My book, Lutheran Theology and Contract Law in Early Modern Germany has been published by Brill in 2019. As the title suggests, it is about the contract law teachings shaped by Lutheran theologians and jurists. The involvement of the theologians with contract law issues might sound weird today, as our secular society is founded on a strong separation between religion and law. However, medieval and early modern society was deeply religious and the salvation of the soul was a crucial problem for every person. Sins could lead to eternal damnation. They had to be confessed at least once a year to the parish priest and punishment should be inflicted. For centuries, in the Catholic Church, priests were trained to guide the Christians in their fight against sins and to determine the right penance. They were also concerned with the moral aspects of legal obligations, including property law and contract law. Fraud in business, illicit appropriation of a thing, and the charging of interest in loans were all sins. The Christian should be instructed on how to avoid these sins and counseled in the solution of the moral dilemmas. The most eminent theologians wrote a multitude of penitential books destined to the education of confessors and penitents. These books also included long discussions about property and contract law problems.
Although in a different way, the Lutheran theologians followed the path prepared by the Catholics. Martin Luther (1483-1546), Philipp Melanchthon (1497-1560), Johannes Brenz (1499-1570), Johannes Aepinus (1499-1553), Martin Chemnitz (1522-1586), Johann Gerhard (1582-1637) and many other outstanding theologians wrote sermons, moral treatises and other specific works dedicated to the education of pastors and believers. The word privacy was not mentioned in these works. However, the theologians dealt with the ´private´ and more in specific with the right of private property, private contractual autonomy, and private business. In this post, I would like to focus on the right of property according to the early modern Lutheran theologians. The narrative will be rather stylized, but the reader who wants to have more detailed information can have a look at my book.
Privacy is not included in the concept of private property but it can presuppose the right of property. Today, people might take for granted the exclusive ownership of a thing (e.g. house) but this does not hold true in the medieval and early modern period. Private property was indeed a contested right. For example, we can think about the medieval disputes triggered by the Franciscans and other mendicant orders who fought to defend their right to renounce to property and live in a state of voluntary poverty.
In the early modern period, a Protestant sect called Anabaptism aired the view that private property should be forbidden. According to the Bible, the Anabaptists said, Christians should have everything in common and business activities should be prohibited. They appealed to numerous biblical passages like for instance Mark 10:21, sell your goods and give to the poor, and thou shalt have treasure in Heaven or invoked the evangelical spirit of the first Christian community where all things were held in common. This movement spread throughout Europe but was rejected by the main confessions (Calvinists, Lutherans and Roman Catholics) because it was considered to be too radical.
The Lutherans opposed the Anabaptists’ position on communal property advocating instead a conception of private property aimed at considering the needs of the neighbor. Private property, they argued, is a divine institution commanded by the Scriptures. The seventh commandment of the Decalogue, you shall not steal, was employed as the main argument for the defense of private property. The Decalogue was a crucial element of the Lutheran moral system. It was understood as the summary of the divine law, the existential catalog of the Christian duties. Luther and the other reformers maintained that by forbidding the stealing of goods God clearly instituted private property and determined its use.
The law of God, therefore, does not command that properties must be in common but sets out that private property is a divine institution and must be used according to charity. The aim of property is not an egoistic enjoyment but the support of the neighbor. For the Lutherans, this support could be given in two ways: by exchanging goods or by giving alms. Contracts were conceived as instruments to exchange goods in order to benefit the neighbor. For example, the reformers claimed that if one of the parties has goods but no money, he could make a contract of sale with another party. If a party does not have enough money to buy a house and the other party does not need it they can make a lease. If one of the parties is deprived of goods then the other party could help him by almsgiving. When the neighbor needs help he should be sustained by a correct contractual exchange and almsgiving.
This compromise solution allowed the Lutherans to defend private property and safeguard the correspondence with the biblical dictates. They considered faith and charity as core rules for private property. Faith allows men to recognize that private property is a divine institution. The owner of goods has to thank God for his goods or ask Him when they are needed. Charity is the fundamental rule to use the goods. The Christian has to revolve attention on the needs of the neighbor. This could be done by a sale, lease or another contract always considering the needs of both parties so that they both can be satisfied. The right to private property is not given for self-wellbeing but to meet the neighbor’s needs.
I conclude with a speculation on the notion of private that could be carved out from this discussion on the right to property. For the early modern Lutheran theologians, the private was not seen in an individualistic and absolutistic sense, but in connection with God and the neighbor. The Lutherans defended private property, but as an instrument to practice the virtues of faith and charity. Consequently, the rules on the property of goods are not absolute but flexible. They do not guarantee the right to possess goods for the personal satisfaction of the owner so that he could claim his unlimited right to the private. Rather, they guarantee the moral lawfulness of owing goods as long as the neighbor does not need help. When the neighbor knocks on my door, my private goods shall be used to help him. It is, therefore, a softened and flexible notion of private, which does not imply complete isolation from the other but rather a certain opening. The moral norms devised by the Lutheran theologians appeal to the Christian and command him to host the neighbor into his private space when this is necessary.