A WILDERNESS OF CASUISTRY
In 1957, the great Reformation historian Johannes Heckel called Luther’s two-kingdoms theory a veritable Irrgarten, literally “garden of errors,” where the wheats and tares of interpretation had grown indiscriminately together. Some half a century of scholarship later, Heckel’s little garden of errors has become a whole wilderness of confusion, with many thorny thickets of casuistry to ensnare the unsuspecting. It is tempting to find another way into Lutheran contributions to legal theory. But Luther’s two-kingdoms theory was the framework on which both he and many of his followers built their enduring views of law and authority, justice and equity, society and politics. We must wander in this wilderness at least long enough to get our legal bearings.
Luther was a master of the dialectic — of holding two doctrinal opposites in tension and of exploring ingeniously the intellectual power of this tension. Many of his favorite dialectics were set out in the Bible and well rehearsed in the Christian tradition: spirit and flesh, soul and body, faith and works, heaven and hell, grace and nature, the kingdom of God versus the kingdom of Satan, the things that are God’s and the things that are Caesar’s, and more. Some of the dialectics were more uniquely Lutheran in accent: Law and Gospel, sinner and saint, servant and lord, inner man and outer man, passive justice and active justice, alien righteousness and proper righteousness, civil uses and theological uses of the law, among others.
Luther developed a good number of these dialectical doctrines separately in his writings from 1515 to 1545 — at different paces, in varying levels of detail, and with uneven attention to how one doctrine fit with others. He and his followers eventually jostled together several doctrines under the broad umbrella of the two-kingdoms theory. This theory came to describe at once: (1) the distinctions between the fallen realm and the redeemed realm, the City of Man and the City of God, the Reign of the Devil and the Reign of Christ; (2) the distinctions between the sinner and the saint, the flesh and the spirit, the inner man and the outer man; (3) the distinctions between the visible Church and the invisible Church, the Church as governed by civil law and the Church as governed by the Holy Spirit; (4) the distinctions between reason and faith, natural knowledge and spiritual knowledge; and (5) the distinctions between two kinds of righteousness, two kinds of justice, two uses of law.
When Luther, and especially his followers, used the two-kingdoms terminology, they often had one or two of these distinctions primarily in mind, sometimes without clearly specifying which. Rarely did all of these distinctions come in for a fully differentiated and systematic discussion and application, especially when the jurists later invoked the two-kingdoms theory as part of their jurisprudential reflections. The matter was complicated even further because both Anabaptists and Calvinists of the day eventually adopted and adapted the language of the two kingdoms as well — each with their own confessional accents and legal applications that were sometimes in sharp tension with Luther’s and other Evangelical views. It is thus worth spelling out Luther’s understanding of the two kingdoms in some detail, and then drawing out its implications for law, society, and politics.
John Witte, Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge, United Kingdom: Cambridge University Press, 2002) ,94-95.