The Institutional and Technical Significance of the Idea of Person

Posted on May 12, 2024 in Law & Jurisprudence

PART TWO: “RIGHT OF THE PERSON”

THEME 4: THE INSTITUTIONAL AND TECHNICAL SIGNIFICANCE OF THE IDEA OF PERSON

1. THE CONCEPT OF PERSON

Today, no one doubts that all human beings are persons. Words “subject to noteholders must recognize and respect the social organization and especially the state as an expression of an organized social group in which we move (Forestry).

This idea is the basis of the law and especially the Civil Code. So says Article 10 of the Spanish Constitution: “The dignity, the inviolable rights which are inherent, the free development of personality, respect for the law and the rights of others are the foundation of political order and social peace.” However, this idea has not always been accepted; there is an evolution.

In Greece and Rome, there was no concept of person, a nation with a Christian philosophy.

All people have the same dignity; dignity is predicated of the whole person, not random circumstances. That does not mean that all ideas are good people.

1. In Greece and Rome: not all were considered persons (subject civil rights holders). Only those people who met certain conditions were credited with legal standing. One particular item was the status civitatis, cives status. Remember that iuris civilis was the right one for Roman citizens.

In practice, the “pater familias” was fully exercising rights and obligations, not children, women, or slaves. This idea changed with the advent of Christianity.

2. Christianity: it implies a revolution because it believes that all human beings are persons who have the same dignity and are transcendent beings and thus have inalienable rights that depend simply on mere existence and not the attribution of a state.

For Christianity, dignity derives from two facts:

• Being God’s image and having been redeemed by Christ (Christ did not die for Christians but for all).

From this point of view, man has not only rights but also duties to God and others (under the mandate of the law of God).

• This changes with the anthropocentric idea that occurs in the Renaissance.

These ideas will remain with nuances to the Enlightenment.

Iusnaturalismo: advocates of natural law. They say that positive law must conform to natural law and therefore political power that creates positive law must conform to it and not violate the rights of the individual.

Rational conceptual systems (Hobbes) dissociated the idea of human dignity and divine origin based on the dignity of the person (based on individual rights) on rationality.

The basis of the legal system is the individual, and the maximum is the law of liberty and equality. They imagine that there is a part between the holders of those rights that give rise to political organization.

3. These rationalist ideas are the foundation of the Enlightenment and the emergence of political liberalism.

• The Enlightenment proclaimed individual rights and the obligations to eliminate God and others.
• The Liberals tried to put in writing the constitutions these individual rights (which are not natural but essential) that considers only expresses the social contract.

The coding is also essential to the rationality of the rules and also to bring the world everyday legal rights. The state’s mission is to protect only individual rights.

However, liberalism conflicted: on the one hand, it claims freedom, equality, and fraternity but does nothing to make them real rights (since there are no moral obligations). It considers that the right order would be vacated due to man. According to them, the self-governing rights by the collision of the rights of others.

Worse, as man is a wolf to man, liberal individualism is ultimately an expression of egoism applied to the idea of a person (the law of the jungle, the fittest) and rampant abuse of the weak.

4. Application of the “law of the pendulum” socialism appears to deny that rights are of the individual and collective rights claim (not individual rights but collective). If man commits injustice vacated, the owner must be a community.

I see two versions of socialism: socialism “nationalist” based on race (National Socialism) and socialism “communist.” In both cases, the importance is in the group, not the person; ownership rights are in the target group, but as this is represented by the state, it is predicated that the rights holder is the state and provides free to whom he pleases. The idea of the totalitarian state that has led us to the Great World War and the long Cold War to the twentieth century.

5. After the Second Great World War and the Cold War: throughout the West, it has been preached that the state cannot be based on either of these two ideological systems that cut off human rights in the long run. Nobody is quite totally liberal or socialist.

All recognize the need to defend the rights of man as the bearer of values autonomous or independent state, but now these rights are proclaimed in a purely theoretical (formal) way, but the constitutions incorporate mechanisms or instruments to protect and maintain these rights.

In this social and democratic state of law that the right is thought to be uneven and unequal speaks really positive to promote equality and opportunity for personal development.

We can say that at the end of the twentieth century has come to practice to a unitary theory means that “all human beings are persons and all persons, by virtue of being, express values and have property that OJ not only must comply, but need protection, creating or enhancing social living conditions that enable those goods and values” (Montes).

In conclusion, every human being (or legal entity if a legal person) who, by virtue of being, can relate to others and has the attitude to have rights and obligations. This concept has implications for the legal field.

On the one hand, the existence of the power of the person and property values implies that public power has to recognize that everyone has the personality understood as a value prejurídico (person over the agenda).

In addition, the OJ is to recognize and mitigate the legal personality as a quality translating to that human being can engage in legal relations. It’s legal capacity. (Ability to participate in legal relationships). Therefore all humans are persons and therefore have personality qualities of the person who makes it suitable to be an active subject of legal relations.” Nothing shall affect the legal capacity, is being a person. A disabled person has.

PERSON = PERSONALITY = LEGAL CAPACITY

Personality characteristics:

1. It is an abstract quality. Do not depend on anything but the fact of being a person.
2. It is a precondition to the acquisition of rights and obligations (at the time of birth is available).
3. It is not adjustable (everybody has equal).
4. It is not negotiable (cannot transfer or renounce the dignity of personhood).
5. Personality implies equality of treatment.
6. It is permanent and is extinguished only by death.

Not enough. The OJ says people have personalities, so to get the necessary respect of the goods and values of the individual. It is necessary (history shows) that positively regulate OJ a minimum of personality rights by declaring inviolable. Not merely to declare the rights of the individual, must be explicitly regulate.

The minimum content of rights has been welcomed by a double panel systems:

• On the one hand are the foundation of social order and defense against invasions by the government (you cannot remove anyone).
• Secondly, are immissions defense against attacks or other subjects.

2. FUNDAMENTAL RIGHTS AND DUTIES OF PERSONALITY

A. Before the 1978 Constitution and the Spanish DC had made the theory of personality rights to protect concrete manifestations of that personality and meet human needs and conspiracies. Fell within the subjective rights.

These rights were 3 personality characteristics (still now):

1. are innate (the result only of existence)
2. They are absolute (limited only to collide with others)
3. They are inherent rights of the person (cannot move to another, are independent of their circumstances)

It comprises 4 prohibitions:

1. cannot be transmitted
2. cannot dispose of them (unless they are partial and particular)
3. waiver is not possible (except partially)
4. not subject to prescription (do not expire, they last a lifetime)

The rights of personality can be classified into:

a. basic rights (life, integrity, freedom …)

b. socially significant individual rights (e.g., right to honor, privacy, name, author’s moral right …)

B. After the Spanish Constitution:

We can say that all the personality rights have been recognized by the Constitution with the name of fundamental rights.

Under the doctrine, between the rights of personality, are not listed in the EC (are human but do not):

• Right to the name
• Moral rights
• Right to sex change (this is discussed, since it is thought that is not a personality right)

Now, as a result of this recognition that the EC does personality rights, have a specific “constitutional protection” and as such must be rated and profiled by the TC.

Moreover, the doctrine is raised if the EC creates a “numerus clausus” fundamental rights to make this count, and understands that the reference in Article 10.2 to treaties and international agreements makes it possible to introduce new rights.

In conclusion, we can say that since the nineteenth century they identified the personality rights by the Civil doctrine, which regards them as a basis of private relationships, but from the moment they are made constitutions are rights protected by each specific state. Then all the personality rights are considered DDFF, but not vice versa.

But also, the 1st section (Articles 15-29) have special protection.

1. The remedy in the ordinary courts. The courts have a special procedure “based on the principles of preferential and summary.”
2. The constitutional protection of the CT through the amparo.

The fundamental rights that have this specific protection twice, the first section of Chapter II (14-29) are more protected by the constitution:

Art. 14 dcho to equality

art.15 dcho to life and physical integrity and moral

Art.16 dcho. to freedom of ideology, religion and worship

Art. 17 dcho to liberty and personal security

Art. 18 D. to honor, privacy, family, secrecy of confidentiality, inviolability of the home, and self-image

Art. 19 d. of freedom of residence and travel

Art. 20 d. freedom of expression, information, creation, production, literary ..

The doctrine arises where these rights are protected and a list open or closed. Some authors say they could include more rights in such protection based on the expressions of Section 10 which speak of the “inalienable rights” that are inherent to the dignity and the right to free development of personality.

Other authors think that this list is closed (numerus clausus) for the art. 53 of the EC considers protected only those currently.

Actually, there are two situations:

a. see a situation not covered in the EC but that is simply the result of some of their rights if they are. In this case, a broad interpretation of current regulations makes it possible to protect this new situation.

b. That the progress of technology endanger the person in areas hitherto unnecessary protection. The authors say they should go to the reference in the art. 10.2 to interpret these rules under the Universal Declaration of Human Rights and international treaties and agreements.

Should be made even a consistent interpretation of the jurisprudence of T. Human Rights.

That yes, these alleged new rights only have the generic protection around the cap. II (triple protection of Art. 53.1) since Article 53.2 is only applicable to situations specifically stated.

Just apply the special protection of the 1st section if it were rights embodied by extension or expansion of the rights of such section.

The limits of fundamental rights

The TC said that fundamental rights are not limited, the art itself. 10 speaks of respect for the law and the rights of others as limitations.

We consider that the DDFF have internal and external boundaries:

a) Internal: result from the content of the right to be and are legal operators – the courts, which define the limits (freedom of expression is not insulting).

b) External: the collision of the right of a person with the rights of others. They can be express limits (as reflected in a statute) or implied (by logical deduction and the actual collision with other rights).

The guiding principles of the Constitution:

Of all the mentioned DDFF should be noted that we consider the guiding principles of the EC

a) The principle of dignity. The recognition of the dignity and free development of personality is a provision for closing a list of recognized rights that allow such broad interpretation of DD and also the criterion to declare unconstitutional any provision that is contrary to that principle general dignity.

b) The principle of equality: it is another cardinal criterion of our legal system established in Article 14CE. Art. CE 1.1 is considered one of the higher values of system (criterion of correctness of individualism in favor of solidarity).

Has a double meaning:

1. Principle limiting or negative: a limit on the performance of public authorities cannot act against.
2. Active and positive: that the Constitution requires to react to the arbitrary actions of public authorities to discriminate against people.

By stating in Article 14 that “all Spanish people are equal before the law” establishes a legal right of the Spanish to be treated equally by government. But this does not prevent the differentiation, for the D. Equality: not only treated equally the same, but unequals unequally.

The STC 14 July, says the proclamation of the principle of material equality real and effective. Assumptions made equal before the legal consequences must be equal.

The doctrine says that to distinguish between differentiation (justified and reasonable) and discrimination have four criteria:

1. Inequality of the factual circumstances. If the situation is also different treatment.
2. The difference in treatment must have a reasonable purpose and must be constitutionally acceptable.
3. It should fit the medium (disparate treatment) to the purpose.
4. Proportional differentiation.

Protection of persons in ordinary legislation:

There are laws (usually organic) that have developed specific constitutional principles and fundamental rights defined. They are a consequence of these constitutional principles, but they are a law outside the Constitution. E.g., meetings law, associations, education.

Criminal protection of the person:

The Criminal C. DD also protects the person. The legislature considered that some violations of DD or securities of the person must have the status of a crime and be punishable by a penalty.

A crime is a typical action (which has a guy on the PA), illegal (which amounts to a breach), guilty (which is the result of gross negligence or willful, intentional), and offense (punishable).

Following the commission of a crime:

a. Sentencing (deprivation of individual rights of that person).

b. Duty to repair the damages (civil liability crime).

Civil Protection: is based on art. CC 1902: “The action that causes injury to another …”

This implies that actions that cause harm are not crimes but also need to be repaired.

The protection by the courts has two functions:

1. Prevent the continuation of the attack (the damage cannot be continued).
2. Repair of damage (monetary compensation which sometimes includes material damage).

3. THE PROTECTION OF PERSONS FROM THE SPANISH AND LEGISLATION CONSITTUCIÓN REGULAR

Article 10 EC: 1. “The dignity, the inviolable rights which are inherent, the free development of personality, respect for the law and the rights of others, are fundamental to political order and to social peace.”

2. “The rules for the DD that the Constitution must be interpreted in accordance with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain.”

This article is twofold:

a. Consistent with the preamble of the EC and Art. 1.1 which proclaim the dignity of the person as the basis of all rights. That was recognized by the TC in the STC 53/85 of 2 April, “The person is the starting point, political, psychological and ontological specification for the existence and rights of others.”

b. But this provision recognizes that the rights have a dual value:

• Basis of the legal order and social peace, it means that the rights of the individual affect us all. So the state should ensure the effectiveness even if the person fails to encourage the protection of their rights.
• They are real individual rights that people have as persons and not derived from the condition of citizens but also ensure the legal status of the person (make up a common status for all Spanish).

The constitutional protection of fundamental rights:

In article 10 of the EC 3 chapters that follow set out fundamental rights.

In Chapter I “From the Spanish and foreigners,” really makes no reference to fundamental rights. Only Art. 13.4 speaks of the rights of asylum.

In Chap. III, “the guiding principles of the social and economic” arts. 39-52. also seems to refer to fundamental rights in that it cannot be exercised as subjective rights. In fact properly speak of guiding principles for state agencies and limits imposed by the legislature so far will be exercised in the legislature.

Fundamental rights are in Chap. II (arts. 14-38) called “The DD and Freedoms” and is heavily protected.

All rights Cap. II have a triple ordinary protection (for both sections):

1. All public authorities will be linked to these on their actions (art. 51.3 CE)

2. It sets aside formal law for the regulation of these fundamental rights, they must do by law is “that in any case should respect the essence of these rights”

3. All these rights are under the control of the action for constitutionality (Article 161.1 EC)