He is not exactly alone in this effort. We ourselves have a longstanding interest in the systematic application of Biblical and historical norms to the rules governing church life. So do many of our friends and colleagues, not to mention all ELCA secretaries to date. It is Fr. N.'s particular charism -- or burden, perhaps -- to insist upon actually calling this body of norms by its proper name, canon law. As Ray Schulze pointed out to us many years ago, Lutherans in America have an abiding aversion to the word "law," in almost any way it can be used. Preface it with "canon" and they are likely to collapse into agonized screams of "No popery!"
This is (as Nedward observed recently) ironic, given the prominent role that Kirchenrecht plays in the life of European churches. It is nonethless true. He says that two out of three American church historians surveyed, when asked about canon law after the Reformation, simply objected that Luther had burned the Roman code, and refused to discuss the subject any further. A third historian, to his great credit, observed that Luther may have burned the code, but that he also found it helpful to keep a copy at his bedside when he actually had to administer church affairs.
In fact, the relationship of the early Evangelical movement to the corpus of canon law is absolutely fascinating. We recently stumbled across a brilliant study of the subject by John Witte Jr. Here is the abstract:
Why would Luther in 1520 burn the canon law books but in 1530 write a commendatory preface to a canon law textbook for use at his own University of Wittenberg? Why would German magistrates ban the study and use of canon law texts in the 1520s, only to import canon lawyers and transplant canon law rules in the 1530s and thereafter? Why would neophyte Lutheran jurists be content to rely on the Bible and custom in their early writings, only to turn with greater regularity to canon law authorities later in their careers?
"Inertia" is part of the answer. Prior to the Reformation, the canon law had ruled effectively and efficiently in Germany for centuries. ... Most of the jurists and theologians who had joined the Reformation cause were trained in the canon law .... In the heady days of revolutionary defiance of Pope and Emperor in the 1520, it was easy for Protestant neophytes to be swept up in the radical cause of eradicating the canon law and establishing a new evangelical order. When this revolutionary plan proved unworkable, however, theologians and jurists invariably returned to the canon law that they knew. ...
"Innovation" is also part of the answer. This evangelical transplantation of the canon law was based on the strength of considerable theological and jurisprudential ingenuity. Theologians after 1530 offered an innovative theory of the church, grounded in the evangelical theory of the two kingdoms. The invisible church of the heavenly kingdom, they argued, might well be able to survive on the Scripture alone, free from the accretions of the canon law. But the visible church of the earthly kingdom, filled with both sinners and saints, required both biblical and canonical rules and procedures to be governed properly. ...The article, which you can download here, is a model of scholarly detail, filled with illustrative details. We learned a lot from it.
One thing Witte does not mention, because it would have taken him far from his actual subject, is the antinominan movement within formative Lutheranism. Led by John Agricola, some of the early Evangelicals argued that no law -- not even God's -- applied those who had been regenerated by baptism and whose spirits had been converted. Although soundly defeated in its own time, the antinomian impulse continues to crop up among modern Lutherans, especially those with a little, but not too much, theological training.
Antinomian Lutherans take the Law/Gospel dynamic to an absurd extreme. So determined are they not to terrify or be terrified by the unfulfillable demands of God's Law that they reject it altogether, or declare that it is of interest only to Jews and heathen. Although this was not likely a factor in the rejection of canon law in the 1520s or its restoration (as a civil function) in the 1530s, we do suspect that it helps explain the very weak and even scattershot governance which prevails in the ELCA.
But in fact, as the early Lutheran jurists understood, canon law is an important, valuable and even a beautiful thing. Nicolaus Everardus called it "the epitome of the law of love" and "the mother of justice." It is a remedy for arbitrary decisions and the tyranny of pastors, bishops and other church authorities. Churches talk about justice, but without sound and systematically-applied guidelines for discipline they are often hard-pressed to provide it. In a church plagued by chronic struggles over authority, in which members and congregations in conflict rarely find any meaningful path to reconciliation, canon law can offer tools of great value -- not because it is a law, but because it is a law of love.