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Dedicating an already classic work to this theme, Savigny thus wrote that “pos-
session in itself, according to the original notion of it, is a simple fact [ ein blosses Factum ist]; it is just as certain that legal consequences are bound up with it. Therefore, it is at the same time both a right and a fact [ Factum und Recht zugleich],
namely, fact according to its nature, and equivalent to a right in respect of the
consequences by which it is followed” (Savigny, pp. 43/17). Accordingly, Savigny
could define possession as “the condition of fact [ factische Zustand ], corresponding to property as the condition of law [ rechtlichen Zustand ]” (ibid., pp. 27/3). The factum of possession forms a system, in this sense, with the right of ownership.
In the same way, in Roman law things that are not the property of anyone,
like shells abandoned on the seashore or wild animals, are called res nullius. But since the first one who collects or captures them becomes ipso facto their owner,
they are only the presupposition of the act of appropriation that sanctions their
ownership. The factual character of use is not in itself sufficient to guarantee an
exteriority with respect to the law, because any fact can be transformed into a
right, just as any right can imply a factual aspect.
For this reason, the Franciscans must insist on the “expropriative” charac-
ter of poverty ( paupertas altissima . . . est expropriativa, ita quod nichil nec in
communi nec in speciali possint sibi appropriare, nec aliquis frater nec totus ordo,
“highest poverty . . . is expropriative, because it can appropriate nothing either
in common or individually, neither to any brother nor to the whole order”;
Ehrle, p. 522), and on the refusal of any animus possidendi on the part of the
Friars Minor, who make use of things ut non suae (as not their own) but in this
way entangle themselves more and more in a juridical conceptuality by which
they will finally be overwhelmed and defeated.
3.8. What is lacking in the Franciscan literature is a definition of use in itself
and not only in opposition to law. The preoccupation with constructing a jus-
tification of use in juridical terms prevented them from collecting the hints of a
theory of use present in the Pauline letters, in particular in 1 Corinthians 7:20–
31, in which using the world as not using it or not abusing it ( et qui utuntur hoc
mundo, tamquam non utantur; the original Greek hōs mē katachromenoi means
“as not abusing”) defined the Christian’s form of life. This could have furnished
a useful argument against John XXII’s theses on the use of consumable things
as abusus. In the same sense, the conception of poverty as “expropriative” on
the part of the Spirituals could have been generalized beyond law to the whole
existence of the Friars Minor, connecting it to an important passage from the
Admonitiones, in which Francis identified original sin with the appropriation of
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HOMO SACER IV, 1
the will ( ille enim comedit de ligno scientiae boni, qui sibi suam voluntatem appropriat; Francis 1, 1, p. 83). Precisely at the point in the elaboration of scholastic theology when the will had become the apparatus that permitted the definition
of liberty and the responsibility of the human being as dominus sui actus, in the
words of Francis the forma vivendi of the Friars Minor is, by contrast, that life
which maintains itself in relation, not only to things, but even to itself in the
mode of inappropriability and of the refusal of the very idea of a will of one’s
own (which radically gives the lie to the theses of historians of law who, as we
have seen, perceive in Franciscanism the foundation of subjective law).
The exclusive concentration on attacks (first of the secular masters and then
of the Curia), which imprisoned use within a defensive strategy, prevented the
Franciscan theologians from putting it in relation with the form of life of the Friars
Minor in all its aspects. And yet the conception of usus facti as a successive being that is always in fieri in Francis of Ascoli and its consequent connection with time could have furnished the hint for a development of the concept of use in the sense
of habitus and habitudo. This is exactly the contrary of that put forth by Ockham and Richard of Conington, who in defining usus facti once again by opposing it to
law, as actus utendi, break with the monastic tradition that privileged the establishment of habitus and (with an obvious reference to the Aristotelian doctrine of use as energeia) seem to conceive the life of the Friars Minor as a series of acts that are never constituted in a habit or custom—that is, in a form of life.
Holding firm to this conception of use as act and energeia ended up block-
ading the Franciscan doctrine of use within the totally sterile conflict between
the Conventuals, who underlined its nature as an actus intrinsecus, and the Spir-
ituals, who demanded that this be translated into an actus extrinsecus. Instead
of confining use on the level of a pure practice, as a fictitious series of acts of
renouncing the law, it would have been more fruitful to try to think its relation
with the form of life of the Friars Minor, asking how these acts could be consti-
tuted in a vivere secundum formam and in a habit.
Use, from this perspective, could have been configured as a tertium with
respect to law and life, potential and act, and could have defined—not only
negatively—the monks’ vital practice itself, their form-of-life.
א Beginning in the twelfth century, we see alongside the rule in Augustinian, Bene-
dictine, and Cistercian convents the birth of texts called consuetudines and at times usus ( usus conversorum), which reach their greatest development later in the devotio moderna.
The interpretation of these texts—which on the surface simply describe the monk’s habit-
ual restrictions, often in the first person ( Suscitatus statim volo surgere et incipere cogitare de materia preparando me studendo et habere sensus meos apud me in unum collectos . . . facto
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prandio et hymno dicto sub silentio, calefacio me si frigus est, “Having arisen I immediately wish to get up and begin to think about the materials to be prepared while studying
myself and have my feelings before me collected into one. . . . Having eaten and said a
hymn silently, I warm myself, if it is cold”; Consuetudines, pp. 1–2)—as complements or completions of the rules is misleading. In reality it is a matter of a restoration of the rules to their originary nature as transcriptions of the monks’ conversatio or way of life. The rule that, while arising out of habit and custom, had been progressively constituted as a
Divine Office and liturgy returns now to presenting itself in the humble garb of use and
life. The Consuetudines, that is to say, are to be read in the context of the process that, beginning in the thirteenth century, shifts the center of gravity of spirituality from the level of rule and doctrine to that of life and forma vivendi. But it is significant that form of life is attested in these writings only in the form of consuetudo, as if the actions of the monk acquired their own sense only by being constituted as use.
3.9. From this perspective, Olivi’s statement according to which usus pauper
is to abdicatio iuris as form is to material acquires a new and decisive signifi-
cance. Abdicatio iuris and life outside the law are here only the material that,
being determined by means
of usus pauper, must be made a form of life: Sicut
autem forma ad sui existentiam preexigit materiam tanquam sue existentie fundamentum, sic professio pauperis usus preexigit abdicationem omnis iuris tanquam sue grandissime existentie et ambitus capacissimam materiam, “Just as form requires
for its existence material as a foundation by which it has existence, so the pro-
fession of poor use requires the abdication of every right as the most capacious
material by which it will have the greatest existence and scope” (Ehrle, p. 508).
Usus here no longer means the pure and simple renunciation of the law, but that
which establishes this renunciation as a form and as a way of life.
And it is precisely in a text of Olivi that this decisive relevance of the level of
form of life reaches full theoretical consciousness and therefore also and for the
first time an explicit justification in eschatological terms. In the eighth question
De perfectione evangelica, Olivi accepts Joachim of Flora’s theses on the six ages of the world, divided according to three status: the Father (the Old Testament), the
Son (the New Testament), the Spirit (end and fulfillment of the law ), to which
he adds eternity as the seventh period. However, according to Olivi, what de-
fines the excellence of the sixth and seventh periods is the appearance not simply
of the “person” of Christ, but of his “life”:
The sixth and seventh period could not constitute the end of the preceding
periods, if in them the life of Christ did not appear in a special and unique way
[ nisi in eis vita Christi singulariter appareret] and if, through the spirit of Christ, there was not given to the world the special peace of the love of Christ and of his
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HOMO SACER IV, 1
contemplation. As indeed the person of Christ is the end of the Old Testament
and of all persons, so the life of Christ is the end of the New Testament and,
so to speak, of all lives [ sic vita Christi finis est Novi Testamenti et, ut ita dicam, omnium vitarum]. (Olivi 3, p. 150)
Let us reflect on the theology of history that is implied in these theses. The
advent of the age of the Spirit coincides, that is to say, not with the advent of
the persona of Christ (which defined the second stage), but with that of his vita, which constitutes the end and fulfillment not only of the new law, but even of
all lives (the “so to speak”— ut ita dicam—shows that Olivi is perfectly conscious
of the novelty of his statement). Certainly the life of Christ had also appeared in
the preceding epoch, according to a principle of epochal dispensation of “modes
of life” in the history of the Church (“it is certain that the life of Christ is one
and better than any other, but in the five preceding stages of the Church there
have appeared successively many lives and many ways of life [ multae vitae et
multi modi vivendi successive apparuerunt]”; ibid., p. 157). Nevertheless it is only at the end of times ( in fine temporum) that it can be manifested “according to
full conformity to its unicity and its form” ( secundum plenam conformitatem suae
unitati et specie; ibid.). And just as at the moment of Christ’s first advent, John the Baptist had been elected “as a prophet and more than a prophet,” so also in
the last time, Francis was chosen “to introduce and renew the life of Christ in the
world” ( ad introducendam et renovandam Christi vitam in mundo; ibid.).
The specific eschatological character of the Franciscan message is not ex-
pressed in a new doctrine, but in a form of life through which the very life
of Christ is made newly present in the world to bring to completion, not the
historical meaning of the “person” in the economy of salvation, so much as his
life as such. The Franciscan form of life is, in this sense, the end of all lives ( finis omnium vitarum), the final modus, after which the manifold historical dispensation of modi vivendi is no longer possible. The “highest poverty,” with its use
of things, is the form-of-life that begins when all the West’s forms of life have
reached their historical consummation.
Threshold
WHAT was lacking in the Franciscan doctrine of use is precisely the con-
nection with the idea of form of life that Olivi’s text seems to implicitly
demand. It is as if the altissima paupertas, which according to the founder was to define the Franciscan form of life as a perfect life (and that in other texts, like the
Sacrum commercium Sancti Francisci cum Domina Paupertate, effectively has this
function), lost its centrality once it was linked to the concept of usus facti and ended up being characterized only negatively with respect to the law. Certainly,
thanks to the doctrine of use, the Franciscan life could be affirmed unreservedly
as that existence which is situated outside the law, which must abdicate the law
in order to exist—and this is certainly the legacy that modernity has shown itself
to be incapable of facing and that our time does not seem to be at all in a posi-
tion to think. But what is a life outside the law, if it is defined as that form of life
which makes use of things without ever appropriating them? And what is use, if
one ceases to define it solely negatively with respect to ownership?
It is the problem of the essential connection between use and form of life
that is becoming undeferrable at this point. How can use—that is, a relation to
the world insofar as it is inappropriable —be translated into an ethos and a form
of life? And what ontology and which ethics would correspond to a life that, in
use, is constituted as inseparable from its form? The attempt to respond to these
questions will necessarily demand a confrontation with the operative ontologi-
cal paradigm into whose mold liturgy, by means of a secular process, has ended
up forcing the ethics and politics of the West. Use and form of life are the two
apparatuses through which the Franciscans tried, certainly in an insufficient way,
to break this mold and confront that paradigm. But it is clear that only by taking
up the confrontation again from a new perspective will we perhaps be able to
decide whether and to what extent that which appears in Olivi as the extreme
form of life of the Christian West has any meaning for it—or whether, on the
contrary, the planetary dominion of the paradigm of operativity demands that
the decisive confrontation be shifted to another terrain.
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Bibliography
Abbreviations
PG Jacques-Paul Migne (ed.), Patrologiae cursus completus. Series graeca.
PL
Jacques-Paul Migne (ed.), Patrologiae cursus completus. Series latina.
Agamben 1: Giorgio Agamben, Opus Dei: Archeologia dell’ufficio (Turin: Bollati Boringhieri, 2012).
English translation: Opus Dei: An Archeology of Duty, trans. Adam Kotsko (Stanford, Calif.: Stanford University Press, forthcoming).
Agamben 2: Giorgio Agamben, Signatura rerum: Sul metodo (Turin: Bollati Boringhieri, 2008).
English translation: The Signature of All Things: On Method, trans. Luca D’Isanto and Kevin Attell (Cambridge: Zone, 2009).
Ambrose, De fuga saeculi, in Sancti Ambrosii episcopi mediolanensis opera, vol. 4 (Rome: Città Nuova, 1980). English translation: Flight from the World, in Seven Exegetical Works, trans. Michael P.
McHugh (Washington, D.C.: Catholic University of America Press).
Ambrosiaster, Commentary on 1 Corinthians, in PL 17. English translation: Commentaries on Romans and 1–2 Corinthians, ed. and trans. Gerald Lewis Bray (Grand Rapids, Mich.: Inter-Varsity Press, 2009).
Apophthegmata patrum, in PG 65. English translation: The Sayings of the Desert Fathers: The Alphabetical Collection, ed. and trans. Benedicta Ward (Kalamazoo, Mich.: Cistercian Publications, 1984).
Aristotle, Politics (Loeb Classical Library), trans. H. Rackham (Cambridge, Mass.: Harvard University Press, 1962).
Augustine, Confessions, trans. R. S. Pine-Coffin (New York: Penguin, 1961).
———, De doctrina christiana, in PL 34. English translation: Christian Doctrine, trans. James Shaw, in Nicene and PostNicene Fathers, ser. 1, vol. 2, ed. Paul Schaff (Buffalo, N.Y.: Christian Literature Publishing, 1887).
———, De moribus ecclesiae, in PL 32. English translation: On the Morals of the Catholic Church, trans. Richard Stothert, in Nicene and PostNicene Fathers, ser. 1, vol. 4, ed. Paul Schaff (Buffalo, N.Y.: Christian Literature Publishing, 1888).
———, Enarrationes in Psalmos, in PL 34–35. English translation: Expositions on the Psalms, trans.
J. E. Tweed, in Nicene and PostNicene Fathers, ser. 1, vol. 8. ed. Paul Schaff (Buffalo, N.Y.: Christian Literature Publishing, 1888).
———, Epistle 157, in PL 33. English translation: Letters 156–210: Epistulae II, ed. Boniface Ramsey, trans. Roland J. Teske (New York: New City, 2004).
———, In Epistolam Joannis ad Parthos tractatus decem, in PL 35. English translation: Homilies on the First Epistle of John, trans. by John Gibb, in Nicene and PostNicene Fathers, ser. 1, vol. 7, ed. Paul Schaff (Buffalo, N.Y.: Christian Literature Publishing, 1888).
———, In Evangelium Johannis tractatus, in PL 35. English translation: Tractates on the Gospel of John, trans. John Gibb, in Nicene and PostNicene Fathers, ser. 1, vol. 7, ed. Paul Schaff (New York: T and T Clark, 1886).
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———, Regula ad servos Dei, in PL 32. English translation: “The Rule of St. Augustine,” in The Rule of Saint Augustine and the Constitutions of the Sisters of Penance of the Third Order of Saint Dominic, Forming the Congregation of the Most Holy Rosary of the United States of America (Madison: University of Wisconsin Press, 2009).
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