The guilded age
By Daniel M. Ryan
It's now an open matter: a bill ostensibly to criminalize cyber-bullying, H.R. 1966, also aims at criminalizing the supposed harassment of "public figures by criticizing them in a 'severe, repeated, and hostile' manner, and thereby cause them 'substantial emotional distress.'" From a certain perspective, it's not surprising that some politicians would try to suppress "severe, repeated and hostile" criticism of themselves in blogs. It's part of life in the Guilded Age.
Formally, a "guild" is an association of people in a particular line of work. In medieval and early modern times, though, it meant something more. The guild was a recognized sub-polity, whose members enjoyed special powers and were bound by special responsibilities. Some may think of a labor union in this connection, but a guild back then was more like a present-day professional association. Back then, guilds did judge their own.
The reasoning behind granting guilds special status took a twofold direction. The first part consisted of "what's done is done." Guilds had been around for centuries, even as of the Dark Ages, and they had policed themselves anyway. It was more pragmatic for the governing authorities to formalize that custom than to try to break the guilds' self-regulation in the name of a higher justice. The guilds were left alone because, to put it in medieval terms, who would dare outrage the swordsmith? Who would want his sword to fall apart? Who would want to die on the battlefield through offending the armormaker? Knowledge and skill meant political power, and the guilds were prepared to use it. Any guildsman of the time would have added, proudly, that said power was used to fulfill the higher mission of the guild and to protect time-honoured rights and prerogatives. In the pre-Enlightenment age, that's where it ended. Any appeal to abstract principle, outside of theology, was considered idle speculation…unless it crossed over into heresy or offense against the then powers that be.
The second part involved a kind of roping in. If guilds had special status, they could be brought into line through threatening to strip them of status. Give the political realities noted above, this power of overrule would have been used gingerly and at the margin. In effect, it was confined to cases where the guild members were clearly delinquent with respect to the guild's own ideals. Even then, the co-operation of the guilds' greybeards was effectively a necessity for any crackdown. A softer kind of control – shaming – could be used more freely, though.
Guild law and guild privilege settled into a political era during which the capture theory was known intuitively. Any group with social power will attempt to turn it into political power. Any group with political power will use said power to protect its members' interests. Any law, regulation or edict that required the co-operation of said group's members will indeed be modified to harmonize with the above two tendencies. If group truculence can defeat the enforcement arm of the higher justice, then any such law/edict/regulation will be a dead letter, and expose a weakness in the higher power trying to administer that justice. In such a situation, political pragmatism suggests letting the group capture part of the legal framework. Half a loaf is better than none, and the capture can be ascribed to the guild's grubby nature.
The bundle of laws, edicts, et al. had turned into a crazy quilt of complexity by the time of the Enlightenment. Once again, political pragmatism explains why. Who would strip the privileges of the members of a client group? Who dared be the figurehead of their anger? Who would appear the ogre if said group was meek? Once again, who dared risk the flimsy sword?
The guild system meshed well with aristocracy, even though the guilds began long before the feudal age. Here's why: aristocracy above provided a work-around of the bad-guy problem. So, in its own way, did the Church. An aristocrat whose conduct was above non-captious reproach, and knew well how to pick his spots, could crack down without being widely seen as a tyrant. More to the point, an aristocrat had enough clout to protect renegade guildsmen or amateurs from the wrath of an entrenched guild. In both cases, the logjams were broken primarily by moral power in an age where the good example was not impotent. That moral power, however, was hard to earn and easy to lose. Aristocrats have always lived in figurative glass houses, as have the clergy.
We're not in a formal guild system yet, but the associated spirit is very much the Guilded Age. Regulatees have not (yet) won the right to set up their own courts to enforce the regulations they have to observe, but the oft-noted regulatory-capture effect shows a definite tendency in that direction.
So it's not all that surprising to see the Politicians' Guild get into the act, in a manner less indirect than rent-seeking. It jibes with the age we're in, and there's only a bare shadow of aristocracy left to fend off the Guilded Age. The only way out is through the skillful exercise of moral power, at the right moment.
Although there are expedients available. I note with some wryness that the hate-crime bill which the U.S. House of Representatives recently passed depends upon a crucial assumption for its constitutionality. In order for its retry-of-the-acquitted provision to not constitute double jeopardy, the federal justice system and the state-level justice system have to be seen as two unconnected entities. Given that dispensing justice is one of the two main justifications of a polity, such an assumption implies that the states and the U.S. are distinct political entities except for defense against external aggression. Guild can be pitted against guild…
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