View source for Law, Attitudes toward Civil and Criminal

Mennonite attitudes toward criminal and civil law can best be understood against the background of the "Two Kingdoms" doctrine in the theology of [[Luther, Martin (1483-1546)|Martin Luther]]. While the [[Anabaptism|Anabaptists]] departed significantly from the views of Luther and [[Zwingli, Ulrich (1484-1531)|Zwingli]] on matters regarding the relationship between the church and the state and Christian participation in law and government, they nevertheless accepted the way in which Luther defined these institutions and structured the problem in his "Two Kingdoms" theology.

There are several elements of this theology that are significant for the understanding of law. First, it holds that there are two realms in which God is active, each governed by different norms. The "spiritual kingdom" is the realm governed by the gospel norms of love and grace, revealed in Jesus Christ. The "earthly kingdom" is the realm of the sinful human nature, which necessarily must be governed by the norms of law, force, and justice. Second, the state is an institution "ordained by God" (Romans 13) in the earthly kingdom to restrain evil and do justice in the sinful world. Law is understood as the means by which the state accomplishes this purpose. It is the command of a state, backed up by the coercive threat of force or even violence. For this reason both [[Luther, Martin (1483-1546)|Luther]] and the Anabaptists almost always referred to the state and its laws as "the sword."

[[Luther, Martin (1483-1546)|Luther]] recognized that, because law is essentially coercive, it is inconsistent with the standards of Christian love and grace that ought to guide the conduct of Christians in the "private sphere" of their individual relations with each other. The major disagreement the Anabaptists had with Luther was not over this point, but over the nature of the Christian's proper relationship to the two kingdoms. While Luther believed that Christians necessarily lived in both kingdoms and assumed obligations in both, the Anabaptists for the most part believed that the whole of the Christian life should be lived within the spiritual kingdom of love and grace and should be governed by its norms. For them, the church was a [[Community|community]] of believers set apart from the earthly kingdom, which should live completely according to the norms of the gospel.

While the Anabaptists did not have a uniform view of the specific implications of this general principle in matters relating to the participation in government and legal activities, in general they viewed such participation with extreme skepticism, if not totally rejecting it. Most held that a Christian ought not to serve as a magistrate in either criminal or civil procedures, nor should a Christian use the civil courts to bring action against others.

With [[Luther, Martin (1483-1546)|Luther]], the Anabaptists viewed both civil and criminal law as the product of the state, and the state they both agreed, was ordained by God. Thus, law was not founded upon some "natural" or social moral order, as the scholastic tradition of "natural law" jurisprudence held. In this latter tradition law received its [[Authority|authority]] over the consciences of citizens from the fact that it embodied fundamental norms of morality and justice. A law that violated the moral law of God or of "nature" was not, strictly speaking, a law at all. It did not "bind in conscience;" that is, it had no moral authority, and hence did not require the obedience of its subjects.

As part of their rejection of Roman Catholicism, [[Luther, Martin (1483-1546)|Luther]] and the Anabaptists rejected all forms of natural law thinking. For both Luther and the Anabaptists, the law receives its authority from the coercive power of the state. This distinction is important for several reasons. First, it makes force and will (e.g., the will of the sovereign) the source of the law's authority rather than some independent standard of justice and moral virtue (natural law). And second, it creates a gap between the authority law exercises over its subjects and the authority of the state to promulgate law. In other words, for Luther and the Anabaptists, the state is divinely ordained by God to govern its citizens by its laws, but those laws exercise authority over citizens because they are the enforceable demands of the state, not because they reflect the will of God for the society. For Luther the validity of law does not depend upon its content but upon its source in a divinely ordained state having the power to enforce it.

In the terminology of modern jurisprudence, the Lutheran and Anabaptist view of law closely resembles the doctrine known as "legal positivism." It attempts to define law in purely descriptive rather than normative terms. Laws are simply those commands issued by states which they are able to enforce through threat or use of force. The validity of the law depends solely upon its being recognized as law and followed by the bulk of the citizens. It has nothing to do with its conformity to any particular standards of morality or justice. In the "natural law" view, the authority of any given state depends upon the moral validity of its laws. For the legal positivists it is the other way around. The authority of the state is primary, and the validity of law consists solely its being the enforceable commands of that state.

It is easy to see why both [[Luther, Martin (1483-1546)|Luther]] and the Anabaptists viewed law as the antithesis of Christian love and grace, for its primary nature is the coercive force which backs it up. They did not distinguish civil law from the criminal law, since both were in the final analysis instruments of this coercive force. Whether the function of law was execution, imprisonment, fine, or the awarding of claims, it was still the coercive extension of the "sword."

It is also not surprising that the Anabaptist and Mennonite tradition generally does not make a clear distinction between the state as an institution and the phenomenon of law. Both are lumped together under the rubric of "the sword." Consequently, the questions of Christian participation in the government offices, of the relationship of church and state, of participation in war, of the enforcement of law, and the use of law and courts, also tend to be treated as one. In all of these the primary issue is the Christian use of, or participation in, actions or institutions of coercion and force. This tendency continues into the 20th century. It is clearly evident in the most influential 20th century discussion of these issues among North American Mennonites, Guy F. Hershberger's <em>War, peace, and nonresistance </em>(1944).

This attitude is reinforced by the belief that all of these institutions and activities are a part of the "earthly kingdom" and are "outside the perfection of Christ." It is also reinforced by the fact that the phenomena of coercion, force, and violence tend to be treated as morally equivalent. This is because, as Hershberger's title suggests, the fundamental moral concept for Mennonites has been "nonresistance," which is usually understood to require the rejection of all forms of coercive and forceful, as well as violent, means of resisting evil. Again, all distinctions usually drawn among these concepts are blurred by the tendency to treat all of them under the term "the sword." Thus, the "nonresistance" principle makes the moral question of Christian participation in politics, government, and law essentially the same as that of participation in war.

Thus, throughout Mennonite history there has been among them a general reluctance to use the courts for the enforcement of personal rights against others. But as Mennonites became more urbanized and entrepreneurial they found it more difficult to conduct affairs without recourse to litigation and their reluctance to use litigation tended to wane. In [[Russia|Russia]] and [[South America|South America]], where Mennonites developed almost completely autonomous communities, they even established among themselves quasi-legal mechanisms for the control of both civil disputes and criminal offenses as well (Kreider, 1951). A supportive theology for such activities, however, was not developed in those contexts.

As late-20th century Mennonites became more urbanized and integrated into the social and economic institutions of their society, there also emerged new interpretations of the doctrine of nonresistance. These attempted to draw moral distinctions between the uses of coercive and even forceful resistance on the one hand, and the use of violence on the other, admitting the appropriateness of the former while continuing to reject the latter (Sider, 1979; Friesen, 1986). This reinterpretation of the traditional doctrine permitted as well a different approach to the use of law as a coercive, though not necessarily violent, instrument for the pursuit of justice.

This changing position is reflected in the <em>Summary statement on the use of the law</em> officially adopted by the [[Mennonite Church (MC)|Mennonite Church (MC)]] General Assembly in 1981. It went beyond the prevailing traditional Mennonite view of law by affirming "the positive role of law in human society," and "encouragement for the professional practice of law." It advocated that "Christians should use the positive provisions of the civil law ... in order to fulfill the intention of law," including especially the bringing of justice to the poor and the oppressed. However, the <em>Summary statement</em> affirmed the view that use of the law must always be governed by the basic Christian goals of peace and reconciliation, beyond those of justice, and never by the aim to "satisfy selfish desires."
= Bibliography =
<em>Swartley, Willard and Cornelius J. Dyck, eds. An Annotated Bibliography of Mennonite Writings on War and Peace, 1930-1980. Scottdale, PA : Herald Press 1987:</em> 287-302.

Hershberger, Guy F. <em class="gameo_bibliography">War, Peace, and Nonresistance.</em> Scottdale, PA: Mennonite Publishing House, 1944.

Swartley, Willard M., ed. <em class="gameo_bibliography">The Bible and Law</em>, Occasional Papers, 3 Elkhart, IN: Institute of Mennonite Studies, 1982.

Klaassen, Walter, ed. <em class="gameo_bibliography">Anabaptism in Outline: Selected Primary Sources</em>, Classics of the Radical Reformation, vol. 3. Scottdale, PA: Herald Press, 1981: ch. 12-13.

Mennonite Church (MC) General Assembly. <em class="gameo_bibliography">The Use of the Law.</em> Scottdale, PA, 1982.

Sider, Ronald J. <em class="gameo_bibliography">Christ and Violence.</em> Scottdale, PA: Herald Press, 1979.

Friesen, Duane K. <em class="gameo_bibliography">Christian Peacemaking and International Conflict: a Realist Pacifist Perspective.</em> Scottdale, PA: Herald Press, 1986.

Kreider, Robert S. "The Anabaptist Conception of the Church in the Russian Mennonite Experience, 1789-1870." <em class="gameo_bibliography">Mennonite Quarterly Review</em> 25 (1951): 17-33.
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