The Transformation of Western Legal Philosophy in Lutheran Germany
John Witte Jr.
Emory University School of Law
Emory University School of Law
Southern California Law Review, Vol. 62, No. 6, 1989
Legal philosophers and historians have treated the 16th century as a mere transition point between the medieval Catholic Church and the 17th century Enlightenment. The era was not seen as a total break from Catholic thought, but rather it was seen as placing new emphases and meanings on old doctrines. In fact, Lutheran legal philosophy is a source of two major competing schools of legal theory: legal positivism and natural law theory. Furthermore, the Lutheran tradition introduced the idea of civil disobedience as a necessary approach to morally offensive laws.
The Lutheran legal philosophy was based upon the theological doctrines of salvation and Luther’s two kingdoms theory. Catholic theologians believed in penance, confession, and works in compliance with canon laws were the means to salvation. Lutherans believed in direct confrontation between the sinner and God, and only through faith could one be saved. Luther thereby eliminated law as a means of salvation. Lutherans also divided the universe into two kingdoms: the earthly and the heavenly. The earthly is governed by will, reason, sin, and death; the heavenly is governed by faith, grace, salvation, and eternal life. However, a parallel between the earthly and heavenly realms exists, as the heavenly realm directs the earthly search for justice, righteousness, truth, and knowledge.
The Lutheran legal philosophy was also based upon several political premises. The first such premise was that the religion of a territory was to be that of its ruler. This concept ultimately supported a monarchy, as the religion of the local prince ruled the land. Lutheran legal philosophy was also based upon the Fourth Commandment, which ordered Christians to honor their fathers and mothers. Lutheran theorists interpreted this commandment to require obedience to civil rulers, but they also imposed the duty of rulers to be just, thereby checking absolute power. Lutherans also advocated the use of the obrigkeit, or a secular civil service, and encouraged university professors to be counselors of the law to whom legal cases were submitted for judgment.
Luther also changed the way his followers approached legal philosophy. Luther placed the conscience ahead of reason; thus, law was no longer part of God, as it was in the Catholic tradition. Instead, law was only used in the earthly realm, and obedience to the law would not rescue mankind from its sinful nature. Law was meant only to restrain people from misconduct by threat of penalty.
Number of Pages in PDF File: 89
Keywords: Western, legal philosophy, 16th century, Enlightenment, Martin Luther, Lutheran, legal theory, natural law, legal positivismAccepted Paper Series
Date posted: June 15, 2011
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