Law and Life beyond Incorporation: Agamben, Highest Poverty, and the Papal Legal Revolution. Miguel Vatter Published Version In: Daniel McLoughlin, ed. Agamben and Radical Politics (Edinburgh: Edinburgh University Press, 2016) One of the central concerns of Agamben’s Homo Sacer project is to identify the traits of a life that escapes being captured by law. The Highest Poverty: Monastic Rules and Form-of-Life provides one of the most sustained treatments of this problem by arguing that the Franciscan movement offers the first exemplar of an extra-juridical ‘form-of-life’, at once rejecting the connection between law and life that characterises sovereignty, and developing a radically relation to the world. According to Agamben, the Franciscan ideal of giving up on all ownership (designated as ‘highest poverty’) radically calls into question the internal relation between having ownership over things (dominium) and being a subject of rights (sui iuris) in the tradition of Roman law. Against the background of this principle of Roman law, it becomes conceivable that a form of life in which individuals own nothing would be equivalent to a that has escaped capture from law. This chapter reconstructs and problematises Agamben’s account of form-of-life and its emancipatory potential in The Highest Poverty by situating it within the context of the Papal ‘legal revolution’ of the 12th and 13th centuries. The Franciscan movement coincides with a moment of profound jurisprudential innovation, when Roman law is recovered and re-interpreted in light of both of Trinitarian theology and Aristotelian naturalism, in order to serve as the ultimate weapon in the ‘global civil war’ of Western Christendom between the Papacy and the Holy Roman Empire. Recent research on the Papal legal revolution indicates that this recovery of Roman law had the unintended consequences of establishing the conditions for the emergence
association based on solidarity (‘fellowship’) from one based on sovereignty (lordship or Herrschaft). Gierke’s legal theory has since fallen into disrepute not least because of the difficulty of making sense of his idea of ‘group personality’, and, in particular, of separating it from the conception of person, both real and fictional, received from Roman law. Strictly speaking, this ‘group personality’ [Gesamtpersönlichkeit or Gemeinwesen] is best understood as ‘im-personal’: the group as such should be addressed always and only in the ‘third person’ and never as another ‘I’ or as a ‘Thou’. The reason is that the group, as a cannot be represented by one person, contrary to what happens with the idea of a corporate personality. This ‘social body without corporation’ or a ‘community without society’ should not be considered an immaturecollection of individuals, who is ‘alive’ only thanks to its representative ‘head’ or ‘guardian’, but as a social group that makes use of reason in common (a truly ‘public’ use of reason). The great advantage of this idea of the real personality of the group is that it requires no concession by a sovereign in order to bring it into existence. In a trust it is the forms of exhibited by these fellowships that generate the rights and duties of its members. These rights and duties are, strictly speaking, neither private nor public: they designate the space of what today Negri, Agamben and Esposito call the common. In the common, rights and duties are neither the product of positive state legislation nor are they held individually in the state of nature. Phrased affirmatively, in the common, rights are not protections or immunities of the individual against the common, but exist strictly in a federal context. Rights exist as the result of the power acquired by individuals in and through their alliances (foedera), which, in turn, are generated only thanks to the individual’s participation in the common form of life. Conversely, duties towards the common do not weaken the individual’s self-identity (and hence do not need to be coerced out of him or her through the threat of punishment, as occurs in corporations) but rather empower the individual’s differentiation or distinction. With this federalist conception of