quod haberi minime potest]” (§6). An act in becoming ( in fieri), insofar as a part of it has already passed and another is still to come, does not exist properly
in nature, but only in memory or expectation ( non est in rerum natura, sed in
memoria vel apprehensione tantum): it is an instantaneous being, which as such
can be thought, but not possessed ( quod autem fit instantaneum est, quod magis
intellectu quam sensu perpendi potest; ibid.).
א By radically opposing use and consumption, John XXII, in an unconscious proph-
ecy, furnishes the paradigm of an impossibility of using that was to find its full realization many centuries later in consumer society. A use that it is never possible to have and an
abuse that always implies a right of ownership and is moreover always one’s own indeed
define the very canon of mass consumption. In this way, however, perhaps without taking
account of it, the pope also lays bare the very nature of ownership, which is affirmed with the maximum intensity precisely at the point where it coincides with the consumption
of the thing.
3.5. The responses of the Franciscan theorists assembled around Minister
General Michael of Cesena to the decretal of John XXII insist obstinately on
the possibility and legitimacy of the separation of usus facti from ownership. It
is in the attempt to prove this separability that they moreover reach the point
of affirming a genuine primordiality and heterogeneity of use with respect to
dominion. Already the declaratio of the Franciscans, which had provoked the
papal decretal, maintained that in the life of the apostles, what was common
was not ownership, but only use (“the air and the sunlight are common to all
in the sense that they are common only according to common use [ solum secundum usum communem]”; Mäkinen, p. 160). In his Tractatus de paupertate, Bonagratia develops this thesis by stating that in the state of paradise, the divine
commandment to eat from the trees of the garden (save one) implied not only
that their use was unrenounceable but that, according to natural and divine
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law, what was originally common was not ownership but use ( de iure nature et
divino communis usus omnium rerum que sunt in hoc mundo omnibus hominibus
esse debuit. . . . ergo usus rerum que per usu consumuntur non habet necessarium
annexum meum et tuum; Bonagratia, p. 504). The common use of things also
genealogically precedes common or divided ownership of things, which derives
only from human law.
Particularly interesting from a philosophical point of view are Francis of
Ascoli’s objections to John XXII’s argument, according to which the de facto use
of consumable goods does not exist in nature and thus cannot belong to anyone.
To justify in this case as well the possibility of use, Francis elaborates a true and
proper ontology of use, in which being and becoming, existence and time seem
to coincide.
The use of consumable goods (which, with a significant term, he also calls
usus corporeus) belongs to the “successive” kind of things, which one cannot have
in a simultaneous and permanent way ( simul et permanenter). As consumable
goods exist in becoming ( in fieri), so also is their use in becoming and successive (Francis of Ascoli, p. 118). “In that whose being coincides with becoming [ cuius
esse est euis fieri ],” he argues with extraordinary philosophical subtlety,
being signifies becoming; but the being of a successive thing is its becoming and,
conversely, its becoming is its being [ suum fieri est suum esse]: so the being of
actual use signifies its becoming and, conversely, its becoming signifies its use.
It is thus false that actual de facto use [ usus actualis facti] never exists in nature, otherwise for the same reason one would have to say that a de facto use never
happens [ fieret] in nature, since its being is its becoming, and that which is its becoming, if it never is in nature, never happens in nature [ si numquam est in
rerum natura, numquam fit in rerum natura], which is absurd and erroneous.
Use appears here as a being that is made of time, whose thinkability and exis-
tence coincide with that of time: “If use, because it is not, can never be possessed,
for the same reason therefore neither can time, which no longer is insofar as it is
de facto use, be possessed. But then what is written in Ecclesiastes (3:1) would be
false: ‘For everything there is a time’” (ibid.). In a different way than in Bonagra-
tia, the heterogeneity and priority of use with respect to law is defined by Ock-
ham in terms of the essential difference between the simple act of using ( actus
utendi) and the right to use ( ius utendi). At the beginning of the Opus nonaginta dierum ( Work of Ninety Days), after having distinguished four meanings of the term usus (use as opposed to fructio, use in the sense of custom, use as the act of using an external thing— actus utendi re aliqua exteriore—and use in the juridical
sense, namely the right to use someone else’s things, save their substance), he res-
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olutely identifies the Franciscan usus facti with the simple act of using something:
“they (the Franciscans) say that de facto use is the act of using some external
thing—for example, an act of living in, eating, drinking, riding, wearing clothes,
and the like” ( actus utendi re aliqua exteriori, sicut inhabitare, comedere, bibere,
equitare, vestem induere et huiusmodi; Ockham, 1, pp. 300/58). In the same sense,
Richard of Conington distinguishes from law the applicatio actio utendi ad rem,
which in itself is “a purely natural thing” and, as such, is neither just nor unjust:
“In fact the horse applies the actus utendi to the thing, and thus its act is neither just nor unjust” (Richard of Conington, p. 361).
The difference between usus facti and usus iuris coincides in Ockham with
that between the pure factual exercise of a vital practice and the right to use,
which is instead always “a certain determinate positive right, established by
human ordinance, by which one has the licit power and authority to use things
belonging to another, preserving their substance” ( quoddam ius positivum determinatum, institutum ex ordinatione humana, quo quis habet licitam potestatem et auctoritatem uti rebus alienis, salva rerum substantia; Ockham, 1, pp. 301/60).
There is, in this sense, a radical heterogeneity between right and act: “In what-
ever way usus iuris is taken, therefore, it is always a right and not an act of using.
Thus anyone who rents a house to live in has usus iuris in the house even while he is outside the house and not currently living in it. Iuris is added to distinguish it from usus facti, which is a certain act performed in relation to an external thing”
(ibid., pp. 302/60–61).
א It is from this sharp separation of ownership and use that scholars like Michel
Villey and Paolo Grossi have been able to locate the foundations of a modern theory of
subjective law and a pure theory of ownership understood as actus voluntatis precisely in the Franciscan masters. It is necessary, however, not to forget that the definition of the right of ownership as potestas in Ockham and that of ownership as uti re ut sua and will for dominion in both the treatises published by Delorme and in Richard of Conington
and Bonagratia were formulated only to found the separability and autonomy of use and
to legitimate poverty and
the renunciation of any right. The theory of subjective law and
dominium was elaborated by the Franciscans in order to deny or rather to limit the power of positive law, and not, as Villey and Grossi seem to think, to found its absoluteness and sovereignty. Moreover, precisely for this reason, it is just as certain that they had to define its proper characteristics and its autonomy.
3.6. Perhaps nowhere does the ambiguity of the Franciscan gesture with re-
spect to law appear with greater evidence than in Olivi’s question: Quid ponat
ius vel dominium? Since what is at stake for Olivi is the need to respond to the
question of whether ownership or royal or priestly jurisdiction add something
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real ( aliquid realiter addant) to the person who exercises them or to the things or persons over whom they are exercised, and furthermore whether signification in
act adds something real to the substance of signs or the things signified, one can
say that the quaestio contains nothing less than an ontology of right and of signs (including those peculiar efficacious signs that the sacraments are).
The connection of the sphere of law and that of signs is not fortuitous, be-
cause it shows that what is in question is the mode of existence and the proper
efficacy of those beings (law, command, signs) on which the powers that regulate
and rule human society are founded (including those special societies that the
monastic orders are). The treatment of the problem unfolds by opposing seven
positive arguments (which prove that rights and signs aliquid realiter addant,
add something real) and the same number of negative arguments (which argue
that they nichil realiter addant, add nothing real).
Grossi has read this text as the first work in the history of law in which
“being proprietary, proprietarietas, was the object of a theoretical construction
that raised it to the status of a genuinely distinct sociological type, a type con-
structed on solid theological presuppositions” (Grossi, p. 335). If it is true that
Olivi proposes in the quaestio, as we have seen, an ontology of law and of signs,
one nonetheless risks allowing the essential thing to escape if one does not spec-
ify the modality in which this ontology is articulated. Let us consider Olivi’s
conclusion with respect to the opposing arguments: “Regarding the understand-
ing of these arguments and without prejudice to a better opinion, it seems that
one can affirm with probability that the above-mentioned customs (ownership,
royal jurisdiction, etc.) truly set down something real, but do not, however, add
any different essence that really informs the subjects of which and in which they
are said” ( vere ponunt aliquid reale, non tamen addunt aliquam diversam essentiam
realiter informantem illa subiecta, quorum et in quibus dicuntur; Olivi 2, p. 323).
In the terms of medieval philosophy, this means that the realities in question are
not situated on the level of essence or of the quid est, but only in that of existence or of the quod est; they are thus, as Heidegger will write many centuries later,
purely existential and not essential.
The importance of this quaestio from the point of view of the history of
philosophy is, thus, that in it we see articulated, according to an intention that
undoubtedly characterized Franciscan thought, an ontology that is so to speak
existentialist and not essentialist. This means that in the very moment in which
one admits a real efficacy to right and signs ( ponunt aliquid reale), they are de-
moted from the level of essences and made to hold as pure effectualities that
depend solely on a command of the human or divine will.
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This is particularly evident in the case of signs: “Insofar as you can consider
them with subtlety and clarity,” writes Olivi,
you will find that signification does not add to the real essence of the thing that
is used as a sign anything other than the mental intention of those who have
instituted it and accepted its validity and of those who accept it in action in
order to signify and of those who hear it or receive it as a sign. But in the voice
or gesture that are produced by the command of this intention [ ab imperio talis
intentionis], signification adds to the intention of the one signifying and to the essence of the thing that functions as a sign the habit of commanded effect
[ habitudinem effectus imperati] and the command produced by the intention of
the one who signifies. (Ibid., p. 324)
In the case of those special signs that the sacraments are and in the case of royal
authority, the foundation of their efficacy is to be sought in the last analysis in
the divine will, yet this does not take anything away from the fact that even here
we have to do with a pure and absolutely inessential command. The sphere of
human practice, with its rights and its signs, is real and efficacious, but it pro-
duces nothing essential, nor does it generate any new essence beyond its own ef-
fects. The ontology that is in question here is thus purely operative and effectual.
The conflict with law—or rather, the attempt to deactivate it and render it in-
operative through use—is situated on the same purely existential level on which
the operativity of law and liturgy acts. Form of life is the purely existential reality
that must be liberated from the signature of law and office or duty ( ufficio).
3.7. We will attempt to pull together, albeit only provisionally, the con-
clusions of our analysis of poverty as use in the Franciscan theorists. It is
necessary first of all not to forget that this doctrine was elaborated within a
defensive strategy against attacks first from the secular masters of Paris and
then from the Avignon Curia, which called into question the Franciscan
refusal of any form of ownership. The concept of usus facti and the idea of
a separability of use from ownership undoubtedly represented an effective
instrument from this perspective, which permitted them to give consistency
and legitimacy to the generic vivere sine proprio (“living without property”)
of the Franciscan rule, and even secured, at least early on with the bull Exiit
qui seminat, a perhaps unexpected victory against the secular masters. How-
ever, as often tends to happen, this doctrine, precisely insofar as it essentially
proposed to define poverty with respect to the law, revealed itself to be a
double-edged sword, which had opened the path to the decisive attack car-
ried out by John XXII precisely in the name of the law. Once the status of
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poverty was defined with purely negative arguments with respect to the law
and according to modalities that presupposed the collaboration of the Curia,
which reserved for itself the ownership of the goods of which the Franciscans
had the use, it was clear that the doctrine of the usus facti represented for
the Friars Minor a very fragile shield against the heavy artillery of the Curial
jurists. It is possible, in fact, that in accepting Bonaventure’s doctrine on
the separability of use from ownership in Exiit qui seminat, Nicholas III was
conscious of the usefulness of defining a form of life that presented itself as
otherwise unassimilable for the
ecclesiastical order in juridical terms in this
way, even if purely negative ones.
One can say that from this point of view, Francis was more prescient than
his successors, in that he refused to articulate his vivere sine proprio in a juridical conceptuality and left it completely indeterminate. But it is also true that the
novitas vitae that could be tolerated in a small group of young monks (since such
were the Franciscans at first) could hardly be accepted for a large and powerful
religious order.
One can say that the arguments of the Franciscan theorists are the fruit simul-
taneously of an overvaluation and an undervaluation of law. On the one hand,
they use its conceptuality and never call into question its validity or foundations,
while on the other, they think they can secure with juridical arguments the possi-
bility, through abdicating the law, of pursuing an existence outside the law.
Thus the doctrine of usus facti: it is obviously founded on the possibility of
distinguishing de facto and de jure use and, more generally, quid iuris and quid facti (what pertains to law and what pertains to fact). The force of the argument
is in laying bare the nature of ownership, which is thus revealed to have a reality
that is only psychological ( uti re ut sua, intention to possess the thing as one’s own) and procedural (power to claim in court). However, instead of insisting on
these aspects, which would have called into question the very ground of property
law (which, as we have seen in Olivi, loses all essentiality, presenting itself as a
mere signature, even if an effective one), the Franciscans prefer to take refuge in
the doctrine of the juridical validity of the separation of de facto use and right.
However, this amounts to disregarding the very structure of law, which is
constitutively articulated on the possibility of distinguishing factum and ius by instituting between them a threshold of indifference, by means of which the fact
is included in the law. Thus, with respect to ownership, Roman law knew figures,
like the detentio or possessio, which are solely states of fact (having a thing factually in one’s own possession, independently of a juridical title, as happened precisely in
the Franciscans’ de facto use), but that as such could have juridical consequences.
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