Law, Theology of
Law may be defined as "the order of justice and right to which individuals and groups should conform and which judicial authority should enforce" (Patrick, 4). Moral law is what a person or groups are obligated to do regardless of legal consequences; judicial law is what sovereign authority is obligated to enforce. Both are part of a legal system. "Theology of law" is then the relation of God to "the order of justice and right," a relationship which profoundly affects the definition of law itself.
Harold Berman maintains that modern western law began in the 11th and 12th centuries A.D., under church guidance. Motivated by a struggle for supremacy between pope and emperor, it resulted in a counterbalancing between secular and religious authorities, the codification of canon (church) and civil law, and the establishment of both church and civil courts. Both authorities shared in a common "integration of law with religion, of order and justice with faith and morals, in an integrated community which transcended both" (Hawke, 98). An advantage of this system was that law and "state" were not synonymous, since there were both church and civil courts. The integration meant, however, that the laws of both were backed by coercive force.
Early Lutheranism accepted this Constantinian solution, but rejected the church's jurisdiction of law, making law the exclusive domain of the state. Lutheran doctrine of the two kingdoms maintained that the Christian, citizen of both, was to follow the Sermon on the Mount in private life, but in public life was to uphold law by engaging in vocations such as executioner and soldier.
Though Calvinists agreed with many of Luther's teachings, they modified his doctrine of two kingdoms. For them the church consisted of congregations, each with its own elected leadership and legal authority. This legal authority, like the older Catholic vision, was balanced against the civil polity and might dominate it. Congregations had their own laws regulating worship, theological doctrine, and morals, including aspects of economic and political life.
Most English Calvinists (Puritans) did not challenge the king authority over the church as Calvin would have done, but attempted to reform the English church from within. They took over leadership of Parliament in the 17th century, believing that God had destined England an elect nation to incarnate the divine purpose for humanity. In England and America they believed that the principle use of moral and judicial law was to teach humanity the way of God, a way for individual and corporate life.
Varied in their beliefs, Anabaptists like Hubmaier held that the Christian may be a judge, and "bear the sword in God's stead against the evil doer"; others such as the apocalyptic Münster Anabaptists maintained that God had established the final kingdom at Münster and that the elect were to execute vengeance on oppressors of the poor.
This essay will deal with those southern Anabaptists represented by the Schleitheim Confession (1527); Hans Schnell's statement on law (ca. 1575), which breathes the spirit of Schleitheim; the view of the Hutterite leader, Peter Riedemann; and the writings of Menno Simons, leader of the northern wing of Anabaptism.
The Anabaptist theology of law should be understood against the background of the legal revolution begun in the 11th-12th centuries and the 16th century reformers. It was based upon a doctrine of two kingdoms which, unlike that of Luther, defined the congregation as voluntarily baptized adults, and argued for a strict separation of church and state. Accepting Christ's demand to love the enemy, Anabaptists rejected Luther's concept that the prince was (emergency) head of the church, maintaining that Christians should not be magistrates since magistrates were expected to enforce law by use of arms against the principality's internal and external enemies. They insisted that Christians were to serve neither as executioners or soldiers, and that the state on the other hand was not to interfere with or persecute the church.
Hans Schnell, naming three types of law, argued that government is based upon the Noahic law of vengeance (Genesis 9:6), i.e., the "natural law" which he identified with Paul's admonition in Romans 13. A positive institution in a fallen world, government's power is limited to punishing the evil and protecting the good, for which Christians pay taxes. Although Paul called government a "minister of God," Schnell pointed out that he thus spoke of Nero, persecutor of Christians; of Pharaoh, a "vessel of wrath fitted for destruction"; of the Babylonian king who was God's rod to punish Israel; and of Pilate, who crucified Jesus. Whether it performs well or badly, government performs as a slave rather than as an heir, and will be rewarded or punished according to its performance.
Schnell's second type of law, which God gave through Moses that Israel might know sin until Christ comes, is equated with the Old Testament. It includes a physical kingdom with a ruler, power of the sword, a priesthood, and literal law. Though this law included the law of vengeance (body for body), the Hebraic law differed from Gentile law in that it "foreshadowed the true essence in Christ and his kingdom."
Schnell's third type of law, the law of Christ, annuls the law of vengeance: "For Christ is the end of the law. We become dead to the law through the body of Christ, so that we have another law. There it is no longer a matter of body for body but only love and mercy, repentance, and forgiveness of sins, loving the foe and praying for him."
Schnell tends to equate the Old Testament law of vengeance with state law which, in the new order represented by the church, is annulled in Christ. He maintains that the law of vengeance and the law of Christ should not be mixed as when Constantine assumed the name Christian, "which is indeed itself a cause for lamenting Schnell cites Mark 10:42 to contend that if any ruler wishes to be a Christian he must be born again by the Spirit, dare no longer execute vengeance with the sword, "but must love his enemy and in suffering with Christ must pray" for him, bearing the cross of Christ.
The Hutterite leader, Peter Riedemann, admonished Christians not to go to law with their own case nor to be judges (1 Corinthians 6).
Menno Simons, taking on the task of transforming the remnants of the Münsterite Anabaptists into the peaceable kingdom, had a more positive attitude toward government than did the Schleitheim Confession though he says little about law. Addressing princes, he admonished them to: ". . . believe Christ's word, fear God's wrath, love righteousness, do justice to widow and orphans, judge rightly between a man and his neighbor, fear no man's highness, despise no man's littleness, hate all avarice, punish with reason He condemned rulers who accept bribes, pervert justice, and who persecute Christians.
Ernst Troeltsch assessed that the Protestant reformers added nothing new to medieval jurisprudence: "The Protestant theory of the state is in both [Lutheranism and Calvinism] based on that very same Christian 'Law of Nature' which, in the Middle Ages, was compounded out of Stoicism, Aristotle, and the Bible (Troeltsch, 107). He maintained that the parent of modern human rights was not church Protestantism but Anabaptism and Spiritualism which the Reformation hated and drove forth into the new world. It is generally recognized that in this area Anabaptism has made a major contribution to modern jurisprudence.
Because of persecution the strategy of nonresistant Mennonites since the Reformation has been largely one of withdrawal, by which they maintained the Anabaptist attitude toward state law. Communities in Russia accepted some state characteristics, but never lost the tension between coercion and biblical pacifism. Communities in Colonial America became somewhat more positive to state law because of William Penn's "Holy Experiment." Canadian communities are more active in a government sympathetic to minorities, though not without some tensions of faith.
Influenced by Great Awakening, revivalism, two world wars, urbanization, education, world mission relief service, health work, and reconciliation and prisoner rehabilitation programs, North American Mennonites have largely ended their strategy of withdrawal, reviving an interest in justice and law.
Writing in the mid-20th century, Guy Hershberger attempted to apply the Schleitheim position to the modern world. He maintained that Christians may use state law for purposes of justice, may defend themselves in court but should work for a just and peaceful settlement outside the courts, and should settle their own disputes among themselves. He recognized a need for Christian attorneys who walk in the way of the cross, whose services do not include aggressive litigation, and who assist fellow Christians in this way. More recently there is renewed interest in victim-offender reconciliation programs for justice alongside of and outside of state legal structures.
Theology of law is being clarified further among Mennonites by modern biblical studies. Modern study of Old Testament law began with the discovery of an extensive body of Near Eastern law, dramatized especially by the Hammurabi Code. Old Testament law deals with secular concerns comparable to Near Eastern law, but is oriented away from violent kingship power to the structures of covenant and worship. Its dominant characteristic is not vengeance but the motive/model clause, especially Yahweh's liberation of Israel from Egypt. Though Old Testament law codes provide for capital punishment, some Old Testament texts emphasize forgiveness and reconciliation even for capital crimes (Genesis 4; Hosea 1-3; 11; Jeremiah 3). Old Testament law is especially concerned for the slave, the poor, and politically weak. Its goal is an egalitarian society, each household an economic unit free from tyranny. From a Near Eastern perspective, Old Testament law represents a major break from state law, a turning toward Jesus and the New Testament.
New Testament studies reveal that Jesus affirms covenant law in the synoptic Gospels. In the Sermon on the Mount, household laws, and Apostolic admonitions, Jesus and early church deepened and widened covenant law for A nations by orienting it about the authority and example of Christ's person.
In summary then, biblical theology of law represents a new "order of justice and right," which annuls state law, brings believers into tension with it or both.
Bauman, Harold J. Law and Revolution, the Formation of the Western Legal Tradition. Harvard U. Press, 1983.
Gross, Leonard. "The Anabaptists and Law." Unpublished paper, 1986.
Gross, Leonard. "Jurisprudential Perspectives in the Light of Anabaptist-Mennonite Tradition: Bibliography With an Interpretive Introduction." Christian Legal Society Quarterly 5, no. 2 (1984).
Hawke, William J., Millard C. Lind, and John E. Toews, in The Bible and Law, Occasional Papers no. 3. Elkhart, IN: Institute of Mennonite Studies, 1982.
Hershberger, Guy Franklin. The Way of the Cross in Human Relations. Scottdale, PA: Herald Press, 1958.
Juhnke, James. "Mennonites in Militarist America: Some Consequences of World War I," in Kingdom, Cross and Community, ed. J. R. Burkholder and Calvin Redekop. Scottdale, PA: Herald Press, 1976: 171-78.
Klaassen, Walter, ed. Anabaptism in Outline: Selected Primary Sources, Classics of the Radical Reformation, vol. 3. Scottdale, PA, Herald Press, 1981.
Lind, Millard C. Transformation of Justice: from Moses to Jesus, New Perspectives on Crime and Justice, Occasional Papers of the MCC Canada Victim Offender Ministries Program and the MCC U.S. Office of Criminal Justice, no. 5 (December 1986).
Patrick, Dale. Old Testament Law. Atlanta: John Knox Press, 1985.
Rideman, Peter. Account of Our Religion, Doctrine and Faith, trans. Kathleen E. Hasenberg. London: Hodder and Stoughton, and Plough Publishing House, 1950, 1970.
Schnell, Hans. "Thorough Account From God's Word, How to Distinguish Between the Temporal and Spiritual Regimes. . .," ed. Leonard Gross, trans. Elizabeth Bender (unpublished).
Troeltsch, Ernst. Protestantism and Progress, a Historical Study of the Relation of Protestantism to the Modern World, trans. by W. Montgomery. Boston: Beacon Press, 1958.
Adapted by permission of Herald Press, Harrisonburg, Virginia, and Waterloo, Ontario, from Mennonite Encyclopedia, Vol. 5, pp. 511-512. All rights reserved. For information on ordering the encyclopedia visit the Herald Press website.
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