Disability, The Person and the Market

14 Pages Posted: 5 Jan 2009

Date Written: December 30, 2008

Abstract

The introduction of the institution of the 'Amministrazione di Sostegno' into Italian law abandons the model of subjectivity handed down by tradition; indeed, it deconstructs it. In its aim of protecting, with the least possible limitations, the personal capacity of persons wholly or partially deprived of autonomy in performing the functions of everyday life, this new institution delineates a person no longer in abstract terms but as a person of flesh and blood, one whose relationship is not with the State but with the society of which he is a member. His society is considered in terms of its potential to provide for the interests of that person, whose power over things is no longer covered by the right to a legitimate interest under private law, and whose will is diminished by the propensity to inaction, let alone the lack of ability to act. The law on Carership calls for a deconstructive approach to the concept of the so called soggetto di diritto - the person having legal capacity. This, then, is something entirely new. The Italian Constitution and its values have entered into the Civil Code, together with the interests established by the EC Treaty. And, together with these, there is the concept of the person (article 2 of the Italian Constitution uses the far more lapidary word, 'man') as clearly distinct from the concept of the soggetto di diritto or legal entity, or its predicates (legal capacity, capacity to act, natural capacity), implemented in the fullness of his prerogatives, not just social but also economic. On the assumption that each subject has personal capacity, 'care' consists of exercising vigilance to ensure that he is in a position to provide for his own interests. If this were not so, his freedom of choice as protected by article 2(2) of the Consumer Code and Directive 2005/29/EC on misleading commercial practices between traders and consumers in the internal market could be limited by its partial or total exclusion from the market pursuant to the provisions on the Amministrazione di sostegno (and now, under article 11(2)(b) of Directive 2005/29/EC, by means of an appropriate judicial measure ordering the cessation of the unfair practice).

The judicial measure limiting such a capacity will be based on a principle that can be used to measure personal capacity in terms of the efficiency of the choices made by the consumer agent on the market, which comes under Community Law (article 5 of the Treaty, article 52 of the EU Charter of Fundamental Rights, article 1(11) of the draft European Constitution, and recitals 5, 6, 18 and 22 and article 9(d) of Directive 2005/29), and under Italian law (article 3 of the Constitution, article 1 of Law 241/1991, 1669 bis of the German Civil Code), the principle of proportionality being influenced by German law. The principle that underlies the system of carership, in particular in 1896.2 and 1901 and of the German Civil Code with regard to the sub-principles of necessity, in 1896.2 (carership does not take place if the disability can be catered for by other social services) and adequacy, in 1901.3 (the carer must comply with the wishes of the person under carership provided that this does not conflict with the latter's welfare and is not excessively onerous on the carer), together with a general principle of self-determination and protection of the rights of personality in 1903.2 (the right to contract a marriage, register cohabitation and make testamentary provisions and provisions for death, and to make declarations of will not requiring the approval of the legal representative).

The principle of proportionality should be applied according to the body of law on carership, having regard to the limits placed on the beneficiary, the foundation for which is to be found in article 407(2) of the Italian Civil Code, which states that there must be comparability between the interest of and need for the person's protection and that person's own needs and wishes. This principle should be applied according to the sub-principles derived from German public law tradition: necessity (the limitation must be such that there exists no other measure less restrictive of the beneficiary's personal capacity that would pursue the same preset objective); adequacy (the objective can be pursued only by recourse to that limitation); and proportionality in the strict sense of the term (there must be a proper proportion between the choice of the limitation of the beneficiary's personal capacity and the soundness of the reasons justifying that limitation).This principle should not be applied mechanically or mathematically (merely by assessing the 'costs and benefits'), but the judge and the medical practitioner required to support the judge's decision (article 407 of the Civil Code) should take account of the principles of the Constitution and the EEC Treaty as they relate to the protection the personality and dignity of the human person (articles 2 and 3 of the Italian Constitution and articles 136, 137 and 153 of the EEC Treaty).

The dignity and personality of the human person, therefore, are the subjective counterweights in what might be a mechanical and objective manner of applying the principle of proportionality. In this case, it could be said that it is a principle of just and personal proportionality.

Keywords: Disability, Tutorship, Legal care

JEL Classification: K10, K32

Suggested Citation

Bortoluzzi, Andrea, Disability, The Person and the Market (December 30, 2008). Available at SSRN: https://ssrn.com/abstract=1321860 or http://dx.doi.org/10.2139/ssrn.1321860

Andrea Bortoluzzi (Contact Author)

Universita' dell'Insubria ( email )

Via Ravasi 2
Varese, Varese 21100
Italy

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