COMPLEXITIES OF THE GUILDS IN MEDIEVAL LEGAL PLURALISM

PART THREE: GUILDS, OLD AND NEW

This post is an installment in a longer series on Guilds, Old and New. To review a full index of all the installments to this series, see the introductory, part one of the series, here.

In this installment we look more closely at the pluralist nature of the guilds – the struggle between hierarchical and heterarchical status – as well as the intellectual battle over the legal legitimacy of the guilds during the medieval period. Black goes on at great length citing a vast range of sources among jurists and others affirming the legality of guild self organization free of higher authority, despite sometimes explicitly acknowledging the concession doctrine of Roman Law.

From the perspective of the medieval constitution, as discussed amid the earlier series on legal pluralism, it turns out to have been the Catholic Church which played a major role in legitimizing, not merely the creation and operation of the craft guilds, but their claim to heterarchy – rather than a mere hierarchical authority bestowed from a monist (or aspiring monist) sovereign. Indeed, in Black’s assessment, Pope Innocent IV winds up providing a virtual Magna Carta of the guilds. This support of the guilds by the Catholic church at such an early date, as we’ll see in future installments, is intriguing considering what an important role the Catholic Church played in promoting guilds via the defense and promotion of corporatism later in the 20th century.

Consistent with much work done on this Substack, as well as presented in my book, A Plea for Time in the Phenotype Wars: a consistent theme of the period considered in this installment, discussed at great length in our review of the work of both Robert Nisbet and Paolo Grossi, is the impact of the increasingly celebrated and adopted Roman law. Black too addresses the present topic with reference to the jurisprudential obstacles to guild heterarchy posed by the Roman law. I quote him going on from there, telling the story of the transformation of Catholic thinking on the guilds.

...the jurists had difficulty in reconciling Roman law with contemporary reality. According to the Digest¹, craft workers could only form a college by permission of senate or emperor, with the exception of tax-farmers, miners of gold, silver and salt, bakers and shippers, to whom such permission was expressly granted in Digest 3.4.1 pr.; severe penalties were prescribed for ‘illicit colleges’ (Digest 47.22.2, 3). Medieval jurists got round this in various ways. The part of their argument which concerns us here was initiated by Bassianus in the late twelfth century: every ‘assembly’ (congregatio) is permissible ‘which exists for preserving for each one his justice’ (pro conservanda cuique sua justitia). This sweeping moral criterion radically strengthened the crafts’ case for corporate legitimacy.

Innocent IV reiterated Bassianus more exactly: provided there are at least three members, corporate status follows automatically if the aim is ‘to preserve for each his justice’ (on Decretals 1.31.3, fol.63r).

Although jurists had experience of collegiate life in universities and notaries’ guilds, what they said did not necessarily reflect the moral sentiments of craft-guildsmen themselves.

Late Roman law, as we have seen, severely restricted the right to form colleges to a few groups listed in Digest 3.4.1 pr. and such others as emperor or senate might allow.

Jurists reiterated the Digest’s strictures on colleges but at the same time they expanded the grounds on which craft-guilds might be permitted without superior consent. Despite what Gierke says, they thus went some way towards accommodating Germanic tradition.

...some Glossators argued that the list of trades in which workers could form colleges (Digest 3.4.1 pr.) was not exclusive but indicative: all craft-guilds in similar professions were authorized as falling within the formal requirements of the law.

This kind of creative reading of the Digest opened the door to allowing a greater latitude to craft guild autonomy, setting the stage for appeals to their heterarchy. This was the leverage point exploited by Pope Innocent IV, though he had to simultaneously address the restricted comprehension of such association drawn from the experience of those in the church and universities specifically (institutions that in the 13th century were still somewhat bound up together), and contemporary jurists generally. According to Black:

Innocent [IV] drew a sharp distinction between ecclesiastical and secular ‘communities’ (universitates). A church, it is true, cannot legislate without the bishop’s consent; ‘but about other communities it may reasonably be said that they can make statutes concerning their own affairs’ (on Decretals 1.2.8, fol.2v). He was particularly keen to apply this to craft-guilds. The general rule, he says, is that rulers elected by communities acquire jurisdiction when the superior confirms the appointment. But, while cities may acquire corporate status, and so elect their own rulers, through the tacit consent of a superior, crafts ‘need no privilege or consent of a superior for them to be colleges approved by the law [see Digest 3.4.1]; all their members, or the greater part, if they wish, can set up a judge for themselves and exercise the other rights of an association (iura universitatis)’ (on Decretals 1.31.3, fol.63r).

Innocent went on to add an observation which ultimately contributed to the decentralization, and arguably thereby heterarchy, of the guilds. Certainly this emphasis upon locality turned out to be tied in the minds of the emerging pro-guild jurists to their legitimate capacity for self-governance. Again, quoting Black:

[Innocent] added that there should probably only be one college per craft in each city, and that crafts from different cities should not amalgamate.

Among later civilians, Bartolus too said that ‘colleges of many persons performing one craft in one city or place are approved by common law’ (on Digest 47.22.4 and 3.4.1). Paulus de Castro (d.1441) pressed the point: ‘those elected by a community comprising an approved college, thereupon acquire jurisdiction or its exercise by the authority of that law [on Codex 3.13.7] without further confirmation by a superior’ (on Codex 3.13.3).

Black notes that, while this was still far short of the heterarchy celebrated in the German tradition, exemplified in the pioneering scholarship of Otto von Gierke, and we saw played out in Walker’s history of the German hometowns, as a juridical tradition it was indeed leaning in that direction.

This was still far short of the Germanic tradition, and of the contemporary view common among craftsmen, that the corporate status of the guild derives from the consent or will of its members. But, contrary to what Gierke maintains, some jurists did go this far, and so brought Roman and canon jurisprudence into line with Germanic custom and contemporary reality.

But as noted above, Black attributes to Innocent IV the role of juridical thinker who really threw down the gauntlet on guild heterarchy, providing in the end what Black describes as a Magna Carta of the craft guilds.

...it was Innocent IV who took the plunge. He gave three ways in which those engaged in a craft might form a corporation: “[1] It seems that men in any profession (such as grammar), or business (such as food suppliers), or office (such as bakers), can come together and set up their own ruler or syndic and a common chest by their own authority if they wish, provided they enter partnership or form a college for some cause. [2] Some, however, say that in colleges of persons [sc. the above] they are always confirmed by a superior, just as in [territorial] colleges.... [3] It also seems that, even without a ruler or syndic, chest and formal agreement, they can set up a college by their own authority, or their will alone (provided it is explicit), so long as they do so for some just cause.... All the above colleges, which are formed for good purposes and do not proceed to evil, we say are authorized by [Digest 47.22.1].”

[Innocent] wrote this at the very time when craft-guilds were multiplying all over Europe, and on the eve of their rise to political power within certain cities. Seen in that context, and compared with what other jurists were saying, it looks like an expression of definite support for craft-guilds. In this respect, it may be contrasted with Bartolus’ more famous justification of the already established autonomy of city-states.

All in all, [Innocent’s] commentaries provided a Magna Carta for the guilds.

By this point a jurisprudential beachhead had been established in defense of the rights of craftsmen to independently form their own guilds. And while their legitimate claim of heterarchy was not as widely accepted, those appeals too were gaining momentum. Black notes that even in those circumstances during the Middle Ages where craftsmen were prevented from forming such pluralist craft guilds by monist (or aspiring monist) sovereigns, they often found ways around such interdiction by – appealing to the origins of the guilds, as we saw in the last installment – organizing themselves as religious or charitable associations.

So, clearly, by this time the intellectual and cultural roots of craft guilds were established, and their organizational momentum was pushing them forward as increasingly effective and powerful pluralist institutions. In the next installment, we’ll look at the expansion of this momentum and power in reviewing Black’s discussion of how – much in keeping with what was seen in our discussion of Mack Walker’s history of the German hometowns – the guilds became increasing intertwined with the history of Europe’s emerging free towns.

So, if you want to be among the first to see that next post in this series on the Guilds, Old and New, and haven’t yet, please…

And, as always, if you know of other’s who’d be interested in what we get up to around these parts, please…

Meanwhile: be seeing you!

1. Also known as the Pandects, the Digest refers to the compilation of Roman Law conducted under the order of the Byzantine Emperor Justinian. Also sometimes simply called the Justinian Code. It was compiled to provide a comprehensive, practical guide to Roman law for jurists and judges.