Johann Oldendorp

Jurist of the Protestant Revolution

"The purpose of law is that we may peacefully pass through this shadowy
life and be led to Christ and to eternal life.”
JOHANN OLDENDORP, LEXICON¹

Lutheran Protestantism's Lawyer

Introduction

What Martin Luther conceived and birthed, and Philip Melanchthon nourished, Johann Oldendorp legitimized. The German jurist, Johann Oldendorp (ca. 1480-1567), was perhaps the most notable among a number of lawyers and jurists who helped graft the nascent Lutheran belief system into German law and established thereby a Lutheran or Evangelical order of law, politics, and civil society.² His contribution to the development of the law of the Protestant German states is undeniable, though it is not necessarily well-known or well-publicized outside Germany.³ Yet the German legal historian Roderich von Stintzing called him “one of the strongest legal figures of his epoch,” one clearly “surpassing all others.”⁴ In his Law and Protestantism, Professor John Witte dubs him “the most original and prolific jurist of the Lutheran Reformation.”⁵ As one of the leading scholars of the history of law and religion, Harold J. Berman, summarizes it:

“The Lutheran Reformation,” according to Witte, is “best seen as a watershed in the flow of the Western legal tradition—a moment and movement that gathered several streams of German, Roman, and Roman Catholic legal ideas and institutions, remixed them and revised them in accordance with the new Lutheran norms and forms of the day, and then redirected them in the governance and service of the German people.”⁷ From Germany, these ideas spread to Scandinavia, England, France, and the Netherlands; and from England onto American shores. Because Oldendorp was a figure of such dominance during an important part—this legal watershed—of European history, his contribution to Western jurisprudence should not be minimized. In a manner of speaking, Oldendorp was Luther in a black robe and a white horsehair wig.

Oldendorp’s Life

Oldendorp was born in the Hanseatic city of Hamburg—when is not known exactly, but probably sometime between 1480 and 1488.⁸ He studied law for eleven years, first at the University of Rostock between 1504 and 1508, and later at the University of Bologna from 1508-1515. It was in Bologna where he was significantly affected by the new humanism.⁹ In 1516, after he was graduated, Oldendorp was hired as professor of Roman law and civil procedure at the University of Greifswald. Obviously, as a result of his education, he would have been intimately versed in Roman law, and would have had some exposure to Canon Law. In addition, however, he had acquired a significant knowledge of the classics, including the works of Plato, Aristotle, and Cicero. As result of his interests in the new humanism, he developed close contacts with the leading German legal humanists, including Claudius Cantiuncula (d. 1560) and Christophus Hegendorf (1500-1540).¹⁰

Oldendorp was exposed to, and then influenced by, the Lutheran reform. Eventually, he became its avid proponent, and in 1526 made a decision to dedicate his life to promoting the Lutheran cause. The history of his professional life from that time is reflective of the turmoil in the political and social life in the Germany in which he lived. He left the University at Greifswald and moved to Rostock, and aligned himself with the Reformation party there. At Rostock, he became a leading city official or syndic (Stadtsyndikus). In a flurry of activity, he helped to write reformation ordinances (Reformationsordnungen), and served as superintendent for the Evangelical churches, where he advanced the Lutheran reforms as they affected preaching, liturgical worship, and ecclesiastical governance. Oldendorp also involved himself in the reorganization of seized Church property, and in the creation of an Evangelical school and almshouse. Somehow in this flurry of activity he even found time to write and publish works on the law.¹¹

Eventually, Catholic opposition forced him to leave Rostock, and in 1534 he left to Lübeck, where he accepted the position of Stadtsyndikus for that city and also supervised the Evangelical churches. Again, Catholic opposition to his efforts to usher in the reforms advocated by the Protestants caused him to leave. He accepted a teaching position at the University of Frankfurt an der Oder in 1536, and later took a post in Cologne in 1539, being invited by the Cardinal Archbishop of that city who leaned toward the Reformer’s theology.¹² In Cologne, Oldendorp had contact with the redoubtable Melanchthon and Martin Bucer, the Strassburg reformer. Yet again, in the face of opposition to the Reformers’ views, Oldendorp departed Cologne in 1541. He was hired as professor at the University of Marburg, but later returned to Cologne, again at the invitation of the turncoat Cardinal Archbishop Hermann von Wied.¹³ In 1543, he left Cologne again for Marburg, where he finally settled down, and, for twenty four years, taught law at the University and advanced the Lutheran cause until he died in 1567.

His situation at Marburg was ideal for him, as he obtained a concession from the University’s governing body to deviate from the standard lecturing requirements expected of professors of civil law. Instead of teaching the standard course based upon Justinian’s Corpus Juris Civilis and the post-glossators (the so-called mos italicus), he was allowed to teach the Ius scripturae, or as he put it, to “teach the laws with special attention to their just consequences and in their relationship to God’s word, which, above all, must be pursued and taught.”¹⁴ During his tenure there, he was also able to steer—with the approval of the University’s founder Landherr Philip the Magnanimous—the teaching of law so as to be in greater accord with the Word of God (as the Lutheran’s understood it).¹⁵ “The study of law,” he insisted “is the most important pursuit after God’s Word.”¹⁶ Indeed, for Oldendorp “it was the Bible, and conscientious meditation on the same, that provided the lynch pin for his theory of the sources of law and the relationship between law and equity.”¹⁷ Oldendorp, along with his colleague and rector of the University at Marburg, Johannes Eiserman, was one of the leading figures of what Professor Witte has identified as the “Marburg school” of Lutheran jurisprudence.¹⁸

Oldendorp was a prolific writer, and through a number of tracts and other works in German and in more scholarly Latin he hammered out his jurisprudential views for public consumption.¹⁹ In the main, his scholarly work was a synthesized amalgam of classical Greek and Roman, scholastic, humanist, and Biblical thought. Eight volumes are jurisprudential in nature, while most of his other works dealt with specific areas of law (such as property, inheritance, civil procedure, and family life). He also published some commentaries on Roman law, a legal dictionary/encyclopedia, and student textbooks and handbooks.²⁰ Perhaps his most well-known German works are his Was billig und recht ist and Ratmannspiegel. Among his Latin works may be mentioned his Isagoge iuris naturalis gentium et civilis and his Divinae tabulae X praceptorum.²¹ Oldendorp’s most lasting contributions were his development and promotion of a Lutheran or Evangelical “understanding of the sources of law and the nature of equity and legal judgment.”²² And to these two contributions, we will turn to next.

Oldendorp's Philosophy of Law

Oldendorp’s Theory of Law’s Sources: Positivism’s Nursemaid

In fashioning their jurisprudential theories, the Reformers were confronted with the need to explain the sources of law in light of their rejection of much of the patrimony of the past, including the discipline of legal scholasticism, the whole corpus of canon law, and the jurisdiction and law-making authority of the Church. With their rejection of the jurisdiction of the ecclesiastical courts, they also had to find a way to manage the merger of the traditionally separate jurisdiction of canon law into the civil law.²³

In this vastly new environment in which the Lutherans placed themselves, Lutheran jurists struggled to define the law, and find its sources. Oldendorp was no exception, and he offered his own efforts at defining the notion of law, one that has a surprising positivistic flavor. In a departure from the reason-predicated scholastic definition of law best exemplified by the definition of St. Thomas Aquinas,²⁴ Oldendorp identified “Law” (i.e., Recht or ius) with the sum total of legal norms, which in turn are defined as the rules (i.e., Gesetz or lex) promulgated by authorities that command, prohibit, allow, or punish human acts.²⁵ In defining law without reference to reason, but only to the will of the legislator, Oldendorp’s definition of Law had the flavor of modern legal positivism.²⁶

True, Oldendorp cannot be characterized as an absolute positivist avant la lettre. He acknowledged that the positive laws of the civil authorities (leges rei publicae) were subordinate to the laws conscience placed by God in the human heart. Drawing on Pauline teaching and on scholastic and classical traditions, Oldendorp called this interior law the “law inside men,” or lex in hominibus, a term he used synonymously with the law of nature (lex naturae) and the natural law (lex naturalis or ius naturae).²⁷ In this he appeared consistent with the perennial philosophy of law.

Though Oldendorp appeared to adopt traditional notions of law, he in fact significantly departed from the scholastic synthesis that was the common teaching of the Catholic Church. The scholastic teaching, perhaps best synthesized by St. Thomas Aquinas in his Summa Theologiae, distinguished four categories of law: eternal law, divine law, natural law, and human law, which included both canon law and civil law.²⁸ While Oldendorp recognized the categories of human law and natural law, he modified the scholastic teaching on the natural law and the divine law. Even more significantly, he wholly ignored the existence of an eternal law and rejected the authority of the Church to promulgate canon law. The impetus behind this tinkering with traditional teaching was the result of the Lutheran distrust of reason—a necessary concomitant of its doctrine of the total depravity of postlapsarian man (i.e., man after the Fall)—and the Lutheran "only" doctrines of sola scriptura and sola gratia. Finally, Oldendorp, like all Reformers, rejected the law-making and law-enforcing authority of the Church in its canon law.

With regard to the notion of eternal law, Oldendorp did not recognize, or at least significantly downplayed, the importance of an eternal law (lex aeterna) which transcended the revealed law of the Scriptures.²⁹ In this regard he was a disciple of Luther. Luther, probably influenced by the nominalist (or terminist) and voluntarist philosophical notions advanced by Ockham and his philosophical followers, rejected the realism and reason-based notions of St. Thomas. Not unlike Hume would do many years later, Luther accepted the “differentiation between ‘is’ and ‘ought,’” which put an impossible division between the world as it is (the “is”), and the revealed order of God (the “ought”). “Luther, like the nominalists, did not want to acknowledge any objective order based on the common essence of things and inherent to them which had its example and basis in the divine reason.”³⁰ Luther thus rejected the notion of a teleological structure in creation, one which revealed God’s reason and which played a part in determining God’s plan for man and civil society.³¹ It is this which led Luther to abandon the Thomistic notion of a lex aeterna.³² Oldendorp appeared to follow in this line of thinking.

Consistent with the Lutheran rejection of the Church’s role in interpreting scripture, Oldendorp restricted the divine law to those laws expressly revealed in the Bible—principally the Ten Commandments and the moral teachings of the New Testament. Perhaps his most significant departure from the received teaching, however, was his rejection of the substantive role reason played as a source of the natural law.³³ Since, as a result of the Lutheran notion of total depravity, postlapsarian reason was hopelessly unreliable as a guide to substantive values, Oldendorp rejected the role of practical human reason as a substantive source of the natural law.³⁴ In doing so, he had to search for an alternate source to inform the natural law, i.e., that law in man’s heart. He found his source of the natural law in the revealed law of Scripture. Oldendorp thus equated the natural law with the laws promulgated by God in the Bible, the leges Bibliae. These laws had to be discerned from the Scriptures by the conscience of the believer, a conscience which was infallible. And although the conscience was in some manner reason, it was used instrumentally and not as the substantive source of the natural law. In the end, the role Oldendorp’s attenuated reason/conscience plays in moral guidance is minor, as it essentially is conflated with Scripture. Thus in Oldendorp’s view, even the “law inside man” relies on God’s positive revelation found in Scripture, and has no natural basis in man such as his reason.³⁵

Not only was the natural moral law dependent upon Scripture alone, but so likewise was the civil law, the leges rei publicae, which relied upon civil reason (ratio civilis). The positive law promulgated by the civil authorities ultimately derived from Scripture.³⁶ Accordingly, jurists such as Oldendorp traced positive laws that ordered the earthly regime (weltliches Regiment) to specific Commandments.³⁷ For example, the authority of the state was traced to the Fourth Commandment. Similarly, criminal laws were held to be derived from the Fifth Commandment. Property law and contract law stemmed from the Seventh Commandment.³⁸ Laws of trial procedure found their source in the Eighth Commandment. Family law founds its fons et origo in the Tenth Commandment. The law of taxation was apparently a burden imposed by Christ, as it had a New Testament origin, specifically in the great summary of the commandment to love your neighbor as yourself.³⁹ When the positive law contradicted the law of the Scriptures, and, what amounted to the same thing, the “law inside man,” it was not binding in conscience.⁴⁰

Oldendorp’s Theory of Equity

Oldendorp’s successors in jurisprudence and law regarded highly his theory of equity (epiekeia, aequitas, or Billigkeit), and that aspect of his teaching perhaps had the most staying power, influencing jurists beyond the Enlightenment—even in the United States as late as the 19th century. For example, Oldendorp was quoted by Justice Story in his monumental work on equity, Commentaries on Equity Jurisprudence, where he quotes (albeit in a footnote) Oldendorp’s work on equity, De Jure et Aequitate Disputatio.⁴¹

With the disappearance of the ecclesiastical courts and the assumption of some of their jurisdiction by the civil courts, Reformers had to scramble to adapt to the new legal situation. Oldendorp’s theory of equity represents his effort as a Reformer to import the principles of equity in canon law—which were significant principles in the ecclesiastical courts—into the civil court system.⁴² Oldendorp’s novel theory of equity focused on the application of law—necessarily general and abstract in nature—to a concrete case. Whereas in the view of the Aristotelian and scholastic discussions of equity (and including Melanchthon’s view), equity was seen as an exception to the rule,⁴³ Oldendorp saw equity as the process of applying the rule to the particular circumstances: “therefore every application of the law needs to be governed by equity.”⁴⁴ For Oldendorp, “law and equity, Recht und Billigheit, ius et aequitas, stand opposite each other and complete each other, becoming a single thing.”⁴⁵ The source of equity—which is equivalent to the natural law, i.e., the “law in the person”—is found in the conscience. In essence, it was a “judgment of the soul” a iudicium animae,⁴⁶ and so every judgment of law (Rechtsenscheidung) is a judgment of conscience (Gewissensentscheidung).⁴⁷ However, a judgment in equity “cannot be made in conscience . . . without some formula of law which indicates in the heart of man that that which he does is just or unjust.”⁴⁸ Ultimately, the exercise of conscience demands that the jurist “must study the Bible, pray to God, and search his or her conscience.”⁴⁹ Because equity was so tied to conscience in Oldendorp’s theory, and equity was so ubiquitous in legal decision-making, “[e]very legal decision, for Oldendorp, was ultimately a moral decision.”⁵⁰ As Witte summarizes it: “When applied in the courtroom, Oldendorp’s theory of equity was a unique form of Christian practical reasoning, on the one hand, and pious judicial activism on the other.”⁵¹ In summary:

The Lutheran State

Oldendorp’s final significant contribution to the Protestant jurisprudence was in the area of the relationship between Church and State. Luther’s rejection of the authority of the Catholic hierarchy and sacramental priesthood, and his rejection of the institutional Church as a perfect society,⁵³ led him to reject the Church as a body with administrative, legislative and judicial powers. Additionally, his rejection of the Church’s sacramental theology led him to reject the Church’s jurisdiction over certain areas of human life, such as marriage and family law, criminal law, wills and estates, and trusts. In opposition to and to the exclusion of the Gelasian doctrine of the “two swords,” Luther adopted a doctrine of “two kingdoms” or what was its necessary corollary, the doctrine of “one sword.”⁵⁴ The earthly kingdom, the kingdom of this world, was governed by law, a law that was the exclusive province of the Chirstian prince and his councilors, the Obrigkeit. Since the institutional church, as distinguished from the spiritual church, was part of the kingdom of this world, it followed that it was subject to the secular power, and had no legislative or judicial power of its own. The civil ruler thus wielded the one-and-only sword, and became the “executor divinarum et suarum legum, the executor of laws both divine and his own.”⁵⁵ The spiritual church, which was an invisible communion in which all believers were priests,⁵⁶ was not governed by law, but by grace and the Gospel; there was therefore no need for canon law or ecclesiastical courts. Therefore, in those jurisdictions that were influenced by Luther’s doctrines and the reformation ordinances (Reformationsordnungen) promulgated by the civil authorities, the binding nature of canon law and the regime it governed was abrogated.

The reformation ordinances denied the Church’s jurisdiction over entire areas of social life, and the Church’s ecclesiastical courts were deemed closed (with civil courts assuming their jurisdiction).⁵⁷ Moreover, the Church was stripped—albeit under color of law—of its properties: its churches, monasteries, charitable institutions, hospitals, hospices, educational facilities, orphanages, trusts and endowments.⁵⁸ As a result of the Reformers’ rebellion, there was—along with the transfer of great wealth to private hands and the Obrigkeit some of which but not all would find itself in the “community chest”—a “massive shift of jurisdiction from the Church to the state.”⁵⁹ And the state, without a theory or body of law to govern this new area of governance, was not ready for it.

Because the civil authorities were confronted with new powers and new areas of jurisdiction and responsibility, the Reformers, especially the jurists among them, struggled with the changes required in the civil law and civil institutions. A legal revolution followed closely behind the theological one. They rapidly learned that their radical theories spelled anarchy, and so they made significant emendations to and compromises in their thought. Here, Oldendorp made his contributions.

Of course, the massive transfer of power from the ecclesiastical authorities to the secular authorities removed one of the traditional checks upon the tyrannous exercise of secular power. The Reformers addressed these issues as well, though perhaps here there efforts were least effective.⁶⁰

As mentioned above, Oldendorp’s jurisprudence had the flavor of positivism, but it was not absolute. But the theological and political philosophy underlying his view of the secular power unquestionably heightened its power over the citizen and obligated the citizen to near unconditional obedience to it. Oldendorp taught that the secular authority (what he called in different places the civitas, the weltliches or politien Regiment, the res publica, ordo civilis, the Obrigkeit, and the universitatis civium) was ordained by God and was entitled to virtually unquestioned obedience of those under its authority.⁶¹ In some ways, however Oldendorp appeared to attenuate the even stricter doctrines of Luther and Melanchthon. Oldendorp expected that the laws of the state would not contradict the laws of the inner man, i.e., the laws found in the Bible. The State had the obligation to enact laws in conformity with God’s will as revealed in the Scriptures. Oldendorp also insisted that the magistrates had a duty to follow the law that they themselves promulgated. “The magistrates are ministers [i.e., servants] of the laws,” Oldendorp observed in his Lexicon Juris. “[I]t is false and simplistic to assert that the prince has power to go against the law. For it is proper to such great majesty . . . to serve the laws,” he wrote elsewhere.⁶² Oldendorp even suggested that criminal or civil liability may be imposed on a res publica which was guilty of malfeasance or negligent mishandling of its legislative, judicial, or administrative functions.⁶³

The Reformers' New Legal Method

The Lutheran Reformers had other effects on the law worth noting. The advent of humanism, the joinder of civil and canon law, and the Protestant jurists’ efforts to synthesize those, gave an impetus to legal studies and spurred changes in method. These efforts by the jurists gave the law a flavor and organization that affects us even today. The change in the jurists’ approach to the study of law may be largely traced to the topical method advanced by Melanchthon, which, in contradistinction to the earlier scholastic method, proceeded from general topics to more specific ones.⁶⁴ The shift in method used as the starting point of its analysis “[n]ot texts, or glosses on texts,” as the scholastic method did, “but legal principles and legal concepts.”⁶⁵ This change in method naturally led to a greater systematization of the law. Ultimately, this lead to the formulation of legal texts organized more systematically by legal subject matter. It would also yield fruit in the law itself, as it actually led to the promulgation of modern legal codes covering specific areas of the law. For example, in 1520 the laws for the city of Freiburg were codified by the jurist Zasius (the Freiburger Schtadtrecht), and there were efforts to codify both local and imperial criminal laws.⁶⁶

Additionally, the role of the professoriate in ushering legal reforms resulted in a significant institutional offshoot. Because professors had such a large role in ushering reforms, advancing legal studies, and advising on the promulgation of the new legal codes, the professors obtained a formal role in jurisprudence. “‘The institutionali[s]ation of a proud and powerful Roman-law professoriate in the sixteenth century’ owed much to Melanchthon’s vision of the German law professors as successors of Roman lawyers.”⁶⁷ In fact, the Germans developed the institution of Aktenversendung, where court files with particularly thorny legal problems were transferred from the court to professors for their counsel and their input.

Another area affected by the Reformers involved police regulations. As the municipalities and states assumed responsibility over those areas of morals that the Church—through its preaching, discipline, and the internal forum of confession—previously had controlled, it ushered in the modern municipal police regulations, the ius politiae, or, at an imperial level, the Reichspolizeiordnungen.⁶⁸

The assumption by the state of areas that were traditionally outside of its auspices—including those regions that did not embrace the Protestant Reformation—led to an increased separation between law and morals.⁶⁹ Additionally, the natural law philosophy the Reformers did retain was emasculated in a sense, and could not be said to be a legal theory, but a moral theory.⁷⁰ This reduction in the legal jurisdiction of the Church and concomitant broadening of the jurisidiction of the secular state, gave rise, according to University of Bologna Professor Paolo Prodi, to the development of moral theology as an alternative system of norms. “Despite the bifurcation of their paths, law and moral theology continued influencing each other. All crimes were now considered sins, and moral casuistry as ‘mixed theological-legal literarture’ increasingly came to resemble law as a comprehensive normative system.”⁷¹ But it is here that we find the beginning of the “law and morals” quandary which has plagued legal scholars ever since, and which positivists and secular humanists tend to ignore or take advantage of as an excuse of keeping morality that does not suit them outside the public forum.

Conclusion

Martin Luther could not have foreseen that his nailing the ninety-five theses on the church door at Wittenberg would usher in the legal revolution that it did. For all Martin Luther’s energy and prophetic zeal, it is doubtful that he would have had much success without the tempering spirit and thought of Melanchthon and without the faithful cadre of Lutheran jurists that helped implement—through the power of law—the Word of God as Luther believed he saw it. For Luther, the Word of God was the Bible alone, and the Bible's message was "grace alone" and "faith alone." To advance such novelties, Luther was forced to rebel against and dismantle the role of Tradition and the teaching authority (magisterium) of the Church, the ecclesiastical law, and the whole butress of the sacraments. The heart of Luther's cry was freedom from law, but, as it turned out only from the law of the Church. Ultimately, Luther's message meant that the Christian was subject to more law, only the only law was that of the secular and practically unchecked State. It was through this human law alone--the Reformationsordnungen--that Luther advanced his cause. It is an irony of sorts that Doctor Luther, then, relied on human law and human jurists—of the many Oldendorp perhaps is the greatest—for his success, the same human law and jurists that he frequently excoriated with scatological epithets. But that was the prodigious, if not demonic, genius of Luther: a man who could be consistently inconsistent, and yet be completely untroubled by it. In the face of what Luther wrought, and in the manner he achieved it, however, one wonders whether there more of the spirit of non serviam, than the obedience of faith.

Endnotes

¹ Johann Oldendorp, Lexicon, 249 quoted in Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion (Grand Rapids: Eerdmans 1993), 173. ⇑

² Other German jurists of the 16th century include Konrad Lagus (ca. 1499-1546), Basilius Monmer (ca. 1501-1566), Melchior Kling (1504-1571), Johannes Schneidewin (1519-1568), Christoph Hegendorf, Johann Apel, and Jerome Schürpf, among others. Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion (Grand Rapids: Eerdmans 1993), 164; John Witte, Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge: Oxford 2002), 180. The great nineteenth century legal historian Stintzing calls Oldendorp “the most significant of the German jurists of the middle of the sixteenth century.” Berman (1993), 164 n. 78; see also Witte, 154. In other countries, Protestant jurists included Francis Duaren and Francis Hotman of France, Nicolaus Everardus and Johannes Althusius of the Netherlands, Witte, 162. In Denmark, Nicolaus Hemming was significant (he is called Praceptor Daniae, the teacher of Denmark). It should be noted that the relationship between Luther and the jurists was not always smooth: “Jurists are bad Christians,” Luther was wont to say. Other statements of Luther excoriating jurists (quoted with citation to Luther’s works in Witte, 119): “Of the Gospel, jurists know nothing.” “Every jurist is an enemy of Christ.” “Every jurist is either a good-for-nothing or a know-nothing.” “A jurist should not speak until he hears a pig fart” (the implication that only then will the jurist’s words be spoken in the proper atmosphere). In the eyes of his contemporaries, Oldendorp was an exception, as he was described by one of his contemporaries, Jacob Spiegel, as “the one person for whom the maxim ‘a jurist is a bad Christian’ could never apply.” Witte, 154. ⇑

³ For example, Oldendorp does not even appear in the index (or the text) of Diarmaid MacCulloch’s recent weighty book on the Reformation, The Reformation: A History (London: Penguin 2003). ⇑

⁴ Berman (1993), 164 (citing Roderich von Stintzing, Geschichte der deutschen Rechtswissenschaft (Berlin 1880), 311. The German theologian and philosopher of religion, Ernst Troeltsch likewise calls Oldendorp the “most influential jurist” of the Reformation. Berman (1993), 164 n. 79 (massgebendster Jurist) (citing Ernst Troeltsch, Die Soziallehren der christlichen Kirchen un Gruppen, 545 n. 253); see also Witte, 154. ⇑

⁵ Witte, 9. ⇑

⁶ Berman (1993), 164. ⇑

⁷ Witte, 23. ⇑

⁸ See Harold J. Berman, Law and Revolution II (Cambridge: Harvard University Press, 2003), 411 n. 91. This article is indebted to the very fine work of Professor Berman, including Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion (Grand Rapids: Eerdmans 1993), 164-175 and Harold J. Berman, Law and Revolution II (Cambridge: Harvard University Press, 2003), 1-197, but esp. 87-100. It also relies on Professor John Witte, Jr.’s Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge: Oxford 2002), 154-175 and passim. All of Berman’s works, especially his Law and Revolution: The Formation of the Western Legal Tradition, are strongly recommended for those interested in an unprejudiced and scholarly account of Western’s law’s historical debt to Christianity and the Catholic Church for its legal institutions. ⇑

⁹ This humanism, which was a reaction against scholasticism and its reliance on Aristotle, referred back to classical sources, relying especially on Greek sources in their original language. It did not systematically involve a rejection of God, and therefore should be distinguished from modern “secular humanism,” to which it has no relation. Humanism was a movement that spanned confessions, and it was found among Catholics (e.g., Thomas More), Protestants (e.g., Melanchthon), and people that seemed to ride the fence (e.g., Erasmus). ⇑

¹⁰ Berman (2003), 87. ⇑

¹¹ Witte, 155; Berman (2003), 87. It was common for doctors in law to find their way into the office of syndic, as these were created alongside the chancellery especially in the Hanseatic cities, where they began taking over functions that traditionally had been the Church’s function with the passage of the reformation ordinances or Reformationsordnungen. Klaus Wriedt, “University Scholars in German Cities,” in William J. Courtenay and Jürgen Miethke, eds., Universities & Schooling in Medieval Society (Brill 2000) Vol. 10, 57. ⇑

¹² Berman, (2003), 87. ⇑

¹³ Berman (2003), 87-88. ⇑

¹⁴ Berman (1993), 165 (quoting Stintzing, Rechtswissenschaft, 323); see also Berman (2003), 88. ⇑

¹⁵ Berman (1993), 166. Luther’s “Christian Prince,” Philip the Magnanimous, should have been better-called Philip the Bigamous. See discussion in Witte, 224 ff. ⇑

¹⁶ Quoted in Witte, 156. ⇑

¹⁷ Witte, 157. ⇑

¹⁸ Witte, 155. Although the Lutheran Reformation did not result in a single, monolithic system of jurisprudence, the jurisprudence was generally adapted to the teachings of Luther and Melanchthon. Witte, 168. The most significant of Luther’s teachings in the area of jurisprudence were his doctrine of the “two kingdoms,” (the kingdom of the world (reich der welt) and kingdom of God (reich Gottes), the “three orders” (drei Ständelehre) (that of the Hausvater or paterfamilias, i.e., the ordo economicus or domestic order, that of the patertheologicus or Gottesvater, i.e., the ordo eccelsiasticus or ecclesiastical order, and that of the paterpoliticus or Landesvater, i.e., the ordo politicus or political order), and the Lutheran doctrine of the triplex usus legis, the “three uses of the law” (the “civil use” of restraining sin, the “theological use” of driving sinners to repentance, and the “pedagogical use” of educating the “saints”) Witte, 11, 168-70. Luther only identified the first two uses, the third use was an addition of his followers, particularly Melanchthon. Additionally, there was increased reliance by jurists on the Bible alone as a source of divine law, with particular emphasis on the Ten Commandments. Witte, 168-71. Loosely speaking, two general “schools” of Lutheran jurisprudence may be identified. The first, the Marburg school of Lutheran jurisprudence, gave particular prominence to Luther’s theories of the priesthood of all believers and the Christian vocation, and emphasized, in addition, the role of the judge’s Christian conscience in decision-making. The other school, the Wittenberg school of Lutheran jurisprudence, gave preeminent emphasis on the Decalogue both as a summary of the natural law and the source for positive law, and as a tool for the systematization of civil law. Both, however, are systematizations of Luther’s theological notions of the “two kingdoms,” the “three estates,” and the three “uses of law.” Witte, 140-41. ⇑

¹⁹ These amounted to perhaps as much as 56 different works. Berman (1993), 166 n. 81; Witte, 154. Naturally, not without reason from its perspective, the Church listed all Oldendorp’s work on the Index of Prohibited Books. ⇑

²⁰ Witte, 154. ⇑

²¹ These works were republished as late as the 19th and 20th centuries, thus suggesting their importance from the scholar’s or publisher’s point of view. Berman (1993), 166 n. 81. ⇑

²² Witte, 154. ⇑

²³ Initially, the Reformer’s rejection of canon law was absolute. Therefore, wherever they assumed power they abrogated it. Heikki Pihlajamäki and Risto Saarinen, “Lutheran Reformation and the Law in Recent Scholarship,” in Virpi Mäkinen, ed., Lutheran Reformation and the Law (Leiden: Brill, 2006), 3. “Neither pope nor bishop nor any other [clerical] man has the right to impose a single syllable of law upon a Christian,” fulminated Luther. Quoted in Witte, 57. Luther viewed canon law, and its claim to bind the conscience of the believer, as an illegitimate imposition on the freedom of the Christian. Essentially, he viewed Canon law akin to the manner that St. Paul viewed the Mosaic Law, and declared it abrogated. Pihlajamäki & Saarinen, 3. To declare his utter disdain of canon law, on December 10, 1520, Luther had consigned to flames books of canon law along with the Papal Bull which excommunicated him. But for all Luther’s cant against the canon law, it had addressed a large portion of civil society, including inheritance, family law, public morality, poor relief, and other charitable institutions. With the rejection of canon law and the ecclesiastical courts which enforced it, these areas of life suffered from lack of regulation. The reformer’s concept of a spiritual Church governed only by the Gospel and a state governed only by civil law informed by the Bible alone “plunged Germany into a more acute legal and social crisis.” Witte, 67. As a consequence, the reformers eventually came to realize they could not govern without the benefit canon law, and so many of its rules and principles were adapted and merged into the civil law. As Witte puts it, the Lutheran reforms “had driven too deep a wedge between the canon law and the civil law.” Witte, 3. They thus backtracked, largely through the constructive work of the Lutheran jurists including Oldendorp. Witte, 65, 73, 80. By the late 1520s and early 1530s, the reformers viewed canon law more positively, and “[d]econstruction of the canon law for the sake of the Gospel gave way to reconstruction of the civil law on the strength of the Gospel.” Witte, 3. The reconstruction was effected by the insertion of canon law into the civil law, but with modifications to suit the Reformer’s theological, philosophical, political, and practical needs. Witte calls this process the “evangelical conversion of Catholic canon law.” Witte, 24-25. Thus, by the middle of the 1550s, “the medieval cannon law had returned afresh to Evangelical German society, but now largely under the control of civil authorities and under the color of civil law.” Witte, 84. Jaroslav Pelikan likened the Reformation as a pendulum swing, from structure to spirit, and then from spirit to structure. Jaroslav Pelikan, Spirit versus Structure: Luther and the Institutions of the Church (New York 1968) (cited in Witte, 120). As with so much else, Luther seemed somewhat inconsistent about canon law, sometimes praising the good in it (“there are many things in the Decretum of Gratian . . . are of outstanding value.”), and sometimes abusing it (“These jurists have the audacity to give public lectures to our youngsters on this papal crap, the canon law . . . So much for our efforts to banish it! . . . as they now reintroduce this stinking crap.” And “The whole canon law and all the decretals . . . are born out of the ass of the Devil.”). Quoted in Witte (with citation), 73, 82. ⇑

²⁴ In his classic formulation, St. Thomas defined law as an ordinance of reason for the common good promulgated by one who has charge of the community. See S.T. I IIae 90 art. 4. ⇑

²⁵ Berman (1993), 166. In his Billig und Recht, Oldendorp acknowledges both written and unwritten law, placing in the former category Roman civil law, positive law, and in the latter category, custom, the law of nations, and natural law. Id. n. 82. ⇑

²⁶ Berman (2003), 88. ⇑

²⁷ Berman (1993), 166-67. He also appears to equate his notion of equity (Billigheit) with the “natural law.” Berman (1993), 167-68 n. 86 (citing Hans H. Dietze, Naturrecht in der Gegenwart (Bonn, 1936)). ⇑

²⁸ Witte, 158. ⇑

²⁹ Berman (1993), 167; Berman (2003), 89 (“[L]ike Luther and Melanchthon, and unlike Gratian and Aquinas, Oldendorp did not speak of a lex aeterna transcending the Bible.”). Compare Witte, 158. “Oldendorp had little place in his system for an eternal law of the created order that stood prior to and superior to the divine law revealed in the Bible. To be sure, said Oldendorp, the creation order came prior to the Bible, and was indeed a perfect expression of God’s being, will, and law in Paradise. But though prior in time and perfect in genesis, the eternal law was no longer superior in authority as a source of law for life in the earthly kingdom. For owing to the fall into sin, the norms of the crated order can be read ‘only through a glass darkly,’ leading to inevitable distortion and caption. Thus as a source of law for this earthly life, the eternal law of nature [according to Oldendorp] has effectively collapsed into the natural law of human nature.” Witte, 158. ⇑

³⁰ Antti Raunio, “Divine and Natural Law in Luther and Melanchthon,” Virpi Mäkinen, ed., Lutheran Reformation and the Law (Leiden: Brill, 2006), 23 (citing Lauri Haikola, “Luther und das Naturrecht,” in Lauri Haikola, Teologisia tutkimuksia (Jyväskylä: Suomalainen Teologinen Kirjallisuusseura 1997), 106-07). ⇑

³¹ Indeed, an extreme voluntarist would hold that God has the power to give commandments which are contrary to the order of natural law, and that He is not constrained by any the internal logic or order of creation which informs the natural law. Raunio, 32. ⇑

³² Raunio, 23. Melanchthon, influenced by the humanism of the time, did not follow Luther in his rejection of an eternal law. Id. at 24. ⇑

³³ Berman (1993), 167. Compare Witte, 160. “Though superior in clarity and authority, the divine law did not eclipse the natural law (ius naturale), Oldendorp argued. Natural law for Oldendorp was the law of the human heart or conscience. Oldendorp called this variously the “law inside people” (“lex in hominibus”), the “law inscribed” on the heart (“ius insculptum”), and the “instruction of conscience” (“instructio conscientiae”). . . . Even independent of their knowledge of the divine law of the Bible, all individuals are thus by nature inclined toward the general moral principles taught by the Bible . . . .” ⇑

³⁴ Berman (1993), 167; Berman (2003), 89. Compare Witte, 161 (“Conscience, for Oldendorp, was a form of reason. . . . It was a God-given reason or natural reason (ratio naturalis).”) ⇑

³⁵ Berman (1993), 166-67. ⇑

³⁶ Berman (1993), 168. ⇑

³⁷ See generally Witte, 159-60. Although the Catholic Church certainly accepted the Ten Commandments, it tended to systematize discussions of law on the basis of the Seven Sacraments, especially the Sacrament of Marriage (which comprehended all of family law), the Sacraments of Baptism and the Eucharist (which, for example, supplied the basis for liturgical law), the Sacrament of Orders (which involved ecclesiastical matters), the Sacrament of Penance (under which auspices were discussed some criminal matters, torts, contract, and other obligations), and the Sacrament of Extreme Unction (under which the law of wills, inheritance, and trusts were organized). Witte, 169-70. The Lutherans could not carry this schema of systematization forward, as they rejected essentially all the Sacraments (at least as until then understood), wholly rejecting most of them, and maintaining only two in attenuated form, Baptism and the Eucharist, with perhaps a vestige of auricular Confession. ⇑

³⁸ “[T]he common locus for the whole civil law, namely, that which pertains to things,” was in the Seventh Commandment per Oldendorp. Berman (1993), 168 (quoting Oldendorp’s Divinae Tabulae, 21). ⇑

³⁹ Berman (1993), 168 (citing Oldendorp, Divinae Tabulae, 15-25). ⇑

⁴⁰ Berman (1993), 168 quotes Oldendorp’s Isagoge, 13: “A civil law that departs in toto from natural law is not binding.” This teaching ameliorated (Berman uses the term “corrected” in Berman (1993), 169; see also Berman (2003), 90.) the otherwise positivistic definition of Oldendorp’s definition of law as the “totality of legal norms.” Without the exception in his definition of law, Oldendorp would be brother to the father of legal positivism, John Austin. As it was, he was not brother to Austin, but perhaps grandfather to Austin. Some see Oldendorp perhaps as great, great grandfather to Hitler. Though there is some very tenuous linkage, I think it is a stretch to say what some scholars have said, that there are “direct and easy lines from Luther to Hitler . . . .” Witte, 27 (citing among other sources, William M. McGovern, From Luther to Hitler: The History of Fascist-Nazi Political Philosophy (Boston, 1941)). However, the argument can be sustained that Lutheranism’s “two-kingdoms” (and “one-sword”) theory effectively resulted in an autonomous secular government, and weakened the Lutheran’s church’s ability to criticize the positive law and exercise any meaningful institutional check. Pihlajamäki & Saarinen, 8. ⇑

⁴¹ Berman (1993), 170 n. 100. ⇑

⁴² Canon law was the forum of equity. The equitable principle in canon law was so prevalent, that it had earned the sobriquet the “mother of exceptions,” “the epitome of the law of love,” and the “mother of justice.” Witte, 39-40, 167-68. “Traditionally, equity was considered to be a unique quality of the canon law and a unique ability of the ecclesiastical judge. . . . Oldendorp’s theory effectively merged law and equity. All law required equity to be just, and all equity required law to be applied justly. Law and equity belonged together and completed each other.” Witte, 175. ⇑

⁴³ Witte, 165. ⇑

⁴⁴ Berman (1993), 171; Witte, 165-66. ⇑

⁴⁵ Berman (1993), 171; Berman (2003), 91. For Oldendorp, equity was also part of the natural law. (“Naturlich Recht und Billigkeit is ein Ding.”). Equity was therefore the “law in man,” and was instilled in his conscience and fed by the Bible. As Berman notes, this concept of natural law is “sharply distinguished” from that of Thomas Aquinas, who sees natural law as a “middle stage” between divine and human law. Id. & n. 103. In a sense, Oldendorp “legalized” the Thomistic moral concept of “conscience” into equity. Cf. Berman (1993), 172. ⇑

⁴⁶ Witte, 166 citing Oldendorp, Lexicon juris, 28-9 (s.v. "aequitas"), 238-40 (s.v. "iudicium"). Berman (2003), 92. Oldendorp’s theory of equity was built on Luther’s understanding of the Christian conscience. Witte, 14. ⇑

⁴⁷ Witte, 166; Berman (2003), 93. ⇑

⁴⁸ Oldendorp, Disputatio quoted by Dietze, Johann Oldendorp als Rechtsphilosoph und Protestant, 129; Berman (1993), 172. ⇑

⁴⁹ Berman (1993), 172; Witte, 166-67. Pious language which, I suppose, justifies Luther’s equitable decision to rebel against the law of the papacy and the emperor with the conscientious (albeit not untypical scatological) formula: “I shit on the law of the pope and the law of the emperor, and on the law of the jurists as well.” Quoted in Witte, 2. ⇑

⁵⁰ Witte, 167. ⇑

⁵¹ Witte, 167; see also id., 14. ⇑

⁵² Witte, 175 (citing Karl H. Burmeister, Das Studium der Rechte in Zeitalter des Humanismus im deutschen Recthsbereich (Weisbaden 1974)). ⇑

⁵³ The Roman Catholic Church at the time saw itself as a “perfect society” or societas perfecta. Joseph Kleutgen defined a perfect society as “a society, distinct from every other assembly of men, which moves towards its proper end and by its own ways and reasons, which is absolute, complete, and sufficient in itself to attain those things which pertain to it and which is neither subject to, joined as a part, or mixed and confused with any society.” Hildegard Warnink, ed., Legal Position of Churches and Church Autonomy (Peeters-Leuven 2001), 253 citing Mansi, J.D., Sacrorum conciliorum nova et amplissima collectio, LIII, Graz, Akademische Druck- und Verlaganstalt, 1961, 315. In the Catholic view, the Church, as well as the State, were perfect societies. As a societas perfecta founded by Christ, the Church, independent of the State, had real sovereignty (its “sword”) in the area of its competence, and this included executive, legislative, and judicial powers. Luther rejected this concept of Church sovereignty. Luther did not recognize any perfect society with real earthly sovereignty but for the Obrigkeit (or State in modern words); the visible Church was comprehended by, and subordinate to, the Obrigkeit (State). For Luther, the invisible Church did not need law, only grace. ⇑

⁵⁴ The Gelasian doctrine of the “two swords” is named after the 5th century Pope, Gelasius I. Put simply, the Gelasian “two swords” doctrine was that the pope wielded a “spiritual sword” (i.e., spiritual power) and the emperor wielded a “secular sword” (i.e., temporal power), and, though they each had their sphere of influence and ordinarily were to be coordinate, ultimately the temporal power was subordinate to the spiritual power. Essentially, Luther’s “two kingdoms” theory (Zweireichelehre) put the kingdom of God in a wholly spiritual world, outside the temporal world, with no need for Law (or law). It operated only by Grace and Gospel. Only the earthly kingdom was governed by law. Luther thus denied the Church was a perfect society, i.e., it denied any visible, corporate, hierarchical, political, and legal quality of the Church as institution. “[O]nly the state, in Luther’s view, held legal authority. . . . Luther emphasized that the Church was not a law-making authority. The Church had no sword, no jurisdiction.” Witte, 7, 8. The Church was concerned with the “spiritual kingdom,” while the secular authorities were charged with the governance of the “earthly kingdom,” which included all earthly aspects of the church. Essentially, Luther’s doctrine spelled the subordination of the Church to the State. Berman (1993), 87-89, 103, 105, 128, 178, 145, 152, 179; See also Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983), 92-93, 279, 279, 285, 504, 521, 581-82, and the excellent discussion in Witte, 6-7, 87-116. Oldendorp’s rejection of the “two swords” theory is discussed in Witte, 159 (“Oldendorp rejected this two-swords theory out of hand.”). The revolutionary aspect of this thought is pictorialized by comparing the political iconography. Compare, e.g., the depiction of the Church/State relationship in the miniature of the Mirror of Saxony with the miniature of the Swedish King Gustaf Vasa in the Rålamb law manuscript from folio 151 in the Royal Library (Kungliga Biblioteket, Stockholm, Sweden) and the Swedish Portrait Gallery (1937:1986) (photo from cover of Mäkinen). These may be found in the text. ⇑

⁵⁵ Pihlajamäki, 180. ⇑

⁵⁶ While Luther preached that all believers were free and all equally priests (and there was no hierarchical priesthood), he was wise enough not to preach that all citizens were free and all equally princes (and there was no such thing as a prince and his civil magistracy). Such a doctrine would have cost him his head. He could afford to attack the Church, so long as he had the support of the Elector and ruler of Ernestine Saxony, Friederich the Wise, who had jurisdiction over Wittenberg. ⇑

⁵⁷ Though it varied throughout Europe, the ecclesiastical court system was generally composed of an archdeacon’s court, episcopal courts, archbishop’s courts, and, and the Papal courts of last resort. Heiki Pihlajamäki, “Executor Divnarum et Surarum Legum,” in Virpi Mäkinen, ed., Lutheran Reformation and the Law (Leiden: Brill, 2006), 174. With the closure of the ecclesiastical courts, the principles of equity in canon law were eventually subsumed into civil law. Additionally, the civil courts acquired subject matter jurisdiction over those areas traditionally adjudged in ecclesiastical courts: marriage, inheritance, church property, and some crimes. Other subject matters (e.g., canon law relating to the hierarchy, celibacy, the evangelical counsel, monasticism, ecclesiastical courts) were entirely dropped. ⇑

⁵⁸ The Reformation was successful in part because of what can only be called the wrongful seizure of Church assets. It is easier to start a church if you don’t have to start from scratch, and if another institution funds it. ⇑

⁵⁹ Witte, 179. ⇑

⁶⁰ Witte, 84. ⇑

⁶¹ Berman (2003), 93. ⇑

⁶² Berman (2003), 93 (quoting Oldendorp’s Lexicon Juris, p. 272 (“magistrata . . . legum ministri sunt”) and Macke, “Rechts- und Staatsdenken des Oldndorp,” pp. 79-80 (“Falsum igitur est simpliciter asserere, principem habere potestatem contra ius. Decet enim tantae maiestati . . . servare leges.”). ⇑

⁶³ Berman (2003), 95 (citing Macke, 80-82). As a limiting concept, this idea was a dead letter, a pipe dream. Oldendorp suggested that a court should have jurisdiction to impose this criminal or civil liability, but never identified any court with the jurisdiction over the Obrigkeit. Id. The only courts with such authority—the ecclesiastical courts—were denied any such role by the Lutherans. ⇑

⁶⁴ Berman (2003), 7, 100-30. This method is also referred to as the dihairetical or diaeretical ordering of legal sources (from Greek diaeresis, division). “The dihairetical method involved department from basic concepts to sub-concepts and on to their subdivision.” Pihlajamäki, 176-77. ⇑

⁶⁵ Berman (2003), 105. ⇑

⁶⁶ Berman (2003), 106. The great codification of the criminal law of Bramberg by the jurist Johann von Schwarzenberg in 1507 (the Bambergische Halsgerichtsordnung or Bamgergensis) pre-dated Melanchthon’s Loci Communes which was first published in 1521. Berman (2003), 77-78. ⇑

⁶⁷ Philajamäki & Saarinen, 13 (citing Whitman, The Legacy of Roman Law, pp. 17-30). ⇑

⁶⁸ Philajamäki & Saarinen, 14; Pihlajamäki, 181. ⇑

⁶⁹ Philajamäki & Saarinen, 15. ⇑

⁷⁰ Virpi Mäkinen and Antti Raunio, “Right and Dominion in Luther’s Thought and its Medieval Background,” Virpi Mäkinen, ed., Lutheran Reformation and the Law (Leiden: Brill, 2006), 64. ⇑

⁷¹ Pihlajamäki, 185 (citing Prodi, Eine Geschichte der Gerichtigket, pp. 239-48). ⇑