It is necessary not to allow the subtlety of Ockham’s strategy with respect to
the law to escape us: it is a matter, so to speak, of holding oneself both outside
and before the law, of forcefully reaffirming the principle of the abdicatio iuris
sanctioned by Exit qui seminat. At the same time, against John XXII, he must
not deprive the Franciscans of recourse to natural law, but limit it to the case
of extreme necessity. On closer view, this means that the Friars Minor work
a reversal and at the same time an absolutization of the state of exception. In
the normal state, in which positive law applies to human beings, they have no
right, but only a license to use. In the state of extreme necessity, they recover a
relationship with the law (natural, not positive).
It also becomes clearer, from this perspective, what the meaning of the
maxim cited from the Expositio quattuor magistrum is, according to which
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”). Necessity, which gives the Friars Minor
a dispensation from the rule, restores (natural) law to them; outside the state
of necessity, they have no relationship with the law. What for others is normal
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thus becomes the exception for them; what for others is an exception becomes
for them a form of life.
2.5. Emanuele Coccia, in an exemplary study dedicated to the analysis of
the monastic rules from the legal point of view, defined the novelty and, at the
same time, the aporia of Franciscanism in the form of a “juridical paradox.” If
what is proper to monasticism in general is the attempt to constitute as an ob-
ject of law not so much the relationships among subjects or between subjects
and things, but rather life itself in its relation to its own form, the specificity of
Franciscanism would consist in making out of a juridical apparatus, which the
rule is according to Coccia, the operator of a “juridical void” (Coccia, p. 140),
of a radical subtraction of life from the sphere of law.
We have seen how the Franciscans operate in their unreserved claim of a life
outside the law. It is not the rule so much as the state of necessity that is the ap-
paratus through which they seek to neutralize law and at the same time to assure
themselves an extreme relationship with it (in the form of ius naturale). But just as the rule is not a juridical apparatus, neither can the state of exception be properly
defined as such. It is instead the threshold in which the Franciscan form of life
touches on the law. At the end of his commentary, Olivi compares the Franciscan
rule to a sphere, which has Christ as its center and which touches the level of
earthly goods only at the “point of simple and necessary use” ( haec regula tanquam
vere sphaerica non tangit planitiem terrenorum nisi in puncto simplicis et necessarii
usus; Olivi 1, p. 194). The state of necessity is the other tangent point, in which the Franciscan form of life (the rule-life) touches on (natural, not positive) law. It
is between these two tangent points, the punctum usus and the tempus necessitatis, that we must situate the sphere of the Minors’ rule-life that, in the words that
immediately follow, “is entirely reflected in a circle around Christ and his Gospel
as its own center and, in accordance with the form of a circle, it ends where it
begins ( totaque se reflectit circa Christum circulariter et Evangelium eius tanquam
circa suum intimum centrum, sicut instar circuli, unde exordium sumpsit, in idipsum
finit; ibid.). Use and the state of necessity are the two extremes that define the Franciscan form of life.
2.6. The moment has perhaps come, then, to again take up our analysis of
the monastic rules from where we interrupted it in order to examine their rela-
tion with liturgy. Cenoby had appeared from this perspective as a field of forces
charged by two opposed tensions, one bent on transforming life into liturgy
and the other tending toward making a life out of liturgy. It is not possible,
however, to fully understand the sense of these tensions if one does not consider
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them in their relation—at once antithetical and tightly entangled—with the
paradigm of the priestly Office which the Church had been progressively elabo-
rating. If the life of the priest is here presented as an officium, and if the officium institutes, as we have seen, a threshold of indifference between life and norm
and between being and practice, the Church at the same time decisively affirms
the sharp distinction between life and liturgy, between individual and function,
that will culminate in the doctrine of the opus operatum and the sacramental
effectiveness of the opus Dei. Not only is the sacramental practice of the priest
valid and efficacious ex opere operato (“from the work done”) independently of
the unworthiness of his life, but as is implied in the doctrine of the character
indelebile, the unworthy priest remains a priest despite his unworthiness.
To a life that receives its sense and its standing from the Office, monasti-
cism opposes the idea of an officium that has sense only if it becomes life. To the liturgicization of life, there corresponds here a total vivification of liturgy. The monk is in this sense a being who is defined solely by his form of life, so that at the
limit, the idea of an unworthy monk seems to imply a contradiction in terms.
If the monastic condition is thus defined through its specific differences
with respect to the priestly Office (that is, with respect to a practice whose effi-
cacy is independent of form of life), it is thus clear that it is precisely in the ar-
ticulation of the dialectic between these two figures of the relation life- officium
that the historical fate of monasticism must be decided. The softening of this
difference will correspond to the progressive clericalization of monks and their
increasing integration into the Church, while its accentuation will correspond
to tensions and conflicts between the orders and the Curia.
The explosion of religious movements between the twelfth and the thir-
teenth century is the moment when these tensions reach their critical point.
It is significant that it is precisely the principle of the separation between opus
operans and opus operatum that the movements intended above all to call into question. Thus the Waldensians’ objection to the Church is not only the inefficacy of sacraments administered by an unworthy priest, but even more
radically, the principle according to which the law of binding and loosing, of
consecrating and blessing and or administering the sacraments do not derive
from ordo and officium but from merit. It is, that is to say, a question not of right and hierarchical succession, but of imitation of the apostolic life. In the
words of Alan of Lille:
Aiunt predicti heretici, quod magis operantur meritum ad consecrandum vel
benedicendum, ligandum et solvendum quam ordo et officium. . . . Dicunt
etiam se posse consacrare, ligare et solvere, quia meritum dat potestatem, non
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officium et ideo qui se dicunt apostolorum vicarios, per merita debent habe
re
eorum officia [The heretics say in their preaching that merit works more toward
consecrating and blessing, binding and loosing than order and office. . . . They
also say they can consecrate, bind, and loose themselves, since merit gives
them that power, not office, and indeed those who call themselves vicars of
the apostles must have their offices through merit.]; De fide contra hereticos,
PL, 210, 358; qtd. in Grundmann, pp. 93/42)
The principle according to which it is not office that is to confer priestly power,
but the meritum vitae, is stated also by the jurist Hugh of Speroni, to which the
magister Vacarius objects in the name of the Church that “the priesthood is a
matter of law” ( Sacerdotium res juris est) and that office has nothing in common
with religion and love ( quid enim commune habet officium administrationis, qui
est in rebus ipsis, ad meritum religionis et caritatis, quae est in mente ipsius hominis; Grundmann, p. 515).
What in both cases is stigmatized as heresy is not, in truth, a doctrinal
principle, but only the necessary consequence of a spiritual attitude that makes
form of life and not office the decisive question.
א Grundmann recalls that it is precisely to confront this heresy that Innocent
III makes reference to the principle of the distinction between opus operans and opus operatum: In sacramento corporis Christi nihil a bono maius, nihil a malo minus perficitur sacerdote . . . quia non in mente sacerdotis, sed in verbo conficitur creatoris. . . . Quamvis igitur opus operans aliquando sit immundum, semper tamen opus operatum est mundum
(“In the sacrament of the body of Christ nothing more is accomplished by a good priest,
and nothing less by a bad priest . . . because it is confected not through the merit of
the priest, but through the word of the Creator. . . . Therefore, although the one doing
the work is sometimes unclean, nevertheless the work done is always clean”; De sacro
altaris mysterio, PL, 217, 844; qtd. in Grundmann, pp. 519). The separation between life and office could not be expressed in clearer terms.
2.7. Franciscanism represents the moment when the tension between forma
vitae and officium is released, not because life is absorbed into liturgy, but on the contrary, because life and Divine Office reach their maximum disjunction. In
Francis, there cannot be any claim of meritum vitae against ordo as in the religious movements contemporary with him, nor as in the origins of monasticism,
a transformation of life into liturgy and incessant prayer, because the life of the
Friars Minor is not defined by officium but solely by poverty. Naturally both the
Rule and the Testament and letters mention the Office, but it is evidently only
the point in which “living according to the form of the holy Gospel” intersects
with “living according to the form of the holy Roman Church.” It is significant
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that the Testament, after having distinguished the two forms of life and defined
poverty, recalls without any emphasis and almost fleetingly that officium dicebamus clerici sicut alios clericos, laici dicebant pater noster (“the clergy say the Office like other clergy, and the lay brothers say the Our Father”). And the Regula
bullata can soberly pronounce: “The clerical brothers shall celebrate the Divine
Office according to the rite of the holy Roman Church. . . . The lay brothers,
however, shall pray twenty-four Our Fathers . . . ” (Francis 1, 1, p. 139). For
the clerics, “who live rightly according to the form of the Roman Church [ qui
vivunt recte secundum formam Ecclesiae Romanae]” (Francis 1, 1, pp. 100/35), it
is a matter of observing an ecclesiastical precept, for lay people of reciting the
prayer that Francis preferred above all others—but in no case does the Divine
Office define Franciscan identity (supposing that it would make sense to speak
of identity for a life that refuses any property). For this reason, Francis’s gesture
knows none of the “anticlericalism” that is so characteristic of many spiritual
movements that are contemporary with him. He can always give to the Church
what is the Church’s without polemic, namely the administration of the officium that belongs to it. “No one is to judge [the priests] even if they are sinners”
(Francis 1, 100/35), reads one admonition; and even if Francis, faithful in this
respect to the monastic tradition, can remind the clerics in the Letter to the
Whole Order that they should say the Office with devotion, “so that the voice
may blend with the mind” (ibid., pp. 208/60), both the Testament and the ad-
monitions confirm that the ministry of the “most holy Body and Blood of our
Lord Jesus Christ” belongs solely to priests (pp. 222/53).
The distinction between the two forms of life which come into contact
in the Office was, however, so sharp that in the first “form of life or rule,”
written paucis verbis et simpliciter (“simply and in a few words”), the Office
was not mentioned at all. The first life of Thomas Celano relates, in the same
sense, that the brothers who assembled around Francis at Rivotorto “did not
yet know the Office” and he “insistently told them for this reason that he was
teaching them to pray” (Francis 2, 78/44).
א The importance of the clear distinction between the two forms of life in the
Testament of Francis (“living according to the form of the holy Roman Church” and
“living according to the form of the holy Gospel”) has escaped scholars and commenta-
tors, and yet it is only starting from this distinction that Francis’s strategy with respect to the Church becomes fully understandable.
Even if Francis affirms many times the unconditional subjection of the Friars Minor
to the clergy, this is possible and acquires its sense only on the basis of the radical hetero-
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geneity of the two forms of life. And it is significant that when Francis composes for
the brothers an Office for the passion, he chooses to begin with the verse of the Psalms
(55:8) that rings out: Deus vitam meam annuntiavi tibi, “I have declared to you my life”
(Francis 1, 1, pp. 130/81).
2.8. An analogous disjunction occurs, as we have seen, between life and law.
Franciscanism, more radically than other contemporary religious movements
and more than any other monastic order, can be defined as the invention of a
“form of life,” that is, of a life that remains inseparable from its form. This is
not because it is constituted as an officium and a liturgy, nor because the law has for its object the relation between a life and its form, but precisely by virtue of
its radical extraneousness to law and liturgy. Certainly monasticism is from the
beginning the invention of a way of life, but this was essentially a regula vitae, an unprecedented intensification of prayer and officium, which (in having become
coextensive with life) was to exercise a decisive influence on the elaboration of
Church liturgy. Precisely for this reason, however, it was to fatally clash with the
problem of a growing integration into the sphere of the Church, which made
of liturgy and the Divine Office its practice par excellence. The religious move-
ments contemporary with Franciscanism, on the other hand, certainly decisively
placed their claims, including their claims to poverty, on the level of life, but
precisely insofar as they did not succeed in identifying in form of life an element
that was radically heterogeneous to institutions and law, they were to end by
putting themselves forward as the true Church and entering into conflict with
the Church hierarchy.
If Franciscanism succeeded in avoiding the decisive conflict with the
Church for almost a century after the death of its founder, this is due to the
foresight of Francis, who in distinguishing forma vitae and officium, “living according to the form of the holy Gospel” and “living according to the form of
the holy Roman Church,” had succeeded in making of the Minors’ life not an
unceasing liturgy, but an element whose novitas seemed completely extraneous
to both civil and canon law. Life according to the form of the holy Gospel is
situated on a level that is so distinct from that of the life according to the form
of the holy Roman Church that it cannot enter into conflict with it. Altissima
paupertas, “highest poverty,” is the name that the Regula bullata gives to this extraneousness to the law (Francis 1, 2, pp. 114/182), but the technical term that
defines the practice in which it is actualized in the Franciscan literature is usus
( simplex usus, usus facti, usus pauper).
3
Highest Poverty and Use
3.1. The introduction of the concept of usus to characterize the Fran-
ciscan life comes from Hugh of Digne and Bonaventure. Hugh of
Digne’s De finibus paupertatis (On the Ends of Poverty) appears to be a brief treatise that is, at least in appearance, juridical, which aims to define poverty with
respect to ownership. The definition of poverty is purely negative: it is spontanea
propter Dominum abdicacio proprietatis (“the voluntary abdication of ownership
for the Lord’s sake”), while property is defined technically as ius dominii, quo
quis rei dominus dicitur esse, quo iure res ipsa dicitur esse sua, id est domini propria (“the right of dominion, by which someone is said to be lord of some thing, by
which right the thing itself is said to be his, that is proper to the lord”; Hugh of
Digne 2, p. 283). There follow the definitions of the two ways in which property
is acquired according to Roman law: occupation (distinguished according as it
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