Canon Law in Lutheran Germany: A Surprising Case of Legal Transplantation
John Witte Jr.
Emory University School of Law
LEX ET ROMANITAS: ESSAYS FOR ALAN WATSON, p. 181, Michael Hoeflitch, ed., Robbins Collection Publications, 2000
This Article – dedicated to Professor Watson in admiration and friendship – explores the legal transplantation of the medieval Catholic canon law into the new Protestant civil law of Lutheran Germany within a decade of Luther’s book burning. The hard question remaining is why and how this legal transplantation of the canon law occurred in early Lutheran Germany. Why would Luther in 1520 burn the canon law books but in 1530 write a commendatory preface to a canon law textbook for use at his own University of Wittenberg? Why would German magistrates ban the study and use of canon law texts in the 15203, only to import canon lawyers and transplant canon law rules in the 15303 and thereafter? Why would neophyte Lutheran jurists be content to rely on the Bible and custom in their early writings, only to turn with greater regularity to canon law authorities later in their careers? "Inertia" is part of the answer. Prior to the Reformation, the canon law had ruled effectively and efficiently in Germany for centuries. The canon law not only governed the internal doctrinal, liturgical, and administrative life of the Church. It also reached broadly into the temporal life of Germany, and had widespread appropriation and application in the sundry imperial, territorial, urban, manorial, and feudal polities that comprised the state. Indeed, the canon law, along with Roman law and customary law, was part of an integral jus commune of Germany. Most of the jurists and theologians who had joined the Reformation cause were trained in the canon law; several in fact held the doctor iuris canonici or doctor iuris utriusque? In the heady days of revolutionary defiance of Pope and Emperor in the 15205, it was easy for Protestant neophytes to be swept up in the radical cause of eradicating the canon law and establishing a new evangelical order. When this revolutionary plan proved unworkable, however, theologians and jurists invariably returned to the canon law that they knew. Theologically offensive ecclesiastical structures and legal provisions, such as those directly rooted in notions of papal supremacy or spurned sacraments, were still avoided. But what remained was put to ready use in service of the new Protestant theology and law. After all, there did remain "an inner psychic and spiritual relationship" between Catholicism and Protestantism.
"Innovation" is also part of the answer. This evangelical transplantation of the canon law was based on the strength of considerable theological and jurisprudential ingenuity. Theologians after 1530 offered an innovative theory of the church, grounded in the evangelical theory of the two kingdoms. The invisible church of the heavenly kingdom, they argued, might well be able to survive on the Scripture alone, free from the accretions of the canon law. But the visible church of the earthly kingdom, filled with both sinners and saints, required both biblical and canonical rules and procedures to be governed properly. Medieval canon law, insofar as it extended biblical norms, was a proven norm for the governance of the visible church, and should be used. Jurists, in turn, offered an innovative theory of the state and the sources of civil law. The magistrate, as God's vice-regent in the earthly kingdom, and as the LanAesvater of the community, was required to attend to both the civil and spiritual needs of his subjects. He was to rule using Christian and equitable laws. Again the canon law, as a quintessentially Christian and equitable law, was an appropriate prototype on which to call. This new ecclesiology and jurisprudence, together, provided a sturdy rationale for the transplantation of the canon law into Lutheran Germany.
Number of Pages in PDF File: 48
Keywords: Catholic canon law, Protestant civil law, Luther, CalvinAccepted Paper Series
Date posted: August 7, 2011
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