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Rafael Domingo Oslé
Head of the Chair Álvaro d'Ors of the University of Navarra.
American Professor John Witte Jr. sample in this essay the contribution to law of some central figures of Protestantism, from the early reformers such as Luther, Calvin and Beza to renowned contemporary professors such as Harold Berman or David Little.
From the first page to the last, the book reflects the intimate and inalienable relationship between religion and law: as Witte explains, there is a religious dimension to law, just as there is a juridical dimension to religion. When this interaction is obstructed, as it is today, religion is diluted into an amorphous spiritualism and law is reduced to a coercive imposition rules and regulations .
Witte masterfully enters the mind of John Adams and explains how this founding father tried to find, in theory and in internship, a balance between the freedom to practice a multitude of private religions and the moderate official establishment of a public religion: Christianity.
Emil Brunner (1889-1966) is portrayed by Witte as a staunch defender of natural law, natural theology and reason, as opposed to many other Protestants, in particular his Swiss contemporary Karl Barth (1886-1968), who declared his famous "No!" against Brunner and natural law.
The fall of the Soviet Union at the end of the twentieth century is a good validation of Harold J. Berman's theory of the inalienable religious foundations of any legal system. Berman is a pioneer in the analysis of the relationship between law and religion, to whom Witte owes his legal vocation.
It is possible that the Spanish-speaking reader may miss a greater presence of references to Spanish sources of the Second Scholasticism, including the famous School of Salamanca, a greater connection between the Protestant Reformation and the Roman and medieval juridical sources, or a more precise and accurate information of the message of the Catholic Church.
his book by American Professor John Witte, Jr. (Emory University) sample us the firm Protestant roots of Western legal culture and, in particular, the impact of Protestantism on the development of the theory of subjective rights, human rights, religious freedom, the existence of written constitutions, federalism, the doctrine of national and popular sovereignty, resistance and revolution against tyrannical government, the secularization of family law and, in general, the process of gradual secularization of law and state legal systems.
The reason for this influence is partly due to the fact that the various movements of the Protestant Reformation - from the first efforts of the Augustinian exmonk Martin Luther in 1517 until today - were concerned with theology and the Church, but also with politics and the State, because of their inevitable connection. The reader will soon grasp the important juridical consequences of certain basic theological postulates of Protestantism, such as, for example, the fact that the political community is constituted by a covenant between the rulers (magistrates in the language of the time) and the people before God, the content of which is shown by divine and natural laws and specifically the Decalogue; or the fact that Church and State must be institutionally separate but united in their purpose and function, and thus also in the defense of the rights and liberties of the people, including organized constitutional resistance.
From the first page to the last, the book externalizes the intimate and inalienable relationship between religion and law. As Witte rightly explains, there is a religious dimension to law, just as there is a juridical dimension to religion. When this interaction is obstructed, as it is happening nowadays, religion is diluted in an amorphous spiritualism and law is reduced to a coercive imposition rules and regulations .
The approach to the question is biographical. Witte analyzes and evaluates the contribution of thirteen central figures of Protestantism from the early reformers such as Luther, Calvin and Beza, to renowned contemporary professors such as Harold Berman, David Little or Norman Doe. From all of them Witte has learned and with all of them he has maintained a constant intellectual conversation, real or imagined, during his forty years of university dedication. Some are more theologians than jurists (Luther, Calvin, Beza, Kuyper, or Brunner), others more jurists than theologians (Oldendorp, Althusius, Selden, Adams, Berman, Little or Doe), but all, in one way or another, have made significant contributions to the area of law, whether in its more strictly legal dimension, or in its moral or spiritual dimension.
In the first chapter, on Luther and his reformation, Witte offers a general framework and explains with clear examples why every theology needs its own law: cuius theologia, eius ius, we could say with the language that united Europe. And vice versa, since the relationship between religion and law is reciprocal. It is not surprising, therefore, that the Lutheran reform of theology and the Church spread like wildfire to the juridical-political sphere to lead a reform of political organization and legal systems. Firm pillars of this reform were the covenant of the rulers and the people before God, the content of the Decalogue and the natural laws, the respect for individual rights and the institutional separation between Church and State, maintaining their unity of purpose.
Witte introduces us to a Luther who changes his negative view of law - which led him to burn books from Canon Law and to call jurists bad Christians, according to the saying of the time(Juristen böse Christen!) - to become a defender of law as a necessary instrument of social order and justice. It is wise to rectify.
An example of a good jurist and devout Protestant was the German Johann Oldendorp (c. 1486-1567), whose work is analyzed by Witte in chapter two. Little known in the Spanish-speaking world, Oldendorp was not an original jurist, let alone a brilliant one, but he was a very influential jurist in his time: some historians even consider him the most influential jurist of the Reformation era. Devoted to the training of Protestant judges and rulers, Oldendorp masterfully combined theory and internship...
The third chapter deals with the French reformer, humanist and theologian John Calvin (1509-1564) as a jurist. Exalted by some scholars as the father of modern democracy and harshly criticized by others for his religious fanaticism, Witte calls for moderation in the assessment of this important reformer. To this end, he tries to show the changes in Calvin's own position throughout his life, as his thinking matured.
Calvin's right-hand man until his death and his successor in Geneva was Theodore de Beza (1519-1605), who is the subject of chapter four. Beza was the author of a controversial and original booklet on the law of magistrates, written in Latin(De iure magistratuum, but published anonymously in Heidelberg and in French(De droit des magistrats) in 1574, to avoid reprisals. In it, Beza protests against the tyranny of France in religious matters and justifies resistance, including the use of arms, as a legitimate means of defense against power exercised unjustly by an unworthy magistracy.
The following two chapters (fifth and sixth) analyze the work of two contemporary jurists: one German, Johannes Althusius (1557-1638), and the other English, John Selden (1584-1654). Prolific author and redeemed from oblivion, centuries later, by Otto von Gierke (1841-1921), Althusius was inspired by the Calvinist doctrines of the absolute sovereignty of God, predestination and divine justice, for the essay of his most original and best known work, his Politica methodice digesta, published in 1603, and revised in 1610 and 1614. His symbiotic doctrine, which is the same as saying his political theory(Politica symbiotike vocatur) emphasizes the essential human communicability and sociability(ad vitam socialem) and is considered a precursor of modern federalism. Althusius was a great connoisseur of the Spanish legal culture of the time, whose authors quotation profusely, especially Fernando Vázquez de Menchaca and Diego de Covarrubias.
A bibliophile and collector of manuscripts, John Selden is known for his work Mare clausum (closed sea) in response to the famous opuscle on the freedom of the seas(Mare liberum) by Hugo Grotius. Drawing, among others, on Jewish law sources, Selden argued in favor of dominion or ownership over the seas, which, unlike the air, could be appropriated like land. Undoubtedly, Selden was thinking of the English dominion over the so-called British Ocean or Sea (English Channel).
The seventh chapter on John Adams (1735-1826) serves as a bridge between the chapters on the early reformers and those on Protestant jurists in the second half of the 19th and 20th centuries. In addition, this chapter takes us out of the European world and plunges us into the American Revolution, which is very difficult to understand without the doctrines developed by Protestant theologians and jurists. Witte masterfully enters the mind of John Adams -happily redeemed by his biographer David McCullough- and tells us sample how this founding father tried to find, in theory and in internship, a balance between the freedom to practice a multitude of private religions and the moderate official establishment of a public religion: Christianity.
Chapters eight and nine take up the theological argument by introducing us to two great Calvinist theologians: Abraham Kuyper (1837-1920) and Emil Brunner (1889-1966). In chapter eight, Witte offers us Kuyper's theological teachings on family, freedom and fortune. The latter is a generic term, covering both issues related to property, administration, work, business, poverty and the pension system. Some of these teachings show us a Kuyper renewing the Protestant Reformed tradition, but, at the same time, deeply anchored in it. As Witte explains, the parallels between Kuyper and his contemporary Pope Leo XIII do not go unnoticed. Both led a reform movement within their respective religious communities; both connected current problems with the classical tradition; and both contributed to the creation of a social doctrine as an alternative to secularizing liberal doctrines.
The chapter on Brunner is co-authored with the well-known University of Chicago ethics Full Professor Don S. Browning (1934-2010), one of Witte's teachers. In Brunner's work, Witte has always seen a firm starting point and a doctrinal reference for the elaboration of his entire vast research on the area family law. Brunner is portrayed by Witte as a staunch defender of natural law, natural theology and reason, in the face of many other Protestants, in particular his Swiss contemporary Karl Barth (1886-1968), who declared his famous "No!" against Brunner and natural law.
The tenth chapter is the most philosophical of the work. Witte, a connoisseur of the Dutch language since his childhood, critically introduces us to Herman Dooyeweerd (1894-1977), a renowned Christian philosopher at the Free University of Amsterdam. Dooyeweerd is known for his theory of modal aspects, in which he analyzes the fifteen different ways in which, according to him, reality exists, manifests itself, is experienced and makes sense. From this position, Dooyeweerd approaches the science of law in order to elaborate a theory of rights.
The twelfth chapter is dedicated to his beloved teacher, the aforementioned jurist Harold J. Berman, a pioneer in the analysis of the relationship between law and religion, to whom Witte owes his legal vocation. A convert to Christianity from Judaism after a shocking religious experience, Berman was an undisputed intellectual leader in the programs of study of Soviet law, comparative legal history, legal Philosophy and the interaction between law and religion. The fall of the Soviet Union at the end of the 20th century is a good validation of Berman's theory of the inalienable religious foundations of any legal system.
The last two chapters, thirteenth and fourteenth, are devoted to two active professors: the Calvinist David Little (Harvard) and the Anglican Norman Doe (Cardiff). Based on principles of the Calvinist tradition, David Little argues that legitimate self-defense constitutes the basic rule (Grundnorm, if we use the Kelsenian terminology ) of the moral theory of human rights. Finally, the figure of Norman Doe is linked to legal ecumenism and comparative law between religions. Doe understands law as an instrument of union rather than separation among Christians, due to the existence of legal principles common to all Christian families. He also approaches law as a unitive element of all the religions of the world, which should be studied from this iuscomparative perspective.
It is possible that the Spanish-speaking reader may miss, especially in the first part of the book, a greater presence of references to Spanish sources of the Second Scholasticism, including the famous School of Salamanca, a greater connection between the Protestant Reformation and the Roman and medieval juridical sources or a more precise and accurate information (sometimes caricatured) of the message of the Catholic Church. But it should also understand that, because of their strong rupturist content, the Protestant reformers forged their identity in open confrontation with the Catholic Church, with imperial Spain and with medieval theology and the Canon Law . For this reason, the attack and deformation of these realities (e.g., the pope as the Antichrist, or the very negative vision of Catholic marriage) and the values they represent have been frequent among the Reformers.
Once again, Witte offers us an interesting book, with a fresh and novel content, as clearly historical as it is rabidly current.