Lutheran Theology and Secular Law

The Work of the Modern State

Marie A. Failinger, Ronald W. Duty, Marie A. Failinger, Ronald W. Duty

• Verlag: Routledge
• Jahr: 2018
• ISBN:
  9781351996075
• Auflage: 1
• Thema: Law
• Thema: Jurisprudence

This collection brings together lawyers and theologians in the U.S. and Europe to reflect on Lutheran understandings of the political use of the law by secular governments. The book furthers the intellectual conversation about how Lutheran insights can be used to develop jurisprudence and specific solutions to legal issues in which there is strong conflict. It presents the basic theological and interpretive assumptions of the Lutheran tradition as they may inform the creation of legislation and judicial interpretation at local, national and international levels. The authors explore Luther's conception of the foundations of modern secular law and understanding of vocation. The work discusses the application of Lutheran theological principles to contemporary issues such as the war on terror, native land rights, property law, family law, church and state, medical experimentation, and the criminal law of rape, providing ethical insights for lawyers and lawmakers.

Part I
Our secular age

1 The contribution of law to the secularization of politics

Impulses from Luther’s doctrine of the two regimes

Stefan Heuser

In this chapter, I want to ask a small question that has major implications for modern social life. Luther’s 1523 treatise “Von weltlicher Obrigkeit” is commonly translated into English as “On Secular Authority.” But is “secular authority” in today’s understanding of those words what Luther had in mind when he wrote his treatise?

How we answer this question will take a different shape depending on what narrative of secularization we use, and on our underlying concepts of secularity. The huge amount of scholarly work on this topic has added a wealth of empirical data, contextual differentiation and clarification to Weber’s original secularization thesis.¹ Some of this work has led to comprehensive critiques of Weber’s fundamental argument that often make arguments observing “de-secularization”² or even “resurgence of religion”³ in modern life. For some, the term secularization still has a polemical undertone that raises contested issues such as the interrelationship between processes of modernization (such as differentiation, individualization, rationalization or economization) and secularization (which most authors interpret as religion’s loss of cultural and social significance).⁴ From a theological perspective, key terms like “after Christendom,” “beyond secular order,” or “the post-Christian society” have become cornerstones of recent research into secularization processes.⁵

In his seminal book, A Secular Age, Charles Taylor distinguishes three interwoven modes of secularity in which secularization takes shape as a process that transforms both practices and imaginaries and generates ways that one can imagine and relate to oneself, to others and to the world in the context of modernity. These modes of secularity are the retreat of religion from public spaces, the decline of religious belief and practice, and the rise of conditions of belief that render faith in God an option among others.⁶

Against the backdrop of such “master narratives,”⁷ I will seek to explore a specific aspect of secularity in this paper, namely, the secularization of political power by means of law. This argument might come as a surprise to those who think that the secularization debate mainly concerns itself with the transition or transformation of ecclesial, religious power into political power. I will contend, however, that political power is in permanent need of secularization just as much as religious power, and that this need is one of the driving forces of Luther’s thoughts on law in his treatise On Secular Authority, in numerous sermons and biblical pieces like his exegesis of Psalm 127 (1532), and in his earlier writings On the Freedom of a Christian and To the Christian Nobility of the German Nation (both 1520).

For Luther, the “world” is the term for the place where human beings worship God, and where God works on them―in a twofold way: inwardly and outwardly, through two “regimes.”⁸ From Luther’s perspective, the “saeculum” signifies the epoch which God grants to human beings and to all his creatures, and in which his “aeternum” begins to grow. It is an interim, messianic time in which the reign of Christ takes shape in the preservation of life through the regime of the law and in the transformation of human hearts through the regime of the Gospel. According to Luther, the “world” is hence a term full of ambivalence, but also of messianic expectation and theological dignity—a line of thought that can be traced back to Augustine’s concept of the two cities.⁹ It is God himself who grants the world its secularity by starting his transforming and liberating work right here. For Luther, God liberates human power from usurping divine authority by rendering it truly secular in the medium of law. With these thoughts, rather distinct from Augustine’s, Luther has introduced a powerful political pattern into the discourse on political authority, and with it a strong secularization impulse. For him, only a political leader who lets himself be ruled by God through law is truly secular―a pattern now transformed into the proceduralization of democratic politics through law.

In this chapter, I will take up some of Luther’s thoughts on secular authority in order to discern the insights which he can offer us about a continuous “re-secularization” of political power. In the first part of this argument, I report on recent developments in what could be called a de-secularization of political power, developments that find their theoretical echoes in the renaissance of political theology, as proposed by Carl Schmitt and his contemporary followers.¹⁰ In the second part, I will envision insights which Luther’s theology may provide for a re-secularization of political power. In short: the challenge that we face today when we are dealing with the interrelation of law and politics is whether we want to follow Carl Schmitt or―as I shall claim―Martin Luther.

Developments in the de-secularization of political power

During the second half of the twentieth century, developments in the fields of constitutional law and the law of peoples led to a normative domestication of politics that is now on the retreat.¹¹ Examples of recent political decisionism in the fields of warfare, terrorism and migration, economics and finance indicate that since at least 2001, in Western democracies, politics has been in many respects turning the tables and gaining supremacy over constitutional and international law.¹² By acting in the name of distinct group interests or values instead of through the medium of law, and by letting particular group interests and capacities influence or even dominate legislation, politics has contributed to a diminishment of public spaces and procedures in which secular power can be generated.¹³ This is in part due to deficits in national legal regulations, to lacunae in the global legal order or to incidences of legal uses of power that challenge the limits of legal orders.¹⁴

But the decoupling of politics from the legal order can occur, and has recently occurred, when politics refrains from letting itself be ruled by legal procedures, e.g. in states of exception or emergencies, claiming sources of legitimacy or sovereignty other than law.¹⁵ Those who exert power thus do so because of their charisma or capacities, or in the name of alleged group values, without sufficiently including the voices of everyone who will be affected by their decision, particularly minorities. The more the state of exception becomes the starting point for political action, the less law fulfils the specific function which I should like to attribute to it, namely safeguarding and processing the generation of secular political power over against forms of power that draw on other sources, e.g. religious, mythical or financial sources.¹⁶ This freeing of politics from normative domestication can even pretend to draw legitimacy from the rise of political, economic and environmental problems to which the international order and its institutions struggle to respond.¹⁷

At least four developments in the fields of national and international politics promote decisionistic conceptions of politics and render deliberative politics less attractive:

• First, politics increasingly struggles to integrate multicultural societies through the medium of liberal constitutional law.

• Second, liberal politics and law give the impression that they face problems in providing or inventing remedies for the fractures and damages that capitalism causes to societies.

• Third, administrative systems create and enforce conformities that swallow political action and initiatives.

• Finally, political institutions prove themselves less and less capable of generating solutions for international challenges such as migration, as they could by developing constitutional frameworks for the politics of human rights.

In today’s political climate, populist movements are on the rise, and they call for a strong, homogenous and exclusivist nation-state in Europe and elsewhere.¹⁸ They threaten the secularity of politics by decoupling it from law, by transforming law into an instrument of exclusion and homogenization, and by drawing on pre-political sources of authority.¹⁹ At the same time, political leaders appear who claim to represent the “will” of a homogenous nation. Europe offers many case studies of this phenomenon today. These ascendant leaders claim that political authority needs to be based on factual distribution of capacities as well as on charismatic, metaphysical, mythical or even religious sources rather than on deliberative processes. They (and/or their parties) claim to represent nations who find themselves constituted and joined together by external threats and internal, pre-political bonds.

Consequently, many nations throughout the world have seen the revival of the idea that mass democracies need to be led by politicians whose decisions represent identitarian social movements, who no longer confine themselves to the legally mediated procedures of deliberation and decision-making within pluralist societies. Instead, the new right-wing movements base the legitimacy of political authority on the idea that charismatic political leaders sense and realize the will of allegedly homogenous masses. They do not answer to the experience of social disintegration, of systemic, specifically economic imperatives, of functional differentiation, and of heterogeneity by binding politics to just procedures, to a commitment to the inclusion of others, to the public use of reason, and to modes of recognition.

Rather, the answer these politicians offer is the expulsion of others, and placing the national faith in an identitarian, value-based politics that embraces the sharp distinction between friend and enemy. “The political” as Carl Schmitt sketched and conceptualized it, is back on the scene: it is constituted by the self-identification and self-assertion of political communities against their “enemies.”²⁰ These political leaders essentially call for a revival of Carl Schmitt’s political theology with its theological vindication, and mythical transfiguration of the friend-enemy-scheme.²¹ The influence of Schmitt’s thinking can be found in the works of right-wing and left-wing authors alike. As just examples, Samuel P. Huntington’s classic Clash of Civilizations²² was significantly informed by Carl Schmitt’s categories, and other influential thinkers such as Giorgio Agamben²³ or Chantal Mouffe²⁴ continue to draw on his thought.

As a result of these (pre-)political “movements,” the legally constituted secularity of political authority is widely endangered, and with it the secularity of constitutional law as medium of democratic power formation.²⁵ Authoritarian conceptions of “the political” and of power are on the rise. At the same time, those who cling to the project of integrating pluralist societies through the medium of democratic, liberal constitutions stress the importance of keeping politics secular.²⁶ In that cause, they even appeal to the secularization impulses from within religious traditions, and to the interests religions have in the secularity of the political sph...

Inhaltsverzeichnis

• Cover Page
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Notes on contributors
• Preface
• Acknowledgements
• PART I Our secular age
• PART II Lutheran theology and legal philosophy
• PART III The individual and the state
• PART IV International law and human rights
• PART V Domestic legal issues
• PART VI Professionals, law and neighbor-love
• Index of subjects
• Index of proper names