May 16, 2022 2:58 pm

Common good and public interest, purposes of the State

To define the common good, a univocal concept is usually used that reveals a great diversity in his political or philosophical approach. This situation has generated confusion and errors. The common good is not opposed to the autonomy of the human being and does not imply that the enjoyment of goods must always be carried out in common or in community. The essence of the concept tends to the full realization of the dignity and freedom of each and every one of the members of a given community. Even less is it identified with the interest of the State, which, as a superior entity, is at the service of the administered and not the other way around. Statism represents, in all its applications, a false doctrinal principle that is totally opposed to the common good even though, paradoxically, it constitutes the end of the State in political theory.

What the center of all principles lies in the dignity of the human person, the binomial justice and common good would be meaningless if it is not oriented towards the realization of the full autonomy of each and every one of the people that make up the state community. At the level of political theory, with its advances and setbacks, the content of the Rule of Law has been expanded with the contributions from successive typologies: Social and Democratic State, Welfare State and, currently, Regulatory and Guarantor State, which represents the reception of the principle of subsidiarity in this model of State that favors the European doctrine as a central piece of the State of Constitutional Law.

In this conception, the principle of subsidiarity stands as the central rule of State action, insofar as it allows the full realization of the efforts and capacities of people and intermediate groups in society, whose initiatives turn out to be the most appropriate and efficient for the satisfaction of human needs, both individual and collective. The validity and application of the subsidiarity rule is a sufficient and necessary condition in the fight against the pandemic (as has happened and is happening in the US). Otherwise, if all health protection actions are left in the exclusive hands of the State, inefficiency will surely grow, creating an environment conducive to politicization and, in some cases, corruption between rulers and businessmen.

What is common (to each and every person) is not identified with the various senses that the concept possesses, since –by application of the principle of subsidiarity– the common good can coincide both with the public interest (that of the social whole) and with the private interest (that of a part of the whole) and it can even happen that both interests converge in the realization of the common good (eg: private medical establishments, educational establishments, etc.). In other cases, the monopoly of the public force means that ownership of the public interest of the security police and its management must always correspond to the State, due to its incompatibility with the private exercise of said function. No one has yet come up with the idea of ​​privatizing the security police.

In addition to the principles of the first degree constituted by the basic principles, such as life or liberty, other general principles of law that justify particular rules and determinations also interact. The enunciation of some of the general principles of law shows a multifaceted mosaic, which can be summarized in these axioms: the forced sacrifice of the property right by expropriation law must be compensated with a fair compensation that includes consequential damage and lost profits, with according to the principles of commutative justice; you cannot go against your own acts; abuse of the right is not allowed; unjust enrichment requires restitution; contracts are made to be fulfilled (agreements are to be kept); judicial and administrative protection of rights; no one can be a judge in his own cause; the prohibition of invoking one’s own clumsiness; the nullity of fraud and its effects, etc.

Of course, in the field of interpretation, any of them can be repealed singularly by other principles of the common good, but there is no doubt that “they are really principles”, whose enunciation is not exhausted with the table that has been exposed, for the sole purpose of demonstrating the legal substance of a complex matter that cannot be resolved with a simple equation dependent only on positive law, ignoring justice and even less applying the anachronistic ideas developed in the 18th and 19th centuries, whose historical failure is visible to all.

Full member of the National Academy of Law and Social Sciences of Buenos Aires, honorary academician of the Royal Academy of Jurisprudence and Legislation and correspondent of the Royal Academy of Moral and Political Sciences of Madrid

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