File: 59

Keywords: Martin Luther, Marriage, Divorce, Protestant, Catholic

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Date posted: May 27, 2011  

Suggested Citation

Witte, John, The Reformation of Marriage Law in Martin Luther's Germany: Its Significance then and Now (1987). Journal of Law and Religion, Vol. 4, 1987. Available at SSRN: http://ssrn.com/abstract=1851129

Contact Information

John Witte Jr. (Contact Author)
Emory University School of Law ( email )
1301 Clifton Road
Atlanta, GA 30322
United States
404-727-6980 (Phone)
404-712-8605 (Fax)
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