By Rev. Dr. Frank Jehle
Karl Barth’s contribution to Church law can best be understood when one compares his views with those of Rudolph Sohm and Emil Brunner.[1] Rudolph Sohm (1841–1917) was one of the most significant German jurists of his generation, and as a Protestant he was close to his church. In accordance with the New Testament scholarship of his time, he attempted to show that the Christian church in its original sense, as in the Greek word Ecclesia, is „incapable of being a legal organization.“[2] „Church law stands in contradiction with the nature of the Church. […] The nature of the Church is spiritual; the nature of the law is wordly.“[3] In the forword to his great book, Sohm summed up, in his view, the decisive factor: „Christianity has come into the world, supernatural, supramundane. You will never be able to understand it if you have not yourself drunk from the miraculous cup, the content of which quenches the thirst of the soul. Drink, and you will never again thirst. Drink, and you will discover a new world never before seen, the world of the Spirit arching over, outshining the world of earthly things. […] But this world of the Spirit cannot be grasped by legal terms. Even more, its nature stands in opposition to the nature of law. The spiritual nature of the Church excludes any ecclesiastical jurisdiction. In contradiction to the nature of the Church, Church law has nevertheless been formulated.“[4] Sohm minutely describes the history of Church law in 700 pages, as departing from what was initially – the early church community – a truly existing ideal.
The great Zurich theologian Emil Brunner (1889-1996) was strongly influenced by Rudolph Sohm. From 1908 to 1912 Brunner had studied mostly under Leonhard Ragaz who maintained a critical stand toward the Church and, in consequence of this criticism, resigned from his professorship in 1921. The longer the more, Ragaz felt it to be implausible to train pastors to serve in a church that was institutionally rigid, clergy dominated and one-sidedly oriented toward the middle class. In his lectures on the social and pastoral activities of a pastor, which Emil Brunner attended, he said in the winter semester 1911/1912, the Church would be „dead“ if it did not change and democratize its community structure. He recommended the English Brotherhood Movement to his students, which – as Ragaz formulated later – represented the
„endeavor of a spiritual communal ownership founded on the grounds of Christian Brotherhood“ – to a certain extent Rudolph Sohm’s ideal of the early church transposed into the present time. This made a deep impression on the young Emil Brunner. Himself having grown up in a pietistic milieu, already as a high school student he led a students’ bible group. He was a member of the World Student Christian Federation, and while pursuing his studies in Zurich he participated in the Young Mens’ Christian Association. After completing his dissertation, during a stay in England he encountered the so-called Christian „settlements“, communities – in part Quaker – in which small circles of men and women came together to continue and deepen their religious education, whereby they became close at heart, expressed their doubts and shared their beliefs. Here was to be found – once again in the words of Leonhard Ragaz – „a workshop for lay piety, a germ cell of authentic religious community“.[5]
Emil Brunner then became an „ordinary“ parish pastor, later a professor of divinity (de facto successor to Leonhard Ragaz) and was elected to the Zurich Synod. His youthful impressions of a free Christian community in which Church law seemed superfluous (and his collaboration in the 1930’s in the Oxford Group Movement founded by Frank Buchmann) had a lasting influence on his ideas about the Church and Church law. Particularly in his book „The Misunderstanding of the Church“ published in 1952, and in the final volume of his “Dogmatics” from 1962, Brunner depicted in detail what Sohm already had stated: The „Ekklesia“ – i.e. the Church in the sense of the New Testament – „knows nothing whatsoever of a sacred polity. It is no institution.“[6] „What we know as the church or churches resulting from historical developments cannot claim to be the Ecclesia in the New Testament sense.“[7] „The fundamental thesis of Rudolph Sohm […] is indisputable […]“. „In this legalistic, semi-political nature of the churches“ – be it the Roman Catholic Church or the orthodox churches, be it the churches of the Reformation – „and their character as institutions“ is what „distinguishes them most sharply from the Ecclesia of the New Testament and divides them from it by an impassable gulf.“[8] Ecclesia means „communion with God through Jesus Christ, and rooted in this and springing from it, communion or brotherhood with man.“[9]
In Dogmatics: Vol. III Brunner writes, „The New Testament Ekklesia is the […] brotherhood of the reconciled […]. This spiritual brotherhood, which was yet visible in the world and recognizable to some extent even by unbelievers through its manifestations, through the love of its members for one another, is the Ekklesia of the New Testament.“[10] „The Ekklesia is a thoroughly uncultic, unsacred, spiritual brotherhood, which lives in trusting obedience to its Lord Christ and in the love to the brethren which he bestows, and knows itself as the Body of Christ through the Holy Spirit which dwells in it. The whole life is service of God and this service of God is at the same time brotherly service.“[11]
Rudolph Sohm, as well as Emil Brunner, maintained a distance toward the actually existing and institutionally established Church. Personally, they kept their Church membership and took active part in Church life. In accordance with the principles of their theological views, their’s was rather a pragmatic position with regard to Church law. Sohm was of the opinion, the Church, in the theological sense, should be free „from any law“.[12] The really existing Church is, by comparison, nothing other than a piece of the „world“.[13] It suffices to leave its organization to the state and its laws regulating the relationship between church and state. Emil Brunner referred to the actually exisiting, visible Church (e.g. the Evangelical Reformed Church of the Canton of Zurich) as a mere „instrument and shell“ of the true Ecclesia.[14] The „task before the churches“ consists therein, „to serve the growth of the Ecclesia“.[15] „It is becoming increasingly clear that the churches, from the point of view of continuity of doctrine and preaching, are still indispensible and indeed far superior to every other type of organization“, but „they have long since lost the monopoly of preaching Christ and still more that of creating Christian fellowship“.[16] Brunner based his hopes for the future on „such things as the Home Mission of Wichern in Germany, of the World Aliance of YMCAs, of the Student Christian Movement, of the Oxford Group Movement […] or even of missionary societies such as the Basel or China Inland Missions, none of which has an organic connection with any church“. Many millions „have here (rather than in any of the churches) learnt to know Christ and experience fellowship with others through Him, have here found their spiritual and Christian home, which they have bitterly missed when later perhaps they joined some church“.[17] Externally, Brunner had come to terms with the „established church“ as he encountered it in his home city of Zurich.
Brunner’s colleague Karl Barth (1886–1968) who taught in Basel during the last decades of his life, saw it quite differently, which had to do with his broader horizon: From 1921–1935 he was employed as a professor of divinity in the German Reich, first in Goettingen, then in Muenster in Westfalen and lastly in Bonn. Here he experienced the rise of nazism, Hitler’s seizure of power, and within the Church itself: the rise of the German Christians’ Movement. He saw directly what it meant for a church to be defenseless against the supremacy of the state over the practice of religion. The Protestant church „did not have a legal concept of ist own with which to oppose the total usurping state law“.[18] Once the German Reich had imposed the „Aryan paragraph“ on all state employees, it stipulated – and finally enforced – the Protestant church to dismiss pastors with Jewish ancestors from all church service. Professors of divinity had to swear unconditional obedience to the „Führer“ (which Barth refused to do, whereupon he lost his professorship in Bonn). In the intra-church „church struggle“, legal issues suddenly became important. What is the position regarding professing one’s faith? Is it to be tolerated when some theologians see in Hitler the coming again of Christ? What really counts in the Church? Just because the state introduces the „Führer“ principle does the Protestant church in turn, have to accept bishops being imposed upon them and at their head, a Reich’s bishop?
Against this background, Karl Barth developed an intense interest in Church law:
“The Christian Church is the congregation of the brethren in which Jesus Christ acts presently as the Lord in Word and Sacrament through the Holy Spirit. As the Church of pardoned sinners, it has to testify in the midst of a sinful world, with its faith as with its obedience, with its message as with its order, that it is solely his property, and that it lives and wants to live solely from his comfort and from his direction in the expectation of his appearance.
We reject the false doctrine, as though the church were permitted to abandon the form of its message and order to its own pleasure or to changes in prevailing ideological and political convictions. […] The various offices in the church do not establish a dominion of some over the others; on the contrary, they are for the exercise of the ministry entrusted to and enjoined upon the whole congregation. […] We reject the false doctrine, as though the church, apart from this ministry, could and were permitted to give to itself, or allow to be given to it, special leaders vested with ruling powers.”[19]
Karl Barth’s theses, written for the Confessional Synod held in Barmen in 1934, are highly relevant as far as Church law ist concerned. Such that, it is indeed possible that in a Church it can come to „false doctrine“. The congregation is entrusted not only with a message, but also with a visible „order“. This order is an order of service. Anyone who holds an office in the congregation has accepted it so as to serve. (Here one might recall the beautiful papal title: servus servorum dei.) – Apart from smaller publications, Barth’s main contributions on this topic can be found in his „Church Dogmatics“ Volume IV, part 2 under the title „The Order of the Community“[20]. That chapter on „The Order of the Community“ is part of Barth’s doctrine of reconciliation. In principle, he maintains right at the start: Reconciliation also implies, that God has undertaken a „great battle against chaos and therefore against disorder“.[21] „Order“ is „protest against chaos“.[22]„If we were to speak of the order of the community we cannot help speaking in the same breath […] of the right which is revealed and known and acknowledged and valid in it.“[23]
In the discussion about Emil Brunner’s concept of „brotherhood“, Barth uses the term more precisely, and defines the Church as a „brotherly christocracy“ or a „christocratic brotherhood“.[24] A community which does not „ask concerning law and order inevitably abandon[s] its life to chance and caprice and confusion“.[25] It cannot be denied, (and here Sohm and Brunner diagnosed something correctly), that „juridification and bureaucratisation“, „the reduction [to] forms and techniques“ of Church life are „symptoms of disorder“, or rather a bad order. This cannot be countered in that the problem of Church law is pushed aside, „but only by a recognition of the true order“.[26] The belief of a resurrected Christ implies „an order established in Him and the consequent obligation, that the Church ,rules’ in correspondence with this order.“[27]
„True Church law as it has to be continually sought is an integral part of the true confession which also has to be continually sought […].“[28] „True Church law arises from a hearing of the voice of Jesus Christ.“[29] „The voice which has to be heard is that of Jesus Christ as attested in Holy Scripture.“[30] Barth distances himself from a biblistic or fundamentalistic misunderstanding: „In the question of the form of its life, the Church has not […] to copy and adopt and imitate […].“[31] It must orient itself on „the first and original form of ,brotherly Christocracy’: not in order to reproduce it in the same form; but in order to be induced by it“.[32] Karl Barth was aware, that the theological experts were dependent upon the assistance of „special legal knowledge and skills”.[33] The Church needs in any case a form. And this form cannot come from the outside (e.g. from association law or from constitutional laws regulating the relationship between church and state). Its form must be Christ compatible, because Jesus Christ is its „living law“.[34]
In the framework of his dogmatics, Karl Barth did not present a definitively formulated church law. On the one side, this had to be formulated in accordance with each new time and place. On the other side, one was thereby dependent upon experts in theology and jurisprudence. Nevertheless, Barth formulated guidelines for the shaping of a Church law.
1. Church law is a law of service.
2. Church law is a liturgical law.
3. Church law is a living law.
4. Church law is an exemplary law.
First, point 4: As a rule, one understands Church law as a modified form of secular law. (As when the constitution of a Swiss canton would be modified and then adopted by the constitution of that canton’s official Church. The Synod would then be organized in the manner of the cantonal parliament.) Barth reversed this relationship: At best it could be that a true church constitution provides impulses for a state constitution. „The law of the Church is the result of its attempt to think and act in recognition of the law of Jesus Christ”.[35] On this background, the Church, given the opportunity, can help shape secular law. At its center, the Church has „a real perception of law“ and knows „a real way from worse law to better law“.[36] It knows „the way to better law, more serious order, more cetain peace, more genuine freedom, and a more solid maintenance and fashioning of human life and human life in society“.[37] Why should the Church not also in this area be in solidarity with the world?
More important in this context is an additional point: That Church law is a law of service is apparent from the formulation at Barmen, in which the Church is described as a „congregation of brethren “ in which there is no order of power. „Service is not just one of the determinations of the being of the community.“[38] Its “whole action can and must be a diaconate”.[39] This applies as well to the Church administration as to Church scholarship (theology). With regard to theology as a science Barth says that it „must claim the widest possible freedom in the choice and application of ist methods“, serving „not the Church, let alone any authority within it but in the Church“.[40] There are numerous offices or services in the Church. „All Christians do not have to serve equally, i.e. in the same function. But they all have to serve.“[41] With this Barth brings into play the doctrine of the common priesthood.
The second point goes into particular detail: Church law is a liturgical law. Without a divine worship in the narrow sense of the word – i.e. as a collective celebration of the community – a Church is unthinkable, for which reason Barth describes the religious service as the „distinct centre“ of the community[42] or as „the centre of its life“.[43] From this centre „there can and must and may and will be also true Christian being and action […] in the Christian everyday [life]. From it there can and must and may and will be general law and order“,[44] which is why Barth can assert, „that all law in the Church has its origial seat in the event of divine worship“.[45] The Christian community is a fellowship of confession, of baptism, of communion and of prayer.
Because the comunity is a „fellowship of confession“, it is necessary that the faith be continually renewed – through such occasions as „the common recitation of a creed“, „certainly [it] will involve singing“, most importantly „as the Word of God [is] preached“.[46] Karl Barth places himself clearly in the Protestant tradition. How ecumenically open he is can be seen in the following statements: The community is also – and by necessity – a fellowship of baptism and communion. There may be different interpretations of baptism. That does not change the fact that under no circumstances may it be subject to negotiation. „[…] when it comes together in the name of Jesus, in all its members it does so in virtue of baptism; and it is in the freedom given and received in baptism that it holds its public worship.“[47]
Similarly, this applies to the celebration of holy communion. This, as well, is not negotiable and must be given ist rightful place (and something which Barth does not state explicitly, yet can be concluded from his explanation – it should be celebrated in every Sunday service and not only on special feast days). That Jesus Christ „will give them food and drink, that in the life in which they too are are surrounded by death He will provide, and will Himself be, their wayside sustenance. And so they go and come to the gathering of the community and to eat and drink as at the table where He Himself presides as Lord and Host, and they are His invited and welcome guests. They go and come to the ‚Lord’s Supper’“, where He is „their food and drink“.[48] – The community, designated as a fellowship of prayer, signifies that Christians stand before their God not as possessors but rather as suplicants.
At first glance it would appear that with these four designations – „fellowship of confession“, „fellowship of baptism“, „fellowship of communion“ and „fellowship of prayer“ – Karl Barth had departed from the problem of a true Church law. And yet he draws conclusions. From the term „fellowship of confession“, Barth deduces that provisions of Church law should evidence confessional character. A true Church law is „necessarily a ‚confessing’ Church law“.[49] With regard to the concept „fellowship of baptism“, Barth points out that the Christian community is built on trust. The definitions of Church law are based on confidence and categorically not „enforceable“.[50] This is one of the important differences between church law and state law. Even the most strictly formulated regulations in the realm of the Church can only be based on their power to claim this „confidence“ and so this „obedience“. Outside of this confidence „no true law can be established or executed […]. Conversely, the confidence which, having its basis in baptism […] gives to it a spiritual power which no other, no worldly, law can ever have“.[51]
From the concept „fellowship of communion“, Barth deduces, that the systems of Church law „bear necessarily the character of a common ordering“.[52] In Holy Communion „all are equally nourished with food and drink“.[53] And „in the Lord’s Supper it is distinctly a question of outward and inward, visible and invisible, physical and spiritual nourishment“, so that „the Church order […] derived from the eucharistic action will necessarily embrace […] the life of the community […] in its totality and […] at the same time in its physical and spiritual nature. […] It will make the strong responsible for the weak, the healthy for the sick, the rich for the poor. It will make Christians answerable for one another and for the continuance of the community, outwardly no less than inwardly“.[54] The concept „fellowship of communion“ implies a socio-ethical program.
In so far as Christians in the „fellowship of prayer“ appeal to God as Father, they are among themselves brothers and sisters. Amongst siblings there are younger and older ones whose abilities differ, and from which inspiration for the assigning of offices can be taken: In the Church, as a „congregation of brethren “, not all have the same assignment. There can and will be „leader[s], teacher[s] and pastor[s]“.[55] It is God who awakens the necessary functionaries. The various talents in the community need to be organized: „The freedom of the Holy Spirit, to order the christocratic brotherhood in this way, not preventing but guaranteeing the actual leadership of one brother in relation to another, poses the task and concern of true Church law.“[56]
Finally, to the third point: Church law is a living law. To sum up, Barth was of the opinion that, based on its special character observance of canonical regulations cannot be put into practice by force. Nevertheless, they are binding. What has been decided upon, that applies. Which is not to say that not even the best church legislations are provisional and must be revised with each new generation. Ecclesia reformata semper reformanda. What was just yesterday, can be unjust today, when it is uncritically repeated. Church law can only be a “human law and not [a] divine [law]“.[57] It is „basically conditioned, and in practice as well as theory, it is a fallible work which must be improved and reformed“,[58] it is a „venture” and „provisional“ […] „until it is replaced by a better order“[59] „in transition“ on the way from „worse“ toward the „better“.[60] „No Church order is perfect, for none has fallen directly from heaven. [Not] even […] the primitive New Testament community […] nor […] the Western Papacy, the Eastern Patriachate, the Synodal Presbyterianism which derives from Calvin’s system, Methodist, Neo-Lutheran and other forms of Episcopacy or Congregationalism with its sovereignty of the the individual community.“[61] Every church has the task from „the transitional point which they have reached, to seek and find a fresh, and with seriousness, their living and therefore their true law.“[62]
Closing remarks: When Emil Brunner’s and Karl Barth’s comments on Church law, after more than 50 years, are considered anew, then it must be acknowledged that (in any ase in Switzerland) it is Emil Brunner’s position which has prevailed – although in a crude form. A church as institution and a prescribed church law are not favored. Free church communities are preferred rather than established institutions, and rigid forms are resisted. The Church as an institution is, at best, an ,,instrument and edifice“ for the true ecclesia. When Church law, if at all, is worked over, then, as a rule, merely by adapting the state’s legal church requirements or that of association law.
The question can then be raised, whether the current situation actually reflects what Emil Brunner postulated. In agreement with Barth, he placed great importance on a professing church. For this reason he wrote ,,Our Faith “[63]which was adressed to a wide audience, and for a theological professional audience, his ,,Dogmatics: Vol. I–III“. Herein, already in the Prolegomena, it is firmly declared, that ,,Christian doctrine“ has ,,a claim to absolute truth and validity, a claim to obedience“. ,,The Church is forced to distinguish ,sound’ doctrine from ,unsound’, that which conforms to the ,orthodox’ standard from that which does not“.[64] Freedom of confession as largely understood today (as in 19th Century liberalism) was not Emil Brunner’s ideal – nor was a Church law which is not taken seriously. Post modern arbitrariness would not rest well with him.
Karl Barth’s comments read like a message from another world. Perhaps it is well worth the while to meditate upon them. Barth’s experience with the German church struggle, and the conclusions he drew from it, are a valuable legacy – not so much in the details, but fundamentally. Barth’s description of the Church as a ,,brotherly christocracy“ or a ,,christocratic brotherhood“, and his warning that a church which does not inquire ,,about order and law“ stands in danger of abandoning itself ,,to chance, caprice [and] degeneration“ are thought provoking. A church that calls its self Christian must listen to the voice of Jesus Christ – even then when, obviously, a restrictive Church law should not be prescribed – Jesus’ ,,yoke is gentle“[65] – and also then when one must remain aware that even the best confession of faith and legal drafting are not the goal but are rather points of reference on the way to the goal.
[1] Jan Bauke/Matthias Krieg (Hg.), Denkmal. Die Kirche und ihre Ordnung; Bd.4. Zürich 2003, S.129–
140, unabridged version. For this English translation the author thanks Carol Idone, St. Gallen.
[2] Rudolph Sohm: Kirchenrecht. Erster Band. Die geschichtlichen Grundlagen (1892). Anastatischer
Neudruck. München und Leipzig, 1923, S. 22. (Henceforth abbreviated with „Sohm I”.) Zweiter
Band. Katholisches Kirchenrecht. (As posthumous fragment.) München und Leipzig 1923.
(Henceforth abbreviated with „Sohm II“.)
[3] Sohm I, S. 1.
[4] Loc. cit., S. X.
[5] Verification for this paragraph can be found in Frank Jehle: Emil Brunner, Theologe im 20.
Jahrhundert. Zürich 2006.
[6] Emil Brunner: The Misunderstanding of the Church. Cambridge, England 2002, p. 107. (Henceforth
abbreviated by „Misunderstanding“.)
[7] Loc. cit., p. 106.
[8] Loc. cit., p. 107.
[9] Loc. cit., p. 107-108.
[10] Emil Brunner: Dogmatics. Vol. III, Philadelphia 1962, p. 22. (Henceforth abbreviated by
Dogmatics III“.)
[11] Loc. cit., p. 33.
[12] Sohm I, S. 533.
[13] Loc. cit., S. 135.
[14] Dogmatics III, p. 85.
[15] Misunderstanding, p. 106.
[16] Loc. cit., p. 111.
[17] Ibid.
[18] Sigfried Grundmann: Art. „Sohm Rudolph“ , in RGG, Bd.6, 1962, col.116f, here col.117.
[19] The Constitution of the Presbyterian Church (U.S.A.). Part I: Book of Confessions. Louisville, KY, 1996, p. 257f.
[20] Karl Barth, CD IV 2. Edinburgh 1958, p. 676–726.
[21] Loc. cit., p. 676.
[22] Loc. cit., p. 677.
[23] Ibid.
[24] Loc. cit., p. 680. (Karl Barth took the concept of „brotherly christocracy“ from the church law specialist Erik Wolf who was a personal friend of his.)
[25] Loc. cit., p. 681.
[26] Ibid.
[27] Ibid.
[28] Loc. cit., p. 682.
[29] Ibid.
[30] Ibid.
[31] Ibid.
[32] Loc. cit., p. 683.
[33] Loc. cit., p.690.
[34] Loc. cit., p. 682.
[35] Loc. cit., p. 722.
[36] Loc. cit., p. 723.
[37] Ibid.
[38] Loc. cit., p. 692.
[39] Loc. cit., p. 693.
[40] Ibid.
[41] Ibid.
[42] Loc. cit., p. 697.
[43] Loc. cit., p. 698.
[44] Ibid.
[45] Ibid.
[46] Loc. cit., p. 700.
[47] Loc. cit., p. 702.
[48] Loc. cit., p. 703.
[49] Loc. cit., p. 707.
[50] Ibid.
[51] Ibid.
[52] Loc. cit., p. 708.
[53] Ibid.
[54] Ibid.
[55] Loc. cit., p. 709.
[56] Ibid.
[57] Loc. cit., p. 713.
[58] Loc. cit., p. 715.
[59] Ibid.
[60] Loc. cit., p. 716.
[61] Loc. cit., p. 718.
[62] Loc. cit., p. 718-719.
[63] Emil Brunner: Our Faith, translated by John W. Rilling, London 1949.
[64] Emil Brunner: Dogmatics I, London l949, p. 50.
[65] Mt 11,30.