SUBJECT OF LAW. - It is the one to whom the legal order attributes or recognizes the capacity to be the holder of rights. This capacity is also called personality; and it consists not only in the actual, effective holding of legal rights and duties, but in the potential capacity to be invested with them, or legal capacity (v.).
Legal capacity can belong not only to men (natural persons) but also to entities (juristic persons).
Subjects or persons are, in state law: 1) all men or natural persons (for the Church, only the baptized); juristic personality is attributed with different effects and degrees of capacity, not only to citizens but also to individuals of territories dependent on the State, to foreigners and to stateless persons; 2) to certain entities (so-called juristic persons, among which the State is often to be counted), whether national or foreign.
Subjects are taken into consideration by the legal order in general each on his 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, the members of a municipality, the members of given professional categories, etc.
The affirmation of the concept of the personality of collective entities occurred particularly in the order of the Church. The factors of these unitary legal formations were different according to whether it is a question of a purpose, which is intended to be perpetual, common to the life of several persons; or according to whether it is a question of patrimonial foundations for a religious purpose. But also certain offices of the Church were conceived as juristic persons, and thus, above all, the Holy See and other lesser offices. The State too, like the universal Church in canon law, is in modern times usually conceived as a juristic person. But here the multiplicity of juristic persons arising alongside and beneath the State is not so rich, and it is not an atypical multiplicity as in the order of the Church.
It is not possible to linger to list the various theories that have been formulated concerning the nature of juristic persons. It has been said that they are artificial creations of the law; that on the contrary they exist in a social reality of their own; that the juristic person is a screen onto which the activities of natural persons are projected; that they are personified patrimonies. These various doctrines do nothing but reveal the coexistence in juristic persons of two elements, one material and one formal.
Among juristic 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 prevails; in the latter the patrimonial element. There are, however, for example, commercial companies, in which the patrimonial element is preponderant, but which are generally considered as associations, because regard is had to the function that persons and patrimony acquire in the various types. The material elements of juristic persons are: 1) an organization of persons or of goods (associations or foundations); 2) a purpose; 3) the formal element is recognition by the competent authority in the legal order. This recognition can be express or tacit; general or special. It can be held or considered declaratory or constitutive.
The entity in process of erection, not yet recognized, produces relevant activities that can have effects even retroactive. Besides recognition, registration of the entity may also be required.
Persons, both natural and juristic, are distinguished into various categories. Two categories are given by the distinction between public and private persons. Every person moves not only in the field of private law but also in that of public law, from which the very personality derives, and has powers, rights and obligations that are to be defined as public. To be a public person does not mean to have a capacity of public law. The above-mentioned distinction refers not to individuals, but only to juristic persons. The personality of individuals is connected, at least for modern law, to the quality of being a man, which is not specifically either of private or of public law. They can present themselves in a guise that is sometimes public, as that of citizens, of officials, etc., and sometimes private, but these are partial aspects of their personality and not their integral characterization. There are various criteria of discrimination, practical and theoretical and for particular purposes. Every legal order, moreover, formulates its own classifications (for example, the law of the State distinguishes civil and ecclesiastical entities). Public juristic persons are the State and the other juristic persons whose destination is to function as auxiliaries of the State. Private ones are those instituted for purposes that are nothing more than lawful, even if they are of public utility.
There is a hoped-for subject, the unborn child, who is protected by law in view of the interests that can be connected to it (v. NASCITURO). But the entity in process of erection is also protected for the dispositions made in its favor before recognition, which nevertheless have effect.
There are incomplete subjects, not yet recognized, but recognizable. The detachment between true juristic subjects, and certain (commercial) associations and certain unrecognized entities (simple, qualified communions), is of a formal character.
The moment at which the individual subject begins to exist, on the ground of law, is physical birth; and the moment at which it ceases is physical death, but certain formalities are required so that this subject, from the moment of birth, can appear relevant for the law. For civil law full relevance is had only when its belonging to the social group can be proved (declaration of birth, citizenship); for canon law one becomes a subject of law, in the order of the Church, through Baptism. Physical birth is relevant for the purpose of establishing the age of the person and the various discriminations that derive from it. In every legal order the forms (registration in the registers of civil status or Baptism and registration in the parish book) are important also for establishing sex. Also relevant is the superimposition on physicality of politicality, that is, of belonging to a State, or the consecration by Baptism of belonging to the Church. Only from politicality or from sacredness can the sphere of the subject's rights and duties be completed.
The individual subject ceases with the physical death of the body. Civil death or death in law of the person, admitted in some countries, is not in force in Italy; here the person condemned to life imprisonment does not lose his personality, but finds himself only in a state of legal incapacity. Civil personality ceases when death results from a declaration to the civil status (v. MONTE, II).
The end of the juristic person can take place for causes pertaining to the formal element, only in the cases in which recognition has precisely a formal character, that is, when it is given in the abstract by a rule of law applicable to determined organic groupings. In this case the repeal of the rule that grants recognition is enough for the automatic end of all the subjects recognized on the basis of it, 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 the individual revocation of recognition.
Normally, however, even for juristic persons the causes of extinction are to be connected to the material substratum. Therefore they can vary according to whether it is a question of foundations or of associations: 1) the purpose now being lacking or having become unlawful; 2) if the element of the persons of whom the association is constituted ceases; 3) sometimes with the loss of the patrimony (but the authority could, in the case of exhaustion of the purpose and if the patrimony has become insufficient, provide for its transformation); 4) through the merger of several entities or transformation. The law lays down special provisions for the dissolution of commercial companies.
The relation between the person and the place in which it acts and operates, a relation that is regulated in every legal system, determines the manner and the measure of the enjoyment, the realization, and the exercise of its rights. In present-day law this relationship is specified by the concepts of domicile, residence, and abode. In other systems, for example in that of the Church, these institutions are specified by means of different concepts (v. DOMICILIO).
For legal persons one cannot speak of domicile, or of any other specification with respect to place, such as residence or abode; one speaks instead of seat (or of several seats).
The law regulates the situations relating to the subject's relation with the seat. Absence (v.) occurs when the person has ceased to appear in the place of his last domicile or last residence and no further news of him is had. During this preliminary phase, the law concerns itself with the care of the interests of the absent person. The measures of the judicial authority are exclusively conservative. There precedes the application for the declaration of absence made by whoever may have rights over the property of the disappeared person. Subsequently one may apply for entry into the temporary possession of the absent person's property. Once the death of the absent person, or presumed death, is proved through this procedure, the succession is opened.
The law also considers the case in which it is unknown which of two persons died first, and in such a case, when there is an interest, it presumes, in order to regulate the legal effects deriving from the unknown survivorship, their commorience.
The rights of personality are to be considered on the same footing as all the other subjective rights of the person. They do not have as their object personality as such or in its more or less specific modes of being; the objective nucleus that determines their content is an interest of the person. It is always an interest distinct from the person and as a dependency of it. Their characteristics are inalienability, non-renounceability, imprescriptibility, and insusceptibility of expropriation, which, however, may be found in other rights as well; but the objection raised against the legitimacy of these rights of personality no longer holds, on the consideration that the person cannot be subject and object of rights, because these rights do not have as their object the person and the modes of being of the person. Through the identification of them one can trace the profile of personality 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, natural persons or collective entities; others are derived or acquired, inasmuch as they concern only particular subjects. Some attitudes of personality enjoy a generic protection that concerns them in their maximum extension, and a specific protection that refers to particular aspects of them. The protection of such attitudes can at times be of a public-law character, at times of a private-law character, according to the concrete interests that the legal system aims to protect. They may be called constitutional freedoms, if they enjoy protection with respect to other subjects who are in a position of equality or even with respect to the State, which holds sovereignty.
1) The most important of these rights is the right to life; for collective entities this right to existence does not exist, because recognition can be revoked. 2) Right to physical integrity, likewise referable only to individual subjects. Acts of disposition of one's own body are prohibited, but not all of them are unlawful. 3) Right to freedom, determined negatively by the limits imposed on other subjects (sexual freedom, non-reduction to slavery, kidnapping, unlawful arrest, undue limitation of personal freedom, abuse of authority against arrested or de-
criminal, and also in personal and real actions; and, with regard to the persons against whom they can be held, into absolute and relative, that is, erga omnes or against determinate subjects. The rights of personality mentioned above can be considered as public rights. Another category of public rights comprises those that may be called rights of function or functional rights, belonging to subjects invested with public functions, electoral rights, rights of representation of the people; public rights of performance in favor of the State or in favor of individuals, etc.
There exist, moreover, juridical positions of the subject in relations with the State and with the family.
Citizenship is the bond of belonging of the person to the State. It is of great importance both in the field of public law and in that of private law. The relationship of citizenship also concerns, under negative and positive aspects, juridical persons, which are distinguished into foreign or national; and it may also be admitted that there are stateless entities or entities with dual citizenship.
The family, more than a relationship, is a set of juridical relationships, to which particular personal states are also linked. Some of these relationships are founded on the bond of blood (natural and legitimate kinship), while others entirely prescind from that natural event (civil kinship, affinity; v. AFFINITÀ; COGNAZIONE; CONSANGUINEITÀ; FAMIGLIA; PATRIA POTESTÀ; PROLE).
The subject may present a professional condition of his own: the connection of acts and means in the economic field, which is called professional activity, constitutes a particular juridical condition of the subject (cf. LAVORO, IV; SALARIO). Among professional conditions, that deriving from the relationship of public employment assumes particular importance.
Intimately connected with capacity in public law is the juridical position that a subject may have in relation to other subjects: a position of superiority and therefore of supremacy; of inferiority and therefore of subordination; of independence. Among the various positions that concern public law, a mention is deserved by the status or position of belonging to a necessary community (State, Municipality, family, etc.). Another position is that of one who is called to act within the juridical sphere of others, and therefore assumes the guise of official, soldier, ecclesiastic, etc. Likewise the position of one admitted to a public institution. The most important of these active situations of the subject is the one designated as subjective right. This is to be considered as a power of the subject, inasmuch as a position of liberty and pre-eminence toward other subjects is assured and guaranteed to the subject, and this by virtue of a norm and of its application with reference to a given subject. It is detentions, or arbitrary personal searches or inspections, moral liberty). 4) Right to honor (insult, defamation, offense 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 paternity (v. PROPRIETÀ IMMATERIALE and PROPRIETÀ LETTERARIA).
Public rights can be classified from different points of view. They are distinguished, by the criteria that also hold for private rights, into ideal and patrimonial, granted for the protection of an interest of the subject, which protection 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 considered less full than those already considered. One speaks of an interest occasionally protected or reflected right, and this occurs when a determinate subject derives advantage from the direct protection of a public interest. Different from the preceding is the situation that arises in the case in which a legitimate interest is attributed to the subject. This is specifically protected and such protection is guaranteed to a determinate subject. It lives, however, within the sphere of a public interest and, as such, enjoys jurisdictional protection and can be asserted before the administrative authority.
In the subject, various qualifications or subjective qualities are also distinguished. Personality presents manifestations that assume the figure of potestas, powers, rights and public obligations or duties. Juridical power in the broad sense, in public law as in private law, is every power of action attributed to a person by the juridical order. It seems correct to discern two categories of powers, potestas or juridical powers in the strict sense (for example, the legislative power of the State, paternal authority) and subjective rights; these, contrary to the former, unfold within a particular juridical relationship. Not always does a right correspond to a specific duty, or vice versa.
Corresponding to the active situations are passive situations, among which the most typical is the one concretized in a true and proper obligation. The bond of reciprocity between active situation and passive situation is given by the concept of juridical relationship, which is an instrument placed at the service of the active subject against the passive subject. Subjects may find themselves inserted in individual juridical relationships. Juridical relationships are the relationships among several persons, but also relationships having an internal or reflexive character within the same person.