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?