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Published online by Cambridge University Press: 24 April 2015
John Calvin was a student of law before he was a systematic theologian. Although he soon left behind a career in the law, his legal training and orderly mind are evident in his theological writings. While we must be wary of the simplistic and misleading assumption that the Institutes of the Christian Religion reads like a lawyer's treatise, we cannot deny that certain habits of mind dating from his law school days remained with Calvin when he turned to writing a comprehensive exposition of Christian doctrine.
Scholars debate the extent to which particular elements of the Institutes were influenced by Calvin's legal training. Certainly the law of God is a prominent theme throughout the Institutes and especially in Calvin's treatment of the uses of the law and the Decalogue. But Calvin's familiarity with law and the legal system is demonstrated most clearly in a portion of the Institutes that has rarely received scholarly attention. Lodged within his treatment of civil government are several sections where Calvin discusses the attitude Christians should adopt towards the secular legal system. In these sections, and in his later commentary on The First Letter of Paul to the Corinthians, Calvin argues that a Christian is not barred from making use of the secular legal system, but warns against resort to litigation unless the Christian can bring the proper inner disposition — love — to the proceeding. Calvin's analysis is rooted in his reading of I Cor. 6:1-11, but also evinces a keen understanding of legal practice and of the psychological and moral costs of litigation.
1. Calvin was born in 1509 and studied law at Orleans and Bourges during (probably) 1528-1531. Ganoczy, A., The Young Calvin 63–71 (Foxgrover, D. and Provo, W. trans. 1987)Google Scholar. The precise date of his “conversion” to Protestantism is uncertain and contested. F. Wendel places it sometime between August 1533 and May 1534. Wendel, F., CALVIN: Origins and Development of His Religious Thought 37–46 (Mairet, P. trans. 1987)Google Scholar. For a careful study of the problem, see Ganoczy, supra, at 241-66. The first edition of what would become the Institutes of the Christian Religion was published in 1536.
2. “[H]is mind in obvious ways remained that of a lawyer; further it was his legal education that introduced him to the worlds of humanism and philology.” Selinger, S., Calvin Against Himself: A N Inquiry in Intellectual History 86 (1984)Google Scholar.
3. Calvin, J., Institutes of the Christian Religion (1559) (Battles, F. L. trans. 1960)Google Scholar [hereinafter cited as Institutes]. References to the Institutes will be given to the book, chapter, and paragraph number.
4. McNeill, J., The History and Character of Calvinism 203 (1954)Google Scholar.
5. Some scholars claim to find traces of Roman law in Calvin's theology, particularly in his conception of the majesty of God and in his insistence that God transcends the law. F. Wendel, supra note 1, at 126.
6. Institutes, supra note 3, at bk. 2, chs. 7-8.
7. Institutes, supra note 3, at bk. 4, chs. 20, ¶ 17-21.
8. Calvin, J., Calvin's Commentaries — The First Epistle of Paul The Apostle to the Corinthians (Torrance, D. and Torrance, T. eds. 1960)Google Scholar [hereinafter referred to as First Corinthians].
9. Calvin's sensitivity to the harmful effects of litigation is addressed in Taylor, Toward A Biblical Theology of Litigation: A Law Professor Looks at I Cor. 6:1-11, 2 Ex AUDITU 105, 110-13 (1986).
10. Id. at 105. Taylor considers I Cor. 6:1-11 the foundation text for the construction of a Biblical theology of litigation. Paul's treatment of litigation in that text poses a number of questions for Christians:
What theological rationale might be proffered for these Pauline views? Why is litigation cast in a negative light but mediation in a much more favorable one by St. Paul? How would those who are St. Paul's interpreters answer these questions? What understanding of litigation and mediation, whether explicit or implicit, do the interpreters of St. Paul entertain? Do the exegetical positions clustering about I Cor. 6:1-11 contain any material which might be useful for constructing a Christian biblical theology of litigation? Would this Christian biblical theology of litigation have anything to say to our contemporary hyperlitigious society where Christians sue Christians without experiencing the slightest qualm? And why is it better for Christians to lay down their rights and suffer injury rather than to litigate? In short, why shouldn't Christians sue one another and what's wrong with litigation?
Id. at 105-06. I take it that these and similar questions are what a Christian theology of litigation should address.
11. See supra note 7.
12. See supra note 8.
13. Institutes, supra note 3, at bk. 3, ch. 19, ¶ 15.
14. Calvin, J., Institution of the Christian Religion (1536) (Battles, F.L. trans. 1975)Google Scholar.
15. Chapter 20 of the Institutes dates, with some slight expansion, from the original 1536 edition of the Institution. Id. The relevant paragraph numbers 17-21 were carried forward from the 1536 edition with only a few insignificant changes.
16. Institutes, supra note 3, at bk. 1, introduction, lxvi.
17. Id. at book 4, chapter 20, ¶¶ 1-2.
18. Id. at ¶ 3.
19. Id. at ¶¶ 4-7.
20. Id. at ¶¶ 8-13.
21. Id. at ¶¶ 14-16.
22. Id. at ¶¶ 17-32.
23. Id. at ¶ 17 at 1505.
24. The discussion follows directly upon Calvin's endorsement of civil law as the expression of God's law. Id. at ¶¶ 14-16.
25. McNeill, , Calvin and Civil Government, in Readings in Calvin's Theology 268 (1984)Google Scholar.
26. Institutes, supra note 3, at bk. 4, ch. 20, ¶ 17, at 1506. Here Calvin is probably referring to the Anabaptists, whom he had already attacked for trying to overturn the civil government. Id. at ¶ 1.
27. Id. at ¶ 17.
28. Id. at ¶ 22-32.
29. Id. at ¶ 17, at 1506.
30. This explains why Calvin found it necessary to include in Chapter 20 a justification of the use of the legal system by Christians. It may seem odd that when Calvin analyzed the benefits that civil government provides for the Christian, he would point to the secular legal system. To us there may seem to be other, rather more obvious, benefits. But when Calvin wrote, the modern social welfare state did not exist. Calvin could not point to government policies to alleviate poverty, say, or protect human dignity. Instead, writing in the 1500's, Calvin turned to the secular legal system as the most obvious and primary way in which the civil government provided benefits to the Christian. It is reasonable to conjecture that his legal training played some part in his thinking. See notes 1-4 and accompanying text supra.
31. Calvin's concern is with Christians going to court against each other. Note the references to “brother” and “brethren” in Institutes, supra note 3, bk. 4, ch. 20, ¶¶ 17 and 21. This is not surprising, given that his discussion is in large part an exegesis of I Cor. 6:1-11, which deals with the same problem. Of course, when Calvin wrote all of Europe was ostensibly Christian.
32. J. McNeill, supra note 4, at 200.
33. Institutes, supra note 2, at bk. 4, ch. 20, ¶ 17, at 1506.
34. Id at ¶ 19.
35. Id. at ¶ 17, at 1506.
36. Id. at ¶ 20.
37. Id. at ¶ 18.
38. Id.
39. Id.
40. Id. at 1507.
41. Id. at ¶ 17.
42. Id. at ¶ 19.
43. Id.
44. The conclusion to be drawn from Paul's life is stated more explicitly by Calvin in his commentary on Acts 25:11: “Accordingly if ever a similar need [similar to Paul's] overtakes us, we ought not to have any scruples about seeking help from the laws and the political order…. Let us therefore realize that God, who has instituted courts of law also allows His own the legitimate use of them.” Calvin, J., Calvin's Commentaries—Acts of the Apostles Chapters, Vol. II 14-28 263 (Torrance, D. and Torrance, T. eds. 1966)Google Scholar.
45. Institutes, supra note 3, at book 4, chapter 20, ¶ 18.
46. Id. at ¶ 19.
47. Id. Calvin certainly had in mind Rom. 13:4 “The ruler is God's servant to work for your good.”
48. Id. at ¶ 20.
49. Id.
50. Id.
51. Id. at 1508.
52. Id.
53. Id.
54. Id. at ¶ 18, at 1506-07.
55. Indeed, although Calvin's primary concern was to affirm the propriety of an appeal to the magistrate, see text accompanying notes 13-34 supra, it is noteworthy that most of his discussion centers on the risks attendant upon litigation, and the need to maintain a loving heart at all costs.
56. Institutes, supra note 3, bk. 4, ch. 20, ¶ 21.
57. First Corinthians, supra note 8.
58. See infra note 59.
59. Calvin's reading of Paul's twin purposes is in accord with the conclusions of modern Biblical scholarship. According to scholars, Paul criticizes the scandal of Christians appearing before pagan judges, and the more general problem of Christians becoming involved in law-suits against each other rather than patiently accepting the wrongs done to them. Orr, W. & Wailther, J., I Corinthians 193–99 (1976)Google Scholar; Barrett, C. K., A Commentary on the lst Epistle to the Corinthians 134–43 (1968)Google Scholar.
60. Institutes, supra note 3, at bk. 4, ch. 20, ¶ 21.
61. Id.
62. Id. at 1509.
63. Id.
64. The first edition of Calvin'S Commentary on I Corinthians dates from 1546. First Corinthians, supra note 8, at v.
65. Since the treatment of the legal system in the Institutes dates from the original 1536 edition, see supra text accompanying notes 15-16, we can view the commentary as an extended gloss on this earlier discussion.
66. See supra note 59, and accompanying text.
67. First Corinthians, supra note 8, at 118.
68. Id. at 117.
69. Paul's initial concern was obviously of little relevance in sixteenth-century Europe, when courts and magistrates were themselves Christian. Christians did not have to worry about the scandal of taking their disputes before pagan courts. But Paul's broader worry about Christians going to court against each other did apply, and hence Calvin was able to read Paul as providing a general framework for determining when Christians should and should not engage in litigation.
70. First Corinthians, supra note 8, at 122.
71. Institutes, supra note 2, at bk. 4, ch. 20, ¶ 21.
72. First Corinthians, supra note 8, at 121.
73. Taylor, supra note 9, at 111.
74. First Corinthians, supra note 8, at 121.
75. Id.
76. Id. at 122. Calvin makes the same point in his commentary on Mt. 5:48, where he cautions against assuming that all Christians who resort to litigation do so for impious reasons. Although it may be rare for a litigant to have a “balanced and sincere motivation,” it is not impossible, and so it is wrong to condemn a lawsuit until the party's motives can be ascertained. Calvin, J., Calvin's Commentaries — A Harmony of Matthew and Luke, Vol. I, 195 (Torrance, D. and Torrance, T. eds. 1972)Google Scholar.
77. First Corinthians, supra note 8, at 123.
78. Id.
79. See supra text accompanying notes 56-78.
80. See supra text accompanying notes 58-60 and 66-69.
81. Taylor, supra note 9, makes the same point at 110.
82. Institutes, supra note 3, at book 4, chapter 20, ¶ 18. When “love is somewhat impaired …, the whole court action of even the most just case cannot but be impious.” Id. at 1506-07.
83. See especially Institutes, supra note 3, at bk. 4, ch. 20, ¶ 20; First Corinthians, supra note 8, at 122.
84. Id.
85. Institutes, supra note 3, at bk. 4, ch. 20, ¶ 18; First Corinthians, supra note 8, at 122.
86. See, Institutes, supra note 3, at bk. 2, ch. 8, ¶¶ 51-59.
87. See supra text accompanying notes 13-34.
88. Taylor, supra note 9, at 112. Positivism is a view associated with the works of Bentham, Austin, and Kelsen. See Lord Lloyd & M. Freeman, Lloyd's Introduction to Jurisprudence, chapters 4-5 (5th ed. 1985). Central to it is the insistence that there is no necessary link between law and morality. See Hart, H. L. A., The Concept of Law, 181-82, 253 (1961)Google Scholar. This view expressed by Oliver Wendell Holmes in his oft-cited epigram: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” Holmes, O. W., The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897)Google Scholar.
89. Fuller, L., The Morality of Law, 147–48 (1969)Google Scholar.
90. Taylor, supra note 9, at 112.
91. Legal scholars have pointed to the psychological and moral costs that the adversary system can inflict upon attorneys. See Brazil, , The Attorney as Victim: Toward More Candor About the Psychological Price Tag of Litigation Practice, 3 J. Legal Prof. 107 (1978)Google Scholar; Chemerinsky, , Protecting Lawyers From Their Profession: Redefining the Lawyer's Role, 5 J. Legal Prof. 31 (1980)Google Scholar; Wasserstrom, , Lawyers as Professionals: Some Moral Issues, 5 Hum. Rts. 1 (1975)Google Scholar. Several useful perspectives on the roles of attorneys in an adversary system of law are included in The Good Lawyer: Lawyers' Roles and Lawyers' Ethics (D. Luban ed. 1983).
92. For an overview of the issues raised by alternative dispute resolution, see Goldberg, S., Green, E., & Sander, F., Dispute Resolution (1985)Google Scholar; Riskin, L. & Westbrook, J., Dispute Resolution and Lawyers (1987)Google Scholar. The blossoming of mediation centers, the increasing resort to mini-trials, and the wide-spread use of informal divorce and custody mediation are examples.
93. The theological underpinnings of the alternative dispute resolution movement are discussed in McThenia, and Shaffer, , For Reconciliation, 93 Yale L.J. 1660 (1984)Google Scholar. The authors do not refer to Calvin, but his theology of litigation surely lends weight to their claim that the Judeo-Christian tradition places emphasis less on the legal rights of parties than on the reconciliation of relationships. Id. at 1666.
94. Taylor, supra note 9, at 109.
95. See Riskin, , Mediation and Lawyers, 43 Ohio St. L.J. 29 (1982)Google Scholar.
96. I argue elsewhere that legal practice and legal ethics should combine a commitment to rights and rules with a concern for preserving relationships and avoiding harm. An “ethics of rights” must be complemented by an “ethics of care.” Allegretti, , Rights, Roles, Relationships: The Wisdom of Solomon and the Ethics of Lawyers, 25 Creighton L. Rev. (forthcoming 1992)Google Scholar. See also Jack, R. & Jack, D. C., Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers (1989)CrossRefGoogle Scholar.
97. See supra note 10.