1. See Gambling: A Study for Congregations, especially Sess. 2 (Fortress Press 1998)Google Scholar. The Lutheran Church-Missouri Synod's statement on gambling includes a specific section on the freedom of the Christian conscience from legalisms. See Gambling: A Report of the Commission on Theology and Church Relations of The Lutheran Church—Missouri Synod 13–14 (Concordia Publg. House 1996)Google Scholar.

2. I do not want to overstate the significance of academic rhetoric for the self-understandings of religious believers and communities, assuming that faithful lives and communities are formed by multiple sources. But teachers and texts do help to shape how pastors talk with their congregations, and I assume that the way pastors talk about the faith has some influence on the way parishioners come to understand and articulate their beliefs.

3. Ramsey, Paul, Basic Christian Ethics (U. Chi. Press 1977)Google Scholar.

4. Originally published by Scribners in 1950, Basic Christian Ethics was later published by the University of Chicago Press in 1977, and now is part of Westminster/John Knox's series on Christian ethics published in 1993.

5. See Long, D. Stephen, Tragedy, Tradition, Transformism: The Ethics of Paul Ramsey (Westview Press 1993)Google Scholar; Tuttle, Robert W., A Treason of the Clerks: Paul Ramsey on Christian Ethics and the Common Law (unpublished Ph.D. dissertation, U. Va. 1997) (on file with U. Va. Lib.)Google Scholar.

6. See Luther, Martin, The Large Catechism, in The Book of Concord: The Confessions of the Evangelical Lutheran Church 357, 416–417 (Tappert, Theodore G. ed. & trans., Fortress Press 1959)Google Scholar (commenting on the third article of the Nicene Creed); Yeago, David S., The Office of the Keys: On the Disappearance of Discipline in Protestant Modernity, in Marks of the Body of Christ 95, 104–105 (Braaten, Carl E. & Jenson, Robert W. eds., Wm. B. Eerdmans Publg. Co. 1999)Google Scholar.

7. Paul Ramsey, supra n. 3, at xiv.

8. Id. at 79, 138-139.

9. Id. at 291.

10. Niebuhr's classic statement of his theological anthropology comes in vol. 1 of The Nature and Destiny of Man: A Christian Interpretation. I. Human Nature (Charles Scribner's Sons 1941)Google Scholar. See especially ch. 7, “Man as Sinner,” id. at 178. Ramsey quotes extensively from this section of Niebuhr's book in his sub-chapter, “Sin.” See Ramsey, supra n. 2, at 284 (see e.g. id. at 291-293, 299-301).

11. See Niebuhr, Reinhold, The Nature and Destiny of Man: A Christian Interpretation. II. Human Destiny 110–119 (Charles Scribner's Sons 1943)Google Scholar. Ramsey does not cite these sections, but his explication of grace and freedom parallels Niebuhr's throughout. See e.g. Ramsey, supra n. 2, at 133-142.

12. Ramsey, supra n. 3, at 254-255.

13. Id. at 259.

14. Because these statements are so stark, it is worth noting that Ramsey substantially modifies his theological ethics after Basic Christian Ethics; particularly after reading Jonathan Edwards, Ramsey calls into question the complete identity of love for God and love for neighbor (though he would always deny any possibility that the two could be discontinuous). See e.g. Ramsey, Paul, Liturgy and Ethics, 7 J. Religious Ethics 139, 144-146, 149–152 (1979)Google Scholar; Ramsey, Paul, A Letter to James Gustafson, 13 J. Religious Ethics 71, 97–100 (1985)Google Scholar.

15. Ramsey, supra n. 3, at 56.

16. Id. at 32-34. The demand for immediate response also reflects the temporal horizon within which obedient love operates: fully in the present. “In face of the inbreaking kingdom, moral decision was stripped of all prudential considerations, all calculation of what is right in terms of consequences which in this present age normally follow certain lines of action.” Id. at 39.

17. Id. at 39.

18. Id. at 24.

19. Id. at 40-41.

20. Id. at 80.

21. Long, Duane Stephen, Whittling Off the Rough Edges: Paul Ramsey's Use of Just War Norms as Theory 71 (unpublished Ph.D. dissertation, Duke U. 1990) (copy on file with Duke U. Lib.)Google Scholar.

22. Ramsey, supra n. 3, at 4-5, 13.

23. Not even Jesus' own teachings are immune from this antilegalism. Christians who make Jesus a new lawgiver and his teachings a new law stand in no different place than the Pharisees—as impediments to obedient neighbor-love. Ramsey repeatedly criticizes Matthew's gospel for succumbing to the legalist temptation. In addition to his “reinterpretation” of the Sermon on the Mount mentioned above, Ramsey challenges Matthew's account of Jesus' “new law” on divorce (Matt 5: 32, 19: 9) and also calls attention to differences between Matthew and the other synoptic gospels in their “summaries of the law.” Where Mark and Luke exhibit no traces of legalism, Matthew seems to offer a summary no different than any rabbinic text of the day. Matthew's “interpretation tells us more about the rebirth of legalism within early Christianity than it does about Jesus; it is ‘just another indication that where the Law is in question Matthew is simply not to be trusted.’” Ramsey, supra n. 3, at 64 (quoting Manson, T.W., The Teachings of Jesus 304 n. 2 (Cambridge U. Press 1939)Google Scholar). See id. at 71 (discussing the “new law”).

24. Matt 5: 18

25. Ramsey contends that the words from Matthew “are either not the original words of Jesus or else they are sorely in need of a loose interpretation.” Id. at 54.

26. Id. at 73.

27. Id. at 59.

28. Id. at 57, 63.

29. Id. at 54.

30. Id. at 87.

31. Id. at 57.

32. Id. at 75.

33. Id. at 78-82.

34. Id. at 77 (citing 1 Cor 10: 23, 24).

35. Id. at 75-76, 86-87.

36. Id. at 75.

37. Id.

38. Id. at 134-138, 213-215, 341, 385.

39. Id. at 144.

40. Id. at 344.

41. Id. at 326. See id. at 345. Ramsey's phrase is telling, especially in light of the concerns about Gnosticism raised in the second part of this paper: the incarnation is not a once-and-for-all event that gives us a specific form for Christ, but rather one among many times in which the universal becomes particularized. The particularizations of the universal are purely contingent, and should not be seen as anything more than temporary resting places for the universal, which is utterly free to leave them behind in search of a better way to “become incarnate.” As Christology, of course, this is heretical: there is only one incarnate Logos—Jesus of Nazareth. But as I will describe in the third and fourth sections of this essay, it is not good ecclesiology or moral theology either: both the ordered form of Christian community and the Christian moral life come to be seen as arbitrary, disconnected from the life of the incarnate one whose image they are called to reflect.

42. Id. at 188-189.

43. Id. at 341.

44. Id. at 341.

45. Id. at 342.

46. Ramsey writes that the Christian must be “constantly engaged in ‘building up’ an adequate social ethic realistically adjusted, not to precedents in law or existing conventions of society, but to concrete and changing neighbor need.” Id. at 340.

47. Niebuhr, Reinhold, Augustine's Political Realism, in The Essential Reinhold Niebuhr 123 (Brown, Robert McAfee ed., Yale U. Press 1986)Google Scholar; Ramsey, supra n. 3, at 342.

48. Id. at 329. In The Responsible Self, H. Richard Niebuhr also advances a pragmatist-instrumental account of law, stating:

We use the idea of law less as a guide to our own conduct than as a way of predicting what the one will do to whom we are reacting or who will react to us. When lawyers try to discover under what law the judge will make his decisions, they are doing something akin to what we do in all our group relations.

Niebuhr, H. Richard, The Responsible Self: An Essay in Christian Moral Philosophy 62–63 (Harper & Row 1978)Google Scholar.

49. Those familiar with Paul Ramsey's work after 1960 (Nine Modern Moralists and subsequent writings) may be surprised by this portrayal of Ramsey's work. Through the 1960s (most notably in his debate with Joseph Fletcher over the status of rules in ethics) Ramsey came to be known as a defender of a rule-based (deontological) approach to Christian ethics. But part of Ramsey's movement away from the antilegalism of Basic Christian Ethics can be attributed to his early encounters with Fletcher's “Situation Ethics,” and recognizing the destructive implications (for both society and the church) of a consistent application of his approach from Basic Christian Ethics.

50. Troeltsch, Ernst, Protestantism and Progress: The Significance of Protestantism for the Rise of the Modern World 101 (Fortress Press 1986) (English trans, originally published 1912)Google Scholar.

51. Scholler, Heinrich, Martin Luther on Jurisprudence—Freedom, Conscience, Law, 15 Val. U. L. Rev. 265, 276 (1981)Google Scholar (quoting Baur, F., Die Epochen der Kirchlichen Geschichtsschreibung 257(1852)Google Scholar).

52. Niebuhr, Human Nature, supra n. 10, at 146.

53. Id. at 146-147, 288.

54. Niebuhr, Reinhold, The Children of Light and the Children of Darkness: A Vindication of Democracy and a Critique of Its Traditional Defence 71 (Charles Scribner's Sons 1946)Google Scholar.

55. Niebuhr, Human Nature, supra n. 10, at 295.

56. Id. at 284.

57. Niebuhr, Human Destiny, supra n. 11, at 252-253.

58. Id. at 40.

59. Niebuhr, Human Nature, supra n. 10, at 295.

60. Niebuhr, supra n. 48, at 52. Although the book was not published until after Niebuhr's death, the book reflects lecture notes used for many years in Niebuhr's Christian Ethics class. See James M. Gustafson, Introduction, in id. at 6, 6-9; and Long, supra n. 21, at 25-26 (on Ramsey's lecture notes from Niebuhr's class).

61. Niebuhr, supra n. 48, at 70.

62. Id. at 59.

63. Tillich, Paul, Systematic Theology vol. 3, 45 (U. Chi. Press 1963)Google Scholar.

64. Id. at 46-47, 84. Tillich writes “in the moment in which these [moral] principles are used for concrete decisions they become indefinite, changing, relative.” Tillich, Paul, Love, Power, and Justice: Ontological Analyses and Ethical Applications 81 (Oxford U. Press 1954)Google Scholar.

65. Tillich, Paul, The Protestant Era 154–155 (Adams, James Luther trans., U. Chi. Press 1948, abr. 1957)Google Scholar. Much of this quotation overlaps with Ramsey, supra n. 2, at 90-91.

66. Id. at 156.

67. Id. at 206.

68. Id. at 213.

69. The historical context of antitotalitarianism looms large in Tillich's analysis of the Protestant principle, as it does in parts of Ramsey's Basic Christian Ethics. Tillich writes: “The most important contribution of Protestantism to the world in the past, present, and future is the principle of a prophetic protest against every power which claims divine character for itself—whether it be church or state, party or leader.” Id. at 230. Again, Protestantism is bound up with the project of human freedom: “It is in this Protestant protest that the eternal value of liberalism is rooted.” Id.

70. Yeago, David, Gnosticism, Antinomianism, and Reformation Theology: Reflections on the Cost of a Construal, 2 Pro Ecclesia 37 (1993)Google Scholar.

71. Id. at 40.

72. Id. at 41.

73. Hütter, Reinhard, The Twofold Center of Lutheran Ethics: Christian Freedom and God's Commandments, in The Promise of Lutheran Ethics 31, 33–38 (Bloomquist, Karen L. & Stumme, John R. eds., Fortress 1998)Google Scholar.

74. Id. at 33-34.

75. Yeago, supra n. 70, at 44.

76. Hütter writes: “By becoming an abstract condition of the believer's constitution as a moral agent, the gospel thus shrinks down to its forensic message that we are radically and unavoidably accepted by God.” Supra n. 73, at 34.

77. Yeago writes of the “contemporary tender-minded rhetoric about all those ‘hurting people’ who need more than anything else to be liberated from all order and absolved of all expectations by the redemptive ‘inclusivity’ of the antinomian church.” Supra n. 70, at 42.

78. Hütter, supra n. 73, at 36-37.

79. See generally Taylor, Charles, The Sources of the Self: The Making of Modern Identity (Harv. U. Press 1989)Google Scholar. See Yeago, supra n. 6, at 110-111.

80. For a discussion of the legal significance of this emancipated self, see my debate with Anita Allen. Allen, Anita, Privacy and the Public Official: Talking About Sex as a Dilemma for Democracy, 67 Geo. Wash. L. Rev. 1165 (1999)Google Scholar; Tuttle, Robert, Reviving Privacy?, 67 Geo. Wash. L. Rev. 1183 (1999)Google Scholar.

81. The category of “religion” itself, betrays this modernizing movement inward. See Yeago, supra n. 6, at 113.

82. One can hear resonances of this claim in some late 19^th century sociologists—e.g. Durkheim and Tönnies—who contrasted the modern law-dominated public realm (Gesellschaft) with a richer, more intimate—and less legalized—community (Gemeinschaft). See generally Tönnies, Ferdinand, Community and Society: Gemeinschaft und Gesellschaft (Loomis, Charles P. ed. & trans., Mich. St. U. Press 1957)Google Scholar; Durkheim, Emile, The Division of Labor in Society (Simpson, George trans., Free Press 1933)Google Scholar (see especially ch. 7 “Organic Solidarity and Contractual Solidarity” 200-229).

83. See Luther, Martin, Why the Books of the Pope and his Disciples Were Burned by Doctor Martin Luther, in Luther's Works vol. 31, 379 (Grimm, Harold J. & Lehmann, Helmut T. eds., Spitz, Lewis W. trans., Muhlenberg Press 1957)Google Scholar [hereinafter LW 31]; Luther, Martin, The Speech of Martin Luther Before the Emperor Charles and Princes at Worms on the Fifth Day After Misericordias Domini [April 18] in the Name of Jesus, in Luther's Works vol. 32, 109 (Forell, George W. & Lehmann, Helmut T. eds., Hornsby, Roger A. trans., Muhlenberg Press 1958)Google Scholar.

84. Luther, Martin, Lectures on Galatians: Chapters 1-4, in Luther's Works vol. 26, 1, 446 (Hansen, Walter A. ed., Pelikan, Jaroslav ed. & trans., Concordia Publg. 1963) [hereinafter LW 26]Google Scholar.

85. Martin Luther, The Freedom of a Christian, LW 31, supra n. 83, at 327, 361. See Luther, Martin, The Babylonian Captivity of the Church, 1520, in Luther's Works vol. 36, 3, 72 (Lehmann, Helmut T. ed., Ahrens, Frederick C. & Wentz, Abdel Ross rev. eds., Steinhauser, A.T.W. trans., Muhlenberg Press 1959)Google Scholar (“I lift my voice simply on behalf of liberty and conscience, and I confidently cry: No law, whether of men or of angels, may rightfully be imposed upon Christians without their consent, for we are free of all laws.”). See Pelikan, Jaroslav, Spirit Versus Structure: Luther and the Institutions of the Church 22–23 (Harper & Row 1968)Google Scholar.

86. Luther, Martin, Against the Heavenly Prophets in the Matter of Images and Sacraments, in Luther's Works vol. 40, 73, 97 (Lehman, Helmut T. & Bergendoff, Conrad eds., Erling, Bernard trans., Muhlenberg Press 1958)Google Scholar [hereinafter LW 40]; Luther, Martin, How Christians Should Regard Moses, in Luther's Works vol. 35, 155, 168 (Lehmann, Helmut T. ed., Bachmann, E. Theodore ed. & trans., Muhlenberg Press 1960) [hereinafter LW 35]Google Scholar. This point is made most clearly in Raunio, Antti, Natural Law and Faith: The Forgotten Foundations of Ethics in Luther's Theology, in Union with Christ: The New Finnish Interpretation of Luther 96, 103–104 (Braaten, Carl & Jenson, Robert eds., Wm. B. Eerdmans Publg. Co. 1998)Google Scholar.

87. Luther, Martin, The Sermon on the Mount, in Luther's Works vol. 21, 1, 236–237 (Pelikan, Jaroslav ed. & trans., Concordia Publg. 1956) [hereinafter LW 21]Google Scholar (“The book is laid into your own bosom, and it is so clear that you do not need glasses to understand Moses and the Law.”). See Luther, Martin, Against the Antinomians, in Luther's Works vol. 47, 99, 110 (Sherman, Franklin & Lehmann, Helmut T. eds., Bertram, Martin H. trans., Fortress Press 1971) [hereinafter LW 47]Google Scholar; Luther, How Christians Should Regard Moses, LW 35, supra n. 86, at 164; Althaus, Paul, The Theology of Martin Luther 251 (Schultz, Robert C. trans., Press, Fortress 1966)Google Scholar; Ebeling, Gerhard, Word and Faith 276–277 (Leitch, James W. trans., SCM Press 1963)Google Scholar.

88. Luther, How Christians Should Regard Moses, LW 35, supra n. 86, at 172; Luther, Martin, Treatise on Good Works, in Luther's Works vol. 44, 15, 63 (Lehmann, Helmut T. ed., Atkinson, James rev. ed., Lambert, W.A. trans., Fortress Press 1966) [hereinafter LW 44]Google Scholar (Ten Commandments provide a mirror in which we can see our sinfulness).

89. Luther, Lectures on Galatians, LW 26, supra n. 84, at 314, 336-339, 370. See Ebeling, supra n. 87, at 75.

90. Luther, Lectures on Galatians, LW 26, supra n. 84, at 208-209.

91. Id. at 373. Luther even describes this struggle between Christ and the Law in mythical terms. The Law exceeds its jurisdiction by condemning the innocent one, so the Law itself is accused, brought before the Creator's tribunal.

Here the Law, which once condemned and killed all men, has nothing with which to defend or cleanse itself. Therefore it is condemned and killed in turn, so that it loses its jurisdiction not only over Christ—whom it attacked and killed without any right anyway—but also over all who believe in Him.

Id. at 370.

92. Luther, Against the Heavenly Prophets, LW 40, supra n. 86, at 82; Luther, Lectures on Galatians, LW 26, supra n. 84, at 274-275. Luther writes: “Therefore the true function and the chief and proper use of the Law is to reveal to man his sin, blindness, misery, wickedness, ignorance, hate and contempt of God, death, hell, judgment, and the well-deserved wrath of God.” LW 26 at 309. See Althaus, supra n. 87, at 255, 260.

93. Luther, Against the Antinomians, LW 47, supra n. 87, at 111.

94. Luther, Martin, Temporal Authority: To What Extent It Should Be Obeyed, in Luther's Works vol. 45, 75, 89–91 (Lehmann, Halmut T. ed., Brandt, Walter I. rev. ed., Schindel, J.J. trans., Muhlenberg Press 1962) [hereinafter LW 45]Google Scholar; Luther, Lectures on Galatians, LW 26, supra n. 84, at 248-251, 274-275.

95. This leads into a longer discussion of Luther's account of vocation and the orders of creation. See generally Wingren, Gustav, Luther on Vocation (Rasmussen, Carl C. trans., Muhlenberg Press 1957)Google Scholar.

96. Luther writes:

This civic restraint is extremely necessary and was instituted by God, both for the sake of public peace and for the sake of preserving everything, but especially to prevent the course of the Gospel from being hindered by the tumults and seditions of wild men …. [I]t is indeed very necessary, but it does not justify.

Lectures on Galatians, LW 26, supra n. 84, at 309.

97. Martin Luther, Temporal Authority, LW 45, supra n. 94, at 93-94; Luther, Martin, Instructions for the Visitors of Parish Pastors in Electoral Saxony, in Luther's Works vol. 40, 263, 282–283 (Bergendoff, Conrad ed. & trans., Fortress Press 1958)Google Scholar; Luther, Treatise on Good Works, LW 44, supra n. 88, at 91-93.

98. Luther, Lectures on Galatians, LW 26, supra n. 84, at 350.

99. Althaus, supra n. 87, at 269-270.

100. Luther, Lectures on Galatians, LW 26, supra n. 84, at 447.

101. Althaus, supra n. 87, at 266-267; Ebeling, supra n. 87, at 77.

102. “‘See, the law previously was hard and difficult, even impossible; now it becomes light and easy for it lives in our hearts through the Spirit.’” Althaus, Paul, The Ethics of Martin Luther 12 n. 35 (Schultz, Robert C. trans., Fortress Press 1972)Google Scholar (quoting Martin Luther, Sermon on Romans 8). See Luther, Lectures on Galatians, LW 26, supra n. 84, at 321 (the righteous “hear the Law, embrace it with a good will, and delight in it.”).

103. Luther, Martin, Sermon on the Sum of the Christian Life, in Luther's Works vol. 51, 257, 266 (Lehmann, Helmut T. ed., Doberstein, John W. ed. & trans., Muhlenberg Press 1959) [hereinafter LW 51]Google Scholar.

104. See generally Martin Luther, The Large Catechism, supra n. 6; Luther, Treatise on Good Works, LW 44, supra n. 88, at 23.

105. Martin Luther, The Small Catechism, in The Book of Concord, supra n. 6, 337, 342 (footnote omitted).

106. Luther, Martin, Two Kinds of Righteousness, in Luther's Works vol. 31, 293, 298 (Grimm, Harold ed., Satre, Lowell J. trans., Muhlenberg Press 1957)Google Scholar.

107. Antti Raunio's essay on Luther's use of the Golden Rule makes this point with particular clarity. My discussion of the place of law in the believer's life owes much to Raunio's essay. See especially Raunio, supra n. 86, at 114-116. On faith as the ground of all obedience, see Luther, Sermon on the Sum of the Christian Life, LW 51, supra n. 103, at 275-276; Luther, Lectures on Galatians, LW 26, supra n. 84, at 255; Luther, Treatise on Good Works, LW 44, supra n. 88, at 30-34.

108. Martin Luther, The Freedom of a Christian, in LW 31, supra n. 85, at 327, 371.

109. Raunio, supra n. 86, at 114-116, 121-122. See Luther, Sermon on the Sum of the Christian Life, LW 51, supra n. 103, at 269-271.

110. Luther, Treatise on Good Works, LW 44, supra n. 88, at 42-44.

111. Luther, The Large Catechism, supra n. 6, at 395-399.

112. Luther, Treatise on Good Works, LW 44, supra n. 88, at 108.

113. Luther, The Large Catechism, supra n. 6, at 390-391.

114. See Raunio, supra n. 86, at 109, 121-122. Though it is beyond the scope of this paper, I think it will be important to distinguish the understanding of law that I offer here, relying on Raunio's work, from a Calvinist or Barthian “third use of the law” (not that I find anything objectionable in accounts such as that given in the Formula of Concord, Solid Declaration, Article VI). The third use of the law still meets the believer as something that is alien—a weak substitute for full possession of (and in) the Spirit. But I understand the “new law,” represented by the Golden Rule and expressed through the Ten Commandments, to be the intended shape of our lives. Living fully in the Spirit we nonetheless live fully in the law of God.

115. Luther, Sermon on the Sum of the Christian Life, LW 51, supra n. 103, at 286; Luther, Treatise on Good Works, LW 44, supra n. 88, at 64-69; Luther, The Sermon on the Mount, LW 21, supra n. 87, at 236; Luther, Instructions for Visitors of Parish Pastors, LW 40, supra n. 97, at 276 277; Luther, The Large Catechism, supra n. 6, at 409-410.

116. Raunio, supra n. 86, at 117-119.

117. Luther, The Large Catechism, supra n. 6, at 399. In his discussion of the Fifth Commandment (against killing), Luther makes the same move: “this commandment is violated not only when a person actually does evil, but also when he fails to do good to his neighbor, or, though he has the opportunity, fails to prevent, protect, and save him from suffering bodily harm or injury.” Id. at 390-391.

118. Id. at 400.

119. See Luther's commentary on the Ninth Commandment, where he points to the covetous who are “abetted by jurists and lawyers who twist and stretch the law to suit their purpose, straining words and using them for pretexts, without regard for equity or for our neighbor's plight.” Id. at 405.

120. I recognize that this is a difficult word to speak to another (too easily spoken in general terms from a tenured faculty position), but if we cannot entertain the possibility of speaking—and hearing—this word, much of our moral instruction is surely in vain. I found this to be especially true in my study of gambling, where the Seventh Commandment's call to protect the neighbor's property and further the neighbor's interests has special purchase. In discussions with Christians working in casinos, I realized that many had moral qualms about their vocation, but saw little choice given economic conditions in their localities. The church does these members no service by treating their predicament as one more necessary evil to be endured. Unless we are prepared to say “yes” to their service, we must be willing to provide more than just a single word “no”—such as support in finding other work.