The Tragedy of Lutheran Jurisprudence

The teachings of Martin Luther (1483–1546) launched the Protestant Reformation in the 16th century. Luther believed in a discontinuity between God and humans that makes it impossible to provide an account of morality by reference to natural law. Rather, Lutheran jurisprudence rejects natural-law theory and it largely remains in the shadows of narrow legal positivism. According to Lutheran jurisprudence, lawfully promulgated decrees are laws even if they are completely arbitrary in their purpose and effect. Luther derived his doctrine on civil government exclusively from Chapter 13 of St Paul’s Epistle to the Romans. He saw in this passage no legitimate grounds for a right to lawful resistance against tyranny, no matter what such a government does and how harmful its positive laws might be; a view that undoubtedly influenced the German Lutheran Church, including the Lutherans who belonged to the German legal profession. This paper discusses whether or not it is fair to assume that, ultimately, Lutheran jurisprudence might have facilitated the denial of ethics and metaphysics in conceptualisations of the law, and whether such a denial may somehow explain the abysmal failure of the German legal profession to resist the brutality and oppression of the Nazi regime in the 1930s