histofthought1

The Christian Middle Ages 312.1 The Roman law: property rights and laissez-faireOne of the most powerful influences in the legal and political thought andinstitutions of the Christian West during the Middle Ages was the Romanlaw, derived from the Republic and Empire of ancient Rome. Roman lawclassically developed in the first to the third centuries AD. Private law developedthe theory of the absolute right of private property and of freedom oftrade and contract. While Roman public law theoretically allowed state interferencein the life of the citizen, there was little such interference in the lateRepublic and early Empire. Private property rights and laissez-faire weretherefore the fundamental heritage of the Roman law to later centuries, andmuch of it was adopted by countries of the Christian West. Though theRoman Empire collapsed in the fourth and fifth centuries, its legal heritagecontinued, as embodied in two great collections of the Roman law: influentialin the West, the Theodosian Code, promulgated by the Emperor Theodosiusin 438 AD and in the East the great four-volume Corpus Juris Civilis, promulgatedby the Byzantine Christian Emperor Justinian in the 530s.Both collections emphasized strongly that the 'just' price (justum pretium)was simply any price arrived at by free and voluntary bargaining betweenbuyer and seller. Each man has the right to do what he wants with hisproperty, and therefore has the right to make contracts to give away, buy, orsell such property; hence, whatever price is freely arrived at is 'just'. Thus inthe Corpus, several leading Roman jurists of the third century quoted theearly second century jurist Pomponius in a classic expression of the moralityof laissez-faire: 'In buying and selling natural law permits the one party tobuy for less and the other to sell for more than the thing is worth; thus eachparty is allowed to outwit the other'; and 'it is naturally permitted to partiesto circumvent each other in the price of buying and selling'. The only problemhere is the odd phrase, 'the thing is worth', which assumes that there issome value other than free bargaining that expresses some 'true worth', aphrase that would prove to be an unfortunate harbinger of the future.More specifically, the Theodosian Code was crystal-clear: any price setby free and voluntary bargaining is just and legitimate, the only exceptionbeing a contract made by children. Force or fraud, as infringements onproperty rights, were of course considered illegal. The code held explicitlythat ignorance of the value of a good by either buyer or seller was insufficientground for authorities to step in and rescind the voluntarily agreedcontract. The Theodosian Code was carried forward in western Europe, e.g.the Visigothic law set forth in the sixth and seventh centuries, and theBavarian law of the early eighth century. Bavarian law added the explicitprovision that a buyer may not rescind a sale because he later decides thatthe agreed price was too high. This laissez-faire aspect of the TheodosianCode later became incorporated into Christian canon law by being included