Lex manens?

Some problems in the interpretation of the law

in Early Protestantism

Joar H aga
M isjonsh 0 gskolen, Misjonsm arka 12, N O -4 0 2 4 Stavanger, joarhaga@gmail.com

I. Introduction

One of the key formulas in Protestant theology is “law and gospel”,

and the interpretation of their relation remains a profound task for every
theologian in the tradition of Luther. “Almost the whole universe of Scrip-
ture, and the understanding of the whole of theology depends upon a
proper understanding of the law and the gospel”, the reformer himself sta-
ted in 1521.1
But w hat is actually a proper understanding of the law, according to
Luther and his followers? It is perhaps more difficult to grasp than what it
might appear at first sight. One of the most profound controversies invol-
ving Luther and some devoted followers concerning the role of the law in
the Christian life is the so-called Antinomian Controversy. Should the law
be abandoned altogether for the Christian, who was now supposed to live
under the gospel? Or should the law be employed for the benefit of good
works, teaching the faithful how to live their lives as true believers?
These problems did not only come about due to the wide semantic
range of Luther’s use of the term lex? In addition, the concept of law was
used for polemic purposes; such as to portray the old religion as a king-
dom of the Law. Correspondingly, the followers of Luther were part of the
new and emerging kingdom of the gospel. The famous altarpiece “The law
and the gospel”, painted by Lucas Cranach the Elder in 1529 (the Gotha-
version), can serve as an example of the visual strategy of such a strict
division of the law.3 To the papal left, we can see Moses preaching the
law to no avail. The devils are chasing a naked man with their spears di-
rectly into the flames of hell. To the evangelical right, the law is used solely

1 “Quando autem pene universa scriptura totiusque Theologiae cognitio pendet in recta cogni-
tion legis et Evangelii.” WA 7, 502.
2 For an overview o f the reception in recent Neo-Protestant literature, cf. Christian S c h u l k e n ,
Lex efficax. Studien zur Sprachwerdung des Gesetzes bei Luther im Anschluß an die Disputa-
tionen gegen die Antinom er (Tübingen: M ohr, 2005).
3 Among the vast amount o f scholarship treating Cranach, I am indebted to this study:
Bonnie J. N o b l e , Lucas Cranach the Elder: A rt and D evotion o f the German Reformation
(Lanham: University Press of America, 2009), 2 7 - 6 6 . For a discussion o f the latent element of
iconoclasm, cf. Joseph L. K o e r n e r , The Reformation o f the Image (Chicago: University O f
Chicago Press, 2008).

NZST h, 54. Bd., S. 2 0 5 - 2 2 0 DO I 1 0 .1 5 1 5 /n z sth -2 0 1 2 0 0 0 6 ‫־‬

©W alter de Gruyter 20 1 2
206 Joar H a g a

in its usus elenchticus/paedagogus. W hat happened to the usus politicus, or

if we dare to say it - the tertius usus legist -
The central question for this article can be formulated as such: W hat
,function does the law have for the right side, for the reality of the gospel
where Christ is present on the cross and as resurrected? Instead of being
chased by the spear, man to the right is hit by the blood of Christ, the
sacrament, flowing from his side. Instead of pointing to the law, John the
Baptist, the last of prophets, is pointing his finger to Christ, the Lamb of
God. Does that mean that the law does not have any other function than
?” pointing to Christ “
Although it may be correct that Luther never attributed the law solely
-to the Old Testament and the gospel solely to the New Testament,4 C ra
nach’s Gotha image suggests such a strict division. Does that mean that
Christians are totally free from the law, which they have passed over to
the right side of the picture? W hat kind of law have they left, anyway? Is
-it confined to the Law of Moses, the Ten Commandments, or does it com
prise the law that is written in “the hearts of all hum an beings”, as St. Paul
?says in his letter to the Rom ans

II. Law between reason and will

The law written in the hearts of all hum an beings and the law given
to Moses could be said to form two aspects or poles of the problem in the
centuries preceding Early M odern Culture. The first pole is reason, and we
could look all the way back to the medieval scholastics to find a very good
example of it. It is classically defined by the Dominican monk, Thomas
Aquinas on the question of the essence of the law [de essentia legis] found
.in the second part of his Summa Theologiae
The law, he says, “is nothing else than an ordinance of reason for the
-common good, made by him who has care of the community, and prom ul
gated.”5 In this small definition, Thomas Aquinas gives us a hint of how
closely his understanding of law is connected to reason. There is a rational
.content of the law, and it has a specific political goal, the common good
The rational ordinance and political goal are sanctioned by the ruler, and
-he makes it known to the community. Therefore, Thomas underlines a bal
anee between the rational and political components, a balance which again
.is profoundly reasonable
One key element of this close proximity of reason and politics is to be
found in ^ 101‫ר‬135‫ י‬reception of Aristotle,s concept of virtue and happiness ,

4 Heinrich B o r n k a m m , Luther und Das Alte Testament (Tübingen: M ohr, 1948), 69ff.
5 “ [...] potest colligi definido legis, quae nihil est aliud quam quaedam rationis ordinario ad bo-
num commune, ab eo qui curam communitatis habet, promulgata.” Thomas A q u i n a s , Sum-
ma Theologiae, II/I, q. 90, 4.
 Lex manens? 207

Just like Aristotle, Thom as claims that virtue and happiness are profoundly
related to hum an ethics: According to Thomas, we search for happiness in
all our choices.6 The perceived eudaemonist feature of reality is not altered
in medieval philosophical and theological speculation, but it connects it
with ancient thought: There is a drive towards fulfilment in all created
things, a sort of teleology embedded in nature.
This element of reason disappears in the legal theories of the most
prominent Franciscans, such as Duns Scotus and William of Ockham. The
rational framework is profoundly changed through the stronger accentua-
tion of reality’s dependence on the Creator’s will.
These Franciscan thinkers are representatives for the second pole of
our inquiry, namely the will of the ruler. Instead of the balance between
the rational and the political, as present in the theory of Aquinas, Scotus
and Ockham claim that a moral law is to be followed insofar as it follows
the will of God. For Duns Scotus it is im portant to govern the absolute
liberty or freedom of God.7 Such an insistence on divine freedom has im-
portant consequences for the ethical endeavour: For a hum an being, to act
morally is not first and foremost to be in accordance with reason, but to
be conforming to the will of God.
This shift from reason to will is perhaps not so visible in political
thinking in the Middle Ages, as different concepts of monarchy prevailed.
In the development of the early forms of absolute power, however, the Ro-
man dictum rex in suo regno imperator est - the king is ruler in his reign
or kingdom - was frequently used to secure the king as the sole legitimate
political power, subject to no earthly authority.
Still, the kings were - at least in theory - subject to divine and natural
law. At the same time, the foundations of that rule were shaken. We have
seen the shift from reason to will. In addition, the divine being itself was
subject to conflicting interpretations, because of the religious schism the
reformation brought with it. One might ask how this affected political phi-
losophy?
The ruler in persona, the will of the ruler, appeared to political philo-
sophers such as Hobbes as the only plausible instrument to guarantee
peace on earth.8 In his infamous pamphlet II Principe, the Prince, Machia-

6 Anthony K e n n y , Medieval Philosophy, N ew History o f Western Philosophy, vol. 2 (Oxford:

Clarendon Press; N ew York: Oxford University Press, 2005), 272f.
7 Cf. Hannes M ö h l e , “Scotus’s Theory o f Natural Law ” in The Cambridge Companion to
Duns Scotus, ed. by Thomas W i l l i a m s (Cambridge: Cambridge University Press 2003),
3 1 2 - 3 3 1 , here: 318.
8 Cf. the excellent book of the American Hobbes-scholar Martinich, w h o argues for Hobbes as a
(fairly) orthodox believing Calvinist. In many ways, this strain o f the Reformation accentuates
some Franciscan theological features more than the Lutheran strain o f Protestantism: The insis-
tence on the lex praedicata, the weak doctrine of bodily presence in the sacrament, and the
intense occupation with G od’s honor. Aloysius M a r t i n i c h , The T w o G ods o f Leviathan:
Thomas H obbes on Religion and Politics (Cambridge: Cambridge University Press, 1992).
208 Joar H a g a

velli rejected the counsels of the Fürstenspiegel, the M irror for Princes. In-
stead of being subject to moral judgements based on virtues found in the
Christian and classical tradition, the ruler should base his reign on the effi-
cacy of rule.
Drawing from his experience of the dirty business of politics, Machia-
velli claimed that the definition of ‘good’ or ‘bad’ should be interpreted
according to the situation in time. The timeless mirror for princes seemed
outdated. “A prince who is only performing good deeds” , M achia velli
wrote, “is not mature enough to be a prince” .9
For example, it could be justified to lie if it served the political means
of the prince. And perhaps even more important, Machiavelli claimed that
this instrumental use of force did not affect the personal integrity, the sta-
to, of the prince.10 One could retain a clean conscience even if one per-
formed immoral deeds.
In one sense, this profound distinction between person and work was
not far from Luther’s key to anthropology. But where Luther restricted the
possibility of works to better the basic constitution of the person (works
cannot contribute to salvation), Machiavelli came to the somehow darker
conclusion: W orks cannot contribute to condemnation.
H ow did these changes in the understanding of law and political phi-
losophy affect the reformation? One tempting possibility is to contrast the
emperor Charles V with the figure of Philipp of Hesse. The latter was the
key figure of the Protestant military opposition, the Schmalkaldic League.
In more than one respect, the Landgrave of Hesse embodied the new breed
of politicians of the modern state: Ruthless, shrewd and pragmatically or-
iented towards that which could be accomplished politically.
But instead of comparing politicians, I want to go directly to the theo-
logical workshop of the one and only M artin Luther himself, and see if I
can find some clues in the understanding of law.

III. The problem o f the law by the reformers

M artin Luther harboured a general contempt for lawyers in general

and jurisprudence in particular. “If I had a hundred sons I would not bring
up one of them to become a lawyer”, he is reported to have said in one of
his Table Talks.11 Although his oldest son actually became a lawyer, the

9 Cf. II Principe, chapter 8 and Discorsi I, 26. Cited from Jan L i n d h a r d t , Machiavelli - en
biografi (Copenhagen: Rosinante, 20 06), 52.
10 Frank T a n g , “M achiavelli’s image of the ruler: 11 Principe and the tradition of the Mirror for
Princes,” in Machiavelli: Figure-Reputation, ed. by Joep L e e r s s e n and M enno S p i e r i n g ,
Yearbook o f European Studies (Amsterdam; Atlanta, GA: Rodopi, 1996), 196.
11 “De iuristis. Multa dixit, quam in periculosa conditione sint, et saepius dixisse se fatebatur ad
iuristas: Wen er hundert söne hett, w olt er keinen juristen aus inen zihen”, WATR 3, 422.
 Lex manens? 209

attitude is clear: The science of law cannot be compared to the glorious

science of theology.
Why did Luther despise the law? The very core of Luther’s message in
the reformation he inaugurated in 1517 was freedom. “Freedom of the
Church from the tyranny of the Pope, freedom of the laity from the hege-
mony of the clergy, freedom of the conscience from the strictures of canon
law ”, as a modern scholar aptly noted.12 Luther even coined one of his
most densely argued dogmatic treatises as “The freedom of a Christian”.
The message of freedom had a tremendous impact on society. Books
were burnt. Church courts were closed. Clerical privileges were stripped.
M andatory celibacy was suspended and indulgence traffic banned. From
now on, the people should stand directly before God, without clerics med-
iating between them.
The role of the Church changed, too. Instead of ruling the society
with law, the Church was from now on supposed to serve society in love.
The main reason for this shift was the so-called “rediscovery” of the gos-
pel. The gospel, not the law, was the treasure of the Church, as another
modern scholar noted.13 Law was the province of the magistrate, not the
prerogative of the cleric. M artin Luther, ready to perform according to the
degree doctor in Biblia which he received in 1512, saw himself first and
foremost as promoting the gospel.14
Even if Luther’s main topic was the gospel, he nevertheless had to
grapple with the definition of law, too, particularly after the wild 1520’s.
Although he had said in his treatise to the Christian nobility from 1520
that “wise rulers, side by side with Holy Scripture are law enough”, Luther
and his fellow reformers could hardly overlook the shortcomings of civil
law.
The serious consequences - the other side of that freedom-coin, so to
speak - were particularly felt among the poor and needy, those people
who formerly relied on Church charities and hospices. The redistribution
of ecclesiastical properties and revenues was hardly beneficial to the out-
casts of society. Another problem after the profound legal changes that
took place in the wake of the Reformation was marriage. H ow should the
laws for matrimony be understood, after the whole system had been sha-
ken by Luther’s attack on (forced) celibacy as “the better way of life” ? A

12 John W i t t e , L aw and Protestantism: The Legal Teachings o f the Lutheran Reformation,

(Cambridge/ N ew York: Cambridge University Press, 2002), 1.
13 Jaroslav P e l i k a n , The Christian Tradition: A H istory o f the D evelopm ent o f Doctrine, Vol. 4:
Reformation of Church and Dogm a (13 0 0 -1 70 0 ) (Chicago: University o f Chicago Press,
1985), 127.
14 Jaroslav P e l i k a n , Divine Rhetoric: The Sermon on the M ou n t as Message and as M odel in
Augustine, Chrysostom, and Luther (Crestwood, NY: St. Vladimir’s Seminary Press, 2000),
8 Iff.
210 Joar H a g a

range of questions came to the fore: W ho could marry, who could be di-
vorced, and what about inheritance? No wonder that prostitution and con-
cubinage soared in this period.
These challenges had to be dealt with. The question was how.

IV. The problem o f freedom

If we take a look at how Luther understands the Christian in his trea-

tise on Christian freedom, we see that he qualifies him or her as a lord
“who is a free master, subject to none” . At the same time, however, the
Christian is a priest, subject to everyone. This seemingly paradoxical situa-
tion had im portant consequences for stating the ethical endeavour. If no
earthly authority had any chance of imposing “a single syllable of the
law ” upon the Christian, what should guide the priesthood of every believ-
er? W hat should be the yardstick by which the political powers could di-
rect their concern?
It was clear that a Christian should serve his or her neighbour, but
were there any hints in Luther^ new doctrine on the material content of
that service? The temptation was, of course, two-fold. On the one side,
one could just expel the law from the pulpit, claiming that it belonged 50 -
lely in the office of the earthly rulers. On the other side, one could make
the law instrumental to the needs of society, imposing new laws on Chris-
tians. Both versions had grave defects to that double status of a Christian.
Either it failed to take seriously the Christian as a free master, “subject to
none” , or the Christian as a servant, “subject to everyone”, was not taken
into account.15
Luther himself relied heavily on the image of the tree, as it was em-
ployed by Jesus in the Sermon on the M ount. A good tree bears good fruit;
a bad tree bears bad fruit. This is the background for his radical sayings
about “true Christians need no law ”, an insistence which is abundant in
his 1523 treatise on temporal authority.16 One may dem and good deeds
from Christians or claim that one ought to do good deeds - as art. six of
the Confessio Augustana does17 - but it is, in the end, as effective as

15 The main statements from Luther’s 1520 Freedom o f a Christian: “Christianus hom o omnium
dominus est liberrimus, nulli subiectus. Christianus hom o omnium servus est officiosissimus,
omnibus subiectus.” WA 7, 49.
16 “ [...] die Christen unternander und bey sich und fur sich selbs keyns rechten noch schwerds
duerffen, Denn es ist yhn keyn nott noch nuetz. Aber weyl eyn rechter Christen auff erden nicht
yhm selbs sondern seynem nehisten lebt unnd dienet, ßo thutt er von art seyns geystes auch
das, des er nichts bedarff, sondern das seynem nehisten nutz und nott ist.” WA 11, 253.
17 “Item docent, quod fides illa debeat bonos fructus parere, et quod oporteat bona opera manda-
ta a Deo facere propter voluntatem Dei Confessio Augustana, article VI. Cf. BSLK, 60.
 Lex manens? 211

screaming for good fruit to a tree in the garden. The difference between
the organic metaphor of Luther and M elanchthon’s idea of necessity and
debt was felt in the churchly environment of the 1550’s.18
M elanchthon’s idea of the religious person had a different make-up
than Luther’s. It sought to balance a theological anthropology with so-
ciety’s need for erudition and order. Luther’s monastic background pushed
the question in another direction. Through good works one might achieve
a certain superficial morality, pleasant to bourgeois sensibility, but hardly
good deeds in a theological sense. There, at the centre of the theological
axis, the question is not only concerned with doing well, but more funda-
mentally: Where is your heart in your deed?19
Towards the end of the 1530’s, Luther held a series of disputations
against some colleagues whom he called the Antinomians. Perhaps we
could translate Antinomians as “those who are against the law ” . In the
line of fire stood his long-term friend and co-worker Johann Agricola. The
question was not new. Agricola had already claimed that the law did not
have any positive role to play in the life of the believer in a flood of evan-
gelical catechisms which began to appear from the mid-152Os.20
Central to his understanding of poenitentia (penance) was that it was
already brought about with the faith of the gospel. “Penance”, said Agri-
cola, “is a new heart and other thoughts. Whoever is sorry for something
is already free of sin” . Gone were all the hints of contrition, confession

18 Cf. M elanchthon’s ow n report in his letter to the senate of Nordhausen, 13 January 1555:
“ [...] Erstlich, so keine andre streitige Sache Zwischen den Prädicanten ist denn alleine von der
Proposition: gute Werke sind nötig zur Seligkeit; [...] Etliche wollen diese Rede nicht dulden:
gute Werke sind nöthig; oder also: man muss gute Werke thun; wollen diese zwey Wörter ne-
cessitas und debitum nicht haben, und stund der Hofprediger derselbigen Zeit, und spielet mit
dem Wort muss: das Muss ist versalzen: verstand necessarium und debitum für erzwungen
durch Furcht der Strafe, extortum coactione, und redete hohe Wort, wie gute Werke ohne Ge-
setz kämen.” CR 8, 411.
19 It should, however, be noted that there was an important affinity between the external role of
the law by Luther in “real-life politics” and M elanchthon’s demand for discipline. The Chris-
tians, Luther claimed, were peccatores in re, iusti autem in spe (WA 56, 269). Such a lack of
m an’s sinless status opened up for a radical external aspect o f the law.
20 Cf. Agricola’s equation of natural reason with Christ’s role as a prophet: “ [...] Wie wiltu der
Sünde los werden, den teuffel vnd todt vberwinden? Wie wiltu Gott zu freunde machen, wenn
er zürnet? Schickt dyr zu das creutz vnd Verfolgung, wie wiltu dich do halten? So werden sie
eygentlich sagen: Ich will also viel fasten, betten vnd almosen geben sc. Diese haben keynen
glawben, auch seyn sie keyne Christen, vnd haben doch den namen. Auf die weyse predigen
Christum die Papisten vnd die gantze weit, Denn vernunfft will ya noch das yhre dazu thun,
vnd will nicht nichts seyn. Dieser glawb aber ist nichts mehr, denn wenn ich höre, der Keyser
hat M ediolan gewonnen odder dergleychen. Das heyst denn Christum fur eynen Propheten
halten.” Die evangelischen Katechismusversuche aus den Jahren 1 5 2 2 -1 5 2 6 . Die Evangelische
Katechismusversuche vo r Luthers Enchiridion, ed. by Ferdinand C 0H RS (Berlin: A. Hofmann
& Comp., 1900), 1 1 2 ,1 5 - 2 4 .
212 Joar H a g a

and satisfaction which had dominated the penitential system of the medie-
val ages.21
This is made into a principle concerning penance (Busse) by Agricola,
namely that the gospel makes all this without the law: “Now, however,
when the remission of sins, the redemption of Christ’s kingdom falls into
penance, into baptism, into the heart of the sinner, when one starts to pon-
der on it, resurrection draws near. As soon as the word which is pondered
upon is with him and touches the heart, there is light, happiness and
strength [...]”22
Instead of fearing God or G od’s punishment, Agricola said that we
should fear the consequences of the good works that we are doing. If not,
we might be deluded into thinking that the good works are the cause of
our righteousness. There is not only a different object of fear, but also a
change in the instrumental character of that fear: In Agricola’s view, fear
should be used to spark an ever ongoing internal revision of oneself. Why,
one might ask? Because the biggest threat to the gospel is when people
think that it can be transformed into “law, rules, statutes and other cere-
monies”, as Agricola expressed himself.23
Agricola placed the doctrine of justification within the lifelong experi-
ence of penance, as Luther did, but they had different opinions about tem-
poral order. A salvific penance was not situated before the forgiveness of
sins, according to Agricola, but after the absolution. Penance came from
the gospel of Christ, not from the Law of Moses.24
This view was challenged by M elanchthon, who was very anxious to
keep penance as a fruit of the law, not least for pedagogical reasons. He
implicitly attacked Agricola in his visitation articles of 1527, and stated in

21 Cf. Timothy J. W e n g e r t , L aw and Gospel: Philip M elancbthon’s Debate with John Agricola
o f Eislehen O ver Poenitentia, Texts and Studies in Reformation and Post-Reformation
Thought (Carlisle: Paternoster, 1997), 72-75.
22 “W enn aber nu die Vergebung der sunde / die losung des reichs Christi / feit ynn die busse / ynn
die tauffe / ynn des sunders herze / also das es beginnet nur daran zugedencken / so nahet es
sich zur aufferstehung / Vnd als bald das wort daran es gedenckt / bey yhm erwärmet vnd das
herze rueret / so ist liecht / freude vnd stercke da [...]” Johannes A g r í c o l a , D ie Epistel an
die Colosser / S. Pauls / Z u Speier gepredigt auff dem reystage / von Joann Agrícola Eysleben
(Wittenberg: 1527), G7b.
23 “Es ist kein ferlicher teuffel / der dem Euangelio mehr schaden thut denn eben dieser [...] Den
gerechten ist kein gesetze geben / Sie gehen die mittelstrassen vnd von guten wercken vnd bösen
frey / also / das yn kein sunde zur selickeit schadet / nach kein gut werck fromet / Gnade /
gnade / ist es die die sunde nicht achtet / noch guete werck ansihet / D o faren denn zu / die
allerheiligsten leute / wenn sie sehen / das die leute so vnordenlich leben / vnd wollen der sa-
chen mit geboten Í regeln / Statuten vnd anderen Ceremonien helffen Í vnd als bald wenn das
Euangelion vnd Christen leben / ynn regel gefasset wird / so ist es nymmer Euangelion / vnd
Gott wird verleugnet [...]” A g r í c o l a , (see above, η. 21), J5b. For the context, cf. Steffen
K j e l d g a a r d - P e d e r s e n , Gesetz, Evangelium und Busse (Leiden: Brill, 1983), 1 8 0 -2 1 2 .
24 Walter S p a r n , “Lex iam adest. Luther Rede vom Gesetz in den Antinomerdisputationen” in
Martin Luther - Biographie und Theologie, ed. By Dietrich KoRSCH/Volker L e p p i n , (Tübin-
gen: Mohr, 2010), 211-249, here: 216.
 Lex manens? 213

the foreword that a faith w ithout penance, without a doctrine of the fear
of God, without the preaching of the law, would lead to a habit of carnal
security for the common people.25
Melanchthon does not restrict the law ’s function to guide the conduct
of the vulgar, however. The insistence on the preaching of the law has a
crucial theological function: It is necessary for the reception of the gospel.
There is a famous utterance attributed to Yahweh in the book of Isaiah: “I
dwell in the high and holy place, with him also that is of a contrite and
humble spirit”. M elanchthon takes this last point to be a preferred condi-
tion of the heart. It can be achieved by the imposed fear caused by the
preaching of the law, as if it was a kind of ordo salutis. First, the hum an
being is humiliated; thereafter the promise of God can enter.26
Melanchthon describes this process with a particular attention to the
affection fear: When God is about to have mercy, the heart is frightened
and filled with fear of his judgement; that is penance or contrition. If it
then hears the gospel, that is, if it hears that its sins are forgiven on ac-
count of Christ, it also believes it is certainly forgiven.27 In fact, Melanch-
thon stated in the Visitation Articles that he wanted to restore the inherited
division of penance from the Middle Ages, namely as contrition, confession
and satisfaction.28
In the German version from 1528, M elanchthon did not only part the
Christian life into penance, faith and good works; he even claimed that if
faith failed penance [Rew und Leid], that faith would be unreal, “ ein ge-
malter Glawb”, as he expressed it. The law gives the necessary fear, and
prompts the believer to seek comfort in God.29
When he explained how Christian liberty should be understood, Me-
lanchthon underlined that the judicial and ceremonial of the Old Testa-
ment had been abolished by the coming of Christ. But the Decalogue,
which M elanchthon labels apex legis, the crown of the law, remains for-
ever. It is written in the heart of all hum an beings, and belongs to the
nature of hum an beings.30

25 “[...] fidem sine poenitentia, sine doctrina timoris Dei, sine doctrina legis praedicant, et ad car-
nalem quandam securitatem adsuefaciunt vulgus.” CR 2 6, 9.
26 “Poenitentia vero sic docenda est, ut hortentur auditores ad contritionem, quae est praecipua
pars poenitentiae, et est in scripturis vocata mortificatio. [...] Iesaias: Ubi habitabit Dominus?
In spiritu humiliato.” CR 2 6, 9.
27 “Quando Deus misertus, perterrefacit cor et incutit alicui metum iudicii, ea scilicet seu poeni-
tentia, seu contritio, si turn audiat Evangelion, hoc est, si audiat sibi condonari peccata probp-
ter Christum, et credat certo ignosci.” CR 26, 11. Translation from W e n G E R T (see above,
n. 20), 98.
28 CR 26, 2 0 -2 1 .
29 Phillip M e l a n c h t h o n , Melanchthons Werke in Auswahl. Studienausgabe, ed. by Robert
S t u p p e r i c h (Gütersloh: C. Bertelsmann Verlag, 1955), 1, 2 2 2 -2 4 .
30 “Decalogus autem exigit iustitiam cordis, propterea non est abrogatus, quia Christiana iustitia
est iustitia cordis, N on enim est ceremonia externa aut interna πολίτικα, i.e. politia, sed sicut
214 Joar H a g a

The discrepancy between M elanchthon and Agricola broke out in

public, and Luther finally had to intervene. He sided with M elanchthon,
perhaps most importantly because of his concern for the common peo-
pie.31
In a letter to M elanchthon, Luther stresses the difference between a
legitimate fear of God, timor Dei, and a illegitimate fear of punishment,
timor poenae.32 His main concern, however, is drawn from what he claims
is a factuality of hum an experience: “In this life, fear of punishment is im-
possible to distinguish from fear of G od.” Luther compares the intermin-
gling of the two types of fear to the simultaneous presence of Spirit and
flesh in the life of the Christian.33
That intermingling of the two types of fear points to a profound tem-
poral aspect in Luther’s opinion, namely an existential dimension consist-
ing of both fear and comfort. It marks Luther’s difference both from Agri-
cola’s attempt to locate correct penance after the law, and Melanchthon
who stresses that the law must precede the preaching of the gospel. This is
the lifelong existential dialectics in which the Christian finds her- or him-
self.34 Unlike Melanchthon and Agricola, fear is not instrumentalised in
the same way by Luther.35

V. The disputations against the “A ntinom ians”

Ten years later, in 1537, the conflict ignited again and erupted into
w hat is commonly known as the Antinomian Controversy. According to
Agricola, Luther had originally based his doctrine of justification solely on
the gospel. But Luther allegedly added a second doctrine, based on the

Paulus ait, πολίτικα ες ουρανοις‫־‬. Propterea etiam decalogus est repetitus in Evangelio et exigitur,
sicut ait Dominus: N o n peribit apex de lege.” CR, 26, 26.
31 “Denn es uns alles fast wohlgefället, weil es für den Pöbel aufs einfältigst 1st gestellet.” WaBr,
4, 265.4f. Cf. W e n g e r t , L aw and Gospel, 112.
32 Cf. the newly published study o f fear as a concept in Luther’s theology, Thorsten D i e t z , Der
Begriff der Furcht bei Luther (Tübingen, M ohr Siebeck, 2009).
33 N eque fieri potest, u t sine timoré poenae sit tim or D ei in hac vita, sicut nec spiritus sine cam e
[...] WaBr 4, 272.
34 Otto Hermann P e s c h , “Antinomistischer Streit,” in Lexikon der Reformationszeit, ed. by
Klaus G A N Z E R / B r u n o S t e i m e r (Freiburg: Herder, 2002), 3 4 -3 5 .
35 There is an interesting divergence in modern Luther research on how to interpret the double
formula of the Ten Commandments in Luthers small Catechism: You shall fear and love. The
expression “fear and love” precedes all the subsequent interpretations o f the commandments.
In his Commentary on the Catechism, Albrecht Peters points to a structurai difference between
G od’s and man’s ability to make juridical rules [Gottes Hoheitsrecht]. Luther’s intention is to
underline the Law’s function in protecting the neighbour and the possibility to conduct a life
[Lebensraum]. Cf. Albrecht P e t e r s , Kom m entar zu Luthers Katechismen. Band I: Die Zehn
Gebote, ed. By Gottfried Seebaß (Göttingen: Vandenhoeck &c Ruprecht, 1990), 132ff.
 Lex manens? 21 5

law, Agricola claimed.36 Agricola’s exact point of reference is not clear,

but I suppose it was Luther’s insistence on the preaching of the law.
The accusation of Agricola sparked the second controversy. Luther’s
response and critique of Agricola was based on the assumption that Agri-
cola taught as such: Penance does not come from the law, but from the
violation of the Son in the gospel.37 At the heart of the presentation Luther
has constructed a syllogism which explains why the law can be dismissed
from the understanding of penance:
[Major premise:] 6. From the orations o f Paul and Barnabas, it is sufficiently clear that the
work o f the law does not pertain to any part o f justification. 7. W ithout the H oly Spirit being
given by the matter in whatever fashion, and man being justified, that matter does not need to
be taught, neither o f the beginning, middle or end o f justification.
[Minor premise:] 8. For once given, the H oly Spirit is given perpetually, and man is justi-
fied without the law, through the gospel of Christ alone.
[Conclusion:] 9. Therefore, the Law o f M oses does not need to be taught, neither for the
beginning, middle or end o f justification.38

Luther’s response to his own reconstruction of the antinomian doc-

trines starts with a definition of penance, namely that it is “pain [dolor] of
sin with the added intention of a better life.”39
Already at this point, Luther implicitly criticises the radical separation
between fear and the will of the good in Agricola’s solution.40 For Luther,
the two cannot be separated, because sin remains throughout the life for
the righteous hum an being, too. The famous slogan of Luther simul iustus
et peccator, namely that man is righteous and justified at the same time, is
carefully placed within a temporal structure. Sin is not yet removed; in this
life sin is an inevitable part of our hum an condition. O ur life in Christ will
not be fully realised before the consummation. This correlates with the fact
that death is still with us. In his characteristic Pauline mode and manner,
Luther connects sin and death to the law, and claims: “If there is no law,
there would be no sin or death.”
Due to the permanent presence of sin and death in the earthly life, the
law is necessarily present, too. The close intimacy between sin, death and

36 The letter in which Agricola accused Luther “hat den Rhein entbrannt”, Agricola later re-
marked. Cited from Martin B r e c h t , Martin Luther III. Die Erhaltung der Kirche, 1 5 3 2 -
1546 (Stuttgart: Calwer Verlag, 1987), 162.
37 “ 1. Poenitentia docenda est non ex Decálogo, aut ulla lege M osi, sed ex violatione filii per
Evangelium.” W A 391, 342.
38 “6. Ex concionibus Pauli et Barnabae satis manifestum est, non esse opus lege ad ullam partem
iustificationis. 7. Sine quacunque re datur Spiritus sanctus, et homines iustificantur, ea res non
est necessaria, ut doceatur, ñeque principio, ñeque medio, ñeque fine iustificationis. 8. At datus
olim, et datur perpetuo Spiritus sanctus, et iustificantur homines sine lege, per solum Evange-
lium de Christo. 9. Ergo lex M osi non est necessaria ut doceatur, neque pro principio, ñeque
medio, neque fine iustificationis.” W A 391, 342.
39 “ 1. Poenitentia omnium testimonio et vero est dolor de peccato cum adiuncto proposito me-
lioris vitae.” W A 391, 345.
40 S pa r n (see above, η. 23), 221.
216 Joar H a g a

law is aptly characterised by Gerhard Ebeling in his famous article on the

third use of the law. “The law ” , Ebeling says, “is not an idea or a sum of
statements, but the reality of the fallen m an ”.41 In Luther’s theological
construction of reality, however, the law-sin-death union is part of the ca-
tegory of address, or “Anrede”, as the Germans have it. For Luther, the
law in this proper, theological sense may or may not be similar to codifica-
tions of a perceived law in nature - lex naturae - or law in society - lex
Romanae. It may also be diversified in different uses, such as a political
use and a theological use, but the primary sense cannot be structured
around anything less than a call back to basics: The hum an being in the
presence of God, or perhaps more precisely, the sinful hum an being in the
presence of the justifying God.42
The law in its primary sense is simply the outcome or the description
of the encounter between the sinful hum an being and the holy God. The
law, as Luther theologically interprets it, “kills, bans, sues, judges, damns
that which is outside Christ” as he claims in the famous Heidelberg dispu-
tation from 1518.43 It is indeed difficult to utilise this aspect of the law in
the construction of an evangelical society.
Let us turn back to the understanding of hum an beings. In spite of
the inevitable reign of death and sin in this life, Luther is careful to under-
line that the more im portant reality of life, the reality of Christ, is already
here. The simul between the Christ’s reign and the reign of sin and death
is not only seen as two sides of the same coin. Luther can look upon one
side at a time in the believer: In the present, we live in the flesh, he claims,
but insofar [quatenus] Christ is raised in us, we are without law, sin and
death. Insofar Christ is not yet raised in us, we are under the law, sin and
death.44
It means that the eschatological reservation, the not yet, is restricted
to the part which is not yet “Christened” . This eschatological reservation
is overlooked by the antinomians, according to Luther. They claim that sin
is overcome in a philosophical and juridical sense - he uses the word for-
maliter. Such an insistence overlooks the im portant temporal aspect which
constitutes the dominion of Christ in the present world, namely that it is
relative.

41 Gerhard E b e l i n g , “Zur Lehre vom triplex usus legis in der reformatorischen Theologie” in
W ort und Glaube (Tübingen: M ohr Siebeck, 1960), 65. [My italics].
42 Cf. the classic reference to theology’s subject matter by Luther: “Theologiae proprium subiec-
turn est hom o peccati reus ac perditus et Deus iustificans ac salvator hominis peccatoris.” WA
40II, 328.
43 “Et Lex iram Dei operatur, occidit, maledicit, reum facit, iudicat, damnat, quicquid non est in
Christo.” W A 1, 363.
44 “ [These] 40. Quatenus Chrisus in nobis est suscitatus, eatenus sumus sine lege, peccato et
morte. [These] 41. Quatenus vero nondum est in nobis suscitatus, eatenus sumus sub lege, pec-
cato et m orte.” W A 391, 356.
 Lex manens? 217

W hat does that mean? Sin is only overcome without qualification

when the reality of Christ is finally realised in the Kingdom come. In this
life, sin is the current “state of affairs” outside the reality which Christ
has already conquered, that is in the faith of the believer. In other words:
For Luther, the overcoming of sin pertains only to the place(s) where
Christ is risen as the dominant force. Due to the relative nature of Christ’s
Kingdom, the law has a function in the lives of the pious, too: It pertains
to that part of m an’s life which is still under the dominion of sin, particu-
larly by uncovering the remaining sinful aspect of the (reborn) hum an nat-
ure.
One could perhaps see this as the Lutheran interpretation of the mor-
tal sin of hubris. This function is different from Agricola who focuses on
the problem of the good works as moving towards the centre of anthropol-
ogy: The “I” of the forgiven sinner is always threatened by the “I” of the
agent of morality and thereby puts the merit of Christ aside. Whereas
Luther considers the doubling of the self as the given - insofar as he or she
is a sinner, under the law, insofar he or she is a Christian, under Christ -
Agricola seems to be aiming for a hegemony of the psychological state of
being a forgiven sinner.
Formally, therefore, Agricola mirrors the prescriptive moralism of
M elanchthon. He tries to adopt a streamlined anthropology. Where Me-
lanchthon wants the law, Agricola wants the gospel. Considered from this
perspective, they both lack the dirty reality of hum an beings as seen in the
double structure of Luther, namely that both law and gospel are required.
Yet, there is an im portant difference between the pious and the im-
pious already in this life, according to Luther. In his fifth disputation,
Luther elaborates on that difference, claiming that the impious are simplici-
ter carne et spiritu, that is a body-soul without further qualification. It
seems to me that the idea of simpliciter deserves some attention in this
context, because it was used in the anthropological treatises of Luther’s
philosophical teachers in Erfurt, where he was trained as a student, as a
tool to draw the line between theology and philosophy.
If an article of faith was simpliciter it meant that it was not possible to
demonstrate its truth philosophically, according to Arnold von Usingen.45
It was simply something to be believed solely as an object of faith, a pro-
position without further argumentative underpinning from philosophy.
Such an understanding of simpliciter as encapsulation can be seen from
Luther’s Christological writings. When Luther uses simpliciter in his dis­

45 “ [...] N am ea que sunt simpliciter fidei que sola revelatione notescunt nobis sunt indemonstr-
abilia ut deum esse trinum et unum, deus esse incarnatum et ceteriis. Ilia sunt supra rationem
naturalem [‫ ״‬.]” cited in Pekka K ä r k k ä i n e n , Lutheran Reformation and the L aw , ed. by
Virpi M a r i n e n , Studies in M edieval and Reformation Traditions, vol. 112 (Leiden: Brill,
2006), 103, n. 39.
218 Joar H a g a

pute with Schwenckfeld over the nature of Christ, simpliciter refers to

Schwenckfeld’s attem pt to isolate one nature of Christ from the other.
For example, the hum an nature cannot be everywhere when it is ta-
ken as isolated, simpliciter, from the divine nature. But that restriction is
exactly what the so-called dogma of the two natures makes possible in the
person of Christ: The communication of divine properties transcends the
simpliciter status of a mere hum an being. It is not solely that body-soul
thing, but partakes at the same time in the divine nature.
The impious, the non-believer, does not partake in that salvific com-
munication of properties, and therefore remains simpliciter as a human
being, created in God’s image as body and soul. W hat the impious lacks is
that “crack” which breaks up the homogenous identity into a double one,
into that “simul-structure” of both being a sinner and a saint. The reality
of Christ is growing within the pious, but it is - as long as the Lord delays
- only relative. The pious is only a saint insofar the life of the resurrected
Christ lives in her or him.
To sum up: For Luther, the law has very specific theological purposes
in uncovering true hum an nature. The constructive potential of the concept
for society is not clear, at least not to a similar degree as the existential
dimension of the law.

VI. The construction o f a Lutheran law

Which effects did these considerations on the principles of law have on

society? We cannot probe very deeply into this matter, but I want to pick up
some points that I made in the beginning of this article, namely how the law
was used to govern the evangelical cities and principalities which followed
Luther’s reformation. H ow did the jurists construct the legal framework?
By and large, I think it is fair to say that the conception of Luther
never gained a stronghold in the construction of a state which we now
refer to as “Lutheran” . Why? I think it was difficult for the jurists to come
to terms with the existential dimensions of Luther’s interpretation of law.
Although many of them started with Luther’s theory of the two kingdoms,
instead of following his sharp distinctions in the relation between the king-
dom of heaven and the kingdom of the earth, they tended to emphasise
more of the continuity between them.
Consider the interpretation of the Bible as the source of legal precepts,
for one. Luther had, as we have seen, a highly ambivalent attitude towards
the Bible’s legal role and status. It was perhaps most visible in Luther’s
avoidance of any subjection of what he claimed to be the content of the
Bible for legalistic purposes.
The M agistrate’s need of disciplining the people should not trum p the
evangelical content of revelation. For Luther, Holy Scripture as a whole
was first and foremost God’s “outcry of mercy”, as Carl-Heinz Ratschow
 Lex manens? 219

once put it, “not a law book” .46 For the evangelical jurists, however, the
Ten Commandments provided the best interpretation of civil law. For
them, the Bible was simply “the highest source for life in the earthly king-
dom ” .47 Their use of the law in order to serve society was particularly
built on the educational potential of the law: The faithful need instruction,
because they carry with them “weakness and sin”, as Melanchthon wrote
in one of his later versions of Loci Communes.
Luther on the other hand had stated that the state was only responsi-
ble for external things. It was God who, through his word, should rule the
souls. In addition, Luther was keen on limiting the political power of the
Obrigkeit, not least through his doctrine of the Christian estates, his “Stan-
delehre” .48 One should perhaps note that Luther’s ethical reflections were
deeply embedded in the concrete (and, admittedly, quite static) estates
which made up the calling of a hum an being. It did not have the function
of constructing a new society, but theologically reflecting upon the given
structure of citizen life.
His younger colleague was more involved in the future design of
society, however. In his revision of the Loci Communes of 1555, Me-
lanchthon claimed the opposite; however, namely that earthly authority “is
obliged to maintain discipline according to all the commandments49.‫ ״‬Me-
lanchthon’s idea was not only an invitation to an understanding of an ex-
tended earthly government which opened up for the princes’ power in ec-
clesiastical matters. It was also a recipe for a “ Christian com m onwealth” .
This is John W itte’s precise rendition of the work of the influential Luther-
an professor of jurisprudence, Johannes Eisermann. He was one of the
most im portant figures in the development of an evangelical code of law.50
Eisermann did not claim that there was the Christian society, as cus-
toms inevitably will vary. He identified some inevitable features in a much
more comprehensive way than Luther, however. The key was that positive,
civil law should reflect natural law as it was interpreted in the Decalogue
and the gospel.51 For Eisermann and many of his fellow Lutheran jurists,
their practical reform of society was framed within a Pauline concept of
body, which ultimately meant - at least for the jurists - a transformation
of secular matters into some kind of Church resemblance.
Perhaps that construction can remind us of the limits of Luther’s un-
derstanding of law and its implication for society.

46 Carl-Heinz R atschow , “Heilige Schrift, V. Systematisch-Theologisch,” in T R E 30 (1999):

429.
47 W it t e , (see above, η. 11), 10.
48 See for example Martin H o n e c k e r , Einführung in die theologische Ethik. Grundlagen und
Grundbegriffe (Berlin/New York: de Gruyter, 1990), 291ff.
49 Cited from W i t t e , (see above, η. 11), 131.
50 W it t e , (see above, n. 11), 147ff.
51 W it t e , (see above, n. 11), 12.
220 Joar H a g a

SUMMARY

The article points to certain limits in the use o f Luther’s insights of the law. It argues that
Luther’s primary “legal” insights need to be evaluated more in light of their existential and per-
sonal relevance for the believer(s), than their constructive potential for an evangelical society.
Luther’s impetus is framed within the broader history o f ideas in Europe, and the article consid-
ers how his concept of the law was profiled in the discussion with Agricola and the so-called
antinomians. At the end, it offers a comment on why M elanchthon’s concept o f law seemed
more attractive to the evangelical jurists at the m id-16th Century.

ZUSAMMENFASSUNG

Der Aufsatz zeigt auf, dass Luthers Auslegung des Gesetzes deutliche Grenzen hat. Die
ursprüngliche Erkenntnis richtet sich bei Luther mehr auf die persönlich-existentielle Dimension
des Lebens, als auf eine Gesamttheorie für das gemeinsame Leben. Deswegen ist das konstruktive
Potential für eine zukünftige evangelische Gesellschaft deutlich geringer. Luthers Einsichten wer-
den in die größere europäische Ideengeschichte eingebettet und werden darüber hinaus in Aus-
einandersetzung mit Agrícola und den sogenannten Antinomern konkret analysiert. Zum Schluss
gibt es einige Erwägungen über die Präferenz der Theorie Melanchthons durch die evangelische
Juristen, welche im 16. Jahrhundert eine neue evangelische Gesellschaft zu regulieren versuchten.
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