The Omnibus Homo Sacer

by Giorgio Agamben

  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

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  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

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  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

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  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).