SUBJECT OF LAW. – It is the entity to which the legal system attributes or recognizes the capacity to be the holder of rights. This capacity is also called personality; 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 (q.v.).
Legal capacity may belong, besides to human beings (natural persons), also to entities (juridical persons).
Subjects or persons, in state law, are: 1) all human beings or natural persons (for the Church only the baptized): legal personality is attributed with differing effects and degrees of capacity, besides to citizens, also to individuals in dependent territories, to foreigners, and to stateless persons; 2) certain entities (the so-called juridical persons, among which the State is often to be considered), whether national or foreign.
Subjects are taken into consideration by the legal system generally each on its own account (uti singuli), but sometimes, especially in public law, as members of particular collectivities (uti universi): thus, e.g., all citizens as a nation, members of a commune, members of certain professional categories, etc.
The affirmation of the concept of the personality of collective entities occurred particularly in the legal system of the Church. The factors in these unitary juridical formations were various according as it was a question of a purpose intended to be perpetual, common to the life of several persons; or according as it was a question of patrimonial foundations for a religious purpose. But even certain offices of the Church were conceived as juridical persons, and thus, above all, the Holy See and other minor offices. The State, like the universal Church in canon law, is usually conceived, in a moderate way, as a juridical person. But here the multiplicity of juridical persons arising alongside and beneath the State is not so rich, nor is it an atypical multiplicity as in the system of the Church.
It is not possible to dwell on listing the various theories that have been formulated regarding the nature of juridical 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 juridical person is a screen on which the activities of natural persons are projected; that they are personal patrimonies. These various doctrines merely reveal the coexistence in juridical persons of two elements, one material and one formal.
Among juridical 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, e.g., commercial companies, in which the patrimonial element is predominant, but which are generally considered as associations because regard is had to the function which persons and patrimonies acquire in the various types. The material elements of juridical 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 system. This recognition may be express or tacit; general or special. It may be considered declaratory or constitutive.
The entity being erected, not yet recognized, produces activities that may have even retroactive effect. Besides recognition, registration of the entity may also be required.
Persons, both natural and juridical, are divided into various categories. Two categories are given by the distinction between public and private persons. Every person operates, besides in the field of private law, in that of public law, from which indeed the very personality derives, and has powers, rights, and duties that are to be defined as public. Being a public person does not mean having a capacity of public law. The above distinction refers not to individuals, but only to juridical persons. The personality of individuals is connected, at least in modern law, with the quality of being human, which is neither specifically of private law nor of public law. They may present themselves in a capacity that is sometimes public, as that of citizens, of officials, etc., and sometimes private, but these are partial aspects of their personality and do not constitute an integral characterization. There are various criteria of discrimination, practical and theoretical, and for particular purposes. Every legal system then formulates its own classifications (e.g., the law of the State distinguishes civil and ecclesiastical entities). Public juridical persons are the State and other juridical persons whose distinguishing feature is that they function as auxiliaries of the State. Private juridical persons are those established for purposes that are no more than lawful, even if they are of public utility.
There is a prospective subject, the unborn child, who is protected by the law in view of the interests that may be connected with it (q.V. NASCITURO). But even the entity being erected is protected by provisions in its favor all before recognition, which however have effect.
There are incomplete subjects, not yet recognized, but recognizable. The distinction between true juridical subjects proper, and some associations (commercial) and some entities (simple, qualified communities) not recognized, is one of formal character.
The moment at which the individual subject begins to exist, on the plane of law, is physical birth; and the moment at which it ends is physical death, but certain formalities are required for this subject, from the moment of birth, to be able to appear relevant to the law. For civil law full relevance is had only when membership of the social group can be proved (registration of birth, citizenship); for canon law one becomes a subject of law, in the system of the Church, by Baptism. Physical birth is relevant for the purpose of establishing age and the various discriminations that derive from II. In every legal system the forms (registration in civil status records or Baptism and registration in the parish book) are important also for establishing sex. Relevant too is the superimposition on physicality of political status, i.e., membership of a State, or the consecration by Baptism of membership of the Church. Only from political status or from the priesthood can there be the completion of the sphere of rights and duties of the subject.
The individual subject ends with the physical death of the body. Civil death or legal death of the person, admitted in some countries, does not obtain in Italy; here the person condemned to life imprisonment does not lose personality, but is merely in a state of legal incapacity. Civil personality ends when death is recorded in the civil status records (q.V. MORTE, II).
The end of a juridical person may occur for reasons relating to the formal element, only in cases in which recognition has precisely a formal character, when it is given in the abstract by a legal norm applicable to certain organic groupings. In this case the repeal of the norm that grants recognition is enough to bring about the automatic end of all subjects recognized on its basis, by virtue of the general principle according to which the status and capacity of persons are always regulated by the law in force. Sometimes there is individual revocation of recognition.
Normally, however, even for juridical persons the causes of extinction must be traced back to the material substratum. Hence they may vary depending on whether the entity is a foundation or an association: 1) where the purpose has ceased to exist or has become illicit; 2) where the element of the persons constituting the association is lost; 3) sometimes through the loss of the patrimony (though the authority may, in the case of exhaustion of the purpose and if the patrimony has become insufficient, provide for transformation); 4) through the merger of several entities or transformation. Special provisions govern the dissolution of commercial companies.
The relationship between a person and the place where he acts and operates—relationship which is regulated in every legal system—determines the manner and extent of the enjoyment, realization, and exercise of his rights. In state law this relationship is specified by the concepts of domicile, residence, and abode. In other legal systems, e.g., that of the Church, these institutions are specified by different concepts (v. QUASI DOMICILIO).
For juridical persons one cannot speak of domicile or of other place-specific designations such as residence or abode; instead, one speaks of seat (or seats).
The law regulates situations relating to the relationship of the subject to the seat. Absence (v.) occurs when a person has ceased to appear at the place of his last domicile or last residence and no further news of him is received. During this preliminary phase the law provides for the care of the interests of the absentee. The measures taken by the judicial authority are exclusively protective. A petition for a declaration of absence may be made by those who may have rights in the property of the missing person. Subsequently, an application may be made for entry into temporary possession of the absentee’s property. Once the death of the absentee has been proved, or presumed, succession is opened.
The law also considers the case where it is unknown which of two persons died first; and in such a case, where there is an interest involved, it presumes, for the regulation of legal effects arising from the unknown survival, their simultaneous death.
Personality rights are to be regarded like all other subjective rights of the person. They do not have as their object personality as such or 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 as a dependency of II. Their characteristics are inalienability, non-renounceability, imprescriptibility, and non-seizability, though these may also be found in other rights; yet the objection once made against the legitimacy of these personality rights—that the person cannot be both subject and object of rights—no longer holds, since these rights do not have the person or the modes of being of the person as their object. Through their identification one may delineate the profile of personality in its most typical attitudes protected by law. Some of these rights are original or, as others say, innate, and thus concern all juridical subjects, whether physical 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 encompasses them in their fullest extent, and a specific protection that refers to particular aspects of them. The protection of such attitudes may 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 termed constitutional freedoms if they enjoy protection vis-à-vis other subjects in a position of equality or even vis-à-vis 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, since recognition may be revoked. 2) The right to physical integrity, likewise referable only to individual subjects. Acts of disposition over one’s own body are prohibited, though not all such acts are illicit. 3) The right to liberty, negatively determined by the limits imposed on other subjects (sexual freedom, prohibition of enslavement, unlawful detention, illegal arrest, undue restriction of personal liberty, abuse of authority against detainees or prisoners, arbitrary searches or inspections, moral freedom). 4) The right to honor (insult, defamation, offense to the memory of the deceased, etc.). 5) The right to privacy (right to one’s image, secrecy of correspondence). 6) The right to a name. 7) The right to intellectual paternity (v. PROPRIETÀ LETTERARIA).
Public rights may be classified from various standpoints. They are distinguished, by criteria that also apply to private rights, into ideal and patrimonial, and also into personal and real; and, with regard to the persons towards whom they may be held, into absolute and relative, i.e., erga omnes or towards determinate subjects. The personality rights mentioned above may be considered as public rights. Another category of public rights comprises those that may be termed functional rights, belonging to subjects invested with public functions, electoral rights, rights of representation of the people; public rights to performance in favor of the State or in favor of individuals, etc.
There also exist juridical positions of the subject in relation to the State and to the family.
Citizenship is the bond of belonging of the person to the State. It is of great importance both in public law and in private law. The relationship of citizenship also concerns juridical persons, negatively and positively, which are distinguished as foreign or national; and it may also be admitted that there exist stateless entities or those with dual citizenship.
The family is more than a relationship; it is a complex of juridical relationships to which particular personal statuses are also linked. Some of these relationships are founded on the bond of blood (natural and legitimate kinship), while others are entirely independent of such a natural event (civil kinship, affinity; V. AFFINITÀ; COGNAZIONE; CONSANGUINETÀ; FAMIGLIA; PATRIA POTESTÀ; PROLE).
The subject may have a particular professional status: the combination of acts and means in the economic sphere, which is called professional activity, constitutes a particular juridical condition of the subject (cf. LAVORO, IV; SALARIO). Among professional conditions, particular importance attaches to that arising from the relationship of public employment.
Intimately connected with the capacity for public rights is the juridical position that a subject may hold vis-à-vis other subjects: a position of superiority and hence of supremacy; of inferiority and hence of subordination; of independence. Among the various positions that concern public law, mention should be made of status or position of belonging to a necessary community (State, municipality, family, etc.). Another position is that of one who is called to act in the juridical sphere of another, and thus assumes the role of official, soldier, cleric, etc. Likewise the position of one admitted to a public institution. The most important of these active situations of the subject is that which is designated as a subjective right. This is to be regarded as a power of the subject, inasmuch as the subject is assured and guaranteed a position of freedom and preeminence vis-à-vis other subjects, and this by virtue of a norm and its application with reference to a given subject.
Granted for the protection of an interest of the subject which is entrusted to the subject’s own will. A particular category of subjective rights is that of potestative rights. Among active situations there are some that may be considered less full than those already examined. One speaks of occasionally protected interest or reflected right, which occurs when a particular subject derives benefit from the direct protection of a public interest. Different from the preceding is the situation that arises when a legitimate interest is attributed to the subject. This is specifically protected, and such protection is guaranteed to a determined subject. It lives, however, within the sphere of a public interest and, as such, enjoys jurisdictional protection and may be asserted before the administrative authority.
In the subject, various qualifications or subjective qualities are also distinguished. Personality presents manifestations that assume the form of powers, rights, and public duties or obligations. A legal power in the broad sense, both in public law and in private law, is any power of action attributed to a person by the legal order. It seems accurate to distinguish 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; these, unlike the former, unfold within a particular legal relationship. A specific duty does not always correspond to a right, nor vice versa.
Corresponding to active situations are passive situations, among which the most typical is that which consists in a true and proper obligation. The reciprocal link between active and passive situations is given by the concept of legal relationship, which is an instrument placed at the service of the active subject against the passive subject. Subjects may find themselves inserted in individual legal relationships. Legal relationships are relationships between multiple persons, but also relationships having an internal or reflexive character within the same person.