INTEREST AND RIGHT. - Interest is one of the components of the notion of right. Considered in itself, it exists even apart from right; but when it assumes the attribute of juridicality, it rises to the status of a juridical category and is inserted into the notion of right.
Generally speaking, interest is a subjective utility, that is to say, the utility of a good for a specific subject. The clarification of the distinction, and at the same time of the correlation, between good and interest, has been one of the merits of modern doctrine. Once the good is defined as the entity capable of satisfying a human need, it has been observed that the notion of interest is correlative to that of the good as thus delineated, without however being confused with it. In fact, the good has in itself the generic aptitude to satisfy a human need, understood as a need either of man generally considered, or at least of a general human category: and therefore the utility proper to the good is a generic utility. The particular utility of the good for a specific subject is the interest; these particular utilities may vary, by reason of different personal situations and different subjective aptitudes; so that, in relation to the same good, interests may be configured that are not only multiple but even divergent.
Thus both goods and interests can be comprised within the sphere of the law's consideration, thereby assuming juridical relevance. But as regards, more precisely, the possibility of being the object of juridical protection, this possibility belongs to the interest, not to the good.
And indeed the law has as its purpose the composition of intersubjective conflicts of interests, and in fulfilling this function it attributes prevalence to one of those interests, sacrificing the others. This interest, to which juridical prevalence is given, is, by that very fact, the object of juridical protection.
That different interests, relating to the same good, may come into conflict is well known; and it is likewise well known that the law, having social peace as its end, tends to overcome this conflict by determining which of those interests is to be preferred, with the sacrifice of the others.
The good as such, with its generic aptitude to satisfy a human need, cannot be the object of juridical protection; the interest, on the other hand, can be, that is to say the particular utility of the good itself with regard to a specific subject: and this insofar as the law intends to bring about the coordination of human interests, and therefore peaceful human coexistence.
In whatever form the human interest is protected, there is an active subjective juridical situation. But there is also a particular form of protection of the interest, in the presence of which one may speak of a subjective right.
When the legislator entrusts to the subject the initiative for the concrete realization of juridical protection, a strictly personal valuation of the subjective utility is affirmed, the subject being furnished with a well-defined power of will in relation to his own interest; and such power of will constitutes precisely the subjective right.
Interest is the vital element which penetrates the notion of subjective right as into that of objective right. It is vain, therefore, to define subjective right while prescinding from it; but neither, on the other hand, can any form of juridical protection of interest be elevated to subjective right, disregarding the element of will.
The different nature of interests determines various distinctions within them and within the corresponding subjective rights.
Insofar as the interest has as its own subject a public entity, having needs and purposes superior to private utility, it is a public interest; and the right corresponding to it is a public subjective right. Needs and purposes superior to private utility may also be found in private subjects considered, in a particular way, as members of public entities; and therefore public interests and public subjective rights are delineated also with respect to them.
But the private subject may, more frequently, be considered as the bearer of needs and furnished with ends corresponding to his simple human and individual nature; then his interest, and the corresponding subjective right, circumscribed within the sphere of private utility, assume a private character. And public entities themselves may act within the sphere of private interests.
In their turn, private interests and subjective rights are susceptible of a distinction based on patrimoniality and non-patrimoniality. A patrimonial interest is one relating to a patrimonial good, countable among material wealth, susceptible, by its own nature, of pecuniary valuation; a patrimonial subjective right is the right that corresponds to such an interest. A non-patrimonial interest is one relating to a non-patrimonial good, definable by way of negative antithesis with respect to the patrimonial good; a non-patrimonial subjective right is the right that corresponds to such an interest.
This distinction, between patrimonial interests and rights and non-patrimonial interests and rights, is basic for private law and its science. Within the ambit of private law, it truly constitutes the summa divisio, that is, the fundamental partition.
Bibliography6 works
Adriano De Cupia