Uses

USAGES. - It is the traditional opinion (though not without opposition) that uses (understood in a generic sense as equivalent to customs) are sources of objective law. In normative systems of distant epochs and also in some contemporary ones of traditionalist formation, they have had and still retain great importance, although they cannot be considered (as is instead a commonplace) as the primary source of all time; in fact, if the constitutive element of them is vetustas, one would have to think that before custom there was a society without law: an evident contradiction, since law is immanent in every social order.

One can only admit that custom may be (not that it necessarily is) the first source containing general and abstract norms. Another constitutive element of custom or use is, according to common doctrine, though this too is contested, the opinio iuris necessitatis attributable to the collectivity or social aggregate. Thus there arises a formation that may be called decentralized or popular, as compared with the centralized or authoritarian formation of legislative sources.

The importance of customs has been declining in modern times for various reasons, which may be summarized in two: first, the growing intervention of the State, especially through its legislative organs, in the regulation of intersubjective relations, with limitation of the autonomies of private individuals; secondly, the weakening of a factual presupposition in the formation of uses, namely the uniformity over time of the regulated relations, relations which instead in modern business practice may undergo rapid modifications or evolutions. Nor is it always accurate that customs respond better than laws to an equitable balancing of the various conflicting interests, since at times they may instead prove to be the product of the predominance of one category over others, no longer corresponding to changed social conditions and therefore correctable precisely through legislative norms or also through agreements or collective contracts in economic or labor matters in particular. All such norms, also because of their written formulation, have, as compared with customary ones, a greater degree of precision and certainty and at the same time, within certain limits, of promptness of manifestation. Even in international law, custom, while retaining considerable importance, sees its sphere of applicability delimited by the multiplication of treaties or conventions.

Decline does not mean annulment, and in effect, to limit ourselves to Italian law, even in the new codes of private law there are provisions that referred to uses (the term now preferred by the legislator) or "normative uses" (legal, juridical), as much of the doctrine calls them, in order to distinguish them from so-called "negotial" ones (business, interpretative, etc.), established by agreement, and "technical" ones (or de facto), followed for social convenience or practical utility with sometimes even public-law relevance ("uses observed as public law," art. 11 of the Civil Code).

According to the prevailing opinion, custom has value if and insofar as it is admitted by legislative law, at least in modern legal systems. This is not to deny a priori and totally the admissibility of "innovative or introductory" customs (their admission may be considered settled for "interpretative or executory" ones), at least in matters not regulated by positive laws. "Abrogative" (or "desuetude") and "modifying" customs of laws seem instead to be outright excluded by art. 15 of the preliminary provisions ("Laws are not abrogated except by subsequent laws..."), but it cannot be excluded that this general principle may be derogated from by some particular provision that, explicitly or implicitly, admits in given cases abrogation or modification.

It is to be held that the principles indicated also hold after the entry into force of the new Constitution, although no reference to customs is found in it and previous customs no longer have reason to exist, such as those based on the presupposition of the ceased monarchical regime. Those based on the presupposition of the restored parliamentary regime may instead revive, although it is sometimes difficult to say whether they are true customs or simple practice or constitutional propriety, the former based on conforming precedents and the latter on ethico-political considerations, which as such could constitute a beginning toward the formation of customs, but are not in themselves binding.

The problem of the insertion of uses into the hierarchical system of sources has been resolved textually by the Italian legislator in the sense that they come after laws, regulations and also the so-called "corporative norms" (terminology proper to the abrogated corporative order, and now to be understood as "collective labor contracts" or also "economic agreements" between categories of production, insofar as they are still admissible; cf. preliminary provisions, art. 1 ff.). Different provisions in determined matters are saved; thus in that of maritime, inland and air navigation (as already in commercial matters) uses, while remaining subordinate to the legislative law proper to the matter itself, nevertheless prevail over the common civil law (art. 1, Navigation Code). Local and special uses prevail over general ones, by virtue of the principle of the prevalence, among sources of the same type, of that which contains a special norm as compared with that which contains a general norm. Collections of uses are curated by the Chambers of Commerce, Industry and Agriculture.

Ferruccio Pergolesi