‘The king reigns but does not govern’. This formula, which according to Carl Schmitt was coined by Adolphe Thiers, a French liberal historian and politician, enemy of Bonapartism yet suppressor of the Paris Commune, has become today the most important formula in the study of liberalism. Michel Foucault and Giorgio Agamben both understand this formula as capturing something essential about liberalism as a form of governmentality that guides the conduct of individuals either in the absence, or beyond the reach, of the sovereign power and its legislation through normative and normalizing orders that escape democratic control. Although not discussed as such, this formula also underlies recent attempts by jurists and historians of political ideas such as Martin Loughlin and Richard Tuck to bolster the sovereignty of the state against new forms of governing without the state that emerge in neoliberalism. This chapter proposes a new reading of this formula by situating it on the terrain of constitutionalism, rather than on that of sovereignty. In so doing, it seeks to bring together in a meaningful exchange these two different critical approaches to neoliberalism, and the emerging debates they harbour. One debate is between those who advocate a Foucauldian and biopolitical and those who adopt an Agambenian and politico-theological analysis of neoliberal governmentality. The other is the one between advocates of a republican, constitutional approach to democracy and those who argue for the revival of popular sovereignty on the basis of new ‘democratic’ interpretations of Bodin and Hobbes.

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 anti-consumerist 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 form-of-life 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 twelfth and thirteenth centuries. The Franciscan movement coincides with a moment of profound jurisprudential innovation, when Roman law is recovered and reinterpreted 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 consequence of establishing the conditions for the emergence of modern capitalism and of the modern nation-state that together would bring to an end both ecclesiastical and imperial claims to ‘universal dominium’. The conflict between the Franciscan monastic order and the hierocratic designs of the Papacy gave a new form to Roman private law that sealed the connection between property and right by inventing the subjective and natural right to private property. Likewise, canon law and the civilian commentaries to the Corpus Iuris Civilis brought about fundamental innovations in public law, above all, by introducing the idea that groups and associations become capable of acting collectively by being incorporated through a fictional legal personality whose ultimate representative is the sovereign.