Berman, Harold J. Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition. (Cambridge, Massachusettes: Belknap Press/Harvard University Press, 2003)

The story of the English Revolution is a story of the development of parliament and the struggle for power between Monarch and Parliament, Parliament and Monarch. From absolute monarchy to constitutional monarchy, the evolution of political and legal organization was determined by the power struggles of England’s rulership and the constant back and forth between politically-sanctioned Catholicism and politically-sanctioned Protestantism, in all their various forms. At one point in the history both ends of the spectrum were given sanction, including anglo-catholics and conforming puritans. The two groups left out however were the extreme branches, Non-Conforming Puritans and hyper Roman Catholics.

Prior to 1640 and the Cromwellian insurgency Mother England was governed by an absolute monarchy. By 1689 not only had a party system emerged with major forms of power, but Parliament (with a capital P) was the defacto head of the Church of England). In the judiciary circuit, in 1640 judges were appointed and served at the will of the monarch and exercised justice as was proportionate to the whims of the King. By 1689 justices were given independence of the crown, and the common law court system was made supreme over all other courts, (including the powerful prerogative courts established by the Tudor monarchs) and common law itself became the constitutional law of England. Jury and judge became separate and independent of one another, witness and evidence systems were established, and the doctrine of precedent was given its modern meaning.

In response to the growing popularity of natural reason as the foundation of jurisprudence, King James I and Jean Bodin argue that “through law the ruler keeps order in society just as through law God keeps order in nature. Reason, in King James’ philosophy is not immanent in nature and in society, as it was believed to be by most scholastic theologians and philosophers ever since Saint Anselm and Abelard.” (235) In any state of nature, James argued, headship is necessary and the most similar form to that of the nature of God this can take is in the form of kingship. This authority bears out on society patterned after that of Christ to the Church, and soul to the body. “Kingship in [James] theory, is the soul of the body politic.” (235)

Jean Bodin’s major polemic work targeted the French Heugenot conception of divided sovereignty. However, Bodin was not in total opposition to the possibility of an aristocratic order. He merely argued instead that monarchy was far preferable. Francis Bacon made similar claims across the chanel in King James’ court, and argued that as nature requires and produces government, thus “government requires and produces law.” Anything other than absolute monarchy, Bacon claimed, “were apt to dissolve.”As god’s representative to earthly rule, kings are required by God to fulfill the divine commandment to “maintain justice in their kingdoms and to observe the principles of natural law, that is, the principles of reason and conscience.”

Jean Gerson wrote that “all law, including English law has its ultimate sources in the natural law of reason, the eternal law of God, general customs, and general legal principles.” 232

Does Gerson place too much emphasis on reason for the derivation of law?

Hooker asserts that law “is founded in will and politics and in the corruption of human nature, which requires, for the sake of sociability itself, submission to the commands of a political authority. Government is the result of man’s natural inclination to sociability; all particular forms of government, however are the result of man’s express or tacit consent to submit to those particular forms…” 233

If government is the natural result of man’s sociability, and if man had sociability before the fall, would hooker argue that government is prelapsarian?

Does the shift towards Constitutional Monarchy indicate changes in social mores?

Coke did not deny the validity of King Jame’s version of natural law theory…was he right then to shift English common law and define it in historical terms?

Berman, Harold J. Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition. (Cambridge, Massachusettes: Belknap Press/Harvard University Press, 2003)

In his discussion of the origins and influence of the Protestant Reformation on Western legal tradition, Harold Berman examines the beginnings of the Lutheran Reformation in Germany and its successors as a changing of the political landscape rife with potential for the re-examination of the conceptualization of law. Berman begins by stating the importance of Reformation thought to Western society’s conceptualization of law. He says first of all that law is a product of the protestant and catholic traditions, an heir to spiritual and human traditions interpreting our notions of justice. Second, that without a knowledge and understanding of past influence on modern conceptualization, there can be no commitment to future principles. Third, our legal heritage is rooted historically in different forms of Christian faith. And finally, that reformation thought keeps in mind the religious dimension of legal tradition, arising out of spiritual and moral motivation, not mere human invention.

One of the most fundamental elements to a Lutheran conception of law was a shift from a “two swords” to “two kingdoms” theory of law. Certainly Luther tended towards heavy dualism in his understanding of church/state governance, but his overall shift in thinking from Roman Catholic interaction of spiritual and secular powers to heavenly and earthly kingdoms and their respective Law / Gospel divide, prompted a fundamental shift in the Western conception of Law.

The Catholic church had, up to this point, adhered to the “two swords” theory proclaimed by Gregory VII. This approach saw the church as a lawmaking institution, and as Gregory advocates, superior in jurisdiction to secular, or royal, power. Catholicism elevated human will and reason to the point of salvation by works. This fundamentally optimistic view of human nature says that “despite man’s sinfulness, his will and reason were thought to remain capable of obtaining a ‘natural’…perfectibility. In addition, the sacrament of baptism forgives humanity’s original sin.

Luther objected strongly to such a view, arguing instead that the earthly kingdom is in the order of sin and death. Therefore, it must be governed by the Law. Luther perceived a distinct heavenly kingdom of grace and faith which is governed by the gospel, that is the justification of faith by faith alone, qualifying humanity for God’s free gift of salvation. This left the earthly kingdom’s Law separate and distinct from heavenly jurisdiction and thus became an order of the secular realm. Politics and law are not, as traditionally seen, a path to grace and faith (The primary political understanding of the Roman Catholic church).

Here we arrive at the fundamental difference in the two realms of thought. Luther flips these two around and argues instead that grace and faith are a path towards the right politic and the right law. Berman argues that, “Lutheran reformers taught that it is the duty of Christians “to work the work of God in the world,” and to use their will and reason, however defective, to do as much good and to attain as much understanding as possible.” 42

“God himself ordained and established this temporal realm and its distinctions, and we must remain and work in them so long as we are on earth.”

1. In characterizing Luther’s fundamental orientation to earthly kingdom and humanity, Berman states “politics and law are not a path to grace and faith…but are not grace and faith a path to the right politics and the right law? Here Luther was torn between his belief in man’s essential wickedness and his belief that that wickedness itself, and the earthly realm which embodies it, are ordained by God.”

(43)

Which of these views does Luther ultimately gravitate towards?

2. Berman states “It is an essential tenet of the Lutheran doctrine of creation that sinful man is a creature of God and that God is present, though hidden, in the earthly realm…it is the duty of Christians to work the work of God in the world and use their will and reason to do as much good and attain as much understanding as possible.” (43)

How does this view differ from the Roman Catholic understanding and is Luther’s view properly rooted in a Biblical ethic?

3. Berman argues the fundamental difference between Lutheranism and Calvinism is where authority in ecclesiastical matters lies. Luther says they lie in the territorial prince, Calvin argues for the elders of the local congregation. Why does an theology otherwise in agreement render two such differing authorities? (58)

4. Berman states of the shift in legal jurisdiction in the church… “What has traditionally been a called a process of secularization of the spiritual law of the church must thus also be viewed as a process of spiritualization of the secular law of the state.” (65) This arises out of the massive body of ordinances drawn up to govern secular areas. Given the historical progression of this trend (falling closer to the secularization side of the map), would Calvin’s understanding of authority have begotten a different effect? I.E. if the elders drafted the law and left law in the realm of the church, as opposed to Luther’s princes, might we be living in a different society today?

O’Donovan, Oliver and Joan Lockward O’Donovan, Editors. From Irenaeus to Grotius: A Sourcebook in Christian Political Thought. (Grand Rapids: William B. Eerdmans, 1999)

“Rights sanctioned by men for their own advantage were very various, and changed with the social expectations and the times…Though man is an animal, he is an extraordinary one. And among the distinctive features of human behavior …is a desire for society.” Fundamental to the ordering of a peacable and just society is the nature of humanity to organize by their human rational capacities. This separates them from other animals because to use one’s human intelligence and acting upon a series of well-formed judgments is appropriate to human nature.

This discussion of human nature presupposes what Hugo Grotius calls “Right”. It is the concept that in creating human kind and endowing them with his image, that this bears certain implications for how man lives together and how God is concerned with human affairs. One of Grotius’ famously misinterpreted lines “even if we were to accept the infamous premise that God did not exist” is in the context of the discussion of Right, which Grotius argues would still be legitimate to human nature without God. However, he claims it bears even more gravity because of God. This Right bears the natural law that man must obey God without qualification. We owe it as much to ourselves as to our Creator, owning possessing nothing apart from him.

Some would divide the complete conception of right into Natural Right and Civic Right. Some would even say there is a Right of Nations. Grotius argues, “If a citizen who breaches civil Right for his own immediate interest destroys the fabric which protects the enduring interests of himself and his posterity, so a people that violates natural rights and the rights of nations, undermines the supports of its own future tranquility.”

In his discussion of what is Right, Grotius asks the followup question, what is Just? For Rightness and Justice are inextricably linked. “’Right’ in this context means simply, what is just – ‘just’ being understood in a negative rather than a positive sense, to mean ‘what is not unjust.’ ‘Unjust,’ in turn, means what is inconsistent with the nature of a society of rational beings.”

Grotius, who refers often to historical and theological sources, quotes Aristotle on this issue of Right. Natural and Voluntary Rights, which roughly correspond to the Hebrew conception of natural right and positive right, are concerned with man “obliging us to do what is correct.” This involves virtues other than mere justice, because he uses the distinct phrase “what is correct” and not “what is just”.

On a very basic level, what is just and what is correct are close enough the same that we could use the terms interchangeably. However, sometimes other virtues supercede what is in fact just. In such cases, it may align more with the character of God to intervene in situations in ways other than the meting out of justice. One thinks of Christ’s atonement on the cross. Justice demands eternal damnation for all humanity. However, what is correct to the nature of God supercedes what God’s justice demands. That is, that some portion of humanity be reconciled to Christ. The question then, which most reformers dealt with, is how are God’s other attributes (mercy, justice, righteousness, sovereignty) fully satisfied in all cases?

O’Donovan, Oliver and Joan Lockward O’Donovan, Editors. From Irenaeus to Grotius: A Sourcebook in Christian Political Thought. (Grand Rapids: William B. Eerdmans, 1999)

Lutheran Reformer Philipp Melanchthon structured his theological formulations according to Martin Luther’s dialectic between the law and the gospel and the evolution of Luther’s own political thought through natural law. Melancthon centers his exposition of lex moralis on the power of sin, work of the law, and the fruits born through the appropriation of God’s grace to believers and unbelievers. All laws of nature and of man hinge upon universally rooted judgments that men should worship God, cause no harm, and establish common use of and sharing of earthly properties.

Earlier in his scholastic career Melanchthon held to a more distinct division between the “two kingdoms” espoused by Luther. His view, heavily dualistic, distinguished between inner freedom and external obligations (651). It was easily possible to separate natural and divine laws between social and political morality. It wasn’t until the peasant Anabaptist uprisings that this distinction came into sharp focus for Melanchthon and he was able to integrate the two kingdoms of God and their respective laws through Natural Law philosophy.

Melanchthon argues that the Decalogue offers a locus for the entire lex moralis. The ten commandments refer not merely to the ten statements issued to Moses on Mt. Sinai, but rather the entire composition of the moral law in scripture. The ten statements engraved on the two tablets happen to be a summation of the rest of the law. The fourth commandment specifically speaks to the desire of God for the appropriation of order and government in creation instead of a certain ‘freedom’ which allows the wanton desires of man to run rampant in society.

The corrupted nature of man longs to live with no restraint, but it is in a society of no restraint that corruption runs wild and brazen not held in check by any restraining force. In such a society a man must always live in fear of his neighbor, uncertain of what injury might be done to him, unsolicited and unmerited, but imparted nonetheless. Such a fear for neighbor does not birth freedoms but rather controls, for a man is controlled by those he fears. Thus the very freedom of the society is its enslaving force.

Instead, freedom is “an orderly use of one’s own body and goods, by choice, in accordance with divine law and other true statutes” (654). God’s law is not enslaving, it is freeing; for it provides the appropriate restraint due the nature of divine law and statutes. Deuteronomy 4:1 states, “You shall heed the ordinances that I have commanded, that you may live!”

The second aspect to the fourth commandment relates to the nature of obedience to one’s particular office or calling and the virtue of gratitude necessary to display in order to properly accord the grace of God in that circumstance. Gratitude comprises the other virtues of truth and justice. First, when gratitude is expressed you are also expressing truth by rightfully acknowledging we are not proud and have boasted in our own strength in accomplishing some particular task. Secondly there is justice in returning that for which particular help was given.

1. Melanchthon states “the light of natural law was planted in man when he was created, but in the heathen it has been obscured.” 658. What does Melanchthon mean by heathen and how has the law been obscured?

2. How does Melanchthon describe poverty and its relation to private property? What is his critique of the Anabaptists?

3. Melanchthon defines freedom as an orderly use of one’s own body and goods, by choice, in accordance with divine law and other true statutes (654). Do you agree with his definition and does it founded in the right jurisdiction of God’s law?

4. Melanchthon argues that the closer one gets to absolute freedom the closer one gets to tyranny and social chaos. Is this justification for me to abandon my libertarianism?

O’Donovan, Oliver and Joan Lockward O’Donovan, Editors. From Irenaeus to Grotius: A Sourcebook in Christian Political Thought. (Grand Rapids: William B. Eerdmans, 1999)

In his treatise on the Christian’s response to Temporal Authority, Martin Luther states, “It is out of the question that there should be a common Christian government over the whole world, or indeed over a single country or any considerable body of people, for the wicked always outnumber the good…the world and the masses are and always will be un-Christian, even if they are all baptized and Christian in name.” (587)

Luther’s words here provide the foundation for which much of his work in the Reformation would arise out of for he portrays a clear distinction between the nature and purpose of royal and ecclesiastical rulership, a defining view of the eschaton which would later determine his soteriology, and the function of humanity and political community here on earth. Luther first claims that a thoroughly Christian government is inherently unattainable given the nature and disposition of man. He hints at the depravity of man and the outworkings of that depravity as inhibitor of peaceful human existence. Christian government, he claims, is characterized by a lack of need for “law and the sword” (587) which indicates less earthly government, and greater spiritual government. This certainly is a critique on the Constantinian turn and the supposed Christianity of the early Byzantine empire.

Luther argues for a distinction between the two types of government, earthly and spiritual, and that both must be permitted to remain. The former’s purpose is to externalize peace and retrain evil, the latter to promote righteousness, a negative and positive approach, respectively. Earthly government alone cannot bring about righteousness. The absence of earthly government prohibits earthly righteousness while the absence of spiritual government allows rampant wickedness. Thus, Luther makes a clear distinction between the purpose of secular institution and sacred institution.

True Christianity cannot and will not be attained by all those on earth at the same time. Thus, the rule of Christian government must in itself be restrained, because it cannot account for the nature of earthly humanity. The world never has and never will be populated entirely by Christians and thus Christian government is an invalid goal for the church. It is clear from this statement where Luther’s quarrel with the Catholic church in this respect arises. For the Catholic church to claim sovereignty over political authority is unfounded and unjust in Luther’s view and can never accomplish that which it sets out to achieve. A question we might ponder here asks if this is the source of the Founders idea of separation of Church and State? Luther and likeminded reformers saw a clear distinction between Christian cultural actualization arising out of Christian government and realistic redemption brought about by secular government guided by the holy spirit.

Luther states, “If anyone attempted to rule the world by the gospel and to abolish all temporal law and sword on the plea that all are baptized and Christian, and that, according to the gospel, there shall be among them no law or sword, or need for either, pray tell me, friend, what would he be doing? …Certainly it is true that Christians, so far as they themselves are concerned, are subject to neither” ...Is this correct?

2. How does Luthers view on Christian government (587) play into our understanding of separation of church and state?

3. Is Luther’s critique of trade and usury a critique of freemarket capitalism?