German Political Philosophy
The metaphysics of law
Chris Thornhill
1 The Reformation and the loss of law
Against natural law
The philosophical background of Luther’s theology was shaped by a series
of debates about the law, so that his religious ideas necessarily evolved, in
part, within a set of legal references and discussions. The prevailing philosophical
controversy in German universities in the latter part of the fifteenth
century was the debate between the realists and the nominalists, in
which realists, or the Thomists, represented the so-called via antiqua, and
the nominalists, or Ockhamists, represented the via moderna. The increasingly
influential nominalist view in these controversies was founded in the
belief that God is essentially will, and that God’s redeeming freedom in
human history is an act of divine will, and is not tied to rational normative
preconditions. The nominalists opposed the intellectualist claims of Thomism,
they negated the Thomist presupposition that there exists an eternal metaphysical
law in nature, or that the universe is an ‘organic whole’ in which all
things are connected ultimately to the divine mind,1
and they rejected the
central Thomist assumption that the church and the state form an insoluble
legal unity.2
The via moderna, therefore, contained an attack on the ideas of
divinity as an intellectual essence promoted by medieval scholasticism and
an attack on the legal and institutional doctrines rising from medieval
ius-naturalism, which presupposed that the laws of the world exist in continuity
with God’s will and God’s reason, and that human action and
human politics can be evaluated by their proximity to this will and this
reason. Underlying the philosophical environment from which Luther
emerged there was thus an increasing willingness to construe God’s freedom
in volitional terms, and to question whether God might be construed as a
juridical presence in the world, accessible to human reason and manifest in
clear prescriptions for individual moral and collective political order.
The influence of Ockhamist nominalism on Luther was perhaps rather
vague and indirect.3
However, in certain respects Luther’s early writings
contain an intensification of ideas associated with late medieval nominalism
and the via moderna. Fundamental to Luther’s first writings is the claim
that there exists an opposition between faith and law, and that conformity
with law cannot bring salvation. Indeed, at the heart of these works is a
rejection of the defining view of medieval Thomism: namely, that God’s will
is evident in the positive legal order of the world, and that human beings
can use their rational powers to understand the foundations of this originary
metaphysical order and shape their own wills in accordance with it. Instead,
Luther saw God as removed and remote, as absolutely free, and so as evident
only in faith, not demonstrable or manifest in any metaphysical scheme or any
stable system of law. In this, he extended the voluntaristic conceptions of the
via moderna, and he argued that God exercises his will with absolute freedom in
the world, and inhabitants of the world, where they do not have faith, can
only despair over their inability to appreciate and obey God’s will and
God’s law. No element of worldly ordinance can, in consequence, be placed
on a continuum with God’s will, and there is no necessary or intellectual unity
either between God’s will and human reason, or between God’s will and the
laws used to govern human societies. No law, Luther indicated simply, can
begin to form an adequate reflection of God; no action or works in conformity
with law can lead to justification before God; and human reason
cannot obtain laws that unite it, in metaphysical knowledge, with God’s will.
Luther initially elaborated this opposition between faith and law in his
very early interpretation of what was ultimately to become the one of the
central texts of Reformation theology: St Paul’s Epistle to the Romans.4
Commenting on this Epistle, he explained that obedience to the law cannot
lead to human salvation. In fact, obedience to the law leads to pride and
‘self-glorification’, and it obstructs true faith by promising salvation as the
entitled reward for outward human activity.5
Justification can only occur as
a passive experience of grace, which God ‘enacts by acting upon us’, without
any concern for our ‘works and deserts’.6
The path to salvation is
through faith alone, not through works demonstrating compliance with law.
In this argument, Luther addressed one of the fundamental problems in
the history of Christian doctrine: that is, the problematic relation between
the Old Testament and the New Testament, and the relation of Mosaic law
to faith in Jesus Christ. In his treatment of this, he followed Augustine’s
anti-Pelagian approach, and he insisted on the primacy of the New Testament
and faith over the Old Testament and law, and he stated that only a direct
reading of the New Testament, and the faith that this might inspire, can
make salvation possible. This argument referred primarily to the salvation
of souls: it claimed that no external displays of devotion or righteousness
can lead to justification before God, and that the religious orders that confuse
law and faith or place law before faith threaten the souls of their
adherents. In addition, however, this argument also contained implications
for wider legal and political concerns: it implied that true law is not
expressed as natural or material ordinance, but that the true law is the new
law, the invisible law of a community united in Christian faith alone, and only
this law can bring salvation. Unlike purely antinomian or Gnostic theologians,
Luther did not entirely reject the Old Testament, or the elements of Christian
30 The Reformation
natural law founded in the Decalogue. He claimed that the moral codes in
the Old Testament might be accepted as long as they serve interests of
public order and help to protect Christians from the evil deeds of the
ungodly. Indeed, his teaching also intermittently expressed a minimal conception
of natural law, and he was prepared to accept as natural those laws
preserving outer conditions of stability and reflecting a general human
interest in peace and security. He, therefore, saw the Old Testament as
expressing a natural law of practical utility, which is ‘written in the hearts of
all men’, and contains certain universally acceptable precepts.7
Nonetheless,
he viewed ‘natural law’ as, by definition, a limited law, and he saw the
validity of such law as restricted to the human person in its natural condition,
without relevance to the person as a bearer of faith. Moreover, he
argued that natural law is the law of the Jews: he described the Decalogue
as ‘the common law [Sachsenspiegel] of the Jews’.8
Such law is contaminated
by worldly pride and false piety, and it is the law of those who ‘boast about
the law which they have received and brag that they are its adherents and
followers.’9
Above all, natural law is the law of those who cannot ascend to
the new law of faith and whose legal compliance is limited to outward
things, and obedience to this law does not elevate the person to the level of
a true Christian.10
Natural law, in short, cannot express an embracing continuity
between divine and human law. It is essential to natural law that it
applies to all people, Christians, Jews and heathens, and it cannot be viewed
as a medium of grace, which is offered only to Christians.11
Natural law
applies to that realm of natural life where there is no faith.
Luther’s early attack on natural law was specifically designed as an attack
on Roman Catholicism and on the scholastic orthodoxy of Aquinas, and it
immediately touched at the nervous centre of Roman Catholic orthodoxy.12
Aquinas also argued that compliance with the law of the Old Testament
cannot confer grace without faith. However, Thomism assumed a partial
continuity between the law of the Old Testament and the faith of the New
Testament; it argued that the natural law of the Old Testament anticipates
and foreshadows the salvation eventually to be brought by Christ, and that
even ceremonial laws bring humanity close to God. Moreover, Aquinas also
saw the pope as a privileged interpreter of the eternal law, and he viewed the
church as the primary custodian of the law.13
For Aquinas, in short, God’s
grace possesses a juridical nature; he saw obedience to laws, sanctioned by
the church, as a primary means of obtaining grace, and he saw the church
as responsible for guiding people towards legal obedience and towards salvation.
Luther, in contrast, argued that faith is corrupted by the law, that
belief in natural law exaggerates the extent of human knowledge and allows
people to assume salvation without true faith. The belief in natural law,
therefore, persuades people that they can be saved without faith, and it
dilutes the urgency with which each person seeks salvation through faith. A
‘Christian person’, Luther explained, ‘has enough in faith, so that he does
not need works to be pious’, and whoever has faith is ‘delivered from all
The Reformation 31
commandments and laws.’14
The institutions of the Roman Catholic Church,
he concluded, are founded on the false precondition that the administration
of law facilitates salvation, and that God’s will can be made legally apparent
as a certain path to salvation, and, in offering indulgences and dispensations
for sins, they assert their own legal order to the detriment of Christian souls.
In his polemics on this matter, he demanded a complete segregation of faith
and law, arguing that the church should have power only in the resolution
of spiritual questions,15
and that matters of secular law should be left to
‘worldly judges’.16
‘There is’, he concluded, ‘no power in the church’, except
the power of spiritual improvement,17
and the claim that representatives of
the church might possess any legal authority is a Pelagian heresy, which
endangers the souls of the members of the church.18
The Gemeinde and the two kingdoms
Central to the practical implications of Luther’s theology is the belief that
the church only exists as a pneumatic community, or as a pure community
of believers, not as a hierarchical, legally ordered or metaphysically representative
institution. He saw the church as an invisible community, whose
offices are restricted to teaching and biblical interpretation, whose members
are united by faith alone, not by law, as a universal priesthood. All Christians,
he explained, are ‘the brothers of Christ’ and all are ‘consecrated as
priests’.19
In this respect, Luther took the charismatic communes of the
early church as the model for a reorganization of ecclesiastical life, and he
argued that the principle of universal priesthood meant that the parish or
commune (Gemeinde) should be seen as the centre of all religious life and
should replace the hierarchical order of the Roman Catholic Church. The
episcopate and the ordained priests of the Roman church do not truly constitute
a Gemeinde, he argued.20
The bishops and the priests of the papacy,
he explained, have corrupted the New Testament through the representative
legal order that they have imposed upon the church. It is only where it
divests itself of law that a church becomes a true Gemeinde, founded in faith
and truth. In an authentic church, Luther concluded, members of the Gemeinde
give laws in accordance with the scriptures alone, without reliance on natural
laws or any laws external to the common unitary experiences of faith.21
In its original articulation, the concept of the Gemeinde was not focused
solely on the church, and it envisaged an ideal of the self-organizing community,
which implicitly expanded beyond religious life and administration.
In fact, Luther’s early anti-legal strictures reflected a wider attitude, which
attacked the concentration of power in both ecclesiastical and secular jurisdiction.
The conflation of law and faith in the church, he claimed, had
created a realm of ‘priestly tyrants’, who distortedly interpreted Christianity
as a doctrine of ‘worldly authority’.22
In secular life, then, the law served to
bolster the standing of the outwardly ‘powerful and the wise’, whose claims
to social dignity were based on illusions of virtue, obtained through law.23
32 The Reformation
In his earliest works, Luther questioned the right of ‘worldly princes and
rulers’ to take common goods from their subjects; he opposed the emerging
hierarchical government under Roman law; and he suggested that ‘the law
and morals of the land’, not the newly received Roman law, should act as
the basis for legal ruling. God had ordained, he concluded, that ‘every land
has its own manner and talents, and should be governed by its own simple
laws’.24
The early doctrine of the Gemeinde integrated in faith alone was
thus first conceived as a radically egalitarian doctrine, which condemned the
authority of law in both religious and worldly contexts, which denounced
false piety and socially instituted displays of esteem and worth, and which
sought to bind all people under shared laws. In this respect, therefore,
Luther used his broad anti-legalism as a vehicle for criticizing secular law,
and for demanding that all law should draw from a common source. In the
Gemeinde, he stated, people are bound by internally held laws: ‘each is the
judge of the other, and in turn also subject to the other’, and faith places all
people on equal legal footing.25
Moreover, the members of the Gemeinde
are, in so far as they are guided by the scriptures, entitled to assume
authority for themselves and to organize their communities as they see fit.26
Despite this, however, Luther’s account of the Gemeinde remained highly
equivocating in the political role that it imputed to the community united in
faith. His idea of the Gemeinde was primarily concentrated on questions of
religious organization, teaching and appointment, not on the formation of
secular or worldly power. Indeed, despite the critical aspects of his earliest
reflections on worldly law, in his later theoretical career he was unwilling to
accept that the religious community could produce laws for worldly organization.
The Gemeinde, he argued, has power and freedom only in religious
matters, and it only obtains this power and freedom because of its objective
inspiration by the New Testament. In all other matters, the Gemeinde is
obedient to worldly laws. ‘Christ speaks’ in the Gemeinde, Luther stated.
But in the world ‘the authorities command what they want, and the subjects
accept it.’27
At the heart of his mature idea of the Gemeinde is the claim
that the realm of the inspirited community, integrated under new laws,
cannot determine the realm of natural or objective authority: indeed, it is
constitutive of new law that it does not have objective or material force.
In this light, the conception of the law in the early Reformation appears
as a complex and dialectical form. At one level, Luther identified the religiously
inspired community, divested of the legal, hierarchical and metaphysically
representative order of the Roman Catholic Church, as the locus
of human freedom and integrity – as the congregation of the universal
priesthood. He saw this as a community of equals, bound only by very
rudimentary forms of external law and internally united by the invisibly
experienced regime of faith. At the same time, however, he saw this community,
to a large extent, as the community of faith alone, largely defined by
the fact that it is not political. Central to the idea of the Gemeinde, therefore,
is the belief that worldly power and spiritual power form two quite
The Reformation 33
distinct areas of human existence, or two separate kingdoms, that each of
these kingdoms should acknowledge that it is limited by the other, and that
neither of these realms can provide laws to organize the other. Worldly
power, Luther concluded, should always be free to ‘use its office without
hindrance’, and all attempts to impose ‘spiritual law’ on worldly authority
or to distill maxims for government from religious teaching belong to the
quasi-Pelagian legal ideas that characterize the Roman church.28
To assume
that the Gemeinde can provide laws for worldly governance presupposes that
there is a natural legal unity binding God and the world and that those who
have faith also necessarily have knowledge of law. For Luther, however,
those who have faith are above the law, and their freedom is determined
precisely by the fact that it is not captured in law.
On this basis, then, in the 1520s Luther argued that the freedom from
tyrannical law offered by the Gemeinde is an inner freedom, or a freedom
under the shared inner law of faith. Although his reflections on the
Gemeinde at times extended into more critical pronouncements on worldly law,
he did not consistently see freedom in the Gemeinde as a freedom to make
laws, and the Gemeinde did not provide an expressly positive or natural basis
for worldly laws. Indeed, it is specific to Luther’s thinking that faith cannot
legislate and that new laws cannot be applied to outer nature. Natural law,
such as it exists, is defined precisely by the fact that it does not originate in faith
or divine reason and that it only applies to the functional necessities of the
worldly kingdom. Worldly power, therefore, has a necessary independence
from faith and it obtains natural sanction as an order that maintains stability
and authority in the world. Luther in fact concluded that ‘worldly law
and the sword’ constitute an ‘order in the world’ that is specifically ordained
by natural law,29
and he claimed that ‘authority, regiment and power’ must
remain ‘as long the world continue to stand’.30
The order and the authority
of the world, however, are distinguished by the fact that they are only supported
by very limited laws of nature and have no origin in faith or in the new laws
of faith. As two distinct kingdoms, the state must take responsibility for
maintaining ‘external peace’, and the church must help ‘make people pious’
and oversee spiritual well-being.31
However, there is no natural link between
these kingdoms, and natural law can only apply to the worldly kingdom.
In separating the two kingdoms, Luther’s primary ambition was to liberate
the church – the Gemeinde – from all legal control, to consolidate the
church as a place of faith alone and to ensure that members of the church
were not deflected from faith by law. This meant, first, that the church had
to be protected from worldly rulers. The ‘worldly regiment’, he explained,
has laws which stretch no further than over body and goods and the
external things on earth. For God cannot and will not let anyone else
but himself alone rule over the soul. Therefore, wherever worldly
power is brazen enough to give laws to souls, it pulls God into its
regiment and seduces and ruins the souls.32
34 The Reformation
Second, however, this argument was also intended to counteract the
expansion of ecclesiastical influence beyond questions of faith, and so to
protect the church from leaders, such as those in the Roman Catholic
Church, who contaminate the church with political ambitions. Representatives
of the Roman Catholic Church, Luther claimed, ‘have become worldly
princes, and rule with laws which are only applied to the body and to goods.
[{.. .}] They are supposed to rule souls, internally, through God’s word, but
they rule externally.’33
Such conflation of the two regiments, he argued,
necessarily obstructs human salvation. Worldly power that assumes spiritual
power fails to understand that ‘Christians must be governed in faith’, and
that no worldly authority can rule in this way.34
A further motive for Luther’s separation of the two kingdoms was simply
that he considered worldly power immeasurably less important than religion.
Worldly power, he explained, does not have power over souls, and
therefore it ‘can do no damage’. Worldly power is ‘a small thing before
God’: it is far too small for people to become ‘disobedient or disunited’
because of it.35
Religious power, in contrast, causes great damage when it
exceeds its limits, where it conflates faith and law, or where it loses sight of
its obligation to the human soul. For this reason, in fact, Luther indicated
that those who are truly Christian need not concern themselves with matters
relating to worldly authority, and they need not devote time properly devoted
to the care of their souls to questions of worldly law. The ‘worldly
regiment’, he concluded, is only necessary for those who do not have faith;
it is only the unbelievers who ‘belong beneath the law’. Those who have
faith are obedient to the law if the law is good, because they too are good.
And they are also obedient to the law if the law is bad, because they
recognize that the law cannot either bring or deny them their salvation.36
Law, therefore, is not finally necessary for those who are, out of free choice
and faith, Christians. For Christians, the only virtue of law is that it might
offer them protection from the evil actions of those who are not Christians.
Otherwise, law is not of essential importance, and matters falling beneath
the law’s jurisdiction are relatively incidental.
In addition, however, Luther’s idea of the two kingdoms also reflected a
great anxiety about theocracy. Luther saw all theocratic outlooks as lapsing
into the Jewish religious knowledge of the Old Testament and as falsely
assuming that precepts for external obedience can bring salvation. Above
all, in indicating that God’s rule can be instituted on earth, theocracy, for
Luther, arrogantly integrates God’s freedom into worldly law and it removes
the obligation of faith from the individual soul and so distracts the soul
from the cause of its salvation. This anxiety was originally expressed as a
condemnation of the assertion of worldly authority by the Roman Catholic
Church, which Luther saw as a particularly crude manifestation of theocratic
monarchy. At the same time, though, through the evolution of his
thought he also became intent on differentiating his own stance from the more
febrile millenarian movements that attached themselves to the Reformation,
The Reformation 35
and some of his harshest polemics were reserved for those who interpreted
Reformation theology as a doctrine of religious self-governance or divinely
legitimized insurrection. It is for this reason, primarily, that Luther suppressed
the early natural-legal elements in his idea of the Gemeinde, that he
refused to allow this concept to found a political doctrine, and that he
concluded that the new laws of faith are invalidated where they are transformed
into laws of government or worldly politics. Indeed, against the
more radical millenarianism of the early Reformation, he argued that those
united in faith must not use faith for political ends and that they must not
refer to faith when opposing political regimes which they perceive as illegitimate.
Faith cannot provide principles that authorize objective political
order, and, conversely, it cannot provide principles that validate resistance
to it. No ‘rebellion is justified’,37
he simply concluded, and later he added:
‘We cannot resist authority with violence, but only by confessing the
truth.’38
Natural law, in sum, only exists for Luther as an extremely limited natural
law, which justifies worldly order as order, and which entitles worldly order
to use coercive force to uphold conditions of stability. No higher or transcendent
element of natural law can be summoned to oppose this order:
higher or transcendent law is the new law of faith in the New Testament,
which cannot be politically applied or even made positively manifest.
Therefore, whilst Luther dissolved the metaphysical order of scholastic natural
law by identifying the Gemeinde, not the representative church and its legal
apparatus, as the essential expression of human life, he refused to replace
the legal metaphysics of Roman Catholicism with any alternative type of
theocracy. Indeed, he placed himself firmly against all attempts to reinstate
theocratic natural law, or to repair the fractured unity of law under Roman
Catholicism. His theology thus left law as a matter of relative indifference,
which cannot institute true freedom and in fact impedes the true freedom of
faith and the soul.
The idea of the Gemeinde, consequently, describes the dialectical core of
Luther’s legal theology, and it also describes the dialectical core of the legal
debates initiated by the Reformation. At one level, Luther actively promoted
a positivization of the law; he saw both God and humanity as
authentically free of invariably metaphysical law, he claimed that law is a
matter of human freedom, whose authority is not authenticated by absolute
essences or absolutely external principles of reason. Law, therefore, is a law
of freedom: it is a new law. At the same time, however, he also expressly
diminished the positive authority of the law; he announced that true law,
the new law, is only in faith, that objective law has only limited application
and, indeed, that the particular freedom offered by the Reformation is
undermined by law. This evolved as the main problem in the legal theologies
of the Reformation, and controversies on the law during and after the
Reformation concentrated on the endeavour to resolve the antinomies arising
from Luther’s legal attitude and to explain how freedom from metaphysics
36 The Reformation
might also be constructed as a positive human freedom. For this reason,
moreover, most of the contemporary debates in which Luther participated
were also tied to debates about the law, as the theologians around him
recognized the problems in his legal thought, and tentatively configured his
teachings to include more reliable legal principles.
Radical theocracy and antinomianism
Luther’s views on the two kingdoms marked a move away from the more
critical legal implications of his very earliest works. Indeed, it has often
been pointed out that the political aspects of Luther’s theology underwent a
striking transformation in the first half of the 1520s. During these years,
Luther consciously dissociated himself from the more radical theologians of
the early Reformation, and he hardened his thought into a set of more
considered attitudes regarding law and political authority. This was caused,
first, by the fact that the Evangelical movement became increasingly volatile
whilst he was imprisoned in the Wartburg in 1521–22; this period witnessed
feverish outbreaks of iconoclasm and violent reforms of church order in
Wittenberg. Then, more pressingly, it was caused by the emergence of the
radical Reformation, one strain of which was reflected in the revolutionary
ius-naturalism of Thomas Mu¨ntzer, and which culminated in the Peasants
War of 1524–25.
On the first issue, during the iconoclastic interlude in Wittenberg Luther
was deeply concerned that his denial of representative authority to the
church could be seen as a mandate for violent acts against ecclesiastical
property, and he was alarmed at the idea that his teachings should seen to
vindicate lawlessness and insurrection. For this reason, after his release
from captivity he turned with particular vehemence on his lapsed disciple,
Andreas Bodenstein von Carlstadt, who had played a leading role in the
events of 1521–22. During this time, Carlstadt set out a distinctive interpretation
of Luther’s teachings, which intensified Luther’s assault on the
canon law, declared the scriptures as the sole basis of legitimate political
authority,39
and insisted that true faith entitled its adherents to act against
the law where the law was demonstrably unjust.40
Carlstadt, who was
trained as a lawyer, differed from Luther in that he accentuated the possibility
of a metaphysical convergence of the divine law and the human law.41
He, therefore, rejected the doctrine of the two kingdoms, and he proposed a
radical-theocratic theology which directly contradicted Luther’s relative
legal indifferentism. ‘God rules us’, Carlstadt claimed, and ‘God’s kingdom’
demands that ‘law and regiment’ should be established for all things.42
More
emphatically still, he argued that the ‘spirit of the law is the will of God’,
and that God’s will must be made manifest in worldly law.43
In addition to this, Carlstadt’s theology contained an intensely spiritualistic
account of ecclesiastical power in which he insisted that the church
is founded only in spiritual unity, not in any monopoly of ceremony, and
The Reformation 37
that the laws of the church originate in spirit alone. To a greater extent even
than Luther, he saw the church as an invisibly integrated community, and he
derided all material or institutional tokens of ecclesiastical authority. For
this reason, Carlstadt’s invectives focused on Roman Catholic teachings
concerning the Eucharist, and he denied that the church could act as a
custodian of Christ’s real presence in the administration of the Eucharist.
The bread and wine of the Eucharist, he claimed, do not contain the flesh and
blood of Christ: they are nothing more than ‘signs of God’s promises’,44
or
signs of God’s ‘word’,45
and it is only possible to partake ‘spiritually’ in
these signs.46
Elsewhere, he modified this interpretation of the Eucharist and
argued that drinking the wine is an act of symbolic ‘memory’, so that those
who drink ‘recollect the Lord’.47
Nonetheless, central to these reflections
was the belief that inherited views of the Eucharist serve to consolidate
institutional power in the Roman Catholic church and to stabilize the
church as a legal administrator of grace. In fact, however, the Eucharist is a
symbolic event, which is not tied to any one location, but which integrates
all believers equally, independently and invisibly. For similar reasons, he
also denounced the use of imagery in churches; images, he explains, ‘have
no origin in God’, and, as they detract from the internally unifying
process of spiritual recollection, they should be forcibly removed or
thrown down.48
It is of the greatest importance for Luther’s intellectual trajectory that he
deplored Carlstadt’s activities in Wittenberg and that he chose to refine his
own political views in critical reference to Carlstadt’s work.49
In his debates
with Carlstadt, he protested, first, against ‘storming the images and breaking
the churches’.50
With still greater consternation, he noted that some of his
early followers seemed to interpret his teaching as a rejection of all scriptural
orthodoxy and as a purely spiritualist doctrine.51
This, he warned, might
lead to a dereliction of all ‘divine order’, and might appear to provide
justification for insurrection. Indeed, Luther was especially threatened by
Carlstadt’s view of the Eucharist as a justification for an entirely spiritual or
personal interpretation of the Bible, and he was deeply exercised by the
sense that the spiritualist denial of Christ’s real presence in the Eucharist
might lead to the final abolition of the church as an institutional form.52
In
his discussion of the Eucharist, therefore, Luther opposed the fully spiritualistic
or symbolist doctrines set out by his fellow Reformers, especially
Carlstadt and Huldrych Zwingli, and he set out a doctrine of consubstantiation
in the Eucharist, which contained a modified version of the
Roman Catholic idea that Christ is really present in the bread and wine.
Luther’s doctrine stated that Christ is omnipresent and universal, thus
inspiring a universal church. Yet he saw Christ’s presence as especially concentrated
in the Eucharist, and so as manifest in the institutional order of
an established church, commanding orthodoxy in teaching and worship.
This treatment of the Eucharist was shaped by a reluctance fully to accept
the reality of the universal and invisible church, and it remained attached to
38 The Reformation
the traditional notion of the church as the custodian of mystery and grace
and as the primary receptacle of divine presence.
In these respects, Luther’s criticism of Carlstadt turned against the
aspects of antinomian thought in Carlstadt’s work, and he sought to qualify
the idea that a religious community with no institutional order could
assume accountability for doctrine and teaching. More fundamentally,
however, Luther’s opposition to Carlstadt was also affected by the suspicion
that Carlstadt’s theocratic vision exaggerated the significance of worldly law,
that it was excessively influenced by the Old Testament, and that it falsely
assumed that faith and law could be united in worldly order. Measures to be
taken against the Catholic church, he explained, should be executed by
‘worldly authority and the nobility’, and the community united in faith
should not assume any power of law.53
During this critical period in the
development of the Reformation, therefore, Luther showed himself, in his
legal ideas, to be an increasingly conservative thinker, who was clearly
unnerved by the prospect that the religious communities liberated from the
old ecclesiastical order might assume far-reaching authority for themselves.
In his opposition to the antinomian and the legal-theocratic aspects of
Carlstadt’s work, in fact, Luther’s idea of freedom as freedom above law
moved perceptibly towards a defence of worldly authority, and an assumption
that inner freedom is best preserved under a strong outer state.
Luther’s debates with Carlstadt also show certain similarities with his
debates with Zwingli. Zwingli shared certain basic principles of political
theology with Luther. Like Luther, he endorsed a doctrine of two kingdoms,
which separated ‘divine justice’ from ‘human justice’ and assigned inferior
status to human justice. Like Luther, he described human justice as ‘poor’
and ‘weak’ in contrast to divine justice.54
He too argued that human salvation
is only brought by the new law, represented in Christ in the New Testament,
and it cannot be measured in legal terms or obtained through legal
acts.55
These arguments led Zwingli to conclude that religious power is
based solely in ‘the divine scripture’, and those who officiate such power do
not possess ‘authority’ in the worldly sense.56
The church, he explained, is
nothing more than the ‘community of all pious Christians’, and all legalconstitutional
ideas of church authority corrupt its invisibly inspiriting
character: the ‘statutes’ of ecclesiastical authority, most especially, are the
cause of ‘all disturbance’ in the church.57
Nonetheless, echoing Luther’s
doctrine of the two kingdoms, he also insisted that the sphere of human
justice commands obedience as mandated by ‘God’s ordinance’, although
the ‘poor justice’ of this sphere can do little more than create rudimentary
conditions of peace and order.58
Despite these shared preconditions, however, Zwingli was far closer to
theocratic ideas than Luther. The divine word, he argued, must ‘rule over all
people’, and it should, by implication, always limit and determine human
justice. All laws, in short, should be ‘formed in accordance with the divine
will’,59
and the best mode of government is one which ‘rules with God’.60
The Reformation 39
Zwingli’s doctrine of the two kingdoms also differed perceptibly from
Luther’s thought in that he insisted on a more integral and metaphysically
constitutive relation between the regiments, and he ascribed an important
role to divine law as the originating foundation of human law. He stated, for
example, that Christ ‘forbade all wealth’,61
that Christians should not
‘govern like princes’,62
and that worldly ‘government and authority’, where
it is not exercised by ‘tyrants’, should hold to the word of Christ’s teach-
ing.63
If the ‘laws of princes’ are against the divine will, he concluded, it is
essential to be ‘more obedient to God than to men’, and resistance to
worldly law is fully justified.64
On these grounds, Zwingli also proposed a
doctrine of natural law which is far stronger than the simple utilitarian
ideas implied by Luther; he argued that all ‘laws connecting us to fellow
men’ should be ‘founded in the law of nature’,65
and that, crucially, the
experience of faith provides insights into the laws of nature. Unlike Luther,
therefore, he argued that natural law is not peculiar to Jewish or heathen
cultures, it is not founded in the merely natural or positive element of
human existence, and it in fact coexists with and gives expression to faith.
Natural law originates in divine law, and human conduct according with
natural law also accords with divine law. Natural law, therefore, can only be
‘known through God’, and knowledge of ‘the law of nature comes solely
from the holy spirit’.66
Zwingli consequently asserted that worldly power
should be exercised by ‘believing and God-fearing’ leaders, and authority
should be placed in the hands of judges, who interpret all things ‘after the
word and ordinance of God’. Under such political conditions, laws can
‘become like the divine will’, and they possess something of the character of
divine law and divine will, for the justice imparted by judges and magistrates
is a shadow of true justice.67
On these foundations, Zwingli argued that the Bible provides a legal basis
for the entire community, so that in a Christian community no one should
ever be ‘without law’, or without legal protection. Law should only be
administered by secular courts, not by church authorities, for the proper
limits of the church would be exceeded if it assumed duties under civil law:
it is the responsibility of the church to help ensure that ‘fair courts of law’
are established, not actually to preside over these courts.68
However, Zwingli
clearly indicated that the church should play a fully integrated role in the
political community, and it should provide a foundation of legal principle
on which the wider political community can evolve. He was thus far more
emphatic than Luther in his claim that religion should form the substructure
of all law, and he moved close to advocating a model of communal
or local theocracy, which argued that the Gospel should be applied by
secular powers and judges, and which saw the inspirited ‘commune’
(Gemeinde) as the bearer of responsibility for both political and religious
decisions.69
Zwingli’s doctrine of the Eucharist was also directly opposed to that set
out by Luther. Whilst Luther’s notion of consubstantiation still endorsed
40 The Reformation
aspects of the ceremonial structure of the Roman church, and still espoused
a doctrine – albeit diluted – of the real presence, Zwingli, like Carlstadt,
argued that the bread and wine of the Eucharist have a merely symbolic
content, and simply enact a ‘recollection’ of Christ’s death.70
He saw the
Eucharist as a symbol of Christian communion with Christ’s spiritual
nature, and he saw participation in this communion as extending beyond
the custody of appointed representatives of the church. For this reason, he
claimed that the assumption of Christ’s ‘corporeal’ presence in the Eucharist
devalues Christ’s divine nature and falsely restricts Christ’s spirit to one
particular place. Like Carlstadt, in fact, he expressly associated the Catholic
doctrine of transubstantiation with the corrupting political ambitions of the
papacy; he saw the assumption of real presence in the Eucharist as creating
a ceremonial order around the church that was designed to sustain the
church as a worldly power, asserting a false monopoly over spiritual
goods.71
Indeed, it is generally notable that theologians who supported a
spiritualist interpretation of the Eucharist – including Johannes Oeco-
lampadius,72
and, to a far greater degree, Caspar Schwenckfeld – usually
opted for more communal theocratic ideas of law and politics, and they
opposed the relative indifferentism of Luther’s political theology.73
Luther’s reluctance to embrace the politically constitutive aspects of the
Evangelical movement can also be discerned in the transformation of his
attitude towards princely authority through the 1520s. In his earliest writings,
as discussed, Luther spoke out against the legal concentration of
princely power through the period of imperial reform, and he especially
criticized Roman law as an instrument of princely coercion and advocated a
simplification of legal procedure. In this regard, he had certain similarities
with the leaders of the peasants’ uprisings of 1524–25, whose grievances
also concentrated on the new legal processes in the post-feudal German
territories, and on the erosion of traditions of oral or common law-find-
ing.74
The peasants protested fervently against the increasing use of Roman
law, and they articulated their protests either as a demand for a return to
the old common law, or for the establishment of a regime based in divine
law.75
As in the earlier outbursts of iconoclasm, however, in the Peasants
War of 1524–25 Luther encountered what he perceived as a distortedly
militant or theocratic interpretation of his teachings, culminating in a denial
of obedience to princely authority, and after this time his attitude to princely
authority changed markedly.
In his writings on princely power, Luther’s great antipode (at least in
recent historical representations of this era) was Thomas Mu¨ntzer, who had
originally been influenced by Luther, but who soon transformed Evangelical
doctrine into a theocratic programme of political resistance. Mu¨ntzer rejected
Luther’s doctrine of the two kingdoms and his separation of faith and law;
he claimed that it is impossible ‘to serve two lords, both of whom strive
against each other’, and he denied that worldly power could be judged by any
law other than the pure law of the scriptures.76
Christ, Mu¨ntzer concluded,
The Reformation 41
urges that the ‘will of God and his work should be carried out on earth
through observation of the law’. Indeed, compliance with divine law on
earth is the most necessary sign of faith, and it is only possible to ‘distinguish
belief from unbelief’ by observing outward compliance with the law.77
This teaching on divine law was intended firstly to provide a justification for
resistance against all who exercise power in ungodly manner.78
However, it
also provided the foundation for a communal theocracy that assumed that
all people should participate in law-finding and implementing the divine
will. The spirit of Christianity, Mu¨ntzer argued, can only be fulfilled if the
‘whole commune has the power of the sword’, and if ‘the good old custom
of the people’ is used as the basis for legal finding and for interpreting
‘God’s law’.79
Mu¨ntzer thus moved towards a radical-theocratic variant on
natural-law ideas, which saw a direct relation between faith and law, and
which viewed the peasant commune as the natural manifestation of God’s
will in law.
Luther’s response to Mu¨ntzer’s ideas was vehemently to condemn the
insurrections of the peasants and to support the princes in the violent suppression
of the peasant armies.80
To support this, he denounced all people
seeking to ‘enact God’s scriptures on earth’, and he denied that the Bible
could be employed to justify any act of political resistance. If the ‘worldly
regiment’ is overthrown, he explained, this leads not to a political order
founded in ‘God’s word’ but rather to ‘eternal destruction’.81
It is only heathens,
not Christians, he argued, who ‘struggle against authority’, for only
heathens attach such importance to worldly rule. Christians, in contrast,
fight only through the cross and through suffering. Their ‘victory’ lies not ‘in
governing or in power’, but in ‘vanquishment and powerlessness’.82
Through all these political controversies of the first years of the Reformation,
it is evident that Luther’s theology was most deeply troubled by the
question of theocracy and by the relation between theocracy and natural
law. At a most obvious level, like other Reformers he reacted against the
quasi-theocratic claims of Roman Catholicism, which, like other Reformers,
he reviled as a Pelagian monarchy, unable to maintain the care of souls.
However, whilst other Reformers saw this reaction as an opportunity for
instituting a different theocracy or a new natural law, Luther’s teaching
remained fixed on the separation of faith and law and on the disjuncture
between absolute reason and worldly power. He consequently refused to
replace the metaphysics of scholasticism with a new metaphysics of law,
based in the Gemeinde, and he insistently stated that law merely pertains to
matters of practical regulation under a worldly regime, guided only by limited
ideas of utility. In each of the defining controversies of the earliest years of
the Reformation, Luther’s position turned on the same point. This was,
namely, the belief that faith is not politically constitutive, that the new law
of faith is a spiritual law, not a secular law, and that natural law is only a
limited law, not a metaphysical law founded in faith. Mu¨ntzer specifically
identified this point in his tirades against Luther; he denounced Luther’s
42 The Reformation
purely scriptural, and anti-theocratic idea of faith, and he proposed instead
a theology of ‘testimony’, in which scriptures give witness for worldly action
and political upheaval.83
Antinomianism and the third use of the law
A more exposed flank in Luther’s theology emerged in his debates with the
antinomian theologians of the early Reformation, most especially with
Johann Agricola. Whilst other Reformers saw the Reformation as providing
an opportunity for genuine theocratic governance, Agricola saw the Reformation
as leading to an entirely spiritual community, in which all law, but
most especially the laws derived from the Old Testament, are abrogated and
rendered invalid. Unlike other early Reformers, therefore, Agricola intensified
the opposition between faith and law in Luther’s own thought, and he
denied categorically that any preaching of law can be based in the Christian
faith or that any regiment can be supported by God’s will.84
The religion of
law in the Old Testament, he argued, is a tyrannical religion, which induces
a devastating alienation between humanity and God. Such law cannot
‘make people just’; it is ‘an office of death’, which reduces people to despair
and misery over their own inability to fulfil it. It is the law itself, not those
who cannot fulfil it, in consequence, which must be ‘damned and con-
demned.’85
The faith revealed in the New Testament thus stands in full
contradiction of the laws of the Old Testament: faith can have no relation to
law, it marks the end of the law, and the faith disclosed in the New Testament
cannot be manifested in any law, either in the law of the church or in the
laws of the state.86
Roman Catholicism, with its ceremonies and masses, is
an eminently corrupt religion of law, whereas the Evangelical faith, based in
the New Testament, is a religion of ‘grace and truth’, founded not in a God
which issues commandments to humanity, but in a God offering reconciliation
through faith and love.87
Antinomianism was an element of Evangelical doctrine that shadowed
the entire early history of Lutheranism; this was no coincidence, for antinomian
elements were surely ingrained in Luther’s early works and Luther
never unambiguously distinguished his own theology of law from antinomian
attitudes. However, in his controversies with Agricola, he set out a
nuanced theory of law, through which he placed himself delicately between
antinomian views and views susceptible to theocratic interpretation. In these
controversies, he maintained his earlier view that law is ‘not necessary for
justification’; indeed, he described the law as ‘truly useless’ in helping people
obtain salvation. Not enough could be said, therefore, ‘against the impotence
of the law’ and against ‘the most pestilential faith in the law’ which
sees law as a means of ensuring justification.88
However, he also argued,
reinforcing a point in his earlier writings, that law remains necessary
because it shows to people that they cannot be virtuous by their own means,
and it at least makes people conscious of the need for faith and for grace.89
The Reformation 43
It is impossible ‘to know sin without law’, Luther concluded, and knowledge
of sin is the first precondition of grace.90
As a consequence, although law is
not operative in securing justification, it is essential for creating despair and
humility in the human soul, and so for allowing the soul to recognize that it
cannot be justified without faith. It is only ‘the pernicious’ who espouse the
fully antinomian claim that ‘law should be removed from the church’, or
that legal obedience is irrelevant for faith.91
Law cannot replace faith;
to argue that law reflects faith, for Luther, is to argue theocratically and to
threaten the soul. Nonetheless, law has the power that it stimulates a
desperate openness for faith. Faith, therefore, cannot exist where there is no
law to be fulfilled, and where there has been no despair over human inability
to fulfil the law.92
Debates on the role of law in obtaining salvation persisted long after
Luther’s death, and they only approached a conclusion with the publication
of the Concordia of 1580, which sought to unify the different strands of
Evangelical faith by resolving major points of doctrinal doubt and dispute.
Until that time, however, antinomianism remained a constant undercurrent
in the Evangelical movement, and Luther’s responses to Agricola did little
to quell controversy on these questions.93
In fact, Agricola remained at the
centre of confessional disputes in the Evangelical camp, and his work and
political ideas continued to act as a powerful irritant to more orthodox
Lutherans.94
It was partly as a consequence of their provocation by Agricola
that many of the most influential theologians of the generation after
Luther, particularly Matthias Flacius Illyricus and Nicolaus Gallus, dedicated
themselves to clarifying Luther’s teaching regarding the law.95
As a
result, whilst opposing all compromise with Roman Catholicism and with
the Evangelical theologians supporting partial accommodation with the
papacy and the empire, Flacius elaborated a distinctively Lutheran doctrine
of the third use of the law (tertius usus legis). Central to this doctrine was
the belief that the law has a pedagogic function in bringing people to
salvation, and that those who receive grace are not punished and tormented
by the law to the same extent as those who do not receive it.96
This
doctrine, clearly influenced by Melanchthon’s earlier ideas, ultimately
became a central tenet in the consolidation of Lutheran doctrine in the
Concordia.97
Through this doctrine, the later Evangelical theologians agreed
on the principle that, although law can surely not bring salvation, those
who are saved – or born anew – through faith will naturally behave in
accordance with law, and so, by fulfilling the law, they will demonstrate
in their own lives that they are saved or reborn.98
This allowed the later
Evangelical theologians to reconnect law and faith, and to show how faith
and law are correlated in right action.99
This, in turn, provided a foundation
for a clarification of Evangelical legal ethics, and for a more systematic
rebuttal of legal conceptions in the Roman Catholic Church.
Luther’s debate with antinomianism, however, was motivated by the
disconcerted suspicion that the early Evangelical movement had unwittingly
44 The Reformation
stimulated two distinct radical interpretations of his own doctrine, one of
which construed the Gemeinde as a source of a new natural law, and one of
which denied all law, and so entitled the community of faith to place itself
above all legal statute. Indeed, if theocratism and antinomianism appeared
to Luther as closely correlated (and equally misguided) responses to his own
initial anti-legalism, these responses also marked the weaknesses and the
limits of Lutheran accounts of law, and they formed plausible solutions to
the problems to which Luther’s expulsion of natural law gave rise. It was
not until the idea of the tertius usus legis was elaborated that the Lutherans
finally stabilized a new conception of natural law. In this idea, they argued
that law does not fulfil the task of faith and that works under law do not
bring salvation, or effect compliance between human acts and divine law.
However, they also obtained means to demonstrate that compliance with
law is still a necessary signifier of justification, and it indicates a factual
unity between human actions and divine will.
Resistance, law and the Holy Roman Empire
As discussed, in the first period of political upheaval after his first rise to
prominence in 1517, Luther distanced himself from possible radical and
theocratic readings of his work. Central to this was the concept of the two
kingdoms, through which he sought to sever the thread of natural law that
traditionally attached questions of political order to matters of religious
faith. However, a second stage in Luther’s reflections on law commenced
after 1526, by which time a sizeable group of princes and towns had decided
to support the Reformation and had begun to form a proto-constitutional
league, united in defiance both of papal power and of Karl V, the Holy
Roman Emperor. At this point, Luther also began to ally himself more
closely with the early Evangelical princes, and he even altered his teachings
to suit the interests of the emerging anti-imperial faction.
Luther’s attitude to the constitution of the Holy Roman Empire is not
always easy to assess. After Luther’s theological disputations with representatives
of the papacy and the empire in 1518 and 1521, Karl V made
clear his conviction that the Evangelical attack on the juridical ecclesiasticism
of Roman Catholicism also entailed an attack on the constitution of
the empire. In justifying the excommunication of Luther and the proscription
of Lutheran teaching in 1521, he underlined that as Holy Roman
Emperor he was obligated to protect the ‘sacred ceremonies, laws, ordinances
and holy customs’ of the Roman Catholic Church,100
and to maintain the
laws of the one universal church through all dominions of the empire.101
Even after this event, however, Luther was reluctant to question the legitimacy
of the empire, at least in the estate-based constitutional form that it had
obtained in the late Middle Ages. His attitude towards the consolidation of territorial
power against the empire and the increasingly volatile challenges presented
by the princely estates to the empire also remained highly circumspect.102
The Reformation 45
As late as 1523, for instance, he derided princes who felt entitled to ‘command
their subjects as they wish’ and to govern like emperors in the German
lands.103
It is, therefore, important to remember that, in their attack on the
church, it was not a strategic intention of the early reformers to undermine
the constitution of the empire. It might, of course, be argued that their
hostility to all conflation of ecclesiastical and worldly law necessarily
involved a confrontation with the empire, as the empire derived its symbolic
legitimacy through its (albeit factually highly precarious) connection with
the Roman Catholic Church. At various points, moreover, the reformers
clearly identified the fusion of church and empire effected by Emperor
Constantine as one main cause of the impurity of the church, opening the
church to heathen political influences.104
Nonetheless, even at moments of
most intense conflict with the empire, the early reformers remained committed
to a universal church and they continued to support an imperial
constitution.105
Despite this, however, Luther’s view of the empire was discernibly modified
by a number of events in the later 1520s. Following Luther’s excommunication,
the empire, challenged on other fronts by pressing military threats, began to
adopt a more pragmatic approach to the growing religious dissent, and it
even showed tolerance towards the freedoms claimed by Evangelical princes.
In 1526, most notably, the Diet of Speyer ruled that each prince was entitled
to exercise freedom of worship in accordance with his own judgement and
conscience. The Evangelical princes viewed this as an important sanction
for their own regional authority, and many began at this point to reorganize
their churches and to integrate the Evangelical church into the jurisdictional
order of their territories. In 1529, however, this strategy of relative tolerance
was reversed, and the empire began to pursue a far more repressive policy
towards the reformers and their adherents. The Diet of Speyer in 1529
consequently marked a crucial caesura in the relation between the reformers
and the empire, and this was directly reflected in the theologies of law promulgated
by the reformers. In 1529, the tolerant ruling of 1526 was rescinded,
the prohibition of Lutheran teaching was reaffirmed, and ‘Imperial
fullness of power’ was reasserted as the sole authority in legal decisions
concerning ecclesiastical politics in the empire.106
The Evangelical party
responded to this by submitting the so-called ‘Protestation of Speyer’,
requesting reconsideration of these decisions, and by intensifying their plans
to form a league of Evangelical, or now properly Protestant, resistance to
protect both the Evangelical cause and the material and territorial advantages
which the princes had obtained because of it. These conflicts came to
a head at the Diet of Augsburg in 1530, where the Evangelical theologians
presented to the imperial executive the Confessio Augustana, the articles of
faith forming the doctrinal basis of Lutheranism, only to see this refuted
shortly afterwards. The aftermath of this diet saw the formation of the
League of Schmalkalden, and the beginning of a period of sporadically
acute confessional conflict, which had short interludes in 1532, 1548, 1552
46 The Reformation
and 1555, but which was not fully resolved until 1648. Against this background,
Luther’s increasing reliance on the protection of territorial princes
necessarily meant that he became involved in discussions on validity of the
imperial constitution, and that he was called upon to devise theological
justification for political opposition to the Emperor and the empire. This, in
turn, created the problem that, in order to satisfy the needs of his princely
supporters, he was required to revise some of his earlier views on the
separation of the two kingdoms and on the sacred duty of outward
obedience.
Luther’s reluctance to contribute to debates concerning political resistance
is apparent in the caution that he exercised in writing on this subject.107
He
stressed repeatedly that his inclination was ‘vehemently against rebellion’,
and that his teachings had always demonstrated his belief that ‘one should
suffer even the evil deeds of tyrants and not defend oneself’.108
Moreover,
where he did offer a defence of disobedience or resistance, he tried to
articulate this in legal terms, so as not to compromise his broader religious
ideas. On the concrete question of how far opposition to the empire might
be legitimate, he observed simply that such matters should be referred ‘to
the lawyers’, and could not be decided by principles of religious debate.109
His qualified support for resistance was thus not – or not principally –
driven by religious dictates, but, as far as possible, by analysis of legal and
constitutional principles. Despite this, however, in his reflections on political
obedience after the deterioration of relations between princes and empire,
Luther proposed three express and distinct justifications of princely opposition
to the empire. First, he argued that, whereas rebellion is never
acceptable, there might under some circumstances be cases of legitimate
protest or of ‘acting against the law’, which do not constitute rebellion and
possess legal justification. ‘A rebel’, he explained, is not a person who
opposes specific laws on specific grounds, but a person who ‘will not suffer’
any kind of ‘authority and law’.110
Whoever ‘defends himself against the
murderous and bloodthirsty papists should not be accused of rebellion’, he
thus concluded, but should be seen as acting in self-defence, and so as
legally in the right.111
Second, he argued that the decision of the Emperor
to suppress free religious worship was itself in contravention of the imperial
constitution. Such suppression was ‘contrary to imperial and natural law’
and to the ‘oaths and duties’ by which the Emperor is obligated.112
Refusal
to comply with imperial law on this point was consequently fully justified
under worldly law, even under the terms of the constitution itself. Third,
however, he also asserted that those who adhere to the Evangelical faith
have sworn in their baptism ‘to abide by Christ’s Gospel’, and this baptismal
obligation must prevail over duties comprising only worldly obliga-
tions.113
On this last point, therefore, Luther clearly invoked a religious
justification for opposition to the Emperor. However, even here his argument
was worded in a highly circumspect manner, and he indicated that
religion authorizes resistance only because of the legal burden that it places
The Reformation 47
on the human being in its worldly actions, and he was careful not to
propose a full doctrine of natural law to settle this question.
Despite his caution, however, Luther’s willingness to set out a doctrine of
religiously founded resistance provided a dynamic legal and constitutional
touchstone for the subsequent course of the Reformation. The first constitutions
of the Evangelical alliances in the early 1530s, for example, were
supported by the conviction, sanctioned by Luther, that resistance to the
Emperor was legitimate because such resistance was a defence of the true
faith. Similarly, this evolution of Lutheranism into a doctrine of possible
resistance also provided legal principles that expedited the spread of the lay
Reformation. By 1530, for example, Lazarus Spengler, a leader of the lay
Reformation in Nuremberg, was able to declare quite simply that those who
‘disobey the edicts of authority which are in accord with divine truth’
should be subject to legal punishment, but that those who oppose ‘the laws
and edicts of authority which are contrary and repugnant to the divine will’
should be viewed as laudable and morally upstanding. Tellingly, Spengler
also formulated these ideas on the basis of a doctrine of natural law and
divine-natural law, which defined the Emperor himself as constitutionally
‘subject to divine law’.114
In the early 1520s, in sum, Luther had refused to see the uprisings of the
peasants against the princes as justified under divine law. In the later 1520s,
however, he grudgingly accepted that the uprisings of the princes against the
empire were valid under law, even under divine law. By 1530, consequently,
the Reformation was beginning to revise its earliest legal stances, and even
to enunciate cautious ideas of natural law to provide justification for new
conceptions of legal validity, obligation and princely authority. In this,
however, it is of the greatest importance that Luther’s theoretical reorientation
in this matter was grudgingly obtained, and his vacillations show that
he opposed the deployment of his doctrine as a basis for legal formation.
Moreover, it is also of the greatest significance that the Reformation
articulated ideas of natural law, not as aspects of a consistent account of
law’s status and function, but as exceptional rights, providing a sporadic
and precarious foundation for legal order. The first formative or constitutional
premise for legal positivization in the early Reformation, therefore,
was an exceptional principle, and the right to reform (the ius reformandi)
was first enunciated as a right determined outside the normalcy of law, or as
a right deriving from uttermost duress.
Philippism and the godly prince
In Evangelical controversies on the role of law, both in worldly and spiritual
order, it was ultimately not Luther, but Melanchthon, who formulated the
most systematic and cogent doctrines and who consequently did most to
transform Evangelical teaching into a framework for secular legal analysis.
Like Luther, Melanchthon first elaborated his ideas in a commentary on
48 The Reformation
Romans, and he too saw the sense of this epistle as residing in the intimation
that ‘God’s justice’ is revealed not through legal conformity in works, but
only ‘in faith’.115
Law, therefore, is not able to bring salvation and should
be obeyed only through ‘force of reason’.116
Even the ‘works of the just,
however good they are, do not help bring justice’, and law ‘can only make
people pious in appearance, not in their hearts.’117
Like Luther, therefore,
Melanchthon saw law as obstructing faith, and he saw religious institutions
based in law as jeopardizing the souls of Christians.
Melanchthon used this analysis of law to develop an anthropological
account of human existence. He argued that human life exists on three
levels: human life can exist in sin, it can exist beneath the law, or it can exist
in grace. Each of these levels reflects a distinct point in human evolution:
Heathens exist at the level of sin or nature, Jews exist at the level of the law,
and Christians exist in the realm of faith or grace.118
The true Christian,
therefore, exists only in faith, not under law, and law distracts from faith.119
For this reason, Melanchthon’s attack on the use of law in the church was
hardly less emphatic than that of Luther.120
He rejected all claims that the
church might act as a secular legislator,121
and, like Luther, he saw the legal
rituals of dispensation and absolution under the canons as signs of the
contamination of the church by the spirit of Pelagianism.122
The corruption
of Roman Catholicism, he argued, was primarily caused by the fact that it
defines the church as a ‘supreme monarchy’, or as the ‘highest most
powerful majesty in the entire world.’123
Against this, Melanchthon aspired
to a ‘common Christian church’, which, unlike any ‘external polity’, is not
bound to ‘this or that country, kingdom or estate’, and he saw the ‘mass of
people’ as the ‘true church’.124
Melanchthon also echoed aspects of Luther’s
doctrine of the two kingdoms, and he too tended to relativize the
significance of the realm of worldly power. The ‘preachers of the word’, he
explained, have direct authority and ‘express commandment’ from God,
whereas the ‘realm of the sword and of worldly power’ exists without
‘express commandment’, and it clearly has a subsidiary status.125
Nonetheless,
like Luther again, he insisted on the importance of ‘external discipline
and morality’, and he argued that ‘worldly authority’ is ordained by
God in order to ‘keep the peace’ and maintain tranquillity in the world. All
people, consequently, are ‘subject to the sword’ by God,126
and it is
categorically forbidden ‘to set oneself violently against authority’.127
The greatest distinctions between Luther and Melanchthon, however, are
evident in their ideas about law, both religious and worldly. As early as the
early 1520s, Melanchthon, whilst accepting Lutheran ideas of spiritual justification,
became preoccupied with the paradoxes in Evangelical legal ideas,
and he set himself the task of resolving these. He ultimately identified a
special role for the law in ensuring salvation; indeed, the main principles of
this account were later adopted by Luther in his own controversies with the
antinomians. Law, Melanchthon explained, has the function that it engenders
humility in the soul, that it demonstrates to people that without God
The Reformation 49
they can never fulfil the law and can never be saved, and that it consequently
creates a receptiveness for God in an attitude of self-loathing and
acute despondency. ‘Justification’, he explained ‘does not occur through the
law, but where there is no law there is no transgression, and where there is
no transgression there is no fear of the law.’ This fear of the law then stimulates
‘hatred for the law’ and despair over the law; in so doing, it
engenders a spiritual craving for freedom from the law, and freedom from
the law can only be obtained through faith.128
In a soteriological inversion
of Roman Catholic doctrine, therefore, Melanchthon argued that the law
does not ‘remove sin’. In fact, the law acts to ‘multiply’ sin, and so also to
multiply the cause of despair.129
As it multiplies despair, however, law also
enlarges the need for faith, for faith follows on the heels of despair.
Knowledge of the law, in consequence, is ‘vastly important’ because it is
only through the ‘power of the law’, which ‘terrifies and frightens the conscience’,
that people can ‘experience the Gospel’ or feel faith in their
hearts.130
The law, in short, ‘shows us the sickness’, and the Gospel shows
us ‘the medicine’.131
Even in his early writings, therefore, Melanchthon attributed two distinct
positive uses to the law. First, the law exists to maintain outward conditions
of peace, discipline and order in the world. Second, it makes people conscious
of their sins, so that they despair of themselves, they seek to escape
the shackles of the law, and they become open for faith. In this, Melanchthon
already gave greater weight to law than Luther was willing to do, and he
clearly felt little of Luther’s hostility towards legal reasoning in theology. In
addition to this, however, the later Melanchthon also proposed an early
account of the third use of the law (tertius usus legis), which stated that
those who have faith fulfil the law because they feel no temptation to do
otherwise, and they require law at most to remind them of the duties of
faith. By the time the Concordia was drafted, this doctrine was taken for
granted as a central, although perennially controversial, aspect of Evangelical
teaching.132
It was, however, Melanchthon, not Luther, who formulated this
point most comprehensively. He argued that those who have true faith are
above the law, and, because they are above the law, they also necessarily
behave in accordance with law. Through their faith, in fact, the law is
‘written’ in their ‘mortal hearts’ and their inner faith is outwardly reflected
in fulfilment of law.133
Although surely not constitutive of redemption,
therefore, Melanchthon saw the law as an important index of faith. We do
not ‘cancel out the law through faith’, he concluded. On the contrary, ‘we
establish the law’ and the law is always both a precondition and a sign of
salvation in faith.134
As a corollary of these points, Melanchthon, especially after 1522, was
also much more engaged than Luther in debate regarding the conditions of
legal rule in the secular sphere, and he began to propose a fusion of Evangelical
teaching and Aristotelian ius-naturalism. Unlike Luther he did not
denounce ‘jurists and legal experts’ as corrupters of true faith.135
Rather, he
50 The Reformation
argued that lawyers have a specifically religious function in helping create
good laws, and all ‘learned people’ who serve the cause of worldly law
clearly assist in the enforcement of God’s will, and in the creation of a world
which is transparent to God’s will.136
In fact, after the mid-1520s,
Melanchthon set out an unqualified argument for political ius-naturalism,
and his account of the first use of the law (the usus politicus or civilis) far
exceeded Luther’s understanding of law’s functions.137
He defined law as the
‘voice of God’,138
he argued that the ‘law of God’ is ‘inscribed in the minds
of men, so that they obtain a rule from God which governs worldly laws’,139
and he explicitly defended a ‘law of nature’, which ‘God has buried in each
mind’.140
Unlike the more fervently theocratic reformers, Melanchthon did
not claim that natural law legitimizes common or communal rights in the
political community, and his view of natural law was not tied to any early
republican ideals. Instead, he saw natural law as a set of norms serving to
stabilize human society, to impose regular constraints across society and
to promote civil education in moral decency and convention. He viewed
Roman law, most especially, as the legal order that is most appropriate for
fulfilling such functions. The ‘law of the Romans’ is superior ‘to the laws of
all other peoples’,141
and, as a means of guaranteeing universal order, it
draws its source directly ‘from nature’.142
Melanchthon’s notion that Christians are naturally law-abiding ultimately
became the foundation for perhaps the most far-reaching claim of the
Philippist Reformation: the claim, that is, that true Christians inevitably act
in unity with the law, that Christian princes pass and abide by good laws,
and that states governed by Christian princes have a specific legitimacy
under divine-natural law and specifically contribute to the institution
of divine law in the world. It is the ‘calling of kings’, Melanchthon stated,
to ‘set laws’, to ‘create peace, and to reinforce the civil regiment with laws
and arms’.143
This calling of kings, moreover, is not restricted to the outward
protection of the peace, but also contains spiritual obligations. God makes
the king ‘a protector of the law’,144
and the ‘policies and moral ordinances’
that a king enforces demonstrate ‘God’s marvellous wisdom’, and they
make all subjects of the king compliant with God’s law. The laws passed by
a virtuous king therefore allow God to ‘be correctly recognized in human
society and community’, and they enable the pursuit of ‘eternal goods’ in
the worldly polity.145
If Luther’s work intended to dissolve the relationship
between ius-naturalism and religion and to justify government on relatively
minimal preconditions, consequently, Melanchthon’s later writings reunited
religion and natural law to form a specifically Evangelical strain of political
ius-naturalism. Indeed, whilst Luther’s work strongly opposed the normative
universality of natural law, Melanchthon set out a compromise between
universal-normative and more positive or voluntaristic accounts of the law.
He argued on hand that the prince is accountable for passing laws, and that
the decision of the prince gives authority to law. Yet, on the other hand, he
asserted that the will of the Christian prince is also bound to God, and, as
The Reformation 51
it is bound by God’s laws, it contains within it a universal legal order: the
decisions of the prince thus stand in for God’s decisions, and the prince
himself is bound by the norms which these decisions incorporate.
In this respect, Melanchthon’s thought assumed seminal importance in
the evolution of post-Reformation Evangelical political thought, as it offered
a clear practical justification for princely power without papal support,
and it created a normative horizon in which princely power could be viewed
as legitimately enacting or even replacing metaphysically construed legal
ideas. If Luther’s work had led to an exceptional view of positive law,
therefore, Melanchthon endeavoured to resolve the political problems
caused by Lutheranism and to allow the legal antinomies and the exceptionality
of Lutheranism to be reconciled in the concept of the confessional
state: that is, the worldly state governed by a godly and divinely authorized
regent. Indeed, in its Philippist expression, the Reformation ultimately
transformed natural law from a metaphysical doctrine, which originally
weighed against the emergence of positive law and independent statehood,
into a set of principles that facilitated the positivization of law and the formation
of independent and positively self-justifying states. After Melanchthon,
the Evangelical movement abandoned its earlier unreserved critique
of theocracy; it allowed the prince to assume the legislative duties formerly
allocated by the Roman Catholic Church and sanctioned under the semitheocratic
natural law of this church; and it allowed the princely will, at
once bound by and distinct from God’s will, to engender law and to define
this law as absolutely valid. Indeed, if Luther’s first justification of Evangelical
law had resulted from an exceptional gesture, recognizing princely law as
originating outside normalcy, Melanchthon’s natural law converted early
Evangelical exceptionalism into an endlessly fraught paradox of legal order,
in which the princely will, acting outside inherited natural law, proclaimed
itself, like the scholastic God, as both the author and the addressee of natural
law, uniting reason and freedom in a set of positive legislative acts. In these
early steps towards an Evangelical theocracy, therefore, Melanchthon
allowed the discredited paradox of God’s legal authorship momentarily to
reappear in the state, not as a full theocracy, but as a state that owed its
genesis to the abolition of theocracy, but whose laws were still sanctioned by
the personally embodied will of God.
The idea of the prince as God’s legal representative on earth became
increasingly prominent through the early decades of the Reformation.
Although Melanchthon first formulated this idea, it was Martin Bucer, the
leading reformer in Strasburg and the major influence on the dissemination
of Evangelical ideas in England, who gave fullest expression to the belief
that the power of the prince should extend beyond the outward preservation
of the peace, and so includes powers of divine representation. Bucer claimed
that princely rule is ‘ordained by God’,146
and that princes contribute to the
establishment of ‘true religion and to the establishment of God’s realm’.147
To a greater extent even than Melanchthon, therefore, he argued that there
52 The Reformation
is a necessary divine order in the worldly state, and this order is most
effectively instituted when pious princes hold office.148
The natural order of
the state is concentrated in the will of the prince, and, as a source of absolute
law, the prince possesses control over a specific territory, with full
power to regulate preaching, religious instruction and organization of the
church.149
These early Evangelical doctrines of natural law also stimulated the evolution
of legal thought in other areas of legal inquiry. Johannes Oldendorp,
for instance, pioneered an early line of Evangelical ius-naturalism, which
paved the way both for a revival of private-law teaching in Germany and for
a doctrine of public law underpinned by concepts of Evangelical natural
law. Oldendorp argued that there exists an ‘immutable’ natural law, which is
observable in all societies, and which forms a uniform basis for the principles
of civil law.150
The spirit of this natural law, he claimed, is most effectively
expressed in Roman law, especially in the principle of equity in
Roman law: in fact, he viewed ‘natural law and equity’ as ‘one and the same
thing’,151
and he argued that the principle of equity constitutes a normative
framework in which all laws, both written and unwritten, can be applied
and modified.152
For this reason, Oldendorp also identified ways in which
natural law might assist the jurisdictional interests of individual states, and
he argued that natural law can act as a powerful foundation for the introduction
of new laws and for positive acts of legislation. He stressed that new
laws are always necessary, depending on the customs and needs of the
republic. Where circumstances change, then, magistrates are entitled to use
considerations of ‘utility’ to decide which new laws should be introduced,
and new laws obtain justification through their convergence with principles
of natural law.153
Natural law, he concluded, has its great public value in the
fact that it enables reliable and just laws to be introduced with relative
facility, and it ensures that new laws are likely to enjoy a high degree of
common consent. Indeed, Oldendorp even expanded this argument to
demand that legal application throughout Germany should be consistently
organized and that uniform and regulated courts should be instituted by
imperial command.154
As in the works of the more legally minded reformers,
therefore, natural law acted here as an idea of the law which introduced an
element of flexibility into law, and which provided for the consolidation of
secular power around accountable judicial explanations of its own authority.
On these grounds, then, it can be concluded that, despite the original
anti-legal position of the reformers, the Reformation eventually cleared the
terrain for the emergence of positive accounts of legal order, both in state
law and in civil law. However, it is also necessary to emphasize, first, that
the reformist teachings on law that offered a constructive analysis of natural-legal
validity directly contradicted the earliest ideas of Reformation
teaching. Second, moreover, it is also important to see that the Evangelical
accounts of natural law that reintroduced aspects of theocratic thought into
political discourse used elements of theocracy to provide intensely paradoxical
The Reformation 53
accounts of political legitimacy. At the heart of Melanchthon’s confessional
state, most strikingly, is the abiding paradox that this state invoked metaphysical
or universal laws to justify a process through which law was
factually detached from metaphysical or universal preconditions, and in
which law was gradually reconstructed as a positively constituted and
interpretable set of facts and norms. Evangelical natural law was thus
founded in the paradox that it allowed the state to appear metaphysically
valid, yet it practically organized its functions on positive principles. Even
in their most abiding normative consequences, therefore, the legal teachings
of the Reformation retained an aspect of exceptionalism, and they inflated
their quasi-theocratic ius-naturalism, in part, as recognition of their own
origin in the end of theocracy and in the end of natural law.
The ecclesiastical constitution
The legal problems and paradoxes of the Reformation are also evident in
the debates during the Reformation period concerning the constitutional
order of the Evangelical church. As discussed, the constitutional form of the
church began to assume concrete contours after the settlement of 1555. This
settlement recognized the legal status of the Evangelical church under
the Imperial Constitution, it transferred jurisdiction in spiritual matters to
the princely estates in territories whose princes had abandoned the Roman
church, and it created a legal basis for the eventual evolution of the famous
principle of ‘cuius regio eius religio’ – that is, that the prince can decide what
his people ought to believe, and then impose religious uniformity in his
territory. The year 1555, therefore, saw the beginnings of the territorial
constitutional system (Staatskirchenrecht), in which the prince of an Evangelical
state ultimately obtained, under ius reformandi, supreme responsibility
for all ecclesiastical matters in that state.155
Before 1555, however, and especially before the promulgation of the
Confessio Augustana in 1530, princely control of church was not established,
and there was no accepted model of ecclesiastical jurisdiction. In his earlier
works, Luther took a latitudinarian approach to questions of church order,
arguing that legal and ceremonial questions should not be permitted to
burden the Christian conscience or spirit.156
However, owing to the often
eccentric proliferation of religious teaching in the first years of the Reformation,
the leading reformers soon decided that they needed consistent
instruments of legal control over the church and over the doctrines
preached in the church, and they began to design constitutional mechanisms
or orders of visitation to oversee orthodoxy in teaching and in services
in the church. However, these issues had a number of highly sensitive religious
and constitutional implications for the reformers. They raised the
question of how the Evangelical Church should relate to worldly power, of
how law might be applied in this church, and of how precisely the Evangelical
Church was institutionally distinct from the Roman Catholic Church.
54 The Reformation
In addition, then, the suggestion that princes might govern churches also
touched on the constitutional nerve of the relation between princes
and empire, and of the extent to which princes could legitimately act against
the empire in ecclesiastical politics.
Melanchthon played a leading role in the debates on the institution of a
church constitution, and the very earliest models of supervision for the
church, for instance the Order of Visitation introduced in 1527–28, were
largely the product of Melanchthon’s ideas. In these documents he expressed
the conviction that, although the laws regulating the church could not
help bring justification before God, a ‘human order of the church’ was
essential, and the authorities ordained by God in the world should help
preserve this order.157
He therefore concluded that the external order of the
church necessarily falls under the legal responsibility of the prince, although
the internal practices of religion are not subject to princely jurisdiction.
Article 28 of Melanchthon’s Confessio Augustana then clearly stated that the
inner corpus of the church should be devoted only to teaching and preaching
and is thus governed by God’s word alone, but that ‘worldly authorities’
are ‘authorized by God’ to oversee maintenance of civil peace and ‘outward
order’.158
A first ecclesiastical constitution was subsequently proposed in
1538: this was the work of a number of theologians, primarily of Justus
Jonas, but also of Melanchthon.159
This constitution, although never fully
enforced, foresaw the establishment of territorial consistories to supervise
all ecclesiastical matters and to assume the legislative competences previously
accorded, in the Roman Catholic Church, to courts applying the
canon law. These consistories drew their jurisdictive power directly from
‘the immediate command of the territorial prince’,160
and they initiated a
process of legal organization in which the prince ultimately assumed formal
rights of cura ecclesiastica or final jurisdiction in the church. Indeed, in
addition to this, Melanchthon also presided over a short-lived experiment
with Evangelical episcopacy in the early 1540s. In his correspondence of this
time, he stated that the optimal church order is one which incorporates a
consistory and a bishop, both subject to the authority of a ‘regional prince’,
who acts as ‘Patronus’ of the church.161
He ultimately urged the appointment
of Nicolaus von Amsdorff as Evangelical bishop of Naumburg, and
he pressed the claim that episcopal order and princely control were mutually
supportive.162
Under the influence of Melanchthon’s concept of princely natural law,
therefore, the Evangelical Church was rapidly integrated into the early territorial
states. Luther himself, although not without equivocation, was also
complicit in this transfer of power over the church from the papacy to the
territorial princes. His willingness to countenance princely custody of the
church was already evident in his claims in the 1520s that princes possessed
rights of political resistance and independence in religious questions: these
arguments implicitly meant that princes could present themselves as defenders
of faith. Later, he followed Melanchthon in acceding to the recreation of an
The Reformation 55
episcopate in the Evangelical regions, and he endorsed Amsdorff’s
appointment in Naumburg. He justified this by saying that he had never
had the ambition to ‘tear down the monasteries’; his Reformation had
intended, instead, to ‘set an example for how the monasteries should be
reformed and governed’.163
He, therefore, approved the appointment of
Evangelical bishops, provided that these had nothing to do with ‘worldly
goods or power’, but were responsible solely for matters pertaining to
spiritual order.164
Despite this, however, Luther’s enthusiasm for territorial
organization of the church was never more than circumspect, and he saw
this as an exceptional solution, pending a resolution more in keeping with
Evangelical principles. In the early debates on the territorial constitution,
for example, he commented acerbically on the increasing tendency towards
territorial regulation of the church in the 1520s and 1530s. Whilst before the
Reformation the pope had confused the office of the preacher with the
worldly regiment, he argued, the Reformation had now imposed a consistorial
constitution that confused the office of worldly power with the
office of preaching. Under this constitution, he claimed, ‘evil lawyers’ tried
to ‘tell preachers what they are to preach.’ He consequently attacked all
those ‘worldly lords want to run the spiritual regiment’, and who wish to be
‘transformed into popes and bishops’.165
Indeed, even in agreeing to the
reintroduction of episcopacy, Luther argued that ‘worldly powers’ could
only act as ‘bishops of necessity’ (Not Bischove),166
exceptionally required to
protect the Evangelical Church from its Roman Catholic adversaries. He
thus never fully abandoned his earlier scepticism towards the legal organization
of the church, and his main intention remained to simplify the
church as a place of faith. As in other respects considered above, therefore,
in discussions concerning the legal administration of the Evangelical
church, a set of legal forms emerged which often contradicted the initial
visions of the first Reformers, which assimilated elements of legal order
which they had initially reviled, and which expressly justified themselves as
exceptional points of law. The evolution of Evangelical church law and
church constitutions especially demonstrates how the Reformation struggled
to absorb the legal crises that it stimulated and how it maintained itself
only by rapidly generating responses to the collapse of legal order in both
church and state.
In conclusion, therefore, it can be argued that the Lutheran Reformation
responded to a deeply complex legal situation, and it bequeathed a no-lesscomplex
legal legacy. At the very centre of Lutheranism was a rupture
between reason and freedom: that is, between God’s law and God’s freedom,
but also between metaphysical ideas of natural law and the human
will. Indeed, both practically and theoretically the Reformation undermined
the unitary foundation of the law: practically, it allowed newly powerful
interests to take possession of the law, to bring division into the inherited
legal order and to eliminate the last traces of religious justification from the
law; theoretically, it defined all law as other than eternal law, and it restricted
56 The Reformation
the principles valorizing law to a narrow set of functional or utilitarian
considerations, which could be positively invoked by many sites of authority.
The defining legal implication of the Reformation, consequently, was that
law is free, that law is exercised in positive form by positive wills, and
that debate about the law must be conducted in positive terms. Indeed, as a
corollary of this, the Reformation also contained the necessary implication
that statehood in Germany must be a free statehood, and this statehood
must explain its legitimacy as other than all metaphysically structured ideas
of natural law. In instituting this metaphysical rupture in the law, however,
Luther did not provide for a model of legal foundation, and he only allowed
for law’s value and for freedom under law in highly exceptionalist or contradictory
terms. Generally, in fact, he denied that positive acts of human
will can create fully valid laws. Valid law, he claimed, is neither human law
nor natural law nor divine law: it is the new law, and this law exists only in
the church and the Gemeinde, integrated under faith. Evangelical legal theorists
after Luther, therefore, were confronted with a dual problem of positivization.
They encountered law as divested of its metaphysical unity with
reason and so as requiring positive validation. Yet this positive or this
human law, as they encountered it, could not articulate itself as fully valid,
because it remained shadowed by the inferiority of law to faith and by its
devaluation in the first pronouncements of the Reformation. In the first stage
of their theoretical formation, therefore, laws evolving from the Reformation
existed on precarious ground, they were forced constantly to negotiate with
their own paradoxicality, and most laws explained their positive authority
either as exceptionally justified principles, through a parasitic borrowing of
legal constructs from models of law which they opposed, or through paradoxical
acts of self-validation. It was only in the longer wake of the Reformation
that theorists began to reconstruct an integral relation between
reason and will and law and power on Evangelical foundations, and to
explain how human law could be valid, and how the freedom of statehood
could be imagined, after metaphysics, without paradox.
The Reformation 57