INTEREST AND LAW. – Interest is one of the components of the notion of law. Considered in itself, it exists even outside the law; but, assuming the attribute of juridicality, it rises to the status of a juridical category and enters into the notion of law.
Generally speaking, interest is a subjective utility, that is, the utility of a good for a specific subject. Clarifying the distinction, and at the same time the correlation, between good and interest was one of the merits of modern doctrine. Having defined the good as an entity capable of satisfying a human need, it was observed that the notion of interest is correlative to that of the good, as outlined above, without being confused with II. Indeed, the good possesses within itself the general aptitude to satisfy a human need, understood as the need either of man considered generally or at least of a general human category; hence 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 different personal situations and different subjective aptitudes, so that, in relation to the same good, interests may be not only multiple but also divergent.
Goods, like interests, may be included within the sphere of consideration of law and thus acquire juridical significance. But, more precisely, as regards the possibility of being the object of juridical protection, this possibility belongs to the interest, not to the good.
Indeed, law aims at composing intersubjective conflicts of interests, and in fulfilling this function it gives precedence to one of those interests, sacrificing the others. This interest, to which juridical precedence is given, is thereby itself the object of juridical protection.
It is well known that different interests relating to the same good may come into conflict; and it is equally well known that law, having social peace as its aim, 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 can be, that is,
the particular utility of the good itself with regard to a specific subject: and this because law intends to bring about the coordination of human interests and, therefore, peaceful human coexistence.
Whatever form the human interest’s protection may take, there exists an active subjective juridical situation. But there is also a particular form of protection of interest in the presence of which one may speak of a subjective right.
When the legislator leaves to the subject the initiative for the concrete realization of juridical protection, a strictly personal evaluation of subjective utility is affirmed, the subject being endowed with a clearly defined power of willing in relation to his own interest; and this power of willing precisely constitutes the subjective right.
Interest is the vital element that penetrates into the notion of subjective right as well as that of objective law. It is therefore futile to define subjective right without reference to it; but, on the other hand, neither can every form of juridical protection of interest be elevated to the status of a subjective right, while disregarding the element of will.
The different nature of interests gives rise to various distinctions within them and within the corresponding subjective rights.
Insofar as the subject of the interest is a public entity, possessing needs and aims that transcend private utility, it is a public interest; and the corresponding right is a public subjective right. Needs and aims that transcend private utility may also be found in private subjects considered, in a particular way, as members of public entities; consequently, public interests and public subjective rights also take shape in relation to them.
But a private subject may, more frequently, be considered as the bearer of needs and endowed with aims corresponding to his simple human and individual nature; in that case, his interest, and the corresponding subjective right, limited to the sphere of private utility, assume a private character. And public entities themselves may act within the sphere of private interests.
In turn, private interests and subjective rights are susceptible to a distinction based on their patrimonial or non-patrimonial character. A patrimonial interest is one relating to a patrimonial good, included among material wealth and, by its nature, capable 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 way of negative antithesis to a patrimonial good; a non-patrimonial subjective right is the right corresponding to such an interest.
This distinction between patrimonial interests and rights and non-patrimonial interests and rights is fundamental to private law and its science. Within the sphere of private law, it truly constitutes the summa divisio, that is, the fundamental division.