due consideration for his misconduct. If anyone shall secretly intrigue with his
parents, brothers, sons, relatives, or neighbors, or especially with a fellow brother
in the absence of the above-mentioned father, you may have the power over each
one who has attempted such a crime to have him put under ban of excommu-
nication and confined to a dark cell for six months on bread and water alone,
wearing a penitential tunic or sackcloth, without cincture and without shoes. If
a monk is unwilling to undertake such a penance with full consent, he is to be
stretched out naked and given 72 blows with a lash and to be deprived of the
clothing of the monastery and to be expelled from the institution in conspicuous
disgrace. (Fructuosus, “Pact,” p. 208; cf. Herwegen, pp. 2–3)
Opposite this subjection of the monks to the sovereignty of the abbot stands,
however, the obligation of the abbot to govern with justice and equity:
We remind you, our master, that if you should treat any of us unjustly—which
it is unreasonable to believe and which may God not allow to happen—if you
should treat any of us with pride or anger, or should love one and show hatred
and rancor for another, or should dominate one but revere another, as people
often do, then we shall have the right also granted to us by God to take our
complaint without pride and without anger through the dean to the prior, and
the prior shall humbly kiss the foot of you our lord and lay before you the details
of our complaint, and you must be willing to listen patiently and to bend your
neck humbly to the common rule and correct and reform yourself. If you are not
willing to correct yourself, then we may also have the power of consulting another
monastery, or else a bishop who lives under the Rule, or a Catholic count who
is a defender of the Church, and of inviting them to meet with us, that, in their
presence, you may correct yourself and fulfill the tenets of the Rule. (Fructuosus,
“Pact,” p. 209; cf. Herwegen, pp. 3–4)
Herwegen, who lingers on the juridical meaning of the document, renders an
account of the constitutional character of the pact with respect to the convent
community, but without drawing all its consequences. “This formula,” he writes,
“is the expression of a juridical negotiation through which a multiplicity is united
for a common cloistered life. A superior power, under the reservation of cer-
tain rules, is conferred on an abbot defined as ‘lord and father,’ in the form of
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a monastic profession. The agreement is presented here as the foundation of a
convent, connected with the subjection of the monks to the abbot” (Herwegen,
p. 4). From this perspective, he seeks to demonstrate the possible influence on
the pactum, on the one hand, of the oaths of subjection between subjects and
sovereign contained in the lex Visigothorum and, on the other, of the Roman le-
gionnaire’s oath of obedience. It is all the more surprising, then, that Herwegen,
exclusively preoccupied with relating the pactum to its Visigothic context and
distinguishing it from the monastic profession in the strict sense, does not notice
that the pactum constitutes, perhaps, the first and only example of a social con-
tract in which human beings in a group subject themselves unconditionally to
the authority of a dominus, attributing to him the power to direct the life of the community that is thus founded in all its aspects. With respect to the Hobbesian
covenant or Rousseau’s social contract, in which the authority of the sovereign
knows no limits, to the monks’ obligation of subjection there corresponds the
obligation to govern with justice on the part of the abbot. In any case, however,
what is decisive is that the pactum is not in any way assimilable to a private
contract and that by abstracting the question from the discussion—which is, all
things considered, sterile—of the contractual or votive character of the monastic
profession, it allows us in some way to consider the rules in their integrity as
true and proper constituting documents ( constitutiones, as they are after all often designated) of the cloistered community.
3.3. In reality, what is decisive here is not so much the problem of the more
or less juridical nature of the rules, which cannot be proposed for the earliest
rules, but more generally that of the peculiar relation between life and norm that
comes to be established in the rule. What is in question is thus not what in the
rule is precept and what is advice, nor the degree of obligation that it implies,
but rather a new way of conceiving the relation between life and law, which
again calls into question the very concepts of observance and application, of
transgression and fulfillment.
Already in the earliest rules, the penal apparatuses often refer not to individ-
ual actions, but to something like a vice or a spiritual condition of the monk.
Qui facilis est ad detrahendum, si in hoc peccato fuerit deprehensus . . . iracundus et furiosus si frequenter irascitur (“The one who is quick to slander, if he is caught in this sin . . . if an irascible and raging person frequently becomes angry”), one
reads in Pachomius’s Praecepta atque iudicia. Si quis frater contumax aut superbus aut murmurans aut inoboediens . . . (“If any brother is stubborn or proud or given to complaining or disobedient . . .”), begins the chapter De excommunicatione
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HOMO SACER IV, 1
culparum (About Excommunication for Faults) in the Rule of the Master (Vogüé 2, 2, pp. 33/149). And in the rule of Isidore, the index that enumerates
the most serious offences is more similar to a catalog of vices than to the outline
of culpable offences: si temulentus quisquam sit, si discors, si turpiloquus, si feminarum familiaris, si seminans discordias, si iracundus . . . (“if anyone is drunk, disagreeable, foul-speaking, friendly with women, a sower of discord, irascible . . .”;
Regula monachorum, p. 886).
This holds even more so for the monk’s positive obligations. A passage from
Bernard of Clairvaux’s De praecepto et dispensatione (On Precept and Dispensa-
tion) is particularly significant from this perspective. Responding in an imagi-
nary dialogue to a monk who, having professed the rule, laments not being able
to fulfill his vow in the monastery where he is, Bernard writes:
But truly, I say, neither of these complaints is just. He who thinks it perjury not
to observe the rule in its purity [ ad purum], has I think paid scant attention to
what he actually promised. No one at profession [ cum profitetur] really promises
“the Rule” [ spondet regulam], but specifically, that he will act “according to the rule” [ secundum regulam] from the moment of his conversion and in his form-of-life [ conversionem suamque . . . conversationem dirigere]. This sort of profession formula has, in our day, been adopted by almost all monks. However, God is
served in many diverse ways in the various monasteries. So long as one carefully
observes the good customs of his house he is beyond any doubt living according
to the rule, for the rule admits of variations in local customs. (Bernard of Clair-
vaux, De praecepto et dispensatione, pp. 250–52/140–41)
As the opposition between a technical legal term ( spondere, to obligate oneself
personally to something
) and an expression drawn from ascetic language (to lead
the proper form of life) shows clearly, the passage testifies to a transformation
that affects the way we understand the relationship between norm and life. The
one who promises does not obligate himself, as happens in the law, to the fulfill-
ment of the individual acts expected in the rule, but puts into question his way
of living, which is not identified with a series of actions or exhausted in them. As
Bernard adds immediately after, “those who undertake to live according to the
Rule [ secundum regulam vivere], even if they do not keep it completely in every
detail [ ad unguem], and even if they change or omit certain details according to
the customs of their house, as long as they are faithful to what is locally accepted
as a ‘sober, just, and pious life’ [ sobrie et iuste et pie vivere], they are truly living the Rule” (ibid., pp. 286/141).
It is most likely in reference to this passage that Thomas can write that “he
who professes a rule does not vow to observe all the things contained in the rule
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[ non votet observare omnia quae sunt in regula], but he vows the regular life [ votet regularam vitam] which consists essentially in the three aforesaid things [poverty, continence, and humility]. Hence in certain religious orders precaution is taken
to profess, not the rule, but to live according to the rule [ profitentur non quidem
regulam, sed vivere secundum regulam]” ( Summa theologica, 2a 2ae, q. 186, art. 9).
Even if Thomas seems to reduce the problem to that of the difference between
precept and rule, the decisive point, which the authors have difficulty putting in
focus, is the transformation that is in question in the passage from “promising
the rule” to “promising to live according to the rule” (promising life). The object
of the promise is here no longer a legal text to observe or a certain action or a
series of determinate behaviors, but the subject’s very forma vivendi.
3.4. In Suárez, this special character of the monastic profession assumes
the paradoxical form of an obligation that doesn’t have a certain human act as
its object, but the obligation itself. He begins first of all by distinguishing two
meanings of the term votum: in the first, the word designates “the obligation and
the bond that remains in one who has pronounced the vow” ( pro obligatione et
vinculo quod manet in homine habente votum), in the second, “the act by which
the obligation immediately comes about” ( pro actu illo a quo immediate nascitur
obligatio; Suárez, p. 804). “I say,” he continues, “that the vow properly so-called, insofar as it signifies that act by means of which a person obliges himself with respect to God, cannot have for its object any human act other than the obligation
itself, that is the bond that is realized through the act of vowing oneself” ( non
habere pro obiecto alium actum humanum sed obligationem ipsam, seu vinculum
efficiendum per actum vovendi; ibid.).
The vow, insofar as it “is nothing other than the obligation, by which some-
one is bound spontaneously to God [ se spontanee obligat deo],” does not obligate
one, like the law, simply to fulfill determinate acts and keep away from others,
but produces in the will a “permanent and, as it were, habitual bond” ( vinculum
permanens et quasi in habitu; ibid.). Here the vow is a “vow of the vow” ( habet pro obiecto votum), in the sense that it does not refer immediately to a certain
action or a certain series of acts, but first of all to the bond that is itself to be
produced in the will:
And this will, through which the human being obliges himself with respect to
God, has for its object the very obligation to God and thus has for its object the
vow or the promise, to the extent to which this signifies the bond itself that is to
be realized through the vow, and not to the extent in which it signifies the acts
to be vowed or promised [ habet pro obiecto votum vel promissionem, quatenus haec
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HOMO SACER IV, 1
significat vinculum ipsum efficiendum per votum, non quatenus significat actum
vovendi aut promittendi]. (Ibid.)
What Suárez here tries laboriously to conceptualize by multiplying his distinc-
tions is the paradox of an obligation whose primary content is not a certain
behavior, but the very form of the will of the one who, by promising the vow,
has been bound to God. The vow has, that is, the form of law, but not its con-
tent, and like the Kantian imperative, it has no immediate object except the
very will of the one vowing. For this reason, in the next chapter, Suárez takes
care to distinguish the votum in the proper sense, which is realized only through
the promise ( per solam promissionem), from the traditio, which is added to it in the case of the solemn vow of chastity, in which the one vowing “consigns
and consecrates his body to God as chaste in perpetuity” (ibid., p. 805). In dis-
tinction from the pagan devotio, in which the devotus consigned to the gods his body and his biological life, the Christian vow is, so to speak, objectively vowed
and has no other content than the production of a habitus in the will, whose
ultimate result will be a certain form of common life (or, from the liturgical
perspective, the realization of a certain officium or a certain religio).
Once more, the decisive core of the monastic condition is not a substance or
content, but a habitus or a form. Understanding that condition will require us to
turn toward the task of confronting of the problem of “habit” and form of life.
א In our archeology of duty (Agamben 1, §4, chap. 8), we showed that religio is
the name that theologians give to that singular relation between norm and life, which
configures a sort of juridical duty in the form of a virtue or a habitus.
In order to understand the new figure of the relation between norm and life that
here starts to be delineated, it is necessary to refer to juridical situations which find their technical form only later in administrative law—that is, in that branch of modern law that had its gestation in the sphere of the practices of Church administration. It is here that one encounters norms (called instrumental) that provide veritable outlines of behavior, linked to the definition of a “competence-duty,” that is, to an obligation or a legitimation to act that derives from a determinate situation (for example, the assumption of an office). The
“duties of office” that result from it configure a type or a normative outline of a practice that is not exhausted in an individual action, but defines a definite conduct of life, whose objective element and subjective element tend to coincide and which recalls, in this sense, the monk’s vivere secundum regulam and religio.
3.5. What is decisive in any case is that the form of life that is in question in
the rules is a koinos bios, a common life. Every interpretation of the monastic
rules must first of all situate them in this context, from which they cannot be
separated. When we ask ourselves about the relation between monks and rules, it
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is necessary not to forget Wittgenstein’s observation according to which it is not
possible to follow a rule privately, because referring to a rule necessarily implies a
community and a set of habits. Even for the monk the principle holds according
to whi
ch “it is not possible that there should have been only one occasion on
which only one person followed a rule. . . . To follow a rule, to make a report,
to give an order, to play a game of chess, are customs (usages, institutions)” and
“‘following a rule’ is a practice. And to think one is following a rule is not to
follow a rule. And that’s why it’s not possible to follow a rule ‘privately’” (Witt-
genstein 1, pp. 381–82/87–88).
It is important to specify, therefore, that the common life is not the object
that the rule must constitute and govern. On the contrary—as both the claim
of a “power conceded to us by God” in the “Pact” of St. Fructuosus and the in-
sistence on the distinction between “promising the rule” and “promising life” in
Bernard and Thomas testify—it is the rule that seems to be born from “cenoby,”
that (to use the language of modern public law) seems to be placed with respect
to cenoby like constituent power with respect to the text of the constitution. If
the ideal of a “common life” obviously has a political character, cenoby is per-
haps the place in which the community of life as such is claimed without reserve
as the element that is in every sense constitutive. What is in question, in the life
of cenoby, is thus a transformation of the very canon of human practice, which
has been so determinate for the ethics and politics of Western society that per-
haps still today we cannot fully grasp its nature and implications.
Threshold
AS we will see, it is only with the Franciscans that this transformation reaches
full consciousness, and consequently can be claimed as such, calling into
question the very substance of the rule as a set of norms separate from life.
In Hugh of Digne’s commentary on the Franciscan rule, the difference be-
tween promittere regulam and promittere vivere secundum regulam is taken up—
not to distinguish between precepts and advice or, as in Humbert of Romanis,
between the three substantial vows (obedience, poverty, and chastity) and the
rest of the rule, but to leave room for an absolute undecidability between forma
regulae and forma vivendi. The one who promises to observe the life and the rule of the blessed Francis, writes Hugh, promises according to the formula of
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