The Shoemakers’ Guild

A while ago I thought through a question like this.

In a medieval town, the shoemakers’ guild rules that only its members may make and sell shoes. To join, you first spend many years as an apprentice. Once you are in, everything follows the guild’s rules: prices, working hours, which religious holidays you may not work, how a pair of shoes ought to be made. Then an outsider comes to town. He is willing to sell his shoes for less, but he won’t join the guild. Does the guild have the right to stop him from opening a shop?

My answer is yes. On this one, I side with the community’s right to govern itself.

By my usual standards, this answer doesn’t sit right. I believe in market competition, I oppose tariffs and subsidies, and I have always thought that a company that lobbies politicians to push out its rivals has nothing to do with a free market. The outsider sells cheaper, and the people buying shoes come out ahead. A guild that blocks him looks like it is just protecting its own livelihood. By that logic, I should be on the outsider’s side.

I still chose the guild. The reason I gave myself was that even a polycentric authority like this one is freer than the authority of modern capitalism and the state, which flattens everything.

Thinking it over, what makes me wary has never been “restriction” as such. It is who is doing the restricting, and whether there is anywhere else to go outside it. The biggest difference between a government and a company is that if a company does a bad job, I can go to another one. The guild only governs the shoemakers of one town. Beyond the walls there are other towns with other rules. Inside the walls, the guild isn’t the only authority either: there are church courts and the king’s courts. A centralized state has no “outside.”

This explanation doesn’t clear up the whole contradiction. The outsider really does lose out. He wants to compete on price, and a group of people uses its rules to keep him out. That conflicts with the individual freedom I have always cared about. But if I have to put them in order, I think a community’s freedom from outside interference ranks above an individual’s freedom from control by the community.

A Contract

My earlier idea of the state was simpler. It came from social contract theory. The state is a contract among citizens, and taxes, military service, compulsory vaccination, the ban on drugs and limits on high-risk investment should all count as terms of that contract. Anyone who stays out of the contract is, in turn, shut out of some of the state’s services.

That idea doesn’t hold up, because order spills over. A man who doesn’t pay taxes is still protected by the police and the army. There is no clean way to shut him out. I accept that.

But admitting the spillover did not push me toward central government. I still think the spontaneous division of interests among small communities before absolutism, among the Church, the townspeople and the guilds, was better than today’s central government. Social contract theory asks whether I consented to each obligation. What I care about now is something else: whether there is one power that can swallow all the others.

Some will say the modern state also grew out of centuries of war, annexation and compromise, so why shouldn’t it count as a spontaneous order? I won’t argue with it over origins. Setting up any order has a cost, and changing an order that already exists, on the grounds that it is unjust, has a cost too. Even if a central state really did grow up organically in this way, I would still oppose it, because that degree of concentration is illegitimate in itself.

A Year and a Day

When medieval people spoke of freedom, they often used the plural: in Latin, libertates. A town’s charter, a guild’s statutes, a church’s exemption: each of these was called a “liberty.”

In the 1215 Magna Carta, clause 1 provides “that the English Church is to be free, and to have its full rights and its liberties intact.” Clause 13 provides that “the city of London is to have all its ancient liberties and free customs, both on land and water.” In both clauses the liberties have an owner: this church, that city.

In 1273 the small town of Burgdorf, now in Switzerland, received a charter from the local count and countess. Article 51 says that anyone who comes to Burgdorf, whatever their rank or sex, who has acquired citizenship there and has lived there openly for a year and a day without anyone raising a lawful objection, can no longer be challenged by anyone. A serf who fled into the town and held out for that year and a day could usually no longer be claimed back by his old lord. In the nineteenth century, rules like this were summed up in one phrase: “City air makes you free” (Stadtluft macht frei). The phrase is a later summary. The medieval charters were not so elegant; they only set out the time and the procedure.

The same person often lived under several systems of law at once. Cases about marriage and wills went to the church courts; trading in town meant following urban law and merchant law; lords and vassals dealt with one another under feudal law, and peasants on a manor under manorial law; the king, meanwhile, had a law of his own. The legal historian Harold J. Berman works through each of these in Law and Revolution (1983). As he sees it, one important reason Westerners came to believe that law stands above those who govern is that none of these systems could swallow the others; they had to live side by side and contend.

Outside the Gate at Canossa

Most of these liberties grew out of standoffs. The most famous standoff was the Investiture Controversy.

In 1075 Pope Gregory VII’s Dictatus Papae set out twenty-seven propositions. One says that the pope may depose emperors; another, that the pope himself may be judged by no one. The German king Henry IV refused to give up the power to appoint bishops. The following year the pope excommunicated him and declared his subjects released from their oaths of loyalty to him. In January 1077 he came to the castle of Canossa in northern Italy and stood outside the gate for three days, barefoot and dressed in wool, before he was granted absolution.

The story is often told up to this point, as if the pope had won. But the two sides kept fighting for more than forty years. The Concordat of Worms in 1122 was a compromise. The emperor gave up investing bishops with ring and staff, and bishops were to be elected by the Church according to canon law. The man elected still had to receive his secular fiefs and rights from the emperor.

In 1877 Lord Acton gave a lecture titled “The History of Freedom in Christianity.” For him, the investiture quarrel was only the opening round of a much longer struggle between the Church and the kings. He said: “To that conflict of four hundred years we owe the rise of civil liberty. If the Church had continued to buttress the thrones of the kings whom it anointed, or if the struggle had terminated speedily in an undivided victory, all Europe would have sunk down under a Byzantine or Muscovite despotism.” He goes on to say that what both sides wanted was absolute authority, and that liberty was only the means by which they “called the nations to their aid.”

This is the point I agree with most. The pope wanted to be a man no one could judge. The emperor wanted to hold the Church in his own hand. Neither of them managed it. What Europe got was something neither side wanted: a crack between two powers.

I also thought about a harder case. Two communities clash over the same water source. Who decides? Conflict can’t be avoided. Even if there is a higher authority, someone’s interests will always suffer. I believe the dynamic balance between communities will slowly form a new order, but that doesn’t count as an answer, because I don’t have one. All I know is that if I accept a power that can make the final ruling, I have to accept a central authority. At this point I had to laugh at myself: when did my thinking become so “retro”?

I believe universal law has another lawgiver, above every human power. Only God is sovereign. When any limited person or institution claims to be the final judge, that is usurpation, and this includes the 1075 line “that he himself may be judged by no one.” So I don’t think a modern state guided by rationalism and utilitarianism can be sovereign for long, and I don’t accept a single human religious authority either. On earth, each community interprets universal law for itself, and a shared law is slowly worked out through historical custom and arbitration between communities. Whatever conflicts remain unresolved are left hanging, with no final verdict. There is tension in this mix. It is a relative, dynamic balance.

Only Individuals and the State

Modern “sovereignty” means setting up a final judge on earth. In 1576 Jean Bodin, in his Six Books of the Commonwealth, gave sovereignty its first definition: sovereignty is the absolute and perpetual power of a commonwealth.

In 1651, in chapter 29 of Leviathan, Hobbes lists the infirmities that weaken a commonwealth. He includes “the immoderate greatness of a town” and “the great number of corporations; which are as it were many lesser commonwealths in the bowels of a greater, like worms in the entrails of a natural man.” What I see as plural liberties, he saw as worms.

The French Revolution turned this way of thinking into law. The Allarde Decree of March 1791 declared that anyone was free to take up whatever trade, profession or craft he saw fit, as long as he paid the business tax. The outsider shoemaker had won. Three months later, the Le Chapelier Law, passed on June 14, laid down that people of the same trade, when assembled, could not appoint a president, secretaries or trustees, nor draft regulations concerning their “alleged common interests.” Isaac Le Chapelier, who put the law forward, said that there were no longer any guilds in the state, only the particular interest of each individual and the general interest; no one was allowed to instill in citizens an intermediate interest.

The outsider could now open a shop as he pleased, but the town’s shoemakers could not even have an organization to talk things over. On one side, the individual; on the other, the state; everything in between torn down. That is what I mean by “flattening.”

In The Old Regime and the Revolution (1856), Tocqueville says that administrative centralization was a product of the old regime, and the only part of the old regime’s political constitution to survive the Revolution. On this, the kings and the revolutionaries were on the same side.

In 1931 Pope Pius XI recorded the result in Quadragesimo Anno. He blamed individualism: “following upon the overthrow and near extinction of that rich social life which was once highly developed through associations of various kinds, there remain virtually only individuals and the State.”

What I Don’t Defend

I don’t want to go back to the Middle Ages. That world had serfdom, and Burgdorf’s “year and a day” was precious precisely because there were still serfs outside the walls. From 1209 to 1229 the Albigensian Crusade, launched by Pope Innocent III, pushed into southern France against the Cathars. In 1233 Gregory IX issued the bulls that set up the papal Inquisition, which in practice often became a tool in the pope’s hands. These darkest pages happen to be tied to the concentration of Church power. I don’t use that to let the era off the hook.

Small communities can oppress people too. Guilds shut others out, and families and villages can press down on a person until he can hardly breathe. Here is where I draw the line: a community may condemn someone, refuse fellowship with him, even drive him out, but it may not use prison and violence to force him to be virtuous. Morality is for restraining oneself. Human law has no standing to judge morals and souls.

The body and the conscience are two hard limits. For a while I wasn’t sure where the rights of the person come from. Now I believe they come from theological natural law, and also from the same principle that stands against absolute sovereignty: no state can ultimately own the whole of society, and no community can ultimately own a person’s body. Every religion has mystical currents that speak directly with the divine and resist authority. They have long been suppressed by secular powers and by dogmatism within their own faiths, and they have never died out. Peter and the apostles said, “We must obey God rather than men” (Acts 5:29). But conscience only gives a person the right to refuse to obey. It does not give anyone the right to rule others on the strength of his own certainty.

One more: a community may not deliberately raise its members so that they grow up unable to leave. That goes against God’s will. When I say the community’s freedom comes first, I mean within these limits.

Hierarchy, too, I only half defend. Suppose a city’s judicial offices can only be held by three old families, and a more capable man of ordinary birth is shut out because of it. I would call that a pity; and if those three families fail in their duty, other bodies will respond. As I see it, hierarchy is unjust only when it turns into domination that is closed, absolute, and unable to provoke any pushback. What I am least sure about is this: what if no one responds? The absence of resistance doesn’t show that an order is legitimate. Domination can shape people’s minds so that the tension never even shows. That is possible, and it is real. For people who don’t even have the capacity to push back, I don’t yet have a good answer.

Layer Within Layer

As for today, I don’t want to restore any medieval institution. What I want to keep is its structure. In 1603, in his Politica, Johannes Althusius described society as associations nested one inside another: the family, the voluntary association, the local community, the province, the state, each made up of the ones before it. Sovereignty belongs to the people as organized through these associations, and it cannot be given away.

That is how I understand “the people” too. It is a compound made up of real communities: families, churches, towns, regions and professional associations. It is not the arithmetic sum of equal individuals. A majority cannot rule a community on a core matter like education just because it has the numbers. There is no such thing as a neutral education; the state is only replacing the traditions of families and communities with its own ideology. A child has to grow up inside a concrete way of life before he can become a person.

The evil of power, I think, comes mainly from its reaching into too many areas of life; how many people it governs matters less. By that reasoning, small communities that govern their members’ lives very deeply would seem to call for wariness too. Yet they are indispensable. Only when such communities already exist does a large association that handles just a few matters have anywhere local to leave education, religion, economic organization and most of the administration of justice. You can’t pick one over the other.

Paragraph 79 of Quadragesimo Anno says that to hand over to “a greater and higher association what lesser and subordinate organizations can do” is an injustice and a disturbance of right order, and that “every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them.” This is what is usually called the principle of subsidiarity.

This will have a cost. So that different communities keep the ability to judge for themselves, to make mistakes and to live in their own way, I am willing to accept a higher crime rate, lower efficiency and greater material cost. But that is a choice I make for myself. Each person can only choose sacrifices for himself. No one can choose them for others in the name of tradition or the common good.

The Next Town

In 1791 France answered the question on the outsider shoemaker’s behalf: let him open his shop, and forbid the town’s shoemakers from ever again forming any association.

I still prefer the old answer. The guild can keep him out. He can pack up his tools and go to the next town, where there is another guild with another set of rules, and maybe they are short a shoemaker.

What I want is a world where there is still a next town.

Sources

Further reading: Robert Nisbet, The Quest for Community (1953); Jacob T. Levy, Rationalism, Pluralism, and Freedom (2015).