The Primacy of the Secular Law
I wish I had had this concept for my dissertation. I just read on the editorial page of the New York Times (page A16, January 28, 2013) how Cardinal Mahony “invoked a non-existent church privilege to hide miscreant clergy and shield the church and his own reputation.” That privilege was very real in Martin Luther’s time when he threw the canon law into the flames on December 10, 1520. In those days clergy could not be judged by civil judges but only in ecclesiastical courts by fellow clergy. They considered the canon law to be above the civil law. Luther disagreed and declared that the civil law was the law of the land. In those days the canon law was referred to as the “spiritual law” as I discovered in my dissertation.
This insight is very significant because historians only regard the issue involved as a theological issue regarding the law and thereby miss the legal revolution involved in Luther’s action. In those days there was a legal pluralism, in which the church wanted the primacy of the canon law. James Preus and others have argued that Luther was almost an anarchist, who discarded the law and against Carlstadt, for example, wanted to revolve all matters around his personal authority without recourse to law. What Preus and others, who criticize Luther from that perspective fail to realize, is that, even though the canon law and ecclesiastical courts may have been more advanced than the civil courts, Luther was championing the civil law as the law of the land and refused to recognize the rule of the law of the privileged clergy estate.
When I wrote my dissertation I did not realize how relevant it would be to the attitude of a Catholic cardinal even today and of course the whole regressive movement of the Islamists to place the Shariah, their religious law above the civil law.