before the linguistic use of Francis, who holds together in the syntagma regula
et vita something—the “form of living”—that the commentator cannot succeed
in understanding except by distinguishing, on the one hand, between zoē and
bios, and on the other hand, by juxtaposing contradictory terms ( sanctificans
decretum, lex gratiae).
The two terms rule and life thus brought together are, however, so far from being identified that their duality even remains within the Christological model:
Francis, writes Clareno, who “had accepted the Gospel as rule” ( Evangelium pro
regula acciperet), said for this reason that he had “promised to observe as rule
the Gospel of Christ and his life” ( pro regula Evangelium Christi et vitam eius
promisisse servare; ibid., p. 186).
Olivi, who is Clareno’s constant model and reference point, also lingers in
his commentary over the Franciscan syntagma regula et vita: Francis, he writes,
“calling [the rule] not only rule, but also life, intended to clarify the sense of the
rule, which is a right law and form of life and a life-giving rule that leads to
the life of Christ” ( vocans eam non solum regulam sed et vitam, ut sit sensus quod est regula, id est recta lex et forma vivendi et regula vivifica ad Christi vitam inducens; Olivi 1, p. 117). Such a rule, he immediately adds, does not consist in a written
text ( in charta vel litterae), but “in the act and the operation of life” ( in actu et opere vitae) and does not dissolve “into an obligation and profession of vows
[ insola obligatione et professione votorum], but rather consists essentially in an operation of word and life and in the actual exercise . . . of the virtues [ in verbali et vitali opere et in actuali applicatione . . . virtutum]” (ibid.).
One could not say more clearly that if a life (the life of Christ) is to furnish
the paradigm of the rule, then the rule is transformed into life, becomes forma
vivendi et regula vivifica. The Franciscan syntagma regula et vita does not signify a confusion of rule and life, but the neutralization and transformation of both
into a “form-of-life.”
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It is in the oldest commentary on the rule, the Expositio quatuor magistrorum,
that the difference between rule and form of life is stated with greatest clarity.
With regard to the problem of the possibility of departing in case of neces-
sity from the rule that required the brothers to walk in bare feet, the text, after
having distinguished the various forms of necessity (according to state, place,
time, and office) according to a typically juridical casuistry, states: Calciari vero
dispensationis est regulae in necessitate, non calciari est forma vitae (“Wearing shoes depends on a dispensation from the rule in case of necessity; not wearing shoes
is the form of life”; Quatuor mag. , p. 135). The principle, enunciated in such a
lapidary form, opposes the sphere of the rule (with respect to which the state of
necessity implies an exception to the norm) and that of the form of life like two
planes that are tangential to each other, but do not anywhere coincide. Where
what is in question is an evaluation of a juridical character (the possibility of a
dispensatio), one has a rule. In the face of this, walking barefoot does not involve the observance of a rule (in which case the text would had to say: non calciari est
regula), but realizes a forma vitae.
א The fact that the maxim pronounced by the four masters had the value of a ver-
itable principle in the Franciscan tradition is proven by the fact that it is cited textually with particular emphasis in successive commentaries, in particular by Hugh of Digne
and Ubertino of Casale. It is interesting to note that while prevalent juridical doctrine
conceived the state of necessity as the motive for an exception to the norm, here, in the
state of necessity, rule and life separate: the normal state appears not as application of the rule, but as “form of life,” while the exception appears as dispensatio regulae.
2
Renouncing Law
2.1. What is decisive at this point is to define the relationship between
“rule and life” and the Franciscan forma vivendi on the one hand
and the sphere of law on the other. This is not only because it is this relation that
will provide the kindling for the conflict with the Curia, but also and above all
because only a clear comprehension will render it possible to fully evaluate both
the novelty and the inadequacy of the Franciscan movement—its extraordinary
success and its foreseeable failure, which seems to cloud the final years of its
founder’s life with such a desperate bitterness.
It will thus be necessary first of all to examine the entire question of poverty
in this light. The altissima paupertas (“highest poverty”), with which the founder had intended to define the life of the Friars Minor, is in actuality the place where
the fate of Franciscanism is decided, both within the order (with the conflict
between the Conventuals and Spirituals) and in its relationships with the secular
clergy and the Curia, which reached the point of rupture under the pontificate
of John XXII. Historians have reconstructed the events of this controversy in
its particulars, from the 1279 bull Exiit qui seminat—with which Nicholas III,
accepting the theses of Bonaventure, sanctioned the principle that the Francis-
cans, having abdicated every right of both ownership and of use ( quod proprietatem usus et rei cuiusque dominium a se abdicasse videtur), maintain however the simple de facto use over things ( simplex facti usus; Mäkinen, p. 97)—to the
1322 bull Ad conditorem canonum, in which John XXII, abrogating the decision
of his predecessor, affirms the inseparability of use from ownership and attri-
butes to the order the common ownership of the goods of which they make
use ( nec ius utendi, nec usus facti, separata a rei proprietate seu dominio, possunt
constitui vel haberi; ibid., p. 165).
The attention of the scholars has nevertheless been focused to such a degree
on the history of the order and its tormented relationship with the Curia that
they rarely attempt to analyze what was at stake in these conflicts at the level of
theory. Beyond the diversity of the positions and the subtlety of the theological
975
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HOMO SACER IV, 1
and juridical arguments of the Franciscans who intervene in the controversy (in
addition to Bonaventure, it is necessary to cite at least Olivi, Michael of Cesena,
Bonagratia of Bergamo, Richard of Conington, Francis of Ascoli, William of
Ockham, and John Peckham), the principle that remains immutable and nonne-
gotiable for them from beginning to end can be summarized in these terms: what
is in question, for the order as for its founder, is the abdicatio omnis iuris (“abdication of every right”), that is, the possibility of a human existence beyond the law.
What the Franciscans never tire of confirming—a point on which even the min-
ister general of the order, Michael of Cesena, who had just collaborated with John
XXII in the condemnation of the Spirituals, is not prepared to compromise—is
the lawfulness for the brothers of making use of goods without having any right
to them (neither of property nor of use). In the words of Bonagratia, sicut equus
habet usus facti, “as the horse has de facto use but not pro
perty rights over the oats that it eats, so the religious who has abdicated all property has the simple de facto
use [ usum simplicem facti] of bread, wine, and clothes” (Bonagratia, p. 511). From the perspective that is of interest to us here, Franciscanism can be defined—and
in this consists its novelty, even today unthought, and in the present conditions
of society, totally unthinkable—as the attempt to realize a human life and practice
absolutely outside the determinations of the law. If we call this life that is unattainable by law “form of life,” then we can say that the syntagma forma vitae expresses the most proper intention of Franciscanism.
א The assimilation of the Franciscan form of life to an animal life in Bonagratia
and Richard of Conington corresponds faithfully to the special importance that animals
had in the biography of Francis (preaching to animals, the liberation of the sheep and
the two lambs, his love for worms: circa vermiculos nimio flagrabat amore, “Even toward little worms he glowed with exceeding love”; Francis 2, 2, pp. 156/78). If on the one
hand animals are humanized and become “brothers” (“he called all creatures by the
name of brother”; pp. 156/79), conversely, the brothers are equated with animals from
the point of view of the law.
2.2. It is worth analyzing the modalities and the arguments through which
the Franciscans actualize this neutralization of law with respect to life. First of
all, the very term “Friars Minor” had properly juridical implications, which
modern scholars, while duly noting them, have curiously left in the shadows
in favor of the moral implications, that is, humility and spiritual subjection.
Hugh of Digne, in his commentary on the rule, shows himself to be perfectly
conscious of this: fratris autem minoris est iuxta nomen suum, quod minor est,
semper attendere (“it is in keeping with his name always to attend to the minor
THE HIGHEST POVERTY
977
brother, because he is a minor”; Hugh of Digne 1, pp. 162–63). As “minors,” the
Franciscans are, from the juridical point of view, technically alieni iuris, equated with the filiusfamilias and the pupillus subjected to the tutelage of an adult sui iuris. In the Apologia pauperum ( Defense of the Mendicants), Bonaventure develops this argument with precision by making reference to Roman law. If all
Christians, he argues, are according to common law children of the supreme
pontiff, and as such submitted to his authority, but as emancipated children,
capable of disposing of ecclesiastical goods, the Franciscans are on the contrary
“like little children and sons-in-power entirely subject to the rule of the Supreme
Pontiff” ( tamquam parvuli et filiifamilias totaliter ipsius regimini deputati). They are like those, moreover, who are according to the Digest juridically incapable of
possessing anything, because property belongs solely to the father and they can
only use things ( propterea, sicut lege cavetur, quod “filiusfamilias nec retinere nec
recuperare posse possessionem rei peculiaris videtur” [ Digest 50.17 , De regulis iuris] , sed patri per eum quaeritur; sic et in his pauperibus intelligendum est, quod rerum
eisdem collatarum et sustentationem ipsorum patri pauperum deputetur dominium,
illis vero usus; “As the law cautions: ‘It seems that a son-in-power cannot retain or obtain possession of a particular thing.’ Rather it is sought through the sonin-power for his father. So also in the case of these poor it should be understood
that the dominion over things they receive for their sustenance is delegated
to the Father of the Poor, while their use is conceded to them”; Bonaventure,
Apologia pauperum, pp. 368/309–10). For the same reason (and the insistence
with which Francis qualifies himself not only as parvulus, but even as pazzus is to be considered from this perspective), they can be compared to the furiosus,
who cannot acquire by usurpation the ownership of any good, even if it is found
in their possession: Propter quod et iurisconsultus Paulus ait: “furiosus et pupillus
sine tutoris auctoritate non possunt incipere possidere, quia affectionem tenendi non
habent, licet res suo corpore contingant, sicut si dormienti aliquid in manu ponatur”
(“For this reason Judge Paul states: ‘A madman and a minor cannot begin to
own without the authorization of a tutor, for they lack the disposition to possess,
even though they may be in physical contact with the object as would be the case
if something were placed in the hand of a sleeping man’”; ibid., pp. 370/311–12).
2.3. In an important study, Tarello has shown how the premise of the Fran-
ciscan strategy on the question of poverty is to be sought in the patristic and
canonistic reception of the doctrine of the originary communion of goods
(Tarello, p. 428). According to this doctrine, approved in Gratian’s Decretum,
in the state of innocence “for natural law all things are everyone’s” ( iure naturali
978
HOMO SACER IV, 1
sunt omnia omnibus); property and all human law begin with the Fall and the
construction of a city on the part of Cain. It is on this basis that Bonagratia,
developing the theses of Bonaventure, can state that just as in the state of in-
nocence human beings had the use of things but not ownership, so also the
Franciscans, following the example of Christ and the apostles, can renounce all
property rights while maintaining, however, the de facto use of things ( apostoli et fratres minores potuerunt a se abdicare dominium et proprietatem omnium rerum . . . et sibi in omnibus rebus tantumodo usum facti retinere, “the apostles
and Friars Minor could abdicate from themselves dominion and ownership
over all things . . . and retain to themselves at the same time the de facto use of
all things”; Bonagratia, p. 505). In the same sense, Hugh of Digne’s treatise De
finibus paupertatis (On the Ends of Poverty), which defines poverty as spontanea propter Dominum abdicacio proprietatis (“the free abdication of ownership for
God’s sake”), founds the lawfulness of this abjuration and of the separation
between property and use that results from it in natural law, which demands
that each can conserve his or her own nature (Hugh of Digne 2, pp. 288–89).
The abdicatio iuris (with the return that it implies to the state of nature
preceding the Fall) and the separation of ownership from use constitute the
essential apparatus that the Franciscans use to technically define the peculiar
condition that they call “poverty.”
א It is significant that the Franciscan theorists obstinately aspire to configure the
renunciation of the law in juridical terms. Thus Hugh of Digne, who had written in
the treatise De finibus paupertatis that the Friars Minor “have only this to call their own, not having anything of their own in transient things” (Hugh of Digne 2, p. 289),
again takes up the same formulation in his commentary on the rule, adding however
that they “have only this right, not to have any rights” ( Hoc autem est fratrum minorum proprium: nihil sub coelo proprium possidere. Hoc ius: nullum in his que transeunt ius habere; Hugh of Digne 1, p. 161).
2.4. Along with the abdicatio iuris, the other argument the Franciscans used
in the polemic with the Curia is an ingenious generalization and at the same
time inversion of the paradigm of the state of necessity. Let us follow the argu-
mentation of Ockham in the work that he declares that he has �
��completed in
ninety days, although hastily and in a completely undecorated style, yet with
much labor” ( hoc opus nonaginta dierum, quamvis cursim et sermone nullatenus
falerato, multo tamen complevi labore; Ockham, 2, pp. 857/848) and that, despite
its apparent impartiality, is in reality a punctilious and savage critique of the
bull Quia vir reprobus, with which John XXII had responded in 1329 to the
Appellatio and Michael of Cesena’s retreat.
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Ockham, as Bonagratia had already done, begins from the principle already
present in Roman law (the lex Rodia de iactu), according to which in case of
extreme necessity ( pro tempore necessitatis extremae), each has by natural right the faculty of using the things of others. Against the pope, who states that there is
no difference between ius and licentia (“right” and “permission”) and that therefore there cannot be for the Franciscans a licentia utendi separate from the ius utendi, Ockham begins by distinguishing between the ius utendi naturale, which concerns all human beings and holds only in case of necessity, and the ius utendi
positivum (“positive right of use”), which derives ex constitutione aliqua vel humana pactione (“from a certain human constitution or pact”). The Friars Minor, Ockham states, though having no positive right to the things they use, nevertheless have over them a natural right limited to the case of extreme necessity
(Ockham, 1, pp. 561/419). “From these points it is clear that a permission to use
is not a right of using [ quod licentia utendi non est ius utendi].” For the Brothers have permission to use things for a time other than a time of extreme necessity
[ pro alio tempore quam pro tempore necessitatis extremae], but they do not have
any right of using at all except for the time of extreme necessity; therefore a per-
mission to use is not a right of using” (ibid.). They have renounced all property
and every faculty of appropriating, but not the natural right of use, which is, in-
sofar as it is a natural right, unrenounceable ( proprietati et potestati appropriandi
licet renuntiare, sed iuri utendi naturali nulli renuntiare licet; ibid., pp. 562/419).
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