Johann Oldendorp – Jurist of the Lutheran Revolution

“The purpose of law is that we may peacefully pass

through this shadowy life and be led to Christ and to
eternal life.” – Johann Oldendorp, Lexicon 1

{Texte produit par le cabinet d’avocats Harris & Greenwell situé à Corpus Christi au Texas}

Lutheran Protestantism’s Lawyer

What Martin Luther conceived and birthed, and Philip Melanchthon nourished, Johann Oldendorp
legitimized. The German jurist, Johann Oldendorp (ca. 1480-1567), was perhaps the most notable
among a number of lawyers and jurists who helped graft the nascent Lutheran belief system into
German law and established thereby a Lutheran or Evangelical order of law, politics, and civil
society. His contribution to the development of the law of the Protestant German states is
2

undeniable, though it is not necessarily well-known or well-publicized outside Germany. Yet the 3

German legal historian Roderich von Stintzing called him “one of the strongest legal figures of his
epoch,” one clearly “surpassing all others.” In his Law and Protestantism, Professor John Witte
4

dubs him “the most original and prolific jurist of the Lutheran Reformation.” As one of the leading
5

scholars of the history of law and religion, Harold J. Berman, summarizes it:

A whole generation of German’s leading jurists in the sixteenth century . . . came under
[Oldendorp’s] direct influence as students, colleagues, and correspondents. Generations of students
thereafter studied his legal, political, and moral writings, many of which were still being published
in the late seventeenth century and being used as textbooks in the universities. His basic
jurisprudential insights dominated German legal scholarship until the early Enlightenment. 6

“The Lutheran Reformation,” according to Witte, is “best seen as a watershed in the flow of the
Western legal tradition—a moment and movement that gathered several streams of German,
Roman, and Roman Catholic legal ideas and institutions, remixed them and revised them in
accordance with the new Lutheran norms and forms of the day, and then redirected them in the
governance and service of the German people.” From Germany, these ideas spread to Scandinavia,
7

England, France, and the Netherlands; and from England onto American shores. Because
Oldendorp was a figure of such dominance during an important part—this legal watershed—of
European history, his contribution to Western jurisprudence should not be minimized. In a manner
of speaking, Oldendorp was Luther in a black robe and a white horsehair wig.

Oldendorp’s Life

Oldendorp was born in the Hanseatic city of Hamburg—when is not known exactly, but probably
sometime between 1480 and 1488. He studied law for eleven years, first at the University of
8

Rostock between 1504 and 1508, and later at the University of Bologna from 1508-1515. It was in
Bologna where he was significantly affected by the new humanism. In 1516, after he was
9

graduated, Oldendorp was hired as professor of Roman law and civil procedure at the University of
Greifswald. Obviously, as a result of his education, he would have been intimately versed in Roman
law, and would have had some exposure to Canon Law. In addition, however, he had acquired a
significant knowledge of the classics, including the works of Plato, Aristotle, and Cicero. As result
of his interests in the new humanism, he developed close contacts with the leading German legal
humanists, including Claudius Cantiuncula (d. 1560) and Christophus Hegendorf (1500-1540). 10

Oldendorp was exposed to, and then influenced by, the Lutheran reform. Eventually, he became its
avid proponent, and in 1526 made a decision to dedicate his life to promoting the Lutheran cause.
The history of his professional life from that time is reflective of the turmoil in the political and
social life in the Germany in which he lived. He left the University at Greifswald and moved to
Rostock, and aligned himself with the Reformation party there. At Rostock, he became a leading
city official or syndic (Stadtsyndikus). In a flurry of activity, he helped to write reformation
ordinances (Reformationsordnungen), and served as superintendent for the Evangelical churches,
where he advanced the Lutheran reforms as they affected preaching, liturgical worship, and
ecclesiastical governance. Oldendorp also involved himself in the reorganization of seized Church
property, and in the creation of an Evangelical school and almshouse. Somehow in this flurry of
activity he even found time to write and publish works on the law. 11

Eventually, Catholic opposition forced him to leave Rostock, and in 1534 he left to Lübeck, where
he accepted the position of Stadtsyndikus for that city and also supervised the Evangelical churches.
Again, Catholic opposition to his efforts to usher in the reforms advocated by the Protestants caused
him to leave. He accepted a teaching position at the University of Frankfurt an der Oder in 1536,
and later took a post in Cologne in 1539, being invited by the Cardinal Archbishop of that city who
leaned toward the Reformer’s theology. In Cologne, Oldendorp had contact with the redoubtable
12

Melanchthon and Martin Bucer, the Strassburg reformer. Yet again, in the face of opposition to the
Reformers’ views, Oldendorp departed Cologne in 1541. He was hired as professor at the
University of Marburg, but later returned to Cologne, again at the invitation of the turncoat Cardinal
Archbishop Hermann von Wied. In 1543, he left Cologne again for Marburg, where he finally
13

settled down, and, for twenty four years, taught law at the University and advanced the Lutheran
cause until he died in 1567.

His situation at Marburg was ideal for him, as he obtained a concession from the University’s
governing body to deviate from the standard lecturing requirements expected of professors of civil
law. Instead of teaching the standard course based upon Justinian’s Corpus Juris Civilis and the
post-glossators (the so-called mos italicus), he was allowed to teach the Ius scripturae, or as he put
it, to “teach the laws with special attention to their just consequences and in their relationship to
God’s word, which, above all, must be pursued and taught.” During his tenure there, he was also
14

able to steer—with the approval of the University’s founder Landherr Philip the Magnanimous—
the teaching of law so as to be in greater accord with the Word of God (as the Lutheran’s
understood it). “The study of law,” he insisted “is the most important pursuit after God’s Word.”
15 16

Indeed, for Oldendorp “it was the Bible, and conscientious meditation on the same, that provided
the lynch pin for his theory of the sources of law and the relationship between law and equity.” 17
Oldendorp, along with his colleague and rector of the University at Marburg, Johannes Eiserman,
was one of the leading figures of what Professor Witte has identified as the “Marburg school” of
Lutheran jurisprudence. 18

Oldendorp was a prolific writer, and through a number of tracts and other works in German and in
more scholarly Latin he hammered out his jurisprudential views for public consumption. In the 19

main, his scholarly work was a synthesized amalgam of classical Greek and Roman, scholastic,
humanist, and Biblical thought. Eight volumes are jurisprudential in nature, while most of his other
works dealt with specific areas of law (such as property, inheritance, civil procedure, and family
life). He also published some commentaries on Roman law, a legal dictionary/encyclopedia, and
student textbooks and handbooks. Perhaps his most well-known German works are his Was billig
20

und recht ist and Ratmannspiegel. Among his Latin works may be mentioned his Isagoge iuris
naturalis gentium et civilis and his Divinae tabulae X praceptorum. Oldendorp’s most lasting
21

contributions were his development and promotion of a Lutheran or Evangelical “understanding of

the sources of law and the nature of equity and legal judgment.” And to these two contributions,
22

we will turn to next.

Oldendorp’s Theory of Law’s Sources: Positivism’s Nursemaid

In fashioning their jurisprudential theories, the Reformers were confronted with the need to explain
the sources of law in light of their rejection of much of the patrimony of the past, including the
discipline of legal scholasticism, the whole corpus of canon law, and the jurisdiction and law-
making authority of the Church. With their rejection of the jurisdiction of the ecclesiastical courts,
they also had to find a way to manage the merger of the traditionally separate jurisdiction of canon
law into the civil law. 23

In this vastly new environment in which the Lutherans placed themselves, Lutheran jurists
struggled to define the law, and find its sources. Oldendorp was no exception, and he offered his
own efforts at defining the notion of law, one that has a surprising positivistic flavor. In a departure
from the reason-predicated scholastic definition of law best exemplified by the definition of St.
Thomas Aquinas, Oldendorp identified “Law” (i.e., Recht or ius) with the sum total of legal norms,
24

which in turn are defined as the rules (i.e., Gesetz or lex) promulgated by authorities that command,
prohibit, allow, or punish human acts. In defining law without reference to reason, but only to the
25

will of the legislator, Oldendorp’s definition of Law had the flavor of modern legal positivism. 26

True, Oldendorp cannot be characterized as an absolute positivist avant la lettre. He acknowledged

that the positive laws of the civil authorities (leges rei publicae) were subordinate to the laws
conscience placed by God in the human heart. Drawing on Pauline teaching and on scholastic and
classical traditions, Oldendorp called this interior law the “law inside men,” or lex in hominibus, a
term he used synonymously with the law of nature (lex naturae) and the natural law (lex naturalis
or ius naturae). In this he appeared consistent with the perennial philosophy of law.
27

Though Oldendorp appeared to adopt traditional notions of law, he in fact significantly departed
from the scholastic synthesis that was the common teaching of the Catholic Church. The scholastic
teaching, perhaps best synthesized by St. Thomas Aquinas in his Summa Theologiae, distinguished
four categories of law: eternal law, divine law, natural law, and human law, which included both
canon law and civil law. While Oldendorp recognized the categories of human law and natural law,
28

he modified the scholastic teaching on the natural law and the divine law. Even more significantly,
he wholly ignored the existence of an eternal law and rejected the authority of the Church to
promulgate canon law. The impetus behind this tinkering with traditional teaching was the result of
the Lutheran distrust of reason—a necessary concomitant of its doctrine of the total depravity of
postlapsarian man (i.e., man after the Fall)—and the Lutheran "only" doctrines of sola scriptura and
sola gratia. Finally, Oldendorp, like all Reformers, rejected the law-making and law-enforcing
authority of the Church in its canon law.

With regard to the notion of eternal law, Oldendorp did not recognize, or at least significantly
downplayed, the importance of an eternal law (lex aeterna) which transcended the revealed law of
the Scriptures. In this regard he was a disciple of Luther. Luther, probably influenced by the
29

nominalist (or terminist) and voluntarist philosophical notions advanced by Ockham and his
philosophical followers, rejected the realism and reason-based notions of St. Thomas. Not unlike
Hume would do many years later, Luther accepted the “differentiation between ‘is’ and ‘ought,’”
which put an impossible division between the world as it is (the “is”), and the revealed order of God
(the “ought”). “Luther, like the nominalists, did not want to acknowledge any objective order based
on the common essence of things and inherent to them which had its example and basis in the
divine reason.” Luther thus rejected the notion of a teleological structure in creation, one which
30

revealed God’s reason and which played a part in determining God’s plan for man and civil
society. It is this which led Luther to abandon the Thomistic notion of a lex aeterna. Oldendorp
31 32

appeared to follow in this line of thinking.

Consistent with the Lutheran rejection of the Church’s role in interpreting scripture, Oldendorp
restricted the divine law to those laws expressly revealed in the Bible—principally the Ten
Commandments and the moral teachings of the New Testament. Perhaps his most significant
departure from the received teaching, however, was his rejection of the substantive role reason
played as a source of the natural law. Since, as a result of the Lutheran notion of total depravity,
33

postlapsarian reason was hopelessly unreliable as a guide to substantive values, Oldendorp rejected
the role of practical human reason as a substantive source of the natural law. In doing so, he had to
34

search for an alternate source to inform the natural law, i.e., that law in man’s heart. He found his
source of the natural law in the revealed law of Scripture. Oldendorp thus equated the natural law
with the laws promulgated by God in the Bible, the leges Bibliae. These laws had to be discerned
from the Scriptures by the conscience of the believer, a conscience which was infallible. And
although the conscience was in some manner reason, it was used instrumentally and not as the
substantive source of the natural law. In the end, the role Oldendorp’s attenuated reason/conscience
plays in moral guidance is minor, as it essentially is conflated with Scripture. Thus in Oldendorp’s
view, even the “law inside man” relies on God’s positive revelation found in Scripture, and has no
natural basis in man such as his reason. 35
Not only was the natural moral law dependent upon Scripture alone, but so likewise was the civil
law, the leges rei publicae, which relied upon civil reason (ratio civilis). The positive law
promulgated by the civil authorities ultimately derived from Scripture. Accordingly, jurists such as
36

Oldendorp traced positive laws that ordered the earthly regime (weltliches Regiment) to specific
Commandments. For example, the authority of the state was traced to the Fourth Commandment.
37

Similarly, criminal laws were held to be derived from the Fifth Commandment. Property law and
contract law stemmed from the Seventh Commandment. Laws of trial procedure found their source
38

in the Eighth Commandment. Family law founds its fons et origo in the Tenth Commandment. The
law of taxation was apparently a burden imposed by Christ, as it had a New Testament origin,
specifically in the great summary of the commandment to love your neighbor as yourself. When39

the positive law contradicted the law of the Scriptures, and, what amounted to the same thing, the
“law inside man,” it was not binding in conscience. 40

Oldendorp’s Theory of Equity

Oldendorp’s successors in jurisprudence and law regarded highly his theory of equity (epiekeia,
aequitas, or Billigkeit), and that aspect of his teaching perhaps had the most staying power,
influencing jurists beyond the Enlightenment—even in the United States as late as the 19th century.
For example, Oldendorp was quoted by Justice Story in his monumental work on equity,
Commentaries on Equity Jurisprudence, where he quotes (albeit in a footnote) Oldendorp’s work
on equity, De Jure et Aequitate Disputatio. 41

With the disappearance of the ecclesiastical courts and the assumption of some of their jurisdiction
by the civil courts, Reformers had to scramble to adapt to the new legal situation. Oldendorp’s
theory of equity represents his effort as a Reformer to import the principles of equity in canon
law—which were significant principles in the ecclesiastical courts—into the civil court system. 42

Oldendorp’s novel theory of equity focused on the application of law—necessarily general and
abstract in nature—to a concrete case. Whereas in the view of the Aristotelian and scholastic
discussions of equity (and including Melanchthon’s view), equity was seen as an exception to the
rule, Oldendorp saw equity as the process of applying the rule to the particular circumstances:
43

“therefore every application of the law needs to be governed by equity.” For Oldendorp, “law and
44

equity, Recht und Billigheit, ius et aequitas, stand opposite each other and complete each other,
becoming a single thing.” The source of equity—which is equivalent to the natural law, i.e., the
45

“law in the person”—is found in the conscience. In essence, it was a “judgment of the soul” a
iudicium animae, and so every judgment of law (Rechtsenscheidung) is a judgment of conscience
46

(Gewissensentscheidung). However, a judgment in equity “cannot be made in conscience . . .

47

without some formula of law which indicates in the heart of man that that which he does is just or
unjust.” Ultimately, the exercise of conscience demands that the jurist “must study the Bible, pray
48

to God, and search his or her conscience.” Because equity was so tied to conscience in
49

Oldendorp’s theory, and equity was so ubiquitous in legal decision-making, “[e]very legal decision,
for Oldendorp, was ultimately a moral decision.” As Witte summarizes it: “When applied in the
50

courtroom, Oldendorp’s theory of equity was a unique form of Christian practical reasoning, on the
one hand, and pious judicial activism on the other.” In summary:
51

Oldendorp’s theory had direct implications for legal reform in Evangelical Germany. It helped to
support the merger of Church courts and state courts in Evangelical Germany; separate courts of
equity were no longer required. It helped to support the convergence of canon law and civil law in
Evangelical Germany. And it helped to support the growing professionalization of the German
judiciary in the sixteenth century, and the requirement that judges be educated both in law and in
theology, in civil and in canon law. 52

The Lutheran State

Oldendorp’s final significant contribution to the Protestant jurisprudence was in the area of the
relationship between Church and State. Luther’s rejection of the authority of the Catholic hierarchy
and sacramental priesthood, and his rejection of the institutional Church as a perfect society, led
53
him to reject the Church as a body with administrative, legislative and judicial powers.
Additionally, his rejection of the Church’s sacramental theology led him to reject the Church’s
jurisdiction over certain areas of human life, such as marriage and family law, criminal law, wills
and estates, and trusts. In opposition to and to the exclusion of the Gelasian doctrine of the “two
swords,” Luther adopted a doctrine of “two kingdoms” or what was its necessary corollary, the
doctrine of “one sword.” The earthly kingdom, the kingdom of this world, was governed by law, a
54

law that was the exclusive province of the Chirstian prince and his councilors, the Obrigkeit. Since
the institutional church, as distinguished from the spiritual church, was part of the kingdom of this
world, it followed that it was subject to the secular power, and had no legislative or judicial power
of its own. The civil ruler thus wielded the one-and-only sword, and became the “executor
divinarum et suarum legum, the executor of laws both divine and his own.” The spiritual church,
55

which was an invisible communion in which all believers were priests, was not governed by law,
56

but by grace and the Gospel; there was therefore no need for canon law or ecclesiastical courts.
Therefore, in those jurisdictions that were influenced by Luther’s doctrines and the reformation
ordinances (Reformationsordnungen) promulgated by the civil authorities, the binding nature of
canon law and the regime it governed was abrogated.

The reformation ordinances denied the Church’s jurisdiction over entire areas of social life, and the
Church’s ecclesiastical courts were deemed closed (with civil courts assuming their jurisdiction). 57

Moreover, the Church was stripped—albeit under color of law—of its properties: its churches,
monasteries, charitable institutions, hospitals, hospices, educational facilities, orphanages, trusts and
endowments. As a result of the Reformers’ rebellion, there was—along with the transfer of great
58

wealth to private hands and the Obrigkeit some of which but not all would find itself in the
“community chest”—a “massive shift of jurisdiction from the Church to the state.” And the state,
59

without a theory or body of law to govern this new area of governance, was not ready for it.
Because the civil authorities were confronted with new powers and new areas of jurisdiction and
responsibility, the Reformers, especially the jurists among them, struggled with the changes
required in the civil law and civil institutions. A legal revolution followed closely behind the
theological one. They rapidly learned that their radical theories spelled anarchy, and so they made
significant emendations to and compromises in their thought. Here, Oldendorp made his
contributions.

The Lutheran reformers simply took over the ideas and institutions of the canon law and converted
them to their own uses in theology and law—often without attribution. They simply took over
hundreds of Church properties, endowments, foundations, charities, almshouses, schools,
cathedrals, cemeteries, Church courts, and other properties and institutions that were part of the
canon law administration—often ostracizing and occasionally killing former occupants in the
process.

Of course, the massive transfer of power from the ecclesiastical authorities to the secular authorities
removed one of the traditional checks upon the tyrannous exercise of secular power. The Reformers
addressed these issues as well, though perhaps here there efforts were least effective. 60

As mentioned above, Oldendorp’s jurisprudence had the flavor of positivism, but it was not
absolute. But the theological and political philosophy underlying his view of the secular power
unquestionably heightened its power over the citizen and obligated the citizen to near unconditional
obedience to it. Oldendorp taught that the secular authority (what he called in different places the
civitas, the weltliches or politien Regiment, the res publica, ordo civilis, the Obrigkeit, and the
universitatis civium) was ordained by God and was entitled to virtually unquestioned obedience of
those under its authority. In some ways, however Oldendorp appeared to attenuate the even stricter
61

doctrines of Luther and Melanchthon. Oldendorp expected that the laws of the state would not
contradict the laws of the inner man, i.e., the laws found in the Bible. The State had the obligation
to enact laws in conformity with God’s will as revealed in the Scriptures. Oldendorp also insisted
that the magistrates had a duty to follow the law that they themselves promulgated. “The
magistrates are ministers [i.e., servants] of the laws,” Oldendorp observed in his Lexicon Juris. “[I]t
is false and simplistic to assert that the prince has power to go against the law. For it is proper to
such great majesty . . . to serve the laws,” he wrote elsewhere. Oldendorp even suggested that
62

criminal or civil liability may be imposed on a res publica which was guilty of malfeasance or
negligent mishandling of its legislative, judicial, or administrative functions. 63

The Reformers’ New Legal Method

The Lutheran Reformers had other effects on the law worth noting. The advent of humanism, the
joinder of civil and canon law, and the Protestant jurists’ efforts to synthesize those, gave an
impetus to legal studies and spurred changes in method. These efforts by the jurists gave the law a
flavor and organization that affects us even today. The change in the jurists’ approach to the study
of law may be largely traced to the topical method advanced by Melanchthon, which, in
contradistinction to the earlier scholastic method, proceeded from general topics to more specific
ones. The shift in method used as the starting point of its analysis “[n]ot texts, or glosses on texts,”
64

as the scholastic method did, “but legal principles and legal concepts.” This change in method
65

naturally led to a greater systematization of the law. Ultimately, this lead to the formulation of legal
texts organized more systematically by legal subject matter. It would also yield fruit in the law
itself, as it actually led to the promulgation of modern legal codes covering specific areas of the
law. For example, in 1520 the laws for the city of Freiburg were codified by the jurist Zasius (the
Freiburger Schtadtrecht), and there were efforts to codify both local and imperial criminal laws. 66

Additionally, the role of the professoriate in ushering legal reforms resulted in a significant
institutional offshoot. Because professors had such a large role in ushering reforms, advancing legal
studies, and advising on the promulgation of the new legal codes, the professors obtained a formal
role in jurisprudence. “‘The institutionali[s]ation of a proud and powerful Roman-law professoriate
in the sixteenth century’ owed much to Melanchthon’s vision of the German law professors as
successors of Roman lawyers.” In fact, the Germans developed the institution of Aktenversendung,
67

where court files with particularly thorny legal problems were transferred from the court to
professors for their counsel and their input.
Another area affected by the Reformers involved police regulations. As the municipalities and
states assumed responsibility over those areas of morals that the Church—through its preaching,
discipline, and the internal forum of confession—previously had controlled, it ushered in the
modern municipal police regulations, the ius politiae, or, at an imperial level, the
Reichspolizeiordnungen. 68

The assumption by the state of areas that were traditionally outside of its auspices—including those
regions that did not embrace the Protestant Reformation—led to an increased separation between
law and morals. Additionally, the natural law philosophy the Reformers did retain was emasculated
69

in a sense, and could not be said to be a legal theory, but a moral theory. This reduction in the legal
70

jurisdiction of the Church and concomitant broadening of the jurisidiction of the secular state, gave
rise, according to University of Bologna Professor Paolo Prodi, to the development of moral
theology as an alternative system of norms. “Despite the bifurcation of their paths, law and moral
theology continued influencing each other. All crimes were now considered sins, and moral
casuistry as ‘mixed theological-legal literarture’ increasingly came to resemble law as a
comprehensive normative system.” But it is here that we find the beginning of the “law and
71

morals” quandary which has plagued legal scholars ever since, and which positivists and secular
humanists tend to ignore or take advantage of as an excuse of keeping morality that does not suit
them outside the public forum.

Conclusion

Martin Luther could not have foreseen that his nailing the ninety-five theses on the church door at
Wittenberg would usher in the legal revolution that it did. For all Martin Luther’s energy and
prophetic zeal, it is doubtful that he would have had much success without the tempering spirit and
thought of Melanchthon and without the faithful cadre of Lutheran jurists that helped implement—
through the power of law—the Word of God as Luther believed he saw it. For Luther, the Word of
God was the Bible alone, and the Bible's message was "grace alone" and "faith alone." To advance
such novelties, Luther was forced to rebel against and dismantle the role of Tradition and the
 teaching authority (magisterium) of the Church, the ecclesiastical law, and the whole butress of the
sacraments. The heart of Luther's cry was freedom from law, but, as it turned out only from the law
of the Church. Ultimately, Luther's message meant that the Christian was subject to more law, only
the only law was that of the secular and practically unchecked State. It was through this human law
alone--the Reformationsordnungen--that Luther advanced his cause. It is an irony of sorts that
Doctor Luther, then, relied on human law and human jurists—of the many Oldendorp perhaps is the
greatest—for his success, the same human law and jurists that he frequently excoriated with
scatological epithets. But that was the prodigious, if not demonic, genius of Luther: a man who
could be consistently inconsistent, and yet be completely untroubled by it. In the face of what
Luther wrought, and in the manner he achieved it, however, one wonders whether there more of the
spirit of non serviam, than the obedience of faith.

Endnotes

1
Johann Oldendorp, Lexicon, 249 quoted in Harold J. Berman, Faith and Order: The Reconciliation of

Law and Religion (Grand Rapids: Eerdmans 1993), 173.

2
Other German jurists of the 16th century include Konrad Lagus (ca. 1499-1546), Basilius Monmer
(ca. 1501-1566), Melchior Kling (1504-1571), Johannes Schneidewin (1519-1568), Christoph
Hegendorf, Johann Apel, and Jerome Schürpf, among others. Harold J. Berman, Faith and Order:
The Reconciliation of Law and Religion (Grand Rapids: Eerdmans 1993), 164; John Witte, Jr., Law
and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge: Oxford 2002),
180. The great nineteenth century legal historian Stintzing calls Oldendorp “the most significant of
the German jurists of the middle of the sixteenth century.” Berman (1993), 164 n. 78; see also
Witte, 154. In other countries, Protestant jurists included Francis Duaren and Francis Hotman of
France, Nicolaus Everardus and Johannes Althusius of the Netherlands, Witte, 162. In Denmark,
Nicolaus Hemming was significant (he is called Praceptor Daniae, the teacher of Denmark). It
should be noted that the relationship between Luther and the jurists was not always smooth: “Jurists
are bad Christians,” Luther was wont to say. Other statements of Luther excoriating jurists (quoted
with citation to Luther’s works in Witte, 119): “Of the Gospel, jurists know nothing.” “Every jurist
 is an enemy of Christ.” “Every jurist is either a good-for-nothing or a know-nothing.” “A jurist
should not speak until he hears a pig fart” (the implication that only then will the jurist’s words be
spoken in the proper atmosphere). In the eyes of his contemporaries, Oldendorp was an exception,
as he was described by one of his contemporaries, Jacob Spiegel, as “the one person for whom the

maxim ‘a jurist is a bad Christian’ could never apply.” Witte, 154.

3
For example, Oldendorp does not even appear in the index (or the text) of Diarmaid MacCulloch’s

recent weighty book on the Reformation, The Reformation: A History (London: Penguin 2003).
4
Berman (1993), 164 (citing Roderich von Stintzing, Geschichte der deutschen Rechtswissenschaft
(Berlin 1880), 311. The German theologian and philosopher of religion, Ernst Troeltsch likewise
calls Oldendorp the “most influential jurist” of the Reformation. Berman (1993), 164 n. 79
(massgebendster Jurist) (citing Ernst Troeltsch, Die Soziallehren der christlichen Kirchen un

Gruppen, 545 n. 253); see also Witte, 154.

5
Witte, 9.
6
Berman (1993), 164.
7
Witte, 23.
8
See Harold J. Berman, Law and Revolution II (Cambridge: Harvard University Press, 2003), 411 n.
91. This article is indebted to the very fine work of Professor Berman, including Harold J. Berman,
Faith and Order: The Reconciliation of Law and Religion (Grand Rapids: Eerdmans 1993), 164-175
and Harold J. Berman, Law and Revolution II (Cambridge: Harvard University Press, 2003), 1-197,
but esp. 87-100. It also relies on Professor John Witte, Jr.’s Law and Protestantism: The Legal
Teachings of the Lutheran Reformation (Cambridge: Oxford 2002), 154-175 and passim. All of
Berman’s works, especially his Law and Revolution: The Formation of the Western Legal
Tradition, are strongly recommended for those interested in an unprejudiced and scholarly account
of Western’s law’s historical debt to Christianity and the Catholic Church for its legal institutions.

9
This humanism, which was a reaction against scholasticism and its reliance on Aristotle, referred
back to classical sources, relying especially on Greek sources in their original language. It did not
 systematically involve a rejection of God, and therefore should be distinguished from modern
“secular humanism,” to which it has no relation. Humanism was a movement that spanned
confessions, and it was found among Catholics (e.g., Thomas More), Protestants (e.g.,

Melanchthon), and people that seemed to ride the fence (e.g., Erasmus).
10
Berman (2003), 87.
11
Witte, 155; Berman (2003), 87. It was common for doctors in law to find their way into the office of
syndic, as these were created alongside the chancellery especially in the Hanseatic cities, where
they began taking over functions that traditionally had been the Church’s function with the passage
of the reformation ordinances or Reformationsordnungen. Klaus Wriedt, “University Scholars in
German Cities,” in William J. Courtenay and Jürgen Miethke, eds., Universities & Schooling in

Medieval Society (Brill 2000) Vol. 10, 57.

12
Berman, (2003), 87.
13
Berman (2003), 87-88.
14
Berman (1993), 165 (quoting Stintzing, Rechtswissenschaft, 323); see also Berman (2003), 88.
15
Berman (1993), 166. Luther’s “Christian Prince,” Philip the Magnanimous, should have been better-

called Philip the Bigamous. See discussion in Witte, 224 ff.

16
Quoted in Witte, 156.
17
Witte, 157.
18
Witte, 155. Although the Lutheran Reformation did not result in a single, monolithic system of
jurisprudence, the jurisprudence was generally adapted to the teachings of Luther and Melanchthon.
Witte, 168. The most significant of Luther’s teachings in the area of jurisprudence were his doctrine
of the “two kingdoms,” (the kingdom of the world (reich der welt) and kingdom of God (reich
Gottes), the “three orders” (drei Ständelehre) (that of the Hausvater or paterfamilias, i.e., the ordo
economicus or domestic order, that of the patertheologicus or Gottesvater, i.e., the ordo
eccelsiasticus or ecclesiastical order, and that of the paterpoliticus or Landesvater, i.e., the ordo
politicus or political order), and the Lutheran doctrine of the triplex usus legis, the “three uses of the
law” (the “civil use” of restraining sin, the “theological use” of driving sinners to repentance, and
 the “pedagogical use” of educating the “saints”) Witte, 11, 168-70. Luther only identified the first
two uses, the third use was an addition of his followers, particularly Melanchthon. Additionally,
there was increased reliance by jurists on the Bible alone as a source of divine law, with particular
emphasis on the Ten Commandments. Witte, 168-71. Loosely speaking, two general “schools” of
Lutheran jurisprudence may be identified. The first, the Marburg school of Lutheran jurisprudence,
gave particular prominence to Luther’s theories of the priesthood of all believers and the Christian
vocation, and emphasized, in addition, the role of the judge’s Christian conscience in decision-
making. The other school, the Wittenberg school of Lutheran jurisprudence, gave preeminent
emphasis on the Decalogue both as a summary of the natural law and the source for positive law,
and as a tool for the systematization of civil law. Both, however, are systematizations of Luther’s
theological notions of the “two kingdoms,” the “three estates,” and the three “uses of law.” Witte,

140-41.
19
These amounted to perhaps as much as 56 different works. Berman (1993), 166 n. 81; Witte, 154.
Naturally, not without reason from its perspective, the Church listed all Oldendorp’s work on the

Index of Prohibited Books.

20
Witte, 154.
21
These works were republished as late as the 19th and 20th centuries, thus suggesting their

importance from the scholar’s or publisher’s point of view. Berman (1993), 166 n. 81.
22
Witte, 154.
23
Initially, the Reformer’s rejection of canon law was absolute. Therefore, wherever they assumed
power they abrogated it. Heikki Pihlajamäki and Risto Saarinen, “Lutheran Reformation and the
Law in Recent Scholarship,” in Virpi Mäkinen, ed., Lutheran Reformation and the Law (Leiden:
Brill, 2006), 3. “Neither pope nor bishop nor any other [clerical] man has the right to impose a
single syllable of law upon a Christian,” fulminated Luther. Quoted in Witte, 57. Luther viewed
canon law, and its claim to bind the conscience of the believer, as an illegitimate imposition on the
freedom of the Christian. Essentially, he viewed Canon law akin to the manner that St. Paul viewed
the Mosaic Law, and declared it abrogated. Pihlajamäki & Saarinen, 3. To declare his utter disdain
of canon law, on December 10, 1520, Luther had consigned to flames books of canon law along
with the Papal Bull which excommunicated him. But for all Luther’s cant against the canon law, it
had addressed a large portion of civil society, including inheritance, family law, public morality,
poor relief, and other charitable institutions. With the rejection of canon law and the ecclesiastical
courts which enforced it, these areas of life suffered from lack of regulation. The reformer’s concept
of a spiritual Church governed only by the Gospel and a state governed only by civil law informed
by the Bible alone “plunged Germany into a more acute legal and social crisis.” Witte, 67. As a
consequence, the reformers eventually came to realize they could not govern without the benefit
canon law, and so many of its rules and principles were adapted and merged into the civil law. As
Witte puts it, the Lutheran reforms “had driven too deep a wedge between the canon law and the
civil law.” Witte, 3. They thus backtracked, largely through the constructive work of the Lutheran
jurists including Oldendorp. Witte, 65, 73, 80. By the late 1520s and early 1530s, the reformers
viewed canon law more positively, and “[d]econstruction of the canon law for the sake of the
Gospel gave way to reconstruction of the civil law on the strength of the Gospel.” Witte, 3. The
reconstruction was effected by the insertion of canon law into the civil law, but with modifications
to suit the Reformer’s theological, philosophical, political, and practical needs. Witte calls this
process the “evangelical conversion of Catholic canon law.” Witte, 24-25. Thus, by the middle of
the 1550s, “the medieval cannon law had returned afresh to Evangelical German society, but now
largely under the control of civil authorities and under the color of civil law.” Witte, 84. Jaroslav
Pelikan likened the Reformation as a pendulum swing, from structure to spirit, and then from spirit
to structure. Jaroslav Pelikan, Spirit versus Structure: Luther and the Institutions of the Church
(New York 1968) (cited in Witte, 120). As with so much else, Luther seemed somewhat
inconsistent about canon law, sometimes praising the good in it (“there are many things in the
Decretum of Gratian . . . are of outstanding value.”), and sometimes abusing it (“These jurists have
the audacity to give public lectures to our youngsters on this papal crap, the canon law . . . So much
for our efforts to banish it! . . . as they now reintroduce this stinking crap.” And “The whole canon
law and all the decretals . . . are born out of the ass of the Devil.”). Quoted in Witte (with citation),

73, 82.
24
In his classic formulation, St. Thomas defined law as an ordinance of reason for the common good

promulgated by one who has charge of the community. See S.T. I IIae 90 art. 4.
25
Berman (1993), 166. In his Billig und Recht, Oldendorp acknowledges both written and unwritten
law, placing in the former category Roman civil law, positive law, and in the latter category,

custom, the law of nations, and natural law. Id. n. 82.

26
Berman (2003), 88.
27
Berman (1993), 166-67. He also appears to equate his notion of equity (Billigheit) with the “natural
law.” Berman (1993), 167-68 n. 86 (citing Hans H. Dietze, Naturrecht in der Gegenwart (Bonn,

1936)).
28
Witte, 158.
29
Berman (1993), 167; Berman (2003), 89 (“[L]ike Luther and Melanchthon, and unlike Gratian and
Aquinas, Oldendorp did not speak of a lex aeterna transcending the Bible.”). Compare Witte, 158.
“Oldendorp had little place in his system for an eternal law of the created order that stood prior to
and superior to the divine law revealed in the Bible. To be sure, said Oldendorp, the creation order
came prior to the Bible, and was indeed a perfect expression of God’s being, will, and law in
Paradise. But though prior in time and perfect in genesis, the eternal law was no longer superior in
authority as a source of law for life in the earthly kingdom. For owing to the fall into sin, the norms
of the crated order can be read ‘only through a glass darkly,’ leading to inevitable distortion and
caption. Thus as a source of law for this earthly life, the eternal law of nature [according to

Oldendorp] has effectively collapsed into the natural law of human nature.” Witte, 158.
30
Antti Raunio, “Divine and Natural Law in Luther and Melanchthon,” Virpi Mäkinen, ed., Lutheran
Reformation and the Law (Leiden: Brill, 2006), 23 (citing Lauri Haikola, “Luther und das
Naturrecht,” in Lauri Haikola, Teologisia tutkimuksia (Jyväskylä: Suomalainen Teologinen

Kirjallisuusseura 1997), 106-07).

31
Indeed, an extreme voluntarist would hold that God has the power to give commandments which are
contrary to the order of natural law, and that He is not constrained by any the internal logic or order

of creation which informs the natural law. Raunio, 32.

32
Raunio, 23. Melanchthon, influenced by the humanism of the time, did not follow Luther in his

rejection of an eternal law. Id. at 24.

33
Berman (1993), 167. Compare Witte, 160. “Though superior in clarity and authority, the divine law
did not eclipse the natural law (ius naturale), Oldendorp argued. Natural law for Oldendorp was the
law of the human heart or conscience. Oldendorp called this variously the “law inside people” (“lex
in hominibus”), the “law inscribed” on the heart (“ius insculptum”), and the “instruction of
conscience” (“instructio conscientiae”). . . . Even independent of their knowledge of the divine law
of the Bible, all individuals are thus by nature inclined toward the general moral principles taught

by the Bible . . . .”
34
Berman (1993), 167; Berman (2003), 89. Compare Witte, 161 (“Conscience, for Oldendorp, was a

form of reason. . . . It was a God-given reason or natural reason (ratio naturalis).”)

35
Berman (1993), 166-67.
36
Berman (1993), 168.
37
See generally Witte, 159-60. Although the Catholic Church certainly accepted the Ten
Commandments, it tended to systematize discussions of law on the basis of the Seven Sacraments,
especially the Sacrament of Marriage (which comprehended all of family law), the Sacraments of
Baptism and the Eucharist (which, for example, supplied the basis for liturgical law), the Sacrament
of Orders (which involved ecclesiastical matters), the Sacrament of Penance (under which auspices
were discussed some criminal matters, torts, contract, and other obligations), and the Sacrament of
Extreme Unction (under which the law of wills, inheritance, and trusts were organized). Witte, 169-
70. The Lutherans could not carry this schema of systematization forward, as they rejected
essentially all the Sacraments (at least as until then understood), wholly rejecting most of them, and
maintaining only two in attenuated form, Baptism and the Eucharist, with perhaps a vestige of

auricular Confession.
38
“[T]he common locus for the whole civil law, namely, that which pertains to things,” was in the
Seventh Commandment per Oldendorp. Berman (1993), 168 (quoting Oldendorp’s Divinae

Tabulae, 21).
39
Berman (1993), 168 (citing Oldendorp, Divinae Tabulae, 15-25).
40
Berman (1993), 168 quotes Oldendorp’s Isagoge, 13: “A civil law that departs in toto from natural
law is not binding.” This teaching ameliorated (Berman uses the term “corrected” in Berman
(1993), 169; see also Berman (2003), 90.) the otherwise positivistic definition of Oldendorp’s
definition of law as the “totality of legal norms.” Without the exception in his definition of law,
Oldendorp would be brother to the father of legal positivism, John Austin. As it was, he was not
brother to Austin, but perhaps grandfather to Austin. Some see Oldendorp perhaps as great, great
grandfather to Hitler. Though there is some very tenuous linkage, I think it is a stretch to say what
some scholars have said, that there are “direct and easy lines from Luther to Hitler . . . .” Witte, 27
(citing among other sources, William M. McGovern, From Luther to Hitler: The History of Fascist-
Nazi Political Philosophy (Boston, 1941)). However, the argument can be sustained that
Lutheranism’s “two-kingdoms” (and “one-sword”) theory effectively resulted in an autonomous
secular government, and weakened the Lutheran’s church’s ability to criticize the positive law and

exercise any meaningful institutional check. Pihlajamäki & Saarinen, 8.

41
Berman (1993), 170 n. 100.
42
Canon law was the forum of equity. The equitable principle in canon law was so prevalent, that it
had earned the sobriquet the “mother of exceptions,” “the epitome of the law of love,” and the
“mother of justice.” Witte, 39-40, 167-68. “Traditionally, equity was considered to be a unique
quality of the canon law and a unique ability of the ecclesiastical judge. . . . Oldendorp’s theory
effectively merged law and equity. All law required equity to be just, and all equity required law to

be applied justly. Law and equity belonged together and completed each other.” Witte, 175.
43
Witte, 165.
44
Berman (1993), 171; Witte, 165-66.
45
Berman (1993), 171; Berman (2003), 91. For Oldendorp, equity was also part of the natural law.
(“Naturlich Recht und Billigkeit is ein Ding.”). Equity was therefore the “law in man,” and was
instilled in his conscience and fed by the Bible. As Berman notes, this concept of natural law is
“sharply distinguished” from that of Thomas Aquinas, who sees natural law as a “middle stage”
 between divine and human law. Id. & n. 103. In a sense, Oldendorp “legalized” the Thomistic moral

concept of “conscience” into equity. Cf. Berman (1993), 172.

46
Witte, 166 citing Oldendorp, Lexicon juris, 28-9 (s.v. "aequitas"), 238-40 (s.v. "iudicium"). Berman
(2003), 92. Oldendorp’s theory of equity was built on Luther’s understanding of the Christian

conscience. Witte, 14.

47
Witte, 166; Berman (2003), 93.
48
Oldendorp, Disputatio quoted by Dietze, Johann Oldendorp als Rechtsphilosoph und Protestant,

129; Berman (1993), 172.

49
Berman (1993), 172; Witte, 166-67. Pious language which, I suppose, justifies Luther’s equitable
decision to rebel against the law of the papacy and the emperor with the conscientious (albeit not
untypical scatological) formula: “I shit on the law of the pope and the law of the emperor, and on

the law of the jurists as well.” Quoted in Witte, 2.

50
Witte, 167.
51
Witte, 167; see also id., 14.
52
Witte, 175 (citing Karl H. Burmeister, Das Studium der Rechte in Zeitalter des Humanismus im

deutschen Recthsbereich (Weisbaden 1974)).

53
The Roman Catholic Church at the time saw itself as a “perfect society” or societas perfecta. Joseph
Kleutgen defined a perfect society as “a society, distinct from every other assembly of men, which
moves towards its proper end and by its own ways and reasons, which is absolute, complete, and
sufficient in itself to attain those things which pertain to it and which is neither subject to, joined as
a part, or mixed and confused with any society.” Hildegard Warnink, ed., Legal Position of
Churches and Church Autonomy (Peeters-Leuven 2001), 253 citing Mansi, J.D., Sacrorum
conciliorum nova et amplissima collectio, LIII, Graz, Akademische Druck- und Verlaganstalt, 1961,
315. In the Catholic view, the Church, as well as the State, were perfect societies. As a societas
perfecta founded by Christ, the Church, independent of the State, had real sovereignty (its “sword”)
in the area of its competence, and this included executive, legislative, and judicial powers. Luther
rejected this concept of Church sovereignty. Luther did not recognize any perfect society with real
 earthly sovereignty but for the Obrigkeit (or State in modern words); the visible Church was
comprehended by, and subordinate to, the Obrigkeit (State). For Luther, the invisible Church did

not need law, only grace.

54
The Gelasian doctrine of the “two swords” is named after the 5th century Pope, Gelasius I. Put
simply, the Gelasian “two swords” doctrine was that the pope wielded a “spiritual sword” (i.e.,
spiritual power) and the emperor wielded a “secular sword” (i.e., temporal power), and, though they
each had their sphere of influence and ordinarily were to be coordinate, ultimately the temporal
power was subordinate to the spiritual power. Essentially, Luther’s “two kingdoms” theory
(Zweireichelehre) put the kingdom of God in a wholly spiritual world, outside the temporal world,
with no need for Law (or law). It operated only by Grace and Gospel. Only the earthly kingdom
was governed by law. Luther thus denied the Church was a perfect society, i.e., it denied any
visible, corporate, hierarchical, political, and legal quality of the Church as institution. “[O]nly the
state, in Luther’s view, held legal authority. . . . Luther emphasized that the Church was not a law-
making authority. The Church had no sword, no jurisdiction.” Witte, 7, 8. The Church was
concerned with the “spiritual kingdom,” while the secular authorities were charged with the
governance of the “earthly kingdom,” which included all earthly aspects of the church. Essentially,
Luther’s doctrine spelled the subordination of the Church to the State. Berman (1993), 87-89, 103,
105, 128, 178, 145, 152, 179; See also Harold J. Berman, Law and Revolution: The Formation of
the Western Legal Tradition (Cambridge: Harvard University Press, 1983), 92-93, 279, 279, 285,
504, 521, 581-82, and the excellent discussion in Witte, 6-7, 87-116. Oldendorp’s rejection of the
“two swords” theory is discussed in Witte, 159 (“Oldendorp rejected this two-swords theory out of
hand.”). The revolutionary aspect of this thought is pictorialized by comparing the political
iconography. Compare, e.g., the depiction of the Church/State relationship in the miniature of the
Mirror of Saxony with the miniature of the Swedish King Gustaf Vasa in the Rålamb law
manuscript from folio 151 in the Royal Library (Kungliga Biblioteket, Stockholm, Sweden) and the
Swedish Portrait Gallery (1937:1986) (photo from cover of Mäkinen). These may be found in the

text.
55
Pihlajamäki, 180.
56
While Luther preached that all believers were free and all equally priests (and there was no
hierarchical priesthood), he was wise enough not to preach that all citizens were free and all equally
princes (and there was no such thing as a prince and his civil magistracy). Such a doctrine would
have cost him his head. He could afford to attack the Church, so long as he had the support of the

Elector and ruler of Ernestine Saxony, Friederich the Wise, who had jurisdiction over Wittenberg.
57
Though it varied throughout Europe, the ecclesiastical court system was generally composed of an
archdeacon’s court, episcopal courts, archbishop’s courts, and, and the Papal courts of last resort.
Heiki Pihlajamäki, “Executor Divnarum et Surarum Legum,” in Virpi Mäkinen, ed., Lutheran
Reformation and the Law (Leiden: Brill, 2006), 174. With the closure of the ecclesiastical courts,
the principles of equity in canon law were eventually subsumed into civil law. Additionally, the
civil courts acquired subject matter jurisdiction over those areas traditionally adjudged in
ecclesiastical courts: marriage, inheritance, church property, and some crimes. Other subject matters
(e.g., canon law relating to the hierarchy, celibacy, the evangelical counsel, monasticism,

ecclesiastical courts) were entirely dropped.

58
The Reformation was successful in part because of what can only be called the wrongful seizure of
Church assets. It is easier to start a church if you don’t have to start from scratch, and if another

institution funds it.

59
Witte, 179.
60
Witte, 84.
61
Berman (2003), 93.
62
Berman (2003), 93 (quoting Oldendorp’s Lexicon Juris, p. 272 (“magistrata . . . legum ministri
sunt”) and Macke, “Rechts- und Staatsdenken des Oldndorp,” pp. 79-80 (“Falsum igitur est
simpliciter asserere, principem habere potestatem contra ius. Decet enim tantae maiestati . . .

servare leges.”).
63
Berman (2003), 95 (citing Macke, 80-82). As a limiting concept, this idea was a dead letter, a pipe
dream. Oldendorp suggested that a court should have jurisdiction to impose this criminal or civil
 liability, but never identified any court with the jurisdiction over the Obrigkeit. Id. The only courts

with such authority—the ecclesiastical courts—were denied any such role by the Lutherans.
64
Berman (2003), 7, 100-30. This method is also referred to as the dihairetical or diaeretical ordering
of legal sources (from Greek diaeresis, division). “The dihairetical method involved department

from basic concepts to sub-concepts and on to their subdivision.” Pihlajamäki, 176-77.

65
Berman (2003), 105.
66
Berman (2003), 106. The great codification of the criminal law of Bramberg by the jurist Johann von
Schwarzenberg in 1507 (the Bambergische Halsgerichtsordnung or Bamgergensis) pre-dated

Melanchthon’s Loci Communes which was first published in 1521. Berman (2003), 77-78.
67
Philajamäki & Saarinen, 13 (citing Whitman, The Legacy of Roman Law, pp. 17-30).
68
Philajamäki & Saarinen, 14; Pihlajamäki, 181.
69
Philajamäki & Saarinen, 15.
70
Virpi Mäkinen and Antti Raunio, “Right and Dominion in Luther’s Thought and its Medieval

Background,” Virpi Mäkinen, ed., Lutheran Reformation and the Law (Leiden: Brill, 2006), 64.
71
Pihlajamäki, 185 (citing Prodi, Eine Geschichte der Gerichtigket, pp. 239-48).