Luther and Canon Law

By John Warwick Montgomery

[John Warwick Montgomery is Professor Emeritus of Law and Humanities, University of Luton, England; Distinguished Professor of Apologetics, Trinity College and Theological Seminary, Newburgh, Indiana; and Senior Counsel, European Centre for Law and Justice, Strasbourg, France.]

On the Eve of All Saints’ Day, October 31, 1517, Martin Luther posted his 95 Theses on the Castle Church door in Wittenberg, thereby launching what would become the Protestant Reformation and a major turning point in the history of the Western world. Less well known is a similarly dramatic event at Wittenberg’s Elster Gate three years later, on December 10, 1520, when Luther, in response to the burning of his writings by Roman officialdom, publicly consigned to flame the bull of excommunication against him[1] —and the corpus of medieval canon law.[2]

Critics of Luther such as Roman Catholic apologist-historian Grisar have argued that his symbolic burning of the canon law reflected a deep-seated antinomianism on the Reformer’s part: Luther was allegedly jettisoning law in favor of personal, individual spiritual experience. Yet other critics of the Lutheran Reformation, in particular Ernst Troeltsch, have held that the Reformer’s theology—especially his doctrine of the two kingdoms—justified a quietism vis-à-vis the activities of the state which encouraged institu-titional legalism and political statism.[3] The extensive development of Kirchenordnungen—Protestant compendia of church law in the lands that went over to the Reformation—have been used to support this view.

However, one cannot have it both ways: Luther cannot be both antinomian and the fomenter of legalism! A reevaluation of Luther’s approach to canon law is called for. Two questions in particular need to be answered: Why precisely did Luther burn the corpus of canon law? What was his theological judgment on church law in general?

The Elster Gate Incident

Luther’s own narrative of the ceremony appears in his Briefswechsel,[4] but the following is a synoptic account given by one of the greatest historians of the Lutheran Reformation, E. G. Schwiebert.

Early in the morning of December 10, 1520, Philip Melanchthon nailed a significant document on the Schwarze Brett, the university bulletin board, announcing the long-awaited reaction on the part of Luther to the burning of his books all over Germany. The announcement invited the doctors and masters of the University and the student body to assemble at Holy Cross Chapel at 9 A.M. just outside the east gate of the city. A pile of wood had been gathered at the spot near the Elbe where the town burned the clothing of those infected with pest and where cattle were butchered. The occasion was the burning of certain books by means of which the Papacy and the Roman hierarchy were particularly entrenched.

After the gathering had assembled, one of the masters, probably Agricola, started the fire. From one of Luther’s letters, written around 10 A.M. that morning to Spalatin, it is clear that the Decretum of Gratian, the papal decretals, Sextus Clementinae Extravagantes, the Summa Angelica, and some of Eck’s and of Emser’s books were included in the list. But the principal collection of writings which Luther wished to destroy was the corpus iuris canonici, that body of Canon Law which gave the Pope all the extravagant powers which Eck, Emser, and others tried to defend. One after the other the various tomes were consigned to the flames. Finally, Luther unexpectedly drew a printed copy of the bull Exsurge, Domine from his gown and threw it into the flames with the remark: “Because thou hast destroyed the truth of God, may the Lord consume thee in these flames.” Since historical research has proved that he did not utter the oft-repeated traditional phrase: “Because thou hast offended the Holy One of God,” the criticism directed against him by those critics who claimed he was referring to himself falls by the wayside. Luther may have talked before about burning the bull Exsurge, Domine, yet Boehmer maintains that all 16th-century evidence points to the idea that burning Pope Leo’s bull was just sudden impulse of the moment. Luther, therefore, on this occasion impulsively burned the papal bull which threatened him with excommunication, but he intentionally destroyed the whole basic framework upon which the Roman Church had been built. After the burning of these books and the bull the audience sang the Te Deum and the De profundis, whereupon the faculty returned to the college.[5]

From that time on, the teaching of canon law was discontinued at the University of Wittenberg[6] —as it would later be prohibited in the English universities following Henry VIII’s split with Rome.

The motive behind Luther’s act is suggested by his words, “Because thou hast destroyed the truth of God, may the Lord consume thee in these flames.” But to understand what Luther meant requires a close examination of his thinking.

Luther’s View Of Canon Law

In the years immediately preceding and following his burning of the corpus juris canonici Luther made a number of specific statements concerning the canon law of his day.

His Commentary on Galatians of 1519 includes this passage: “The fewer the laws by which a state is governed, the more fortunate the state is. But our church polity, which had only the one law of love so that it might be the most fortunate of all, must now, because of the wrath of omnipotent God, instead of this one now extinct law [of love], bear clouds and forests and oceans of laws, so that you are hardly able to learn even their names.”[7] Here Luther showed his antipathy to the needless proliferation of church legislation.

Luther’s criticism, it should be noted, was not that of the uninformed person who in every age complains about “too much law.” Luther had spent a year at the University of Erfurt studying canon law under Professor Henning Goede before entering the Augustinian cloister, and he personally owned a copy of the corpus juris canonici. His detailed knowledge of the canon law is evident from his extensive use of it in preparing for his celebrated Leipzig debate with renowned Roman Catholic theologian Johann Eck in 1519.

Luther’s opposition to the canon law of the Roman Church went far deeper than objecting to its prolixity. In his Exposition of Psalm 1:2 of that same year (1519), Luther distinguished the Roman canon law as a human product from the genuine, revealed Law of God as set forth in the Scriptures. For Luther no mistake could be greater than confusing the two. “See to it that you separate very far and very widely the Law of the Lord from the laws of any human beings whatsoever; and be extremely careful that you do not mix these two classes of laws into one chaotic body and perish miserably for so doing. This is what pestilential teachers are now doing when they either turn the Law of God into mere human traditions or turn human traditions into the Law of God.”[8]

A year later, in his immensely influential Letter to the Christian Nobility of the German Nation (1520), Luther again and again castigated the canon law of the Church of Rome. “The medical men I leave to reform their own faculties; the jurists and theologians I shall take in hand. And I say, to begin with, that it would be well if the canon law, from the first letter to the last—and especially the decretals—were utterly blotted out.”[9] He continued:

Today canon law is not what is in the books but what is in the sweet will of the pope and his flatterers. Your cause may be thoroughly established in the canon law, still the pope has his scrinium pectoris [chamber of his heart], and all law and the whole world must be guided by it. Now this scrinium is frequently ruled by a knave, even by the devil himself. But they boast that it is ruled by the Holy Spirit. Thus they deal with Christ’s poor people. They give them many laws, but they themselves keep none of them. Others, however, they compel either to keep them or else to buy a release from them.. .. In the Bible more than enough directions have been penned for our guidance in life. The study of the canon law only stands in the way of the study of Holy Scripture.[10]

In these passages Luther returned to the theme that there was too much church law and reiterated his fundamental point that the Roman canon law was no more than a human product. Unlike the divinely revealed Scriptures the corpus juris canonici was a bureaucratic tool by which the church authority of the day manifested itself, oppressing the consciences and spiritual lives of the faithful. The papacy employed that law arbitrarily (scrinium pectoris), claiming its legislation and judgments to be the Holy Spirit’s. But the penitential system thereby upheld, with its indulgences and dispensations for purchase, was the very opposite of the biblical way of salvation. Such a canon law must be blotted out so that the true message of Scripture could again be appreciated.

Following his heroic stand before Emperor Charles V at the Diet of Worms and the Emperor’s decree that placed him under the ban of the empire, Luther went into exile at the Wartburg Castle in the Thuringian forest above Eisenach. There he translated the New Testament into the vernacular, incidentally stabilizing, almost singlehandedly, the High German language. From the Wartburg he wrote a letter in 1521 to his fellow Augustinians back at Wittenberg. In it he declared, “The pope’s rule is the canon law. In it he ordains, establishes, and earnestly commands—charging the disobedient with mortal sin and threatening them with eternal damnation—rules and regulations concerning food, drink, clothing, persons, churches, altars, chalices, corporals, books, incense, wax, banners, holy water, reading, singing, fasting, prepends, tribute—and who can tell the story of the devil of Romish sanctity?”[11]

Was Luther correct in these criticisms, or are they the rantings of a disturbed mind suffering from a profound authority problem?[12] Confirmation that Luther’s evaluation of the content and functioning of late medieval canon law was not far off the mark comes from eminent Roman Catholic canonists of the present day. Kuttner writes of “the transformation from ‘sacramental’ law into the legal techniques of the twelfth century.”

It would be superficial to condemn this as “unchristian.” But the new jurisprudence created problems and tensions from which the canon law of the later Middle Ages was to suffer. With the juridical refinement of canonical thought there came an evergrowing complication of the judicial and administrative process; with the enhancing of the pope’s function as guardian and reformer of the law, there came the evergrowing need for trained personnel in the Roman Curia, and with it, all the fiscalism and other ills that commonly bedevil a vast governmental machinery everywhere in the world.. .. There was also. .. the petty reality of legalism: all too often the technical machinery of the law would become an end in itself and clatter along for its own sake. An unhealthy imitatio imperii crept over the conduct of the papal office; an often callous routine turned the delicate instrument of dispensations into a marketable tool for flouting just law. Canon law was ripe for reform on all levels; but the answer of the Church to the challenge of the Reformation remained fragmentary.[13]

Peter Shannon, evaluating the Roman Catholic Code of Canon Law in force from 1918 to 1967, characterizes even this modern formulation as suffering from four great evils: “a seeming unawareness of basic theology,” “a regrettable ignorance of ecclesiology,” “an emphasis on centralization rather than subsidiarity,” and “an unevangelical overemphasis on the letter of the law.”[14] Except for his use of modern terminology, Shannon seems to be saying precisely what Luther put more colorfully early in the sixteenth century.

Luther Properly Understood

As the great Luther scholar Roland Bainton insisted, to comprehend the Reformer one must comprehend his theology—since Luther’s actions were always consciously or unconsciously oriented in reference to his central beliefs.

The fallacy of attributing Luther’s burning of the corpus juris to antinomianism should now be clear. But Kuttner, who, as noted earlier, commented on the deterioration of the pre-Reformation canon law, unfortunately throws Luther into this very antinomian pot. Kuttner speaks of Tertullian’s “church of Love vs. the church of Law” (ecclesia spiritus vs. ecclesia episcoporum); the medieval sect of the Cathari/Albigensians; and mystical Joachim of Fiore, who believed in an imminent “Third Age of the Spirit,” wherein hierarchy, church authority, and all canon law would wither away—much as Marxists believe that state and law will disappear following apocalyptic class-war, and the dictatorship of the proletariat will transmute itself into a millennial classless society. “This,” declares Kuttner, “leads up to the symbolic burning of ‘all the pope’s books’ of canon law by Martin Luther in 1520.”[15]

Hardly! Luther was anything but a sixteenth-century charismatic mystic opposing the ordered structure of corporate Christianity to his inner spiritual vision. What led Luther to desire that the existing canon law be “utterly blotted out” was his studied conviction that the canon law of his day functioned chiefly to support a theologically corrupt church authority that operated at cross-purposes to the gospel itself.

Schwiebert puts it this way: “In a letter to Spalatin at this time, Luther clearly shows the trend of his thinking leading to the conclusion that the Papacy and the whole Roman system were entrenched in Canon Law…. By this act Luther symbolized the destruction of the very system that gave the Roman hierarchy its power.”[16]

Erasmus was more perceptive than Kuttner. When that great Renaissance humanist was waiting at Cologne with Luther’s prince, Frederick the Wise, elector of Saxony, for Emperor Charles V to arrive from Aachen, he declared, “Luther sinned in two respects, namely, that he knocked off the crown of the pope and attacked the bellies of the monks.”

Luther’s central theology is thus the key to understanding his opposition to the Roman canon law. Four essential elements in his theology relate to this issue.

Justification By Grace Through Faith

What Luther scholar Philip Watson called Luther’s “Copernican revolution in theology” occurred when Luther discovered—principally through his study of the Psalms and Paul’s Epistle to the Romans—that there is no way to earn God’s forgiveness. Forgiveness, he learned, has already been provided as a free gift through Christ’s death on the cross. Luther succinctly expressed this point in his Explanation of the Third Article of the Apostle’s Creed (Shorter Catechism): “I believe that I cannot by my own reason or strength believe in Jesus Christ, my Lord, or come to Him; but the Holy Ghost has called me by the Gospel, enlightened me with His gifts, sanctified and kept me in the true faith; even as He calls, gathers, enlightens, and sanctifies the whole Christian Church on earth.”

From this truth followed—as the night succeeds the day—the conclusion that a canonical system legitimizing and indeed encouraging the earning of merit (from the papal Treasury of Merit) for the alleged amelioration of the spiritual condition of the faithful, was antithetical to the very heart of the Christian message. Commenting on Galatians 5:2 in the year 1531, Luther wrote, “All (be they papists, Jews, Turks, or heretics) who teach that anything is necessary for salvation besides faith in Christ or who institute any work or cult or observe any rule, tradition, or ceremony of any sort with the opinion that by these they would obtain forgiveness of sins, righteousness, and life everlasting—such persons hear the sentence of the Holy Spirit here pronounced against them by the apostle that Christ is of no benefit whatever to them.”[17]

Justification by grace alone, through faith alone in Christ’s saving work on the cross, became for Luther and his followers the articulus stantis et cadentis ecclesiae (“the article by which the church stands or falls”). Anything inconsistent with it, even though longstanding in the church, had to be rooted out for the sake of the salvation of God’s people. Clark well summarizes this basic theological teaching.

In the years 1513–19, as he lectured through the Psalms, Romans, and Galatians, and as he was driven to work out his theology in controversy with Eck and his other critics, Martin Luther (1483–1546) fundamentally rejected the medieval scheme of progressive justification. He came to see that the Good News is that Christ is the righteousness of God (iustitia Dei) and that this righteousness is outside of us. Sinners are not justified because they are sanctified, but rather, they are justified because Christ fulfilled all righteousness, and his righteousness has been imputed to us. Luther’s doctrine of justification was judicial (actus forensis). For Luther, justification was a legal matter, a declaration and accounting by God. No longer are we to think that God says we are just only because we really are intrinsically just. Rather, we are just because Christ was and his justice is credited or imputed to us. (It is this doctrine of justification that is enshrined in the Augsburg Confession [1530], Art. 4; Belgic Confession [1561], Articles 22–23; Heidelberg Catechism [1563], Ques. 60; and Westminster Confession of Faith [1647], Chap. II.)

With this recovery of the forensic doctrine of justification came the correlate doctrine of faith. From 1518, Luther began to speak of faith no longer as an infused virtue, a disposition toward obedience, but rather as a divinely wrought gift, the instrument which looks away from one’s self and lays hold of Christ and his righteousness. For Luther and the Protestants, it is not faith per se, but Christ, the object of faith who justifies and saves. Faith does not look within (to sanctification), but without: to Christ. The corollary to the Protestant definition of faith was a revised definition of grace. It was no longer considered to be a medicinal substance with which we are infused for transformation and eventual justification, but a way of describing God’s unmerited favor (favor Dei) toward sinners. It is these truths that we uphold in the slogan: by grace alone, through faith alone, in Christ alone.[18]

The Proper Distinction Between Law and Gospel

Justification by grace through faith means that no works-based or law-based understanding of salvation can be tolerated. From this follows, in Luther’s theology, a clear distinction between the functions of the saving gospel and those of law (including canon law). In his great New Year’s sermon of 1532, on Galatians 3:24–25, Luther declared:

The difference between the Law and the Gospel is the height of knowledge in Christendom. Every person and all persons who assume or glory in the name of Christ should know and be able to state this difference.. .. both are God’s Word: the Law, or the Ten Commandments, and the Gospel; the latter first given by God in Paradise, the former on Mount Sinai. But everything depends on the proper differentiation of these two messages and on not mixing them together.. . .

Therefore place the man who is able nicely to distinguish the Law from the Gospel at the head of the list and call him a Doctor of Holy Scripture, for without the Holy Spirit the attainment of this ability to differentiate is impossible.. .. By “Law” we should understand nothing but God’s Word and command by which He tells us what we are to do and not to do and demands our obedience or work.. . .

The Gospel is such a doctrine or Word of God as does not demand our works or command us to do anything but bids us simply receive the offered grace of the forgiveness of sins and eternal salvation and be satisfied to have it given to us as a free gift.[19]

In what has been regarded as the most important Lutheran theological treatise ever produced in America, C. F. W. Walther’s book The Proper Distinction between Law and Gospel, the implications of this doctrine are set forth in a series of twenty-five theses. Here are seven of them.

The first manner of confounding Law and Gospel is the one most easily recognized—and the grossest. It is adopted, for instance, by Papists, Socinians, and Rationalists and consists in this, that Christ is represented as a new Moses, or Lawgiver, and the Gospel turned into a doctrine of meritorious works.. . .

The Word of God is not rightly divided when sinners who have been struck down and terrified by the Law are directed, not to the Word and the Sacraments, but to their own prayers and wrestlings with God in order that they may win their way into a state of grace; in other words, when they are told to keep on praying and struggling until they feel that God has received them into grace.

The Word of God is not rightly divided when the preacher represents contrition alongside of faith as a cause of the forgiveness of sin.

The Word of God is not rightly divided when faith is required as a condition of justification and salvation, as if a person were righteous in the sight of God and saved, not only by faith, but also on account of his faith, for the sake of his faith, and in view of his faith.

The Word of God is not rightly divided when the preacher tries to make people believe that they are truly converted as soon as they have become rid of certain vices and engage in certain works of piety and virtuous practises.

The Word of God is not rightly divided when a person’s salvation is made to depend on his association with the visible orthodox Church and when salvation is denied to every person who errs in any article of faith.

The Word of God is not rightly divided when the person teaching it does not allow the Gospel to have a general predominance in his teaching.[20]

Luther’s opposition to the corpus of canon law stemmed in large part from the fact that it “turned the gospel into a doctrine of meritorious works”; encouraged the faithful to “win their way into a state of grace” by following the penitential system; focused attention on “contrition” as a work satisfying to God; redefined biblical faith as another kind of good work; substituted “works of piety and virtuous practices” for trust in the unmerited work of Christ; made conformity with church rules the test of true Christian belief; and, in general, moved the gospel to the wings while placing legal requirements at stage center.[21]

The Three “Uses” of the Law

The medieval theologians had distinguished three uses or functions of the Law, and the Protestant Reformers and dogmaticians retained the classification. As Stump writes,

The Law has three uses, the Political, the Elenchtico-pedagogical, and the Didactic. By the Political use is meant the use of the Law as a curb to hold in check wicked men, and to protect society against their aggressions. By the Elenchtico-pedagogical use is meant its use to convict men of sin and thus indirectly to lead them to Christ (Gal. 3:24). This use of the Law refers primarily to the unconverted. But there is an Elenchtico-pedagogical use of the Law even for the regenerate, inasmuch as the Christian’s life should be a daily repentance, and the law enables him to see his daily shortcomings and his need of Christ more and more clearly. The Didactic use of the Law is its use as a guide for the Christian mind and conduct.[22]

But Luther and his followers insisted that in none of its functions could the Law save (lex semper accusat, “law always condemns”), and that the most important of the three uses is the pedagogical, in which the Law serves as a paidagogos to lead us to Christ. The Law shows how far short people fall in relation to God’s perfect standards, thus driving them to the cross and Christ’s mercy, much as the Greek παιδαγωγός/slave took the child to his teacher (Gal. 3:24).[23] The Law cannot itself impart salvation; it can only bring a sinner to the One who alone saves. For Luther, the corpus juris canonici was doing anything but that, and so it had to be removed from the ongoing life of the church.

The Two Kingdoms

Luther dramatically expressed this doctrine in his image of the two hands of God. The earthly kingdom, or God’s left hand, refers to the creative structures (Schöpfungsordnungen) operative in political, economic, familial, cultural, and religious institutions.[24] These structures are God’s work, to keep fallen humanity from anarchical and sinful self-destruction. But they do not save. At best, while preserving society and making life more livable, they can (in terms of the pedagogical use of the Law) reveal one’s shortcomings and point one to Christ. Only God’s right hand, the heavenly kingdom, is the true sphere of salvation, and it functions by grace and not by law. For Luther, the papal church of his day had lost its bearings, and the corpus juris canonici had allowed and encouraged the heavenly dimension of the visible church to be swallowed up by earthly considerations.

The two-kingdoms doctrine insists that the church is itself an “order” and thus functions, like the state or the family, as an element in the earthly kingdom; it thus cannot avoid having some kind of organizational structure and legal framework. Luther was by no means a Rudolf Sohm, arguing that the Law and the church are fundamentally incompatible.[25] The work of Luther’s associates—Bugenhagen in northern Germany and Scandinavia, and Melanchthon in central and southern Germany—to establish extensive legal structures for the fledgling territorial churches that went over to the Reformation is sufficient proof of that.[26] But what Luther would not tolerate was a transformation of the church from a biblically centered agency for the proclamation of free grace and unmerited salvation in Christ into a legal structure functioning largely for its own benefit[27] and operating from top to bottom by entrenched mechanisms of works and merit. Luther was not against law in general or canon law in particular, but he was diametrically opposed to the misuse of law—most especially where human souls were at stake.

Concluding Observations

How Luther approached canon law is anything but an antiquarian matter. Here are three, among many, wider ecclesiastical and legal areas touched on by the foregoing discussion.

The nature of Anglican theology and canon law

Traditionally Anglicanism is seen through the prism of the Elizabethan settlement (a national church characterized by theological “comprehension”) and the conflict between Calvinist low-churchmanship and Anglo-Catholic, Oxford-movement high-churchmanship—the broad, low, high spectrum. But Jacobs and Tjernagel have decisively shown that the earliest theological influence on the Anglican Church of the Reformation came directly from Wittenberg.[28] That being so, might Anglicans not benefit from a closer study of the distinctive approach to law and gospel characteristic of Luther’s theology, together with a careful examination of the great sixteenth- and seventeenth-century Lutheran productions in the area of Protestant church law?[29]

The Conjunction/Disjunction of Medieval and Post-Reformation English Canon Law

Over against the classic Stubbs-Maitland debate, Helmholz has argued for an essential continuity of pre- and post-Reformation English canon law, claiming that the conflicts are more apparent than real and can be satisfactorily explained by permissible regional and local variations within the canonical rules and practices themselves.[30] Without denying that such variations did in fact exist, early Lutheran theology, which heavily impacted the English scene in the first half of the sixteenth century, delivered a crushing blow to the medieval canonical synthesis. Might it not be the case that, whereas in relatively routine and minor matters, regional differences did indeed allow for conservatism and continuity, the Reformation perspective could not simply rely on the canonical past where critical, central, salvific issues were at stake? Here genuine discontinuity was inevitable.

The “Formal Principle” of all Theology

Help at this point may come from Hart’s insistence that a true revolution in legal thought occurs only when the system’s fundamental “rule of recognition” changes—the rule by which one judges what should or should not be part of the system itself.[31] Many “primary” (i.e., ordinary, substantive) canonical rules in Hart’s sense of the term may not have changed much after the Reformation, but for Reformers in Luther’s wake the “secondary” rule of recognition had certainly changed: canon law was no longer justified because of its approval by pope or council. In England legitimation now had to come from the sovereign in Parliament.

As for Luther himself, taking his historic stand before Charles V at Worms—and for evangelical Protestantism in general from that day to this—the matter of authority could be stated very simply: “Unless I am convinced by the testimonies of the Holy Scriptures or evident reason (for I believe in neither the Pope nor councils alone, since it has been established that they have often erred and contradicted themselves), I am bound by the Scriptures that I have adduced, and my conscience has been taken captive by the Word of God; and I am neither able nor willing to recant, since it is neither safe nor right to act against conscience. God help me. Amen.”[32]

Notes

1. With an earned doctorate of the Sacred Scriptures and a lifelong concern with public education and scholarship, Luther was in no sense a censorious “book-burner”; the Elster Gate event was purely symbolic. See John Warwick Montgomery, “Luther, Libraries, and Learning,” Library Quarterly [University of Chicago] 32 (April 1962), reprinted in John Warwick Montgomery, In Defense of Martin Luther (Milwaukee, WI: Northwestern, 1970), 114–39.
2. “ ‘Canon law’ refers to the body of ecclesiastical rules or laws imposed by [church] authority in matters of faith, morals, and discipline” (“Canon Law,” in Oxford Dictionary of the Christian Church, ed. Frank L. Cross [New York: Oxford University Press, 1957]).
3. See Duncan B. Forrester, Christian Justice and Public Policy (Cambridge: Cambridge University Press, 1997), 210–14, and my critical review of this book in the on-line Global Journalof Classical Theology, vol. 2, no. 2 (www.trinitysem.edu).
4. Weimarer Ausgabe (the standard critical edition of Luther’s writings in German and Latin), Briefswechsel, 2, 234.
5. E. G. Schwiebert, Luther and His Times (St. Louis: Concordia, 1950), 490–91.
6. Ibid., 20.
7. Weimarer Ausgabe, 2, 217.
8. Ibid., 5, 32.
9. Ibid., 6, 459.
10. Ibid.
11. Ibid., 8, 540-41.
12. The latter was the psychoanalytical diagnosis of Harvard University’s Erik Erikson (Young Man Luther), made famous in John Osborne’s dramatic hit “Luther.” This portrait of the Reformer has been thoroughly exploded; see Montgomery, In Defense of Martin Luther, 14–15.
13. Stephan Kuttner, “Reflections on Gospel and Law in the History of the Church,” in Studies in the History of Medieval Canon Law, ed. Stephan Kuttner (Aldershot, UK: Variorum, 1990), 9:207–8.
14. Peter Shannon, “The Code of Canon Law, 1918–1967,” Concilium 8 (1967): 26-30. See also Rudolf Pesch, “The New Testament Foundations of a Democratic Form of Life in the Church,” Concilium 3 (1971): 48-59.
15. Kuttner, “Reflections on Gospel and Law in the History of the Church,” 201.
16. Schwiebert, Luther and His Times, 20.
17. Weimarer Ausgabe, 40, II, 10.
18. R. Scott Clark, “Regensburg and Regensburg II: Trying to Reconcile Irreconcilable Differences on Justification,” Modern Reformation 7 (September-October 1998): 6 (italics his).
19. Weimarer Ausgabe, 36, 25, 29–31.
20. C. F. W. Walther, The Proper Distinction between Law and Gospel, ed. and trans. W. H. T. Dau (St. Louis: Concordia, 1928), Theses 5, 9, 12, 14, 16, 20, 25.
21. Cf. Timothy J. Wengert, Law and Gospel: Philip Melanchthon’s Debate with John Agricola of Eisleben over “Poenitentia” (Carlisle, UK: Paternoster, 1997).
22. Joseph Stump, The Christian Faith (Philadelphia: Muhlenberg, 1942), 309–10. See also John Warwick Montgomery, Law and Gospel: A Study Integrating Faith and Practice, 2d ed. (Edmonton: Canadian Institute for Law, Theology and Public Policy, 1994), chapters 1–4.
23. For John Calvin, the third use of the Law was the most important—a reflection, doubtless, of his particular stress on Old Testament Law and God’s sovereignty. See John Warwick Montgomery, Crisis in Lutheran Theology, rev. ed. (Minneapolis: Bethany, 1973), 1:124–27.
24. Cf. Emil Brunner, The Divine Imperative, trans. Olive Wyon (Philadelphia: Westminster, 1947), Book 3; John Warwick Montgomery, The Shape of the Past, rev. ed. (Minneapolis: Bethany, 1975), 358–74; and idem, Human Rights and Human Dignity, rev. ed. (Edmonton: Canadian Institute for Law, Theology and Public Policy, 1995), 198–99.
25. Rudolf Sohm, Kirchenrecht, 2 vols. (Leipzig: Duncker and Humblot, 1892); and idem, Das altkatholische Kirchenrecht und das Dekret Gratians (Leipzig: Duncker and Humblot, 1918).
26. See A. L. Richter, ed., Die evangelischen Kirchenordnungen des sechszehnten Jahrhunderts, 2 vols. (Weimar: Verlag des Landes-Industriecomptoirs, 1846). See also W. Maurer, “Reste des kanonischen Rechtes im Frühprotestantismus,” Zeitschrift der Savigny-Stiftung (1965): 190-253; and Jaroslav Pelikan, “Verius servamus canones,” Studia Gratiana 11 (1967): 367-87.
27. Cf. the famous statement of Pope Leo X (whose indulgence sales in collusion with Albrecht of Brandenburg precipitated the posting of the 95 Theses and who issued the bull of excommunication against Luther): “God has given us the papacy: let us enjoy it while we live.”
28. Henry E. Jacobs, The Lutheran Movement in England during the Reigns of Henry VIII and Edward VI (Philadelphia: G. W. Frederick, 1890); and N. S. Tjernagel, Henry VIII and the Lutherans (St. Louis: Concordia, 1965).
29. For example J. H. Boehmer, Jus ecclesiasticum Protestantium, 6 vols. (1714). It is sad to read in the autobiography of F. R. Barry, Bishop of Southwell during World War II, the consequences of his ordaining two refugee German Lutheran pastors to fill gaps in his diocese because of the war service of his clergy. Though they preached the “pure word” of God, it was “totally incomprehensible to a middlebrow English congregation and no parish could stand it for very long at a time” (F. R. Barry, Period of My Life [London: Hodder & Stoughton, 1970], 151).
30. Richard H. Helmholz, Roman Canon Law in Reformation England (Cambridge: Cambridge University Press, 1990); and idem, The Spirit of the Classical Canon Law (Athens, GA: University of Georgia Press, 1997).
31. H. L. A. Hart, The Concept of Law (Oxford: Clarendon, 1961), chapters 5–6. Cf. John Warwick Montgomery, “Why a Christian Philosophy of Law?” in Christian Perspectives on Human Rights and Legal Philosophy, ed. Paul R. Beaumont (Carlisle, UK: Paternoster, 1998), 80.
32. Weimarer Ausgabe, 7, 836–38. See Gordon Rupp’s excellent treatment of this event in Luther’s Progress to the Diet of Worms, 2d ed. (New York: Harper Torchbooks, 1964), 96–99.