The following is taken from:
Johannes Heckel, “Appendix IV: Church and Ecclesiastical Law
in the Frame of the Doctrine of the Two Kingdoms,” in Lex Charitatis: A
Juristic Disquisition on Law in the Theology of Martin Luther (2d ed.; trans.
Gottfried G. Krodel; Emory University Studies in Law and Religion; Grand
Rapids, Mich.: Eerdmans, 2010)
XXVI
A church ordinance should deal
with the following topics: The religious rites of a congregation (orders of
worship); the office and estate of the servants of the church, especially the
preachers; the congregational diaconate, especially the care for the poor; the congregational participation in the
ordering of the educational system; [303] the administration of ecclesiastical
discipline, [304] especially the imposition of <excommunication>, [305]
or the denial of a church funeral; [306] the administration of the church's
property; [307] the establishment of supervision in the church on the level
above the local congregation. [308] All such prescriptions have in common that
they are not 'needed' law, and this is contrary to Canon law! Used in the
spirit of Christian freedom, man-made ecclesiastical law is to guarantee that
congregations are provided with God's Word, that unanimity among congregations
is strengthened, and that congregations are protected against disturbances.
That same spirit of voluntary [309] and harmonious [310] cooperation is to
govern also the relationship of particular churches [311] with each other, and
thus create unity in religious rites and legal practice [312] among
congregations in a larger geographic area. [313]
The very legal authority of the
church in the world is limited by the divine positive law and the divine natural
law. As developed above, [314] the divine positive law is established by
Christ, the divine natural law is authentically interpreted by Christ. Therefore,
outside of Christ the church in the world has no ecclesiastical law, neither a
divine nor a man-made one.
XXVII
Only a believing Christian can
judge whether the legal practice of the church agrees with these principles. In
the history of ecclesiastical law, the statement of the Apostle Paul, "The
spiritual man judges all things" (1 Corinthians 2:15), has had serious
consequences; it constantly exposes man-made ecclesiastical law to the judgment
of the members of the spiritual church. [315] Only these members, who know of
God's will for law, are capable of judging the legitimacy of the ecclesiastical
law. Whether the other members of a particular church listen to these members
of the spiritual church is another question. It will happen again and again
that the 'healthier' part of the church will become the minority. In this
situation there is no institution on earth which could determine infallibly
which opinion is to be followed God alone will rescue his church from such
pitfalls. With this statement, a church ordinance points beyond itself to
Christ, the true guardian of the church (custos ecclesiae). (pp. 202-3)
Notes for the above (taken from pp. 498-502):
[303.] To the Councilmen of All
Cities in Germany That They Establish and Maintain Christian Schools, 1524: WA
15:27ff.<LW 45:347ff.>.
[304.] Brief by Luther and others
on the draft of a church ordinance for the Margraviate of
Brandenburg-Ansbach-Kulmbach and the City of Nuremberg: Aug. 1, 1532: WA.B
6:340.36 <LW 50:64f.>: “At present we have instituted no other ban than
that those who live in public sins and do not desist are not admitted to the
sacrament of Christ’s body and blood. This can be accomplished because no one
among us receives the holy sacrament unless he has first been examined by the
pastor or deacon. Further, we do not see how at this time another ban could be
introduced, for many matters occur for which a preliminary investigation would
be necessary. We are unable to see how at this time such a procedure of
investigation could be instituted and organized, since secular government does
not wish to be bothered with such an investigation. Therefore we are content to
withhold the holy sacrament from those who live and remain in public sins, even
though the world is now so crude and beastly as to be in no hurry at all for
the sacrament and church, so that this exclusion from the Lord’s Supper might
not be considered to be a punishment. If someone excommunicates himself in this
way, be content; when even secular authority is ready to permit the existence
of public vices [what are we to do?] Nevertheless, in their sermons the
preachers ought to censure such pagan ways and behavior by reciting the divine
threats in all seriousness; at the same time they ought to admonish the
authorities to check such pagan ways. If discipline would again be restored by
instituting examination prior to communion, as certainly would be very useful
and good, then one could more easily come to the point where one could
institute a system of ecclesiastical discipline which would hold parents responsible
for urging their children and members of their household to go to the sacrament
and to church, [and] for preventing the young people from falling into such
pagan contempt of the sacraments and of all divine matters. If the public ban
is also instituted, then, of course, the secular authority has to enforce an
order for ostracizing the person who has been banned, if the public ban is to
do any good at all; at the present this might cause many wrongs, especially in
the large cities and territories. But our type of ban, by which someone is
excluded in private from the sacrament, has no impact on citizenship and
business dealing. In spite of this action, a Christian may work and have other
civic dealings with the person who is banned, as one would have dealings with a
pagan, but in such a way that he makes clear to the one who is banned and to
others that he does not approve of, nor is pleased with, the ungodly and
censurable teachings and actions [which caused the ban].”
See also Luther to Tilemann
Schnabel and the other pastors of Hesse assembled at Homberg: June 26, 1533:
WA.B 6:497.5: “With great joy I have become acquainted with your zeal for
Christ and Christian discipline. But in these turbulent times, which are not
yet sufficiently suitable for accepting discipline, I would not dare to advise
accepting such a sudden innovation. One has to let the peasants first be a bit
on a rampage, and a wagon full of hay should move aside for a drunk. Things
will work out by themselves for we will not be able to push them ahead through
laws. It is an important matter, not by itself but because of the persons
involved who have the power to stir up troubles for us; <at this point,>
these troubles cannot be calmed down since we are <only> a root in dry
ground <Isa. 53:2> and have not yet grown into branches and leaves. In
the meantime I would advise to begin slowly and in small pieces, as we are
doing here. First, we keep those who seem to deserve excommunication away from
the sacrament of the Eucharist; this is the true excommunication, which is
called the small ban. Then we do not permit such people to be god-parents at
Baptisms. Under no circumstances may we claim to practice the excommunication
which prohibits secular dealings <i.e., the large ban»; first, because it is
outside of our law and it <could> deal with those who <may> want to
be true Christians; second, because in this age the <large ban> cannot
even become a part of our <competency>, and we would look ridiculous were
we to try handling what is now beyond our abilities. You seem to hope that the
prince himself might implement such a ban, but that is quite uncertain; <and
further,> I do not want the political magistrate mixed <into this
task>; in all aspects he should be separated from it so that the
differentiation between both magistrates is fixed truly and certainly.”
[305.] For the connection of
excommunication with love, see Luther to Wolfgang Capito: Jan. 17, 1522: WA.B
2:432.59 <LW 48:376>: “There is, however, no grace, no love, no kindness
for those who condemn or despise doctrine itself and the ministry of the Word,
or persecute it cunningly — or rather, it is the highest kind of love to resist
their fury and ungodliness with all strength and in every possible way.”
[306.] Luther and Bugenhagen to
Cyriakus Gericke: Jan. 14, 1542: WA.B 9:594.4: “This is the custom in our
congregation: Once a person who in his life stubbornly despised to commune with
us has died, we have no fellowship <literally: ‘commune’> with him; i.e.,
we let him be buried by whoever will bury him and in whatever way, outside or
inside the cemetery. But we <i.e., the pastors> shall not follow <the
casket> with <our> pupils, and we shall not sing <at his grave>;
those who bury him may cry, according to the statement: ‘Let the dead bury the
dead’ <Luke 9:60>.” See also WA.TR 2:No. 1735: let those who do not
partake of the Lord’s Supper and learn the Catechism die “like the swine”; they
should not be buried in the Kirchhof <i.e., the area around a church, which
sometimes is used for burials>; WA.TR 4:No. 5174: when those who do not
partake of the Lord’s Supper die, they should be buried “in the knackery.”
[307.] Luther to Gregory Brtick,
chancellor of Electoral Saxony: Apr. 25, 1524: WA.B 3:274.3.12. — For the use
of properties of monasteries and religious institutions which have been
dissolved, see Luther’s brief of the beginning of 1531: WA.B 6:6.55; Luther and
others to the councilors of the dukes of Pomerania: May 30, 1544: WA.B
10:589.97: “... it is not right that these properties which <were given>
for .. . the use by the churches, as, <e.g.,> for the episcopal office,
for a visitation, for courts, etc., are confiscated <by secular
authorities> so that the needs of the church are ignored. In this matter
they sin who act <or> who help with word or action for, as everyone
knows, it is unjust to covet the goods of someone else and withhold them from
the community or a private person”; Luther to the City Council of Kiel: July 7,
1544: WA.B 10:603.4: “It is true, we theologians have taught until now, and
still do, that the properties of dissolved monasteries are to be invested for
the use by churches and the poor... for this is right and godly. . .”; to the
City Council of Herford: Oct. 24, 1534: WA.B 7:113.10ff.; Against Jack Sausage,
1541: WA 51:525.25: “<The church has been endowed with properties for>
maintaining... churches and schools, i.e., God’s holy Word, the office of
preaching and other services in the church, theologians, pastors, preachers,
and, in addition, also the poor, widows, orphans, and the sick”; ibid., WA
51:526.22: “<The pope’s followers argue unjustly that> the properties of
the church belong to them, <and, therefore, they> demand that we restore
<these properties to them>”. — For the duty of Christians to maintain
preachers, see Against the Roman Papacy, 1545: WA 54:280.19.
[308.] Luther to Wenceslas Link:
Feb. 7, 1525: WA.B 3:437.18: “... it would be excellent and proper if in a city
one <pastor> were the bishop, and the others the pastors . . .”; to
George Spalatin: Jan. 12, 1541: WA.B 9:306.7: “... here in Wittenberg one has
begun to organize a consistory. Yet once completed, it will not affect the
visitors <of the congregations in the territory>. Rather, <it will
deal> with marriage matters (with which we here <i.e., the theologians of
the university> are no longer able or willing to deal), and it will force
the peasants to abide by a certain order of discipline and pay an income to the
pastors; perhaps by necessity this will also touch the nobility and magistrates
here and there.” — See also Peter Brunner, Vom Amt des Bischofs (Witten, 1955),
55ff., and id., Nikolaus von Amsdorf als Bischof von Naumburg (Giitersloh,
1961), 56ff., 95ff. — Luther and Melanchthon affirmed that a particular church
by law should have the office of bishop or superintendent. Sermon of June 5,
1535: WA 41:186.13: “A priest is to be an intercessor, sacrificer, and teacher.
It is the highest honor to be a priest, higher than the honor of being a king
or prince. To be a bishop is not such a glorious matter as the common people
think; he is <only> a watchman or shepherd, as one has called him in
prior times. <Then> the large congregations had an overseer. He was to
have a superior position among the other priests so that one comes to him and consults
with him; this is the case here with our pastor <i.e., John Bugenhagen>,
who is a bishop.” <The text does not make clear who the “one” is who comes
to the bishop; maybe it is the priest, mentioned at the beginning of the text.
But one could also think of people who want to consult with the bishop about
their pastor.> — For the tasks of a bishop, see Luther, Melanchthon (the
author of the letter), and others to the dukes of Pomerania: May 14, 1544: WA.B
10:568. 33: “... it is true and obvious that, as an overseer, a bishop has to
spread the pure Christian doctrine of the gospel and himself teach it, .. .
also, he has to visit the churches, ordain qualified persons, supervise the
studies, preside over the marriage courts and other ecclesiastical courts, and
implement Christian discipline, tasks for which the dioceses have been established
<or: ‘endowed?’> in the first place... .”
[309.] Luther to Lazarus
Spengler: Aug. 15, 1528: WA.B 4:534.8 <LW 49:205f.>: “First of all, it is
proper and prudent not to compel anyone to come to or abstain from the
<Lord’s Supper>, or to appoint particular times and places for it, thus
trapping the consciences. Since St. Paul teaches, however, [in] I Corinthians
14[:40, that] among Christians all things should be done in an orderly fashion,
it seems good to me that the Provosts <i.e., the chief pastors of the two
city churches in Nuremberg> and ministers should get together and decide on
a common and free procedure for this matter. The honorable city council should
then see to it that this procedure is used, and thus preserve unity and
uniformity.”
[310.] A church ordinance should
not be imposed upon congregations, either by a council of the evangelical party
or a command ofa territorial lord. See Luther to Nicholas Hausmann: Nov. 17,
1524: WA.B 3:373.16 <LW 49:9of.>: “I do not consider it sufficiently safe
to call a council of our party for establishing unity in the ceremonies. It
would set a bad example, however praiseworthy the zeal with which it might be
attempted, as all the councils of the church prove from the beginning. Even the
Council of the Apostles <Acts 15:1ff.> dealt almost more with works and
traditions than with faith. In the later councils, in fact, there was never any
discussion of faith, but only of opinions and questions. As a result, the word
‘council’ is almost as suspect and distasteful to me as the term ‘free will’.
If in these external matters one congregation does not voluntarily want to
follow another, why should it be compelled to do so by decrees of councils,
which are soon converted into laws and snares for souls? Of its own accord a
congregation should, therefore, follow another one, or else be allowed to enjoy
its own customs; only the unity of the Spirit should be preserved in faith and
in the Word, however great may be the diversity and variety in respect to the
flesh and the elements of the world.” See also Luther’s Jan. 7, 1527, letter to
Landgrave Philip of Hesse (WA.B 4:157, as above, 485 n. 179), in which Luther
advised not to publish a church ordinance.
[311.] <In the sense of
congregations and also of all congregations in a particular territory with
those in another territory.> :
[312.] Luther had no delusions
about the possibility of arriving at a universally accepted evangelical
ecclesiastical law; Luther to Gregory Brtick, chancellor of Electoral Saxony:
Jan. 6, 1543: WA.B 10:237.27: “I have no hope that we might more and more become
one in the use of uniform ceremonies in all churches, as it also was impossible
under the papacy. Even if in our territory we do things in a certain way,
others will not follow us and do not want us to be their masters, as we clearly
see. Even the Apostles experienced this with the ceremonies of Moses; they had
to leave it a matter of choice, how people wanted to eat, dress, <or>
handle themselves. More about this matter once I have arrived at a decision.”
[313.] Luther did not strive for
uniformity in the order of worship used in all evangelical congregations, but
he hoped that uniformity might be accomplished within a lordship; The German
Mass, 1526: WA 19:73.3.6 <LW 53:62>: “... I do not propose that all of
Germany should uniformly follow our Wittenberg order. ... But it would be well
if the service in every principality would be held in the same manner and if
the order observed ina given city would also be followed by the surrounding
towns and villages; whether those in other principalities hold the same order
or add to it ought to be a matter of free choice and not of constraint.”
[314.] <See above, 184; see
also above, 85, below, Index of Subjects: Law, s.v. “law, of Christ, is the
authentic interpretation of the divine meaning oft he divine natural law.”>
[315.] The Right and Power of a
Christian Congregation, 1523: WA 11:409.21: “.. .<Christ> gives the right
and power to judge doctrine to each individual and all Christians together...
.”
