INTEREST and RIGHT. - Interest is one of the components of the notion of law. Considered in itself, it exists even apart from law; but when it assumes the attribute of juridicity, it rises to the level of legal categories and is incorporated into the notion of law.
Generally speaking, interest is a subjective advantage, that is, the advantage of a good for a specific subject. The clarification of the distinction, and at the same time, the correlation between good and interest, has been one of the merits of modern doctrine. Having defined the good 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 II. In fact, the good possesses within itself the generic capacity to satisfy a human need, understood as a need either of man in general or at least of a general human category; and thus 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 according to the different personal situations and subjective attitudes; so that, in relation to the same good, interests that are not only multiple but also dissimilar may be configured.
Thus, both goods and interests may be included within the sphere of consideration of law, thereby assuming juridical relevance. But with regard to the possibility of being the object of legal protection, this possibility pertains to the interest, not to the good.
Indeed, law has as its purpose the resolution of intersubjective conflicts of interests, and in fulfilling this function it attributes precedence to one of these interests, sacrificing the others. This interest, to which legal precedence is given, is, by that very fact, the object of legal protection.
That different interests, relating to the same good, may come into conflict is well known; and it is also well known that law, having as its end social peace, tends to overcome this conflict by determining which of these interests is to be preferred, with the sacrifice of the others.
The good as such, with its generic capacity to satisfy a human need, cannot be the object of legal protection; what can be so protected, however, is the interest, that is, the particular utility of the good itself with regard to a specific subject: and this is so because law intends to realize the coordination of human interests, and thus peaceful human coexistence.
In whatever form human interest is protected, there arises an active subjective legal situation. But there is also a particular form of protection of interest in whose presence one may speak of a subjective right.
When the legislator entrusts to the subject the initiative for the concrete realization of legal protection, a strictly personal evaluation of the subjective advantage is affirmed, the subject being endowed with a well-defined power of will in relation to his own interest; and it is this power of will that constitutes subjective right.
Interest is the vital element which penetrates into the notion of subjective right as well as into that of objective law. It is therefore vain to define subjective right while ignoring it; but neither, on the other hand, can any form of legal protection of interest be elevated to the status of subjective right if the element of will is disregarded.
The different nature of interests determines various distinctions within them and the corresponding subjective rights.
Insofar as the interest has as its subject a public entity, possessing needs and aims transcending private advantage, it is a public interest; and the right corresponding to it is a public subjective right. Needs and aims transcending private advantage may also be found in private subjects considered, in a particular way, as members of public entities; and thus public interests and public subjective rights may also be delineated with respect to these.
But the private subject may more frequently be considered as bearing needs and possessing ends corresponding to his simple human and individual nature; then, his interest, and the corresponding subjective right, circumscribed within the sphere of private advantage, assume a private character. And the same public entities may act within the sphere of private interests.
In their turn, private interests and subjective rights are susceptible to a distinction based on whether they are patrimonial or non-patrimonial. A patrimonial interest is one relating to a patrimonial good, which may be counted among material wealth and is susceptible, by its very nature, of pecuniary valuation; a patrimonial subjective right is the right corresponding to such an interest. A non-patrimonial interest is one relating to a non-patrimonial good, definable by negative antithesis with respect to the patrimonial good; a non-patrimonial subjective right is the right corresponding to such an interest.
This distinction between patrimonial and non-patrimonial interests and rights is fundamental for private law and its science. Within the sphere of private law, it truly constitutes the summa divisio, that is, the fundamental partition.