In a previous article, I had the pleasure of exposing how several canon law jurists from the University of Bologna, in Italy, influenced the works of later theologians and economic scholars from the School of Salamanca, whose theologians—for many Austrian economic scholars—are the fathers of modern economic thought.
In the prior article, I spoke of the intellectual terrain built by the Bolognese of the fourteenth century that allowed the discoveries of the Salamantines. This article, on the other hand, analyzes the works of the Bolognese canons who lived between the twelfth and thirteenth centuries, at the beginning of the grandiose Bolognese academic experience.
It is interesting and important to note that Murray Rothbard dedicated a section of his great work Economic Thought Before Adam Smith to the Bolognese jurists of this era, from which section this article originates.
Rufinus
The first decretist to reverse the negative opinion of merchants on the part of ecclesiastical jurists is Rufinus—professor of canon law in Bologna and bishop of Assisi—who, in his Summa Decretorum (commentary on the work Decretum di Gratianus), states that it is legitimate for a merchant to buy a good at a low price, work it, and sell it at a higher price, but he also condemns other speculative actions.
Huguccio da Pisa
More precise and more correct than Rufinus is the thought of Huguccio da Pisa, born in the Italian city of Pisa but a student and teacher in Bologna. He also wrote a commentary on the Decretum entitled Summa Decreti towards the end of 1100, where he agrees with Rufinus in considering the rise in the price of a good by a merchant legitimate and renews the conception of private property: private property begins to be seen again as a natural right, whose owner is free to use it as he sees fit, but with certain limits.
Huguccio’s influence did not stop with his death, however, as his texts would continue to influence canon law, especially under the pontificate of Gregory IX, when Bolognese jurists began to rediscover the typical concept of Roman law of bargaining, but above all, the concept of Laesio Enormis which—although reductive with respect to laissez-faire as we conceive it today—enormously expanded the freedom of merchants to raise the prices of their goods.
Also, under the pontificate of Gregory IX and influenced by the thought of Huguccio da Pisa, the Bolognese jurists stopped considering speculative buying and selling as a sin of turpe lucrum. Thus began the rehabilitation of the figure of the merchant within the circles of canon law.
Accursius
Under Pope Innocent IV—who had been a student and professor of canon law in Bologna—jurists gradually began to legitimize the rise in the prices of goods by merchants and artisans to bear the risk of such an investment (insurance, etc.). Precisely because of these legitimizations, scholars began to wonder what was the “right” price that the law had to recognize to goods to prevent merchants from committing sins of greed, it was chosen to follow the communis aestimatio, or the common value given to a good by the market process. As Accursius—one of the most important jurists of the School of Bologna, to whom the town hall of Bologna is named—said: “a thing was valued at that for which it could be commonly sold.”
The Doctrine of the “Two Forums”
Actually, the great innovation that is due to these Bolognese jurists was to develop a system of laws separating spiritual and economic points of view in order to reconcile the teachings of the Fathers of the Church against greed and its economic implications with the constant legitimization of new speculative practices. Thus was built the doctrine “of the two forums,” which Rothbard describes explain as follows:
The doctrine of the two forums enabled the canonists to resolve the seeming contradiction in canon law. The free-bargaining, laesio enormis, common market principle was the realm of external law and the open court, where, in other words, a roughly free market could prevail. On the other hand, the strictures against mercantile profits going beyond labour, costs, and risk were a matter not for the state and external law, but for conscience in the confessional.
To these Catholic canons of the University of Bologna the history of economic thought—as Rothbard was the first to point out—owes the legitimization in Europe of new forms of investment and the development of the modern capitalist system, freed from the spiritual and moral element, which belongs in the conscience of the individual and in his private relation with God. This new system of mostly-free entrepreneurial action would be the object of studies of the best-known scholars of Salamanca.
