I'm delighted that Sasse's 70 or so Letters to Lutheran Pastors is making its way through the CPH python. I'm told it will appear in three volumes and that cover layout is in process.
I cannot tell which enlightening ecclesiastical jurist—or was it even a theologian?—distinguished for the first time between churches which are only de jure and churches which are de facto Lutheran. He fooled us all with this distinction, including me, as I would expressly like to say. It could not have been a good jurist. A good jurist would have known, how inexact and ambiguous these expressions are. In common law, e.g., the de facto recognition is much less [important] than the de jure recognition, while in the recognition of churches, the expressions are used in roughly the opposite sense: the de facto is more significant than the de jure. But it can also not have been a good theologian. A good theologian would have known that a confession which is only de jure valid is no confession at all. The validity of a confession is indeed something very different than the validity of a law. Even in the worst times of state ecclesiology with its mixture of ecclesiastical and worldly jurisprudence—one can still study this mixture today in Sweden or England—the "validity" of the Book of Concord has always been something different than the "validity" of a ordinance under penalty of death. For the confession is not a legal document, which humans have made, as they make an ecclesiastical ordinance, but rather it is an exposition of eternal truth, which the church confesses and teaches before God and before all Christendom, based upon the Holy Scripture, because it believes it. Confession is, therefore, as even the modern church constitutions admit, not the object of law-giving. One can change or do away with the Lüneburg order of service. One cannot "do away" with the Book of Concord, one can only "fall away" from it, and when one has fallen away from it, then it has lost its "validity." A church which would call itself Lutheran, because in it the Lutheran confession still has de jure validity, perhaps because it binds its pastors to it, is like a man who calls himself Lutheran, and demands the rights of a Lutheran Church member, only because he has not yet left the church. When a church cannot say: we believe, teach, and confess—when it as a church still merely teaches and confesses, but leaves it to the individuals, whether or not they want to believe that which it regards as legally binding doctrine, then it has ceased to be a Lutheran church. A church is either Lutheran or it is not. It cannot be de jure Lutheran if it is not also de facto Lutheran.
Hermann Sasse, Letters to Lutheran Pastors XXX, April 1953