Protestantism and legal positivism

the transformation of the concept of law by the Lutheran Reformation

Abstract

Background: The Protestant Reformation was the first major movement against the medieval legal tradition in force at the West since the Roman Empire. The reformers, by founding a religious or theological positivism with Christian roots – built primarily on positive sources – laid the foundations for the emergence of a legal positivism, a phenomenon foreign to the previous paradigm and without historical precedent in the way of thinking about the totality of law, due to the unprecedented experience of the monism of the sources.

Objectives: To evaluate the impacts of the Reformation on the rise and consolidation of legal positivism from the eighteenth century onwards, in order to confront it with the previous paradigm. To this end, the classical theory of law, built over millennia and whose main heir is found in the scholastic tradition of medieval legal pluralism, as well as the phenomenon of theological monism triggered by the religious revolt against the Roman Catholic Church, will be presented, in a brief and reduced way, studying its consequences for positive legislation and natural law.

Method: This research has a qualitative and exploratory nature, starting from a bibliographic review of the literature on the subject through a historical study of the main primary sources on the matter.

Result: As a result of this reformed doctrine, Western legal thinking, which was deeply grounded on an Aristotelian-Thomist philosophy, was also influenced by other the new-born Protestant Theology, particularly by Martin Luther and Protestant jurists like Philipp Melanchthon and Johann Oldendorp.

Conclusion: This paper contributes to the understanding of the influence of these characters – often forgotten – on the formation of the modern concept of Law, focusing particularly on its relationship with the after-called Legal Positivism, which will be born and consolidated in the following centuries. The theological assumptions put forward by Luther and his disciples were at the core of what became known as this typical current of Modernity, and, without them, such line of legal thought would hardly have found fertile soil to develop.