SUBJECT OF LAW. – This is the person to whom the legal order attributes or recognizes the aptitude to be the holder of rights. This aptitude is also called personality; and it consists not only in the present, effective holding of legal rights and duties, but in the potential capacity to be invested with them, capacity (v.).
Legal capacity may belong not only to human beings (natural persons), but also to entities (legal persons).
Subjects or persons are, in state law: 1) all human beings or natural persons (for the Church, only the baptized); legal personality is attributed, with different effects and degrees of capacity, not only to citizens, but also to individuals from territories dependent on the State, to foreigners, and to stateless persons; 2) certain entities (the so-called legal persons, among which the State is often to be included), whether national or foreign.
Subjects are generally taken into consideration by the legal order each on his or her own account (uti singuli), but sometimes, especially in public law, as members of particular collectivities (uti universi): thus, for example, all citizens as a nation, members of a municipality, members of given professional categories, etc.
The affirmation of the concept of the personality of collective entities occurred particularly in the Church’s legal order. The factors underlying these unitary legal formations differed according to whether they concerned a purpose, intended to be perpetual, shared in the lives of several persons; or whether they concerned patrimonial foundations for a religious purpose. But some offices of the Church were also conceived as legal persons, and thus, above all, the Holy See and other minor offices. The State too, like the universal Church in canon law, is nowadays generally conceived as a legal person. Here, however, the multiplicity of legal persons arising alongside and under the State is not so rich, nor is it an atypical multiplicity as in the Church’s legal order.
It is not possible to dwell on enumerating the various theories that have been formulated concerning the nature of legal persons. It has been said that they are artificial creations of the law; that, on the contrary, they exist in their own social reality; that the legal person is a screen onto which the activities of natural persons are projected; that they are personified patrimonies. These various doctrines do no more than reveal the coexistence in legal persons of two elements, one material and one formal.
Among legal persons, a distinction is made between corporations or universitates personarum, and foundations or institutions (universitates bonorum) of a patrimonial type. In the former, the personal element predominates; in the latter, the patrimonial element. There are, however, for example, commercial companies in which the patrimonial element is preponderant, but which are generally regarded as associations, because consideration is given to the function acquired by persons and property in the various types. The material elements of legal persons are: 1) an organization of persons or property (associations or foundations); 2) a purpose; 3) the formal element is recognition by the competent authority within the legal order. This recognition may be express or tacit; general or special. It may be regarded or considered declaratory or constitutive.
An entity in the process of being established, not yet recognized, produces legally relevant activity that may also have retroactive effect.
In addition to recognition, registration of the entity may also be required.
Persons, both natural and legal, are divided into various categories. Two categories arise from the distinction between public and private persons. Every person operates not only in the field of private law but also in that of public law, from which the same personality derives, and possesses powers, rights, and obligations that are to be defined as public. Being a public person does not mean possessing capacity under public law. The aforementioned distinction concerns not individuals, but only legal persons. The personality of individuals is connected, at least in modern law, with the quality of being human, which is not specifically a matter of either private law or public law. They may appear in a form that is sometimes public, such as that of citizens, officials, etc., and sometimes private; but these are partial aspects of their personality and do not constitute their integral characterization. There are various criteria of discrimination, practical and theoretical and directed toward particular ends. Moreover, each legal order formulates its own classifications (for example, state law distinguishes civil and ecclesiastical entities). Public legal persons are the State and the other legal persons whose purpose is to function as auxiliaries of the State. Private persons are those established for purposes that are nothing more than lawful, even if they are of public utility.
There is an expected subject, the unborn child, who is protected by law in view of the interests that may be connected with him or her (v. NASCITURO). But the entity in the process of being established is also protected with regard to dispositions made in its favor before recognition, which nevertheless have effect.
There are incomplete subjects, not yet recognized but capable of recognition. The distinction between juridical subjects in the strict sense and certain unrecognized associations (commercial) and certain unrecognized entities (simple, qualified communities of property) is formal in character.
The moment at which the individual subject begins to exist in the sphere of law is physical birth; and the moment at which he or she ceases to exist is physical death. Certain formalities are nevertheless required before this subject, from the moment of birth, can appear as relevant to law. Under civil law, full relevance is attained only when membership in the social group can be proved (declaration of birth, citizenship); under canon law, one becomes a subject of law within the Church’s legal order through Baptism. Physical birth is relevant for the purpose of establishing a person’s age and the various distinctions deriving from II. In every legal order, the forms involved (registration in civil-status records or Baptism and registration in the parish register) are also important for establishing sex. Also relevant is the superimposition of political status upon physical existence, that is, membership in a State, or the consecration through Baptism of membership in the Church. Only through political status or sacred status can the sphere of the subject’s rights and duties be completed.
The individual subject ceases to exist with the physical death of the body. Civil death, or the legal death of the person, admitted in certain countries, does not apply in Italy; here, a person sentenced to life imprisonment does not lose his or her personality, but is merely placed in a condition of legal incapacity. Civil personality ceases when death is established by a declaration made to the civil-status authorities (v. II).
The end of a legal person may occur for causes relating to the formal element only in cases where recognition has precisely a formal character, that is, when it is granted in the abstract by a statutory provision applicable to certain organic groupings. In this case, the repeal of the provision granting recognition is sufficient to bring about the automatic termination of all subjects recognized on its basis, by virtue of the general principle according to which the status and capacity of persons are always governed by the law in force. Sometimes there is an individual revocation of recognition.
Normally, however, even in the case of legal persons, the causes of extinction must be related to the material substratum. They may therefore vary according to whether foundations or associations are involved: 1) when the purpose has by now ceased to exist;
or because it has become unlawful; 2) if the element of the persons constituting the association ceases to exist; 3) sometimes through the loss of the assets (but, in the event that the purpose has been exhausted and the assets have become insufficient, the authority may provide for transformation); 4) through the merger of several bodies or transformation. The law lays down special provisions for the dissolution of commercial companies.
The relationship between the person and the place in which he or she acts and operates—a relationship regulated in every legal system—determines the manner and extent of the enjoyment, realization, and exercise of his or her rights. In contemporary law this relationship is specified by the concepts of domicile, residence, and habitual abode. In other legal systems, for example that of the Church, these institutions are specified by different concepts (v. QUASI DOMICILIO).
In the case of legal persons, one cannot speak of domicile, or of any other specification with respect to place, such as residence or habitual abode; instead, one speaks of a seat (or of several seats).
The law regulates situations relating to the subject’s relationship with the seat. Absence (v.) exists when a person has ceased to appear at the place of his last domicile or last residence and no further information about him or her is available. During this preliminary phase, the law concerns itself with safeguarding the interests of the absent person. The measures of the judicial authority are exclusively preservative. This is preceded by an application for a declaration of absence, submitted by anyone who may have rights to the property of the missing person. Subsequently, an application may be made for entry into temporary possession of the absent person’s property. Once, through this procedure, the death of the absent person has been proved, or presumed to have occurred, succession is opened.
The law also considers the case in which it is unknown which of two persons died first; in such a case, where there is an interest at stake, it presumes their commorience in order to regulate the legal effects arising from the unknown survival of one over the other.
Personality rights are to be regarded in the same light as all other subjective rights of the person. Their object is not personality as such, nor its more or less specific modes of being; the objective nucleus determining their content is an interest of the person. It is always an interest distinct from the person and dependent upon II. Their characteristics are inalienability, non-waivability, imprescriptibility, and inability to be expropriated; these characteristics may, however, also be found in other rights. The objection formerly made against the legitimacy of these personality rights therefore no longer holds—namely, that a person cannot be both the subject and the object of rights—because these rights do not have the person, or the modes of being of the person, as their object. Through their identification, the profile of personality may be delineated in its most typical attitudes protected by law. Some of these rights are original or, as others say, innate, and therefore concern all legal subjects, whether natural persons or collective bodies; others are derivative or acquired, insofar as they concern only particular subjects. Some attitudes of personality enjoy general protection, which concerns them in their broadest scope, and specific protection, which relates to particular aspects of them. The protection of such attitudes may at times be public-law in character and at times private-law in character, depending on the concrete interests that the legal system seeks to protect. They may be called constitutional freedoms when they enjoy protection against other subjects who are in a position of equality, or even against the State, which holds sovereignty.
SOGLIA CERONI, GIOVANNI – PORTRAIT.
nominal and also into personal and real rights; and, with regard to the persons against whom they may be held, into absolute and relative rights, that is, erga omnes or against specific subjects. The rights of personality mentioned above may be regarded as public rights. Another category of public rights comprises those that may be called rights of office or functional rights, belonging to persons invested with public functions; electoral rights, rights of representing the people; public rights to performance in favour of the State or of individuals, etc.
There are also legal positions of the subject in relations with the State and with the family.
Citizenship is the bond linking a person to the State. It is of great importance both in the field of public law and in that of private law. The relation of citizenship also concerns, from both negative and positive standpoints, legal persons, which are distinguished as foreign or national; and it may also be admitted that there are stateless entities or entities with dual citizenship.
The family, more than a relation, is a set of legal relations, to which particular personal statuses are also connected. Some of these relations are founded on the bond of blood (natural and legitimate kinship), while others are entirely independent of this natural event (civil kinship, affinity; V. AFFINITÀ; COGNAZIONE; CONSANGUINEITÀ; FAMIGLIA; PATRIA POTESTÀ; PROLE).
The subject may have his own professional condition: the coordination of acts and means in the economic field, known as professional activity, constitutes a particular legal condition of the subject (cf. LAVORO, IV; SALARIO). Among professional conditions, particular importance attaches to that arising from public employment.
Closely connected with capacity in public law is the legal position that a subject may have vis-à-vis other subjects: a position of superiority and therefore of supremacy; of inferiority and therefore of subordination; or of independence. Among the various positions relevant to public law, mention should be made of status, or the position of belonging to a necessary community (State, Municipality, family, etc.). Another position is that of one who is called upon to act in another’s legal sphere and therefore assumes the role of official, military member, ecclesiastic, etc. Likewise, there is the position of one admitted to a public institution. The most important of these active situations of the subject is that designated as a subjective right. This must be regarded as a power of the subject, insofar as the subject is assured and guaranteed a position of freedom and pre-eminence vis-à-vis other subjects, by virtue of a norm and its application with reference to a given subject. It is
held, searches or arbitrary personal inspections, moral freedom). 4) Right to honour (insult, defamation, offence to the memory of a deceased person, etc.). 5) Right to privacy (right to one’s image, secrecy of correspondence). 6) Right to a name. 7) Right to intellectual parentage (v. PROPRIETÀ LETTERARIA).
Public rights may be classified from different points of view. They are distinguished, according to criteria that also apply to private rights, into ideal and patrimonial rights,
granted for the protection of an interest of the subject, which is entrusted to the will of the subject himself. A particular category of subjective rights is that of potestative rights. Among the active situations, there are some that may be regarded as less complete than those already considered. One speaks of an occasionally protected interest or a reflex right; this occurs when a particular subject benefits from the direct protection of a public interest. Different from the foregoing is the situation that arises when a legitimate interest is attributed to the subject. This interest is specifically protected, and such protection is guaranteed to a determined subject. It nevertheless exists within the sphere of a public interest and, as such, enjoys judicial protection and may be asserted before the administrative authority.
Various subjective qualifications or qualities may also be distinguished in the subject. Personality manifests itself in forms that take the shape of public potestates, powers, rights and obligations or duties. Legal power in the broad sense, both in public law and in private law, is every power of action attributed to a person by the legal order. It seems correct to identify two categories of powers: potestates, or legal powers in the strict sense (e.g., the legislative power of the State, parental authority), and subjective rights; the latter, unlike the former, operate within a particular legal relation. A specific duty does not always correspond to a right, nor vice versa.
Corresponding to active situations, there are passive situations, among which the most typical is that consisting in a genuine obligation. The reciprocal link between an active situation and a passive situation is expressed by the concept of a legal relation, which is an instrument placed at the service of the active subject against the passive subject. Subjects may be involved in individual legal relations. Legal relations include relations between several persons, but also relations having an internal or reflexive character within the same person.