Posts
The
first thing we do, let's kill all the lawyers
-
Dick the Butcher; Henry VI, William Shakespeare
On
Law and Power, Johannes Althusius
This short book covers aspects of Althusius’ work specific
to the title. There is nothing of
substance in the book about the inherent subsidiarity and voluntary governance
relationships that is found in Althusius’ political construction, but this is
not the purpose of the book. I will dive
into this book in a subsequent post; I couldn’t get past one point in a
footnote in the introduction, written by Stephen J. Grabill.
The footnote is a quote from legal historian Harold Berman
regarding the dramatic change in the role of the jurist during the sixteenth
century; forgive the length:
“Together with these rather obvious
links between the new legal science and the new political order in Protestant principalities,
there existed a more subtle link: the exaltation of the political role of the
legal scholar. In pre-Reformation Europe
as well, legal scholars had played an important role as advisors to popes,
emperors, and kings. They also had
sometimes been asked by the judges to decide cases. Never before, however, had legal scholars
been recruited as councilors and judges so systematically and on such a large
scale as in the sixteenth-century German Protestant principalities. This was due in part, of course, to purely
political factors; but it was also due in part to the character of the new
legal science, which was so intellectually complex and intricate as to require
professional expertise to articulate and elucidate it.”
The loss of a common moral arbiter required the drive for
legal complexities and intricacies. Without a common cultural tradition,
something else must provide governance.
Governance was to be found in the work of legal scholars.
The
Legacy Of The Protestant Reformation In Modern Law, John Witte, Jr. Witte writes of the legal ramifications of
the Reformation. As usual, my intent is
not to get into the theology of the topic, but the effect on the decentralized
governance of pre-Reformation Europe:
This revolutionary call toppled
many traditional church structures and practices in Germany after 1517. The
Mediaeval canon law books were burned. Church courts were closed.
What does Witte see as a result of this toppling?
New Lutheran churches, clerics and
congregants were treating their new freedom as licence for all manner of
spiritual experimentation and laxness.
Widespread confusion reigned over preaching, prayers, sacraments,
funerals, holidays and pastoral duties.
There was no common moral authority, and there was nothing
yet in place to replace this authority.
Many subjects traditionally
governed by the church’s canon law now remained without effective governance.
Something had to replace these. Without a commonly accepted moral arbiter,
each principality had to make it up as they went along. This necessitated legal scholars – many legal
scholars.
Lutheran jurists, in turn, joined
the theologians in crafting hundreds of ambitious new reformation ordinances
for the German cities and territories. By 1570, every major Lutheran land had
comprehensive new state laws in place, governing public and private matters
spiritual and temporal life alike.
In this order, there was no room for traditional, decentralized
governance institutions:
For Luther, families, churches and states
were the three natural orders or estates of the earthly kingdom, but only the
state has formal legal authority, the power to pass laws.
The magistrate must not only pass
laws on the basis of God’s natural law, he continued, but also exercise God’s judgment
and wrath against human sin and crime.
Luther based this on the common – albeit
faulty – interpretation of Romans 13.
Human (non-violent) sin was now in the jurisdiction of the magistrate,
not the Church.
The state depended on the church
for prophetic direction but it took over all legal jurisdiction from the
church.
And this required legal scholars – many legal scholars:
This new Lutheran political theory
was reflected in the hundreds of comprehensive new state civil laws that
replaced traditional church canon laws in early modern Germany and Scandinavia.
These laws governed not only the secular, but also the
religious; the church was not even allowed to govern itself:
New church laws passed by the state
established religious doctrine, liturgy, sacraments, worship, holy days, church
polity, property, parsonages, endowments, tithing, burial and cemeteries.
New criminal and public morality
laws governed church attendance, tithe payments and Sabbath observance and
prohibited blasphemy, sacrilege, witchcraft, sorcery, magic, alchemy, false
oaths and similar immoral offenses.
Conclusion
…the legal legacy of the
Reformation can still be seen in modern laws on the family, education, social
welfare, crime, and church-state relations.
Decentralization in governance; separation of moral
governance from the authority of civil governance. There are other important factors, but these
were certainly keys to a reasonably libertarian law.
All very interesting as someone who has read a bit on the spiritual/doctrinal part of the Reformation but nothing on the political/civil effects, other than broad statements about peasant revolt in Germany or Calvin reluctantly agreeing for the government to execute heretics.
ReplyDeleteThis quote from your article is eye opening to say the least.
"New church laws passed by the state established religious doctrine, liturgy, sacraments, worship, holy days, church polity, property, parsonages, endowments, tithing, burial and cemeteries.
New criminal and public morality laws governed church attendance, tithe payments and Sabbath observance and prohibited blasphemy, sacrilege, witchcraft, sorcery, magic, alchemy, false oaths and similar immoral offenses."
It causes me to ask a follow up question. Was this kind of change in law after the Reformation necessary, a straight cause and effect, or was it coincidental? Meaning there were a variety of ways law could have been shaped and organized and this was but one of many options that occurred due to unidentified factors?
RMB, I can only offer speculation. I think it is safe to say that the Reformation pitted neighbors against neighbors. Given the meaning of the Roman Catholic Church at the time, the Reformation could not avoid raising emotion.
DeleteSuch laws, it seems to me, were used as a tool of force to bring conformity. Of course, what this meant is either war, persecution, or relocation for religious refugees.
Further, there were princes who saw the opportunity of release from the sharing of power with Rome; I think this was true for both Catholic and Reformed princes (as Rome was weakened, it weakened the authority even over the Catholic jurisdictions).
The issues were formally "resolved" (if I could use that word) via the Peace of Westphalia, where it was made clear that the religion of the prince would be the religion of his territory.
In other words, I think force was the only way to resolve the issue - there was no way that a Church universally accepted would be decentralized without many of the adherents taking issue.
This is really interesting. The legal scholars became the new clergy of a new religion. Just look at the pseudo-religious outfits judges wear. Get rid of God and the state becomes the highest authority, the god of the atheists.
ReplyDelete"Decentralization in governance; separation of moral governance from the authority of civil governance. There are other important factors... " - BM
Very true. If we look to the life and death of the medieval order of Europe for guidance on how to create a new lasting order of liberty, I think that we find that decentralization in the political order is good, but decentralization in everything is not. The magic of the middle ages it seems rested on decentralized political authority (the various kings, princes, guilds), yes, but also a centralized moral authority (the Church). It seems that once this central moral authority was fragmented, it led to (or quickened) the rise of liberty's enemy, the state.
Was centralized moral authority incidental to medieval success or was it a crucial component? Can we build a libertarian order without a central moral authority? Does liberty require a central moral authority and a decentralized polity? Perhaps the moral authority of the middle ages wasn't as centralized as we (or at least I) think? These are the questions I've been considering lately, and I don't have any answers.
"Perhaps the moral authority of the middle ages wasn't as centralized as we (or at least I) think?"
DeleteATL, to my reading (and I am still quite the layman), the tide ebbed and flowed - different at different times, different at different places.
What seems clear: basically until 1517 the "in" club looked to Rome (there were always a few rebels); after 1517 but before sometime in the mid-eighteenth century, everyone in the "in" club considered themselves Christian (again, I suspect a few rebels). In all cases, there were those who held to the Church (or church) who lived a less-than-holy life, but the general tenor of society upheld Christian morals as of value.
There was this much in common, at least from all that I have read.
Of course, the dates aren't hard and fast - no one living in them thought about such sudden turning points.
I would say that Protestantism, having taken away the authoritative source of doctrine (the pope), was forced by necessity to substitute the state. Somebody had to enforce the doctrinal interpretations - after all, the scriptures were not going to interpret themselves.
ReplyDeleteI would so no. No one had to enforce doctrinal interpretations by force. That is the primary failing of the Reformers if I had name one.
DeleteThe church from the start was a decentralized organization. It was anarchic in the way that we are think of that word. There was no overarching authority. We see from scripture that Paul, Peter, James, and John all wrote letters that were authoritative to the church. But none of them ruled in the day to day operation. They set the doctrine and encouraged the churches to follow. However, there was no coercive element to church membership.
We get one example of someone being kicked out of the church in 1 Corinthians but he is reinstated in 2 Corinthians. But there was no discipline or punishment the Corinthian church gave to that man. He just wasn't allowed to worship with them until he quit boning his stepmom.
Doctrine is enforced at the individual church level and personal level by elders through dialogue. That is the only method given, found in Titus 2.
The church didn't have to join at the hip with the state. They just did for reasons that I am sure seemed right at the time. Maybe they had no choice given the circumstances. I don't know.
RMB - you have, apparently, forgotten about Acts 5.
DeleteMy point was there was no coercion. Did you mean Acts 15? Not sure how Acts 5 proves anything about doctrinal enforcement. God strikes 2 people dead for lying. I think it is obvious that God is in authority over the church and acts as He wills.
DeleteIf you meant Acts 15, a council met. A decision was made. A letter was written to be sent to the churches. If they didn't comply no one came to force them to or drag them off into prison.
I also didn't forget Acts 20 where Paul calls the elders of the church of Ephesus to guard and run their own church.
"I would say that Protestantism, having taken away the authoritative source of doctrine (the pope), was forced by necessity to substitute the state."
DeleteThis brings to mind something I have been thinking about for some time. I first heard Hoppe say it, but I suspect others have as well.
Actually what Hoppe said was in reference to the religious wars post-Reformation and pre-Westphalia: these were not religious wars but state-building / creating wars (he said something like this and much more eloquently).
So perhaps it wasn’t “Protestantism” that was “forced” to do anything; perhaps it was kings who used Protestantism in order to usurp authority. Now, as I write these words, I have long known this to be true. Yet I still, for some reason, hold to this idea of religion leading the political.
It was the political that led the religious. I have some work to do to internalize this such that it comes out naturally in my writing on such topics.
Bionic, I would agree with you on that conclusion. We see this over and over again throughout history. In Josephus, for example, we read of Nimrod that he "gradually changed the government into tyranny, seeing no other way of turning men from the fear of God, but to bring them into a constant dependence on his power". We also see in 1 Kings 12:27-28 that Jeroboam thought "If this people go up to do sacrifice in the house of the Lord at Jerusalem, then shall the heart of this people turn again unto their lord, even unto Rehoboam king of Judah", so he created his own state religion.
DeleteReligion has often been used by the state to exercise greater control over the populace. It's really no wonder that many libertarians reject religion out-of-hand. Personally though, I think that is akin to tossing the baby out with the bathwater.
Woody,
DeleteThanks for the Josephus reference. I've thought about looking into this early Jewish historian, but it hadn't quite reached the top of my list yet. Doesn't he claim that James (James the Just) is the brother of Jesus? Or am I remembering that wrong?
To your point about religion, I think you are exactly right. I think the same goes for private property, international trade, the stock market, lending with interest, and money (among many many others I'm sure).
A lot of people without training in (or at least some exposure to) sound economics see that the government and those privileged by it leverage all these to benefit a class of parasitic overlords, and so they condemn them out of hand. As with most dangerous mistakes and lies that are widely held, there is an element of truth which acts as an accelerant.
To be fair, it takes some abstract thought to see how these would function or what form they may take in the absence of state interference, and maybe most people are just not capable of thinking on that level.
Also there is a case to be made that considering the evolution of state power, Christianity, however corrupt it's leaders had become by the dawn of the Enlightenment, held back states more than it had propped them up. The absolute monarchs of the late Holy Roman Empire couldn't dream of the total power Napoleon had achieved with his atheistic army of apostates.
"...Christianity, however corrupt it's leaders had become by the dawn of the Enlightenment, held back states more than it had propped them up."
DeleteYes. We must always ask: compared to what? One will often hear about the number of people killed in (so-called) wars of religion (and by this, they include Christianity and Islam). Compared to what?
I don't believe Stalin, Hitler, Mao, or Pol Pot bowed to Mecca or regularly made the sign of the cross.
That is true, Bionic. When people call religion on the carpet for all the religious wars, the hundreds of millions of people killed by atheists are rarely referenced.
DeleteOf course, atheism is a religion - a religion of non-belief - so we could say that these were all religious wars ...
Is it not nearer the mark to say that by the time of the Reformation feudal lords had arrogated sufficient territory and power as to be able to force a split with the Catholic Church ? The late medieval feudal lord found himself in a position to create at least the embryonic form of state power, declare himself its monarch, and expropriate from the Catholic Church a share of its wealth and certainly its income. Was not Martin Luther really the first German nationalist just as Henry 8 was the first English nationalist, whose shared concern was establishing their territory as a nation state ? Is not the vast expansion of the legal bureaucracy simply the formation of an armature of power by which the newly arisen nation state exercised control over its subjects ?
ReplyDeleteYou would have to show me where Luther himself was a nationalist. That wasn't the focus of his effort but a reformation of church doctrine and practice. Others who followed him might have used the movement for nationalistic ends but my understanding was that wasn't interesting to Luther.
DeleteHenry VIII was simply a polygamist (really serial monogamist) who didn't want anyone telling him what to do. I don't know that he did it for nationalistic reasons. If so, any king or lord was a nationalist in their own right.
Victor, your premise is as I understand it - if you look to my reply in the thread immediately above, you will see that I still struggle to keep this in view - perhaps one of the still remaining bits of indoctrination in my head.
DeleteAs to Luther, he didn't want any of what followed. My understanding: he was reacting to the Church's embrace of many concepts of the Renaissance (among other "deviations"). He wanted to address the "Church," not divide it into many churches. But on this topic, I am relatively ignorant.
BM: "Decentralization in governance; separation of moral governance from the authority of civil governance. There are other important factors, but these were certainly keys to a reasonably libertarian law."
ReplyDeleteAbsolutely.
Also: This complexity needs minds able to contain it. Average IQ at this time was rising rapidly (peaking in 1800-1850)
Too many lawyers or not near enough lawyers?
ReplyDeleteWith Isaiah 33:22 and James 4:12 (that is that there is Only One lawgiver and thus only one law) in mind, there's not one attorney today is a *law*yer.
Rather they're legalers, principally representing the biblically seditious Constitution and its supplementary edicts. In turn, more often than not legalizing (or defending) what Yahweh, God of the Bible, has determined unlawful (e.g., sodomite "marriages") and making illegal what God has determined to be lawful.
For more, see online blog article "Lawyers vs. Legalers" at http://www.constitutionmythbusters.org/lawyers-vs-legalers/