The Transformation of Western Legal Philosophy in Lutheran Germany

89 Pages Posted: 15 Jun 2011 Last revised: 21 Nov 2017

See all articles by John Witte

John Witte

Emory University School of Law

Harold Berman

Emory University, School of Law (deceased)

Date Written: 1989

Abstract

The sixteenth-century Lutheran Reformation catalyzed immense and far-reaching changes in both church and state and in both religious and secular ideas. This Article investigates the rise of early modern Lutheran legal philosophy, premised on Martin Luther’s complex new two kingdoms theory with its new dualistic understanding of human nature, human knowledge, human society, and human laws. The Article analyzes Luther’s own significant contributions to understandings of authority and liberty, conscience, and command, Biblical and natural laws. It also studies closely the intricate new legal and political philosophies developed by moral philosopher Philip Melanchthon and jurist, Johann Oldendorp. Melanchthon drew classical philosophy, Roman law, canon law, and the new Lutheran theology into a sweeping new theory of natural law, positive law, the uses of law, and the interactions among public, private, and penal law. These same topics dominated the work of Oldendorp, who added an important innovative theory of Christian equity, which was to be used in legislation, administration, and adjudication alike. The themes and contents of this early Article were greatly expanded and revised in the author’s later book: Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge University Press, 2002).

Keywords: Martin Luther; Philip Melanchthon; Johann Oldendorp; legal philosophy; Protestant Reformation; natural law; positive law; uses of the law; church-state relations; conscience; equity; Decalogue; church, state, and family; two kingdoms theory; human depravity; natural light; natural knowledge

Suggested Citation

Witte, John and Berman, Harold J., The Transformation of Western Legal Philosophy in Lutheran Germany (1989). Southern California Law Review, Vol. 62, No. 6, 1989, Emory Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=1851133

John Witte (Contact Author)

Emory University School of Law ( email )

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Harold J. Berman

Emory University, School of Law (deceased) ( email )

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