The Protestant Revolution in Theology, Law, and Community (Part I)
The Protestant Reformation has been cited by scholars of European history as contributing to the rise of nationalism, individualism, capitalism, and secularism but not to the development of law, institutions, and legal science (23).1 Contrary to the current scholarship, Berman contended that these phenomena—nationalism, individualism, capitalism, and secularism—emerged after the decline of Protestant (and Roman Catholic) Christianity in the nineteenth and twentieth centuries. It was “national interests, individual responsibility and opportunity, a market economy, and public spirit” rather than the Protestant Reformation that contributed to the rise of these ideologies. Berman argued that a close and detailed examination of Luther’s role in Germany and Calvinist influences in England reveals a religion that was corporate in character, religious in nature, and communitarian in its politics.
The theory that the Protestant Reformation was primarily responsible for the materialization of these various ideologies stems from Max Weber’s The Protestant Ethic and the Spirit of Capitalism. Specifically, Weber cited that seventeenth-century English Calvinism possessed the spirit that later would emerge in bourgeois industrial capitalism. The paradox of the Calvinist acquiring wealth while denouncing such a desire as sinful was resolved in the doctrine of predestination: God, for His own inscrutable reasons, selected only a few to salvation and condemned the rest to damnation. For Weber, the Calvinist was terrified at this state of uncertainty of whether he was one of the elect; therefore, he carried out his vocation, to which he believed God had called him, in the hope that God might grant him worldly success as a sign that he was one of the elect. It was this belief that motivated the Calvinist entrepreneur to acquire great wealth (24–25).
Besides the problem that it was eighteenth-century American deists and not seventeenth-century Puritans that embodied the spirit of capitalism, Berman pointed out that both Calvinism and Lutheranism were not individualist but communitarian religions in their belief of the unity and fellowship of a congregation that had a covenant with God. Luther made the distinction between the “private person” and the “public person” in his theology; and Calvin stressed the importance of community as one that has a solemn and sacred covenant with God who was a God not of individual conscience but of law which bound the community together. For both Luther and Calvin, law was essentially normative, so they integrated divine, natural, and positive law into the governance of their new Protestant communities (25–26).
My analysis of Berman’s argument is merely to supplement it with a closer examination of the problem of community formation for Luther, Calvin, and the Puritans. With the theological doctrine of justification by grace through faith alone, Protestants must discover some social principle to organize their communities. I contend these principles are found in the doctrines of predestination and the covenant with God. These theological beliefs, in turn, have an influence on the relationship between natural and positive law, which makes the latter still integrated with the former but not as tightly as in scholastic theology. Although the Protestant Revolution was able to forge a new community from their new theology, and thereby is not responsible for the emergence of individualism, secularism, and capitalism, it did ultimately pave the path toward nationalism with the destruction of a universal church, empire, and history, as started by Luther.
Luther’s Law and Conscience
The underlying significance of the Ninety-five Theses was not Luther’s attack on the practice of indulgences but his call for the abolition of ecclesiastical authority: the removal of the Roman Catholic Church’s legislative, judicial, and administrative power. According to Luther, the role of a third party to mediate between the believer and God was not needed, for the true church was not a lawmaking institution, but rather it was the invisible community of all believers with each person responding directly to the Bible and God. The Gregorian two swords theory—separate spiritual and secular powers that interacted with each other—was replaced with Luther’s two kingdoms theory: the heavenly kingdom was governed by the Gospel and concerned itself with matters of grace and faith, while the earthly kingdom was governed by law and was preoccupied with matters of sin and death. This revolutionary doctrine relegated the church to a purely spiritual community, in which social, political, and legal authority was replaced by the earthly kingdom (40–41).
This withdrawal of the church from its visible role in the world was justified by Luther’s reconceptualization of the church as a spiritual community of believers who were righteous according to God. Luther denied a person could merit salvation because of man’s total depravity: his fallen nature from original sin affected everything he did; therefore, the only salvation possible was God’s direct grace, which was bestowed on only those who had faith. Thus for Luther the church was a spiritual community of those justified by grace through faith alone. This account of human nature as totally depraved was in marked contrast to the Roman Catholic’s position that, in spite of original sin, human will and reason were capable of natural—but not supernatural—perfectibility and that through faith, good works, and receiving the sacraments, humans could receive some divine forgiveness (41).
Of course for Luther this account was full of folly, if not downright heretical: only God—neither a priest nor individual merit—could purge sins and bestow salvation to man full of original sin. But if justification by grace through faith alone were correct, what would be the role of the earthly kingdom with its laws and politics? Why should anyone participate in good works? Luther’s call for his followers to participate in good works, the law, and politics rested on his doctrine of the hidden and present God: God was present but remained hidden in the earthly realm. Despite its embodiment of sin, the earthly realm nonetheless was ordained by God for humans to use their reason and will to understand and do as much good work as possible. Although individuals cannot merit salvation through good works, those with faith may be able to uncover a glimpse of the hidden God in their present works. Every individual consequently was called by God to do good works as part of the priesthood of all believers (42).
Because mediators were not necessary for salvation, every individual was a priest in the sense that everyone had a duty to minister to others in prayer, instruction, and charity. This priesthood of all believers was buttressed by the doctrine of universal calling. Unlike the Catholic conception of vocation for the “spiritually perfect” of priests, monks, and nuns, Lutherans believed that all people were called by God to be responsible in their faith and in service of others. Public officials were particularly pointed out by Luther for serving the community. For these people, especially the Christian prince, a distinction was required between their ethics as a “private person” and as a “public person”: the former was to love God and his enemy, while the latter was required to prevent injustice, even if at the price of violence. But being no nearer to God than his citizens, the prince should rule with his counselors, officers, and magistracy for the common good. In return for his rule, citizens were required to obey the prince. The biblical basis for the prince’s rule was the Fourth Commandment, “Honor thy father and thy mother”: citizens were required to show the same obedience to the prince as children to their parents. The prince, in turn, was called to be just in his governance of the state. Although the Christian prince may lapse into tyranny, civil disobedience was not permitted as it would be a violation of the divine law (42–44).
With respect to the law itself, Luther retreated from his initial position that faith alone would replace the law and instead offered his two kingdoms doctrine. Although permanently sinful, the earthly kingdom was one where God remained hidden within it and thereby allowed positive value to be assigned to political institutions and laws. According to Berman, this reconceptualization of the law allowed an alliance between Lutheran theology and civil authority to create a new legal science. Protestant princes could justify their assumption of jurisdiction originally possessed by the Roman Catholic Church, such as marital and familial relations, moral offenses, education, and welfare services (63–64). However, “the abolition of Roman Catholic jurisdiction in Protestant principalities also left substantial gaps in German criminal law, civil law, and other related branches of the legal system as well as in legal philosophy and legal science” (67). In this new systemization of law, legal positivism replaced natural law to fill these gaps. Because humans were fundamentally fallen due to original sin, precise laws with coercive sanctions were required to deter misconduct: natural laws were too general to be of any use to guide human behavior. Lutheran theology therefore influenced the rise of legal positivism to justify the Protestant princes’ new jurisdictions (68).
Paradoxically, Lutherans also emphasized general legal principles as the beginning point of legal analysis, leading to the practice of applying rather than finding law. What Protestant theologians and jurists did was to apply Aquinas’s moral conception of conscience—“an aspect of practical reason through which general moral principles are applied to concrete circumstances”—to legal practice (92). For Aquinas, conscience was a moral instead of a legal concept, whereas the Protestants like Oldendorp transformed conscience from a moral category into a legal one. By transforming conscience into a legal concept, the Protestant jurist was able to decide which general legal principles to apply to particular cases. As Berman summarized, the Protestant jurist decided which principles to apply after “having exercised his civil reason to the maximum degree, must study the Bible, pray to God, and search his conscience” (92). Christian conscience therefore was the ultimate arbiter of both moral and legal decisions.
Luther had made reason the handmaiden of conscience, whereas Roman Catholics had made conscience subordinated to reason. For scholastics, reason was the faculty to apprehend principles of natural law and conscience was the faculty to apply those principles to concrete circumstances. For Luther, conscience was a superior faculty to reason because it was the root of man’s relationship with God that included both his rational apprehension of natural and divine laws and their applications. Although his conscience was fallen due to original sin, thereby making his reason defective, man, once redeemed, will find his rational faculty enhanced by his renewed relationship to God. Conscience consequently was not only the application of natural and divine laws to particular cases but the source of the general principles of these laws. This was the crux of the paradox that permitted Lutheran jurists to start from general moral and legal principles as well as to write precise and written laws (75).2
The precise and written laws—what Luther called civil or political law—were to maintain order for a fallen human race that included not only lawbreakers but public officials who may lapse into tyranny. Precisely written laws were better guarantors of order and stability than the generalities found in natural law. With these specific laws sanctioned by coercive measures and governed by conscience, Lutheran jurisdiction became an important source of legal positivism where the law is the will of the state. Of course, Lutheran jurisdiction differed from legal positivism in that the law’s purpose was not merely to maintain order but it was also to make people conscious of their duty and service to God and their neighbors. Citing Saint Paul, Luther explained that the law was to make man seek God, as the Ten Commandments had made Christians aware of their own sinfulness and therefore incited them to seek forgiveness. Civil and political law consequently was not entirely positivist, for they had a theological function as well, which was due to their integration with divine and natural law (76).3
Natural law for Lutherans was rooted not in man’s reason but in biblical faith. Because man’s reason was defective as caused by original sin, he could not rely upon natural law as a guide for civil and political law. Instead, the ruler must rely upon his faith, with its access to divine law, and subordinate his reason, with its access to natural law, to his conscience. The divine law was articulated in the Bible, and the natural law was summarized in the Ten Commandments (with later Lutheran jurists adding portions of the New Testament). These passages from the Bible thus became the source and summary of natural law, to which the prince’s conscience had access. Thus, natural law was superior to civil and political law but access to natural law was through conscience instead of through reason (79–80, 89–90).
It also should be remembered that the emphasis of the divine and natural laws’ supremacy over civil and political law did not equate into a doctrine of civil disobedience. Lutheran jurists stressed that the state was ordained by God and therefore commanded unconditional obedience of its subjects. Although Lutheran jurists disagreed about whether there were exceptions and what those exceptions were to a subject’s unconditional obedience, they did not advocate any form of active civil disobedience. In exchange for the subject’s obedience, Lutheran jurists called for Christian princes to make their laws to conform to divine law—a conformity that was accompanied by a new legal science that identified and systematized general legal principles in order for the state to consolidate its power and jurisdiction over urban, feudal, mercantile, and other types of laws. Eventually all law became understood in terms of its legislative character that resided in the prince’s will and conscience (93–94, 127–28).
Notes
1. Berman, Harold. Law and Revolution, II: The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, MA: Harvard University Press, 2003). Unless otherwise identified, all subsequent citations in the article will be in reference to this work.
2. Oldendorp elaborated on this principle of conscience to fill the gap between rule and application with respect to equity (91–92). It also should be noted that Luther did not believe man’s conscience guaranteed him salvation. As the source of general moral and legal principles and their application to particular cases, conscience remained only part of the earthly kingdom. It was not essential to the nature of God.
3. Besides the civil and theological use of law, Luther briefly mentioned a pedagogical use of law that guided the willing to virtue (81, 89–90).