On Secular Governance

Lutheran Perspectives on Contemporary Legal Issues

Ronald W. Duty, Marie A. Failinger

• Publisher: Eerdmans
• Year: 2016
• ISBN:
  9781467445221
• Topic: Theologie & Religion
• Subtopic: Christliche Theologie

This volume puts forth an unprecedented, distinctive Lutheran take on the intersection of law and religion in our society today. On Secular Governance gathers the collaborative reflections of legal and theological scholars on a range of subjects — women's issues, property law and the environment, immigration reform, human trafficking, church-state questions, and more — all addressed from uniquely Lutheran points of view.

Part I

Framing the Problems of Law and Theology

Chapter 1

Nomos and Narrative in Civil Law
and Theological Ethics

W. Bradley Wendel

This essay on authority and interpretation seeks to establish a fruitful connection, or at least some instructive parallels, between the domains of civil law and Lutheran social ethics.1 The practical authority of scripture is one of the foundations of Lutheran theology, but right away one can perceive the problem of locating practical authority in a text.2 For anything to be an authority (practical or theoretical) it must create new reasons for someone to do something. A person subject to a practical authority must not act on what she perceives to be the thing to do, all things considered; rather, she must follow the directive of an authority because that is what it says to do.3

That is the case whether the authority is an institution like the Roman Catholic Church, a complex set of institutions such as the political and legal system of the United States, or a set of books compiled into a canon of scriptures. For all but the most straightforward cases of personal authority — for instance, a parent saying to a child, “Put on a helmet before you ride your bicycle!” — those subject to the directives of an authority may encounter the problem of interpretation. One must work out exactly what the authority commands or forbids. As an example, does a criminal prohibition on “carrying” a firearm in connection with a drug transaction prohibit driving around with a gun in the glove compartment of a car?4 The trunk? The U.S. Constitution prohibits cruel and unusual punishment and forbids state governments to deny citizens the equal protection of the law. Does this mean the death penalty is unconstitutional?5 Or particular means of putting condemned prisoners to death? What about a mandatory sentence of life without parole? Are they prohibited for some defendants (e.g., juveniles) but not others?6 Outside the context of the criminal law, consider the First Amendment to the Constitution, which says that Congress shall not abridge the freedom of speech. Do state (not Congressional) restrictions on the sale of violent video games to minors abridge the freedom of speech?7 What about a state law prohibiting pharmaceutical companies from using information about the patterns of prescriptions written by doctors to make more effective marketing pitches — does the sale of information constitute the freedom of speech?8 Even if no one seriously questions the power of the U.S. Constitution to create reasons, there can be considerable uncertainty about how a provision of the Constitution bears on a particular decision.

The issue is considerably more subtle for Christians in the Lutheran tradition for whom it is not really a text, per se, that is the authority. Luther was careful to assert the distinction between the scriptures and the Word of God.9 The Bible is the written Word of God, but the Word of God is also proclaimed in the world, and present eternally as the second person of the Trinity, which became personally incarnate in the world in Jesus Christ.

Other Protestants, particularly of a fundamentalist orientation, tend to identify the Word of God with the Bible (generally in its original languages), and accordingly are drawn to an account of interpretation that emphasizes the perspicuity of the written text and the authority of the plain meaning of biblical language.10 There is undoubtedly a strand of the Lutheran tradition that emphasizes the plain meaning of scripture.11 Luther’s critique of the Roman Church’s ordering of tradition over scripture in the hierarchy of authority, and the resulting principle of sola scriptura seemed to imply that the text of the Bible itself was authoritative and, therefore, readily understandable without the intervening interpretive authority of the church and its teaching tradition.12

But sola scriptura does not entail literalism. One of the best-­known principles of Lutheran hermeneutics is the christocentric principle: Scripture and the church’s teaching tradition should both be tested by the criterion of, “Does it urge (or inculcate [treiben]) Christ?”13 This principle is, in turn, generally elaborated in terms of the dualistic revelation of the reign of God in the world as both law and gospel.14 God’s Word conveys both judgment by God’s law and salvation by God’s grace. It is therefore not an authority in the simplistic command-­sanction model that is sometimes used (incorrectly) to describe positive, civil law.15 God is at work in the world through, among other things, the institutions of civil government, including the law of the state — this is one response to the presence of sin and evil in the world, one mode of governance within God’s twofold rule.16

The division Luther described is not just between the realms of earth and heaven (as Reinhold Niebuhr wrongly believed), with God pretty much leaving earth to its own devices while God concentrates on redeeming fallen humanity in a world to come.17 Rather, God works everywhere in two different, complementary ways, by telling us what to do and keeping us oriented toward God (law) and promising us the unconditional gift of grace wholly apart from whether we comply with the requirements of law (gospel).18 The law protects us from the illusion that we are no longer in need of justification, and avoids the problem of “cheap grace,” but it is essential never to believe that one can earn the possibility of communion with God by following God’s law. The free gift of grace alone is the sole means of justification in the sight of God (coram Deo).

Read with a law/gospel lens, the interpretation of scripture becomes a matter of organizing our understanding of the story around the revelation of God’s promise. Interpretation is “normed by [its] ...

Table of contents

• Contributors
• Acknowledgments
• A Note on Citations of Legal Materials
• Part I: Framing the Problems of Law and Theology
• Part II: Reflections on Property and Larger Creation: Property Law and the Environment
• Part III: Lutheran Reflections on the Law of Human Dignity and Human Need
• Part IV: Lutherans in Their Role as Citizens
• Table of Cases
• Index of Names and Subjects