refers to someone’s goods of property or to things que in nullis sunt bonis) and
obligation (which can be mutata or non mutata).
The concept of use is introduced a few pages later, in response to the objec-
tion that since natural law prescribes that every person should preserve his or her
own nature, one cannot renounce those goods without which this conservation
would be impossible. Natural law, Hugh responds, prescribes that everyone have
use of the things necessary to their conservation, but does not obligate them in
any way to ownership ( Haec siquidem, ut earum habeatur usus, sine quibus non
conservatur esse nature, sed ut proprietas habeatur, nullatenus compellit; ibid., pp.
288–89). “Conserving one’s nature does not in fact represent ownership of food
and clothing, but use; moreover it is possible always and everywhere to renounce
ownership, but to renounce use never and nowhere [ proprietati ubique et semper
renunciari potest, usui vero nunquam et nusquam]. The use of things is, therefore, not only lawful, but also necessary” (ibid.).
Use, being opposed in this way to the right of ownership, is not, however, in
any way defined. It is not surprising, moreover, that as we have seen, Hugh can
985
986
HOMO SACER IV, 1
present the Franciscan condition, even if perhaps ironically, in juridical terms, as
the right to have no rights.
In the Apologia pauperum ( Defense of the Mendicants), written in 1269 in response to the attack of the secular masters in Paris against the mendicant orders,
Bonaventure distinguishes four possible relations to temporal things: ownership,
possession, usufruct, and simple use ( cum circa res temporales quatuor sit considerare, scilicet proprietatem, possessionem, usumfructum et simplicem usum, “four matters must be considered in dealing with temporal goods, namely, ownership,
possession, usufruct, and simple use”; Bonaventure, Apologia pauperum, pp.
366/307–8). Of these, only use is absolutely necessary to human life and, as such,
unrenounceable ( et primis quidem tribus vita mortalium possit carere, ultimo vero
tanquam necessario egeat: nulla prorsus potest esse professio omnino temporalium
rerum abdicans usum; ibid.). The Friars Minor, who have devoted themselves to
following Christ in extreme poverty, had consequently renounced any right of
ownership, while preserving, however, the use of things that others concede to
them. The treatment of use that follows is always developed in strict relationship
to law. Bonaventure knows (this was one of the secular masters’ objections) that
in consumable things ownership cannot be separated from use, but finds in
Gregory IX’s bull Quo elongati the juridical basis for their separation. Establishing that “property may be possessed neither individually nor in common” by the
Friars Minor, but that “the brotherhood may have use [ usum habeat] of equip-
ment or books and such other moveable property as it is permitted, and that
individual brothers may use these things [ his utantur],” the pope, whose auctoritas is superior to any other, “distinguishes between ownership and use [ proprietatem separavit ab usu], retaining the former for himself and the Church, while conceding the latter for the needs of the friars” (ibid., pp. 368/308). Even more
than in Hugh of Digne, the argumentation here is essentially juridical: just as
in Roman law the filiusfamilias can receive from his father a peculium, of which he has use but not ownership, so the Friars Minor are parvuli et filiifamilias of
the pope, to whom the ownership of the things that they use is due (ibid.). And
as one cannot acquire the ownership of a good if one does not have the animus
acquirendi or possidendi (“will to acquire” or “possess”), in the same way the Friars Minor, who by definition lack such animus and indeed have the contrary
will, “cannot retain or obtain possession of a particular thing” (pp. 370/310).
The claim of use against the right of ownership is taken to such a point, at
least in appearance, on the level of law that scholars have been able to ask them-
selves if simplex usus is not something like a royal law for Bonaventure (Tarello, p. 354), or if it is not the law itself that is to produce a juridical void within itself
THE HIGHEST POVERTY
987
(Coccia, p. 140). If it is nevertheless certain that the juridical argumentation is
here bent on opening a space outside the law, it is just as certain that the deacti-
vation of law is carried out not by law itself but through a practice—the abdicatio iuris and use—that law does not produce but recognizes as external to itself.
3.2. The bull Exiit qui seminat (He Who Sows Went Forth), promulgated
by Nicholas III in 1279 to put an end to the dispute between secular masters
and mendicant orders, accomplishes a further step in the definition of use, but
always in relation to law. As has been noted (Mäkinen, p. 96), the pope, who
seems to know and approve the theses of Bonaventure (at times almost liter-
ally), nonetheless introduces two important variations into Bonaventure’s series
of four possible relations to res temporales (“temporal things”). On the one hand, along with ownership, possession, and usufruct, a fourth juridical figure is introduced, the ius utendi (“right of use”). On the other, Bonaventure’s simplex usus (“simple use”) appears here as simplex facti usus (“simple de facto use”). The meaning of this specification is defined a little later: it is a matter of a use that
is “not the usus iuris but the usus facti inasmuch as having the name of ‘facti’ it offers however in the using no right to those so using” ( usus non iuris sed facti
tantumodo nomen habens, quod facti est tantum, in utendo praebet utentibus nihil
iuris; Exiit, §9).
The specification is important not only because, in this way, the concep-
tual opposition no longer runs between dominium and usus, but within use
itself, between ius utendi (“the right of using”) and simplex usus facti (“simple de facto use”; Lambertini, p. 176). What is decisive is, rather, the opposition
between law and fact, quid iuris and quid facti, which as such was well known to jurists, not only in a general way but precisely with respect to use. In
this sense, Azzo’s Summa istitutionum distinguished, precisely with respect to
consumable things, a use that is right ( ius) or servitude ( servitus) from a “use that is a fact or consists in a fact, like drinking and eating [ qui est factum vel
in facto consistit, ut bibendo et comedendo]” (qtd. in Mäkinen, p. 98). It is in-
teresting to note that here the distinction quid iuris– quid facti does not serve, as in the juridical tradition, to identify the situation of fact corresponding to
a certain juridical case. Instead, as we will see later in the Franciscans’ argu-
ments against John XXII, drinking and eating are presented as paradigms of
purely factual human practice lacking any juridical implication.
The apparatus on which the bull is founded is, as already in Bonaventure,
the separation of ownership and use. It is, however, with perfect consistency
that Nicholas III can declare that the ownership of all the goods of which the
988
HOMO SACER IV, 1
Franciscans have use pertains to the pope and the Church ( proprietatem et dominum . . . in Nos et Romanam Ecclesiam apostolica auctoritate recepimus; ibid., §11).
3.3. The dispute between Conventuals and Spirituals, which caught fire
after
the proclamation of Exiit qui seminat, even if it did not yield a new definition of use, fixes some of its characteristics and formulates demands that it is useful to
register. From the perspective that interests us here, the stakes in the dispute can
be gathered adequately from the objections of Ubertino of Casale to the Declaratio
communitatis, in which the Conventuals had laid out their theses. According to
the Declaratio, the usus facti in which Franciscan poverty is manifested is identified without remainder with the renunciation of ownership and not, as the Spirituals
wished, with an intrinsic characteristic of use itself, the usus pauper (poor use):
“The perfection of the rule consists in the renunciation of ownership and not in
the scarcity of use” ( abdicacio autem dominii et non usus parcitas est illa in qua
consistit perfectio regulae; Ubertino, p. 119). To get around the purely negative character of this definition, the declaration specifies that, like any preceptum negativum, this prescribes in truth two positive acts: “wanting to have nothing of one’s own
as the interior act, and using the thing as not one’s own as the exterior act” ( velle
non habere proprium quantum ad actum interiorem et uti re ut non sua quantum ad
actum exteriorem; ibid., pp. 119–20). Once more, the exterior aspect of the abdicatio proprietatis is defined with a simple reversal of the formula that, in Roman law,
defined the animus possidendi: to use the thing as one’s own ( uit re ut sua). And precisely insofar as the Friars Minor always use the thing as not their own, continues the Declaratio, “one and the same act can be both poor and rich use [ potest esse aliquando idem actus vel usus pauperis et divitis], as is evident in the case when the poor person eats in the house of a rich person the same food as the latter” (p. 119).
It is this purely negative and indeterminate definition that Ubertino intends
to refute:
The act and its object are correlative and the reason for one is included in that
of the other. . . . Since then negative precepts imply that there is not only an
interior positive act, but also an external one . . . when one says that the exterior
act of poverty is to use the thing as not one’s own, I object: the expression “as
not one’s own” does not designate the act or the formal reason of an exterior act,
but is identified with the very renunciation of ownership on one’s own part; it
is necessary, however, that just as those who pronounce the vow of obedience
also vow an extrinsic act determined according to the time and place, even if in
obeying they use their own will as not their own, so also those who vow them-
selves to poverty vow the poor use [ usum pauperem] as well, even if in any case
they use things as not their own. (p. 166)
THE HIGHEST POVERTY
989
The demand of the Spirituals here is that use not be defined only negatively
with respect to the law ( uti re ut non sua), but that it would have its own for-
mal justification and be worked out in an objectively determined operation.
For this reason, mobilizing philosophical conceptuality, Ubertino defines the
relationship of poor use and renunciation to poverty in terms of the relation
between form and material ( abdicatio enim propiretatis omnium se habet ad pauperem seu moderatum usum, sict perfectibile ad suam perfectionem et quasi sicut materia ad suam formam; p. 147), or, invoking the authority of Aristotle, as a
relation of operation and habit ( sicut operatio ad habitum comparatur; p. 148).
Olivi had already gone down this road, writing that “poor use is to the renun-
ciation of every right as form is to material” ( sicut forma se habet ad materiam,
sic usus pauper se habet ad abdicationem omnis iuris), and that, however, without
usus pauper, the renunciation of the right of ownership remains “void and vain”
( unde sicut materia sine forma est informis et confusa, instabilis, fluxibilis et vacua seu vana et infructuosa, sic abdicatio omnis iuris sine paupere usu se habet, “hence just as material without form is formless and confused, unstable, fluctuating,
vacant or void, and fruitless, so is the abdication of every right without poor
use”; Ehrle, p. 508).
In truth, more than in the pauperistic arguments of the Spirituals, it is in
the Conventuals’ apparently more indeterminate arguments that it is possible to
gather the elements of a definition of use with respect to ownership, which does
not insist only on their juridical aspects, but also and above all on their subjec-
tive aspects. In one of the treatises published by Delorme, the uti re ut sua (using the thing as one’s own) as defining characteristic of ownership is radicalized in
psychological terms, to the point of rendering ownership and use incompatible
in the exemplary case of the miser and amator divitiarum:
The goal of riches is twofold: one intrinsic and primary, which is the use of things
as one’s own, and another extrinsic and less primary, by means of which each
one uses things either for his own pleasure, as the intemperate one does, or for
the welfare and perfect sustenance of nature, as the temperate one does, or for
the necessary sustenance of life, as the evangelically poor does, as is appropriate to
their condition. That using something for one’s own pleasure [ ad delectationem]
does not constitute, in itself, the goal of the one who loves riches is evident in the
case of the miser, who loves riches above all, yet does not use them for his own
pleasure and in fact almost doesn’t dare to eat, and the more the love of riches
grows in him the more the use he makes of them diminishes, because he does
not want to use them, but to keep them and amass them as his own [ quia eis non
vult uti, sed conservare ut proprias et congregare]. . . . Using things for pleasure thus is not the goal toward which ownership is oriented in itself and, consequently,
990
HOMO SACER IV, 1
the one who renounces ownership does not necessarily also renounce this second
use. (Delorme, p. 48)
Even if the argumentation here is directed against Ubertino’s thesis according
to which “one seeks riches in view of use and the one who refuses the first must
therefore refuse the second as well to the degree in which it is superfluous,” use (in
particular insofar as it concerns the pleasure that it brings along with it) is here re-
stored to a concreteness that is generally lacking in Franciscan treatises on poverty.
3.4. The critical moment in the history of Franciscanism is when John XXII’s
bull Ad conditorem canonum once again calls into question the possibility of
separating ownership and use and in this way cancels the very presupposition on
which Minorite paupertas was founded.
The argument of the pope, who had an undoubted competence in both
canon and civil law, rests on the identification of a sphere (consumable things
such food, drink, clothes, and the like, essential to the life of the Friars Minor) in
which the separation of ownership from use is impossible. Already according to
Roman law, usufruct referred only to those goods that could be used without de-
stroying their substance ( salva rerum substantia). Consumable things, however,
with respect to which one speaks not of usufruct but of quasi-usufruct, become
property of the one to whom they are left in use. Even Thomas, whose canon-
ization John XXII prep
ared, had stated that in things “the use of which consists
in their consumption . . . the use of the thing must not be reckoned apart from
the thing itself, and whoever is granted the use of the thing, is granted the thing
itself [ cuicumque conceditur usus, ex hoc ipso conceditur res]” ( Summa theologica, 2a, 2ae, q. 78, art. 1).
Founding itself on this tradition, the bull Ad conditorem canonum confirms
that in consumable things it is impossible to constitute or have a ius utendi or
a usus facti, if one claims to separate them from ownership of the thing ( nec
ius utendi nec usus facti separata a rei pripretate seu dominio possunt constitui vel
haberi; qtd. in Mäkinen, p. 165). The difference between ius utendi and usus facti, on which the theses of Bonaventure and Nicholas III rested, is thus neutralized.
And to exclude the very possibility of claiming a de facto use or an actus utendi
sine iure aliquo, the bull denies that such a use, insofar as it coincides with the destruction of the thing ( abusus), can be possessed ( haberi) or even exist as such in rerum natura.
Here the bull’s argument shows all its subtlety, not only juridical but also
philosophical. The purely ontological problem is whether a use that consists
only in abuse (that is, in destruction) can exist and be possessed other than as
THE HIGHEST POVERTY
991
a right of ownership (common law defined ownership precisely as ius utendi et
abutendi). In use, argues the pope, one must distinguish three elements, a per-
sonal servitude devoted to the usuary, a ius personale, and the actus utendi, which is neither servitude nor right but only a certain practice and use ( tantum actus
quidam et usus). “For if such a use can be had,” continues the pope, “it would
be had either before the act itself, or in the act itself, or after the completed act
of this sort. But that this cannot happen appears from this: what does not exist
cannot be had. Now it is clear that the act itself, before it is performed, or even
while it is being performed, or after it has been finished, is not in reality; from
this it follows that it cannot at all be had [ actus ipse, antequam exercetur, aut etiam dum exercetur, aut postquam perfectus est, in rerum natura non est: ex quo sequitur,
The Omnibus Homo Sacer Page 153