According to Our Law

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According to our Law

Sometimes

Legality and justice

Diverge,

So the human heart torments itself.

Not as someone from on high, but as peopleFor people

Legislating is difficult; capturing what is right is unlikely;

The clot that pricks away

At the bottom of the soul persists,

I know, in the kind of order and form

Abuse, andarroganceAre hard to tolerate.

This paragon

Of ours has no end:

what is right

And legitimating remain, clutching

To each other strongly, forever

Mario Luzi

Incapacity and Support Administration:1 Regulations versus Practice

Summary: 1 - Subject of law and different personality: applied practice in the

issue of incapacity 2 - The Basaglia law and the institutive novelty of Support

Administration 3 - Support Administration and subjectivity; a paradigm confirmed 4 -

The new regulation as a blank regulation: the first judgments and their application,

5 Regulating responsibility, shifting focus off the beneficiarys estate [de-

patrimonialization], and safeguarding the interests of the beneficiary. 6 - Applicationprocedures: Support Administration as a transaction subject to judicial approval.

Nature and form of the transaction 7 - New regulations and the social setting of

reference. 8 - Epilogue

1 - Moosbrugger only needed a phrase to define himself juridically.

Moosbrugger was one of those extreme cases that are known outside jurisprudence

and legal medicine even to the laity, as cases of diminished capacity to understand

and desire.2 How often have the practice of law, the master [teacher] and the judge

bumped into a Moosbrugger, Musils symbol of the subjectivity of folly! How manytimes has the legitimacy of justice chafed when facing a Moosbrugger, how many

times has the human heart tormented itself, how many times have they taken up the

poets invitation and tried to act so that justice / and legitimating remain, clutching /

to each strongly, forever? A person stood before them and they vainly tried to look

1Support Administration roughly corresponds to Anglo Saxon concepts of

Conservation and Power of Attorney; since these three concepts are not the same in

definition or in practice, for the purposes of this paper we shall use Support

Administration and Support Administrator to speak about the Italianjurisprudential concept, implementation, and figures. (Translators Note).

2 R. Musil, The Man Without Quality, Turin, 1996, pg. 272

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therein for the individual entitled to rights that were the result of a universalising

conceptual abstraction: the rational individual, bearer of a personal identity that

coincided with the ego or conscience from the moral standpoint, and whose own

identity over time was guaranteed by the continuity of memory, someone capable of

independence and thus worthy of respect, a person endowed with dignity, thepriceless3 individual capable of acting rationally and claiming his or her own rights

based on the stereotype delineated by the jurist who was a white, male, upper class,

landed adult.4 Before them stood a person who not only did not have much health,

but did not have much disease either. Nature has the odd mania of producing such

individuals in abundance; natura non facit saltus, nature makes no leaps, it loves

gradation. On an even vaster scale, it loves to keep the world in an intermediate stage

between sanity and idiocy.5 They could not recognize his being a man because they

vainly looked at him for the stereotype of a subject entitled to rights, and also because

jurisprudence does not provide for this. It says: non datur tertium sive medium inter

duo contradictoria, i.e.: a man is capable of acting illegally or he is not, because

between the two opposites, there is no third or intermediary stage. He becomes

punishable for this capacity, he becomes a legal person who may be punished, and as

such, he may receive the super-personal benefit of the law.6

At any rate, before them stood a man who matched the principles of

competence set by Art. 1 of the Italian Civil Code. According to teachings received at

birth, he was entitled to active subjective situations (e.g. the right to credit) and

passive subjective situations (e.g. the obligation to pay alimony). He was not a homo

sacer,7 i.e. a person without legal competence, since he as a man he was not

connected by the event of the birth to a State (and thus marked for death. This wasthe case of the Jews after the anti-Semitic laws of Hitlers regime; deprived of their

legal competence, they were degraded from people to mere things). He was not even

entitled to what received teaching has always defined special absolute or relative

legal competence, due to his age (capacity to work, entitlement to the guardians

office) sex (contraction of a new marriage, Art. 89 I.C.C.), health (incapacity to hold

certain offices. e.g. guardianship or performing certain judicial activities implied in

interdiction or disabilitation Art. 414 and foll.), or honour (the lack of a good

3 This reviews Thomas Aquinass, John Lockes, and Immanuel Kants notions of

person, which act as a background to the abstract judicial capacity [competence] to be

the subject of rights.4 M. R. Marella,Integrazione Sociale nei disabili, fra normalita e diversita (Social

Integration in the Disabled, Between Normality and Difference), Crit. Rev. Priv.

Law, 1994, 183, 206 following.5 R. Musil, op. cit., pg. 272.6 R. Musil, ibidem.7 When rights are no longer rights of the citizens, then people are truly sacred in

the sense that this term has in archaic Roman law: marked for death. A. Agamben,Mezzi senza fine (Means without End), Turin 1996, pg. 26. By the same author,

Homo sacer, Turin, 1995.

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reputation may entail exclusion from public offices Art. 348 c. IV I.C.C., or from

advantages Art. 440 c. I I.C.C. ) nor was he incapable of acting according to Art. 2

I.C.C. (he was over eighteen years old and he was neither incapacitated nor

interdicted). Who was he?

He was the carrier of one of those 4700 diseases listed in the D.S.M. [?] andhe was not sick enough to be interdicted and he is not enough well enough to do

things by himself.8 He could not be listed among the number of the incapacitated

and interdicted, an insignificant number that says a great deal about the progressive

marginality of these institutions. In 2000 7,817 wardships of adults and 840

trusteeships were listed [in Italy].9 He was neither sane nor sick enough to be

considered incurable; legal psychiatrists are usually much more timorous in their

profession than jurists are. They state that the only people who are really ill are those

they cannot heal. This is a modest exaggeration because they dont know how to heal

the others.10 He was one of those lower quality patients whom the angel of

medicine treated as if they were sick if they came to them as private clients, but that

they fearfully abandoned to the angel of justice if they found them underfoot in

judicial practice.11 That person was definitely sick but he was not sick in a manner

that complied with the positions set by law and acceptable by scrupulous brains. If

you are partially sick, according to [the opinion of] legal experts, you are also

partially well.12 So how should we behave in his regard? He was entitled to

subjective law, the manifestation of the legal competence of liberal systems, the

undifferentiated individual expression of a strong conception of subjectivity founded

on the values of dignity, independence, and immunity... and on a relational approach

which excluded the other, in other words, predominance over the other.13 when hewas compared to that model, he appeared a person14 bearing his own particular

peculiarities of a different individuality, but he was not different enough to deny him

the prerogatives of being subject to law. All the same, he did not respond to the given

8 P. Cendon,La tutela civilistica dellinfermo di mente,La riforma dellinterdizione e

dellinabilitazione (Civil Guardianship in the Mentally Ill, The Reform of Interdiction

and Incapacitation) in AA. VV. edited by S. Patti, Quaderni di Familia no. 1, Milan

2002, pg. 37.9 E. Cal, Support Administration, Milan, 2004, pg. 9.10 R. Musil, op. cit. pg. 273.11 R. Musil, ibidem.12 R. Musil, ibidem.13 M. R. Marella,La soggettivit giuridica e le diversit(Judicial Subjectivity and

Diversities), in Studi in onore di Pietro Rescigno, Milan, 1998, Tomo II, 1, pg. 491.14 People understood in their global reality and the generality of their values and

attributions must liberate the phenomenon of subjectivity from closed, previouslyestablished, and immutable schemes. P. Perlingieri,La personalit nellordinamento

giuridico(Personality in Judicial Regulations), Camerino - Naples, 1972.

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model, a person who established his ego not without others or against the others but

in relationship to others.15

How do we act with a person like this who called into question the

individualistic model of the Civil Code? Jurists often aim their criticisms at received

dogmata, starting with application behaviour. Careful jurists applied an investigativemethodology when facing a fragile person, an alcoholic, a drug addict, or a person

suffering from behavioural illnesses rendered chronic through internment in a clinic,

an old patient and a terminal patient, but even when facing the immigrant unaware of

the markets regulatory principles and rules, as well as the illiterate. This

methodology aimed at getting back to the concrete real experience. Even beyond the

abstract acknowledgments of capacity and subjectivity, the individual was brought

back to her vital dimensions, by a reconstruction that was as faithful as possible to

individual conduct and the conditions which she effectively used to operate.16 This

promoted the value of the person and guaranteed the expression and guardianship of

the various projections and peculiarities of each individual.17

When facing a person of this sort, a jurist who was sensitive to the regulations

openness to the infinite inexplicability [unpredictability] of life18was not just

supposed to surrender to the negativity of the judicial regulation as in Francesco

Sattas fine essay entitledPoetry and Truth in the Notarys Life.19 At the testators

15 Suggestions from E. Lvinas,Difficile libert(Difficult Liberty), Milan, 2004 and

M. Buber,Il problema delluomo (The Problem of Man), II It. ed., 2004. For a

thorough deconstruction of the received model of subjectivity, M. R. Marella, lastwork cit. pp. 490-492.16 A. Venchiarutti, Voce Incapaci (Incompetent Voices),Digesto delle discipline

privatistiche, Turin, 1993, pg. 375.17 P. Perlingeri, op. cit. pp. 123 and following; P. ScalisiIl valore della persona and i

nuovi diritti della personalit (The Value of the Person and the New Personality

Rights); Milan, 1990. Critic A. Falzea,Infermit di mente and problemi di capacit

nella persona, in Un altro diritto per il malato di mente (Mental Infirmity and

Problem of Capacity in the Person in Another Right for the Mentally Ill), edited by P.

Cendon,Esperienze and soggetti della trasformazione (Experiences and Subjects of

Transformation), Naples, 1988, pg. 23.18 G. Canguilhem,Nuove riflessioni intorno al normale and al patologico, in Il

normale and il patologico, Turin (New Reflections about the Normal and the

Pathological, in The Normal and the Pathological), 1998.19 F. Satta,Poesia and verit nella vita del notaio(Poetry and Truth in the Notarys

Life), Vita Notarile, 1955 Satta writes: If it is true that notaries have reality on

hand for their personal use, it is also true that prisoners have the trial on hand for their

own use: this means that at a certain point, peoples inalienable liberty enters into

conflict with the limitation of the law they are called to observe. Even mere

observation justifies their [its] function; it pushes the mysterious encounter of peoplewho speak with those who write. This is where the controversy is born. Since law is

typified and the concrete is infinitely different, nothing can be done.

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deathbed, the Notary rejects what she intuits but she clings to words on the testators

lips, but she is supposed to surrender to the constitutional affermativity of the

biological regulation. She might notice the beatitude of the judicial subject before

her, indifferent to good and evil and thus capable of evoking not life, but a life in the

fullest sense.20

So there she was called to operate in the field of natural incapacityfounded on the persons natural capacity and occasionally made to coincide with the

incapacity to understand and desire. She was called to refer to the cornerstone of this

subject: Art. 428 I.C.C. According to this, actions taken by an incapacitated person

can be annulled in his interest wherever the incapacity is both momentary and

proven, where there is a serious detriment to the person acting; whenever it deals with

the matter of contracts, the ill will of other contracting party is added to the detriment.

There is also a little about marriage (art. 120), recognizing an illegitimate child (art.

266) testaments, (art. 591 no. 3), gifts (art. 775), general contracts (art. 1425), the

capacity of the representative, (art. 1389), responsibility for an illicit deed (art. 2046

with the dispositions of law. 2047 II paragraph) promissory notes [bills] (art. 7

l.prom.) and bank checks (art. 10l. bank checks). It should be stated that when it

comes to natural incapacity, the system did not seem to offer room for interpretation,

of action which encouraged application of the biological principle ofnatura non facit

saltus as Satta testified in his previously quoted essay. On one hand there was the

incapacity to understand and desire and on the other, an undifferentiated capacity

without any kind of gradations. Instead, how could you take into account the

weaknesses hidden by that person she was facing? Should he really be considered

fully competent?

Arming oneself with a medical certificate was not much use against this stillpossible transitory incapacity. As Musil teaches us, the doctor responds to the jurists

request using a hatchet: the capacity to understand is here and incapacity is there.

Tertium non datur.Nothing is said about a disease which is not severe enough to

correspond to total incompetence, unless it is a physical and not a psychological

impediment.

The problem returns to the jurists desk. It returns to her human-judicial

intuition, to the rules of other subjects, and perhaps even to rules of common

experience, proceeding with the investigative method proper to a judicial authority.21

In her recourse to her human judicial intuition when handling shortcomings in law aswritten in the Civil Code, she has to manage Art. 2 of the Constitution 2 which

recognizes and guarantees a persons inalienable rights; Art. 3 of the Constitution

which again confirms the principle of equality; Art. I - 2 of the European Constitution

which sets the values of the Union, including what is dedicated in Art. 1 to Human

Dignity in the Charter of Fundamental Rights of the European Union; in Art. 2 to the

20 Suggestions from C. Dickens, Our Mutual Friendedited by C. Pagetti, Turin 1982,

pg. 562 and G. Deleuze,L immanence : une vie. ., inPhilosophie, no. 47, 1995.21 A. Pischetola,Laccertamento da parte del notaio della capacit di intendere andvolere (The Notarys Ascertainment of the Capacity to Understand and Desire), in

Riv. Not. 2, 2003, pg. 393 and following.

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Right to Life, in Art. 3 to a Persons Right to Integrity, in Art. 4 to the Prohibition of

torture or penalties or treatment that are inhuman and degrading; in Art. 5 to the

prohibition of slavery and forced labour, all in the European Unions Charter of

Fundamental Rights; the skeleton law of February 5, 1992, no. 104 for assistance,

social integration and rights of handicapped people, with later modifications; the lawof May 12, 1999 which dictates the regulations for disabled peoples right to work, as

well as a conspicuous series of treaties, conventions, and international statements.

Although this codex is not exhaustive, it is still impressive: the Universal Declaration

of the Rights of Man of December 10, 1948, the European Convention for

Safeguarding the Fundamental Liberties and Rights of Man of November 4, 1950, the

International Convention on the Elimination of all Forms of Racial Discrimination of

1966, The Convention on the Rights of Children of November 20, 1989, the

Convention on the Elimination of Every Form of Discrimination Against Women, the

Declaration on the Rights of the Mentally Retarded of December 10, 1971,

supplemented with the Declaration of the Rights of the Incompetent of December 9,

1975, the Convention for the Protection of the Rights of Man and Dignity of the

Human Being in the Application of Biology and Medicine. The rules of countries

whose judicial culture is similar to ours,22 manage this system of Regulations,

Conventions, Treaties and Convention. These have substantially implemented

differential arrangements of civil protection which are used to put an end to the

schematism used to associate profoundly different situations, under the same label of

incompetence so that it can be inferred to the tendency that leads to placing the

human person as a whole at the centre of the new systematology.23 This tendency

has been clearly explained by Rossana Lenzi in her paper on to the subject in thisvolume.

Such a manoeuvre was certainly likely to take received assumptions about the

issue of subjective rights and turn them inside out like a glove. This was especially

true of the idea that the yardstick of will, of interest, could not and should not be

bent to take into account the life experiences of exceptional subjects when

compared to the norm [regulation/accezione legale, norm accezione sociale-tecnico],

a norm that rarely was openly discussed.24 Given the absence of institutions

established for this need, those principles needed to be implemented by breaking

down subjective law into the narrow margins allowed by the set of regulations: trusttransactions and especially indirect representation (so-called management

22 As to the reception inside the Regulation System of the principles proper to similar

civilizations, even if lacking in internal comparison, see. Cass. 5 April 1984, no. 2215

and 8 January 1981, no. 189.23 A. Venchiarutti, headingIncapaci in diritto comparato (Incompetent People in

Comparative Law, inDigesto della Discipline Privatistiche, Sezione Civile, Turin,

1993, pg. 386. For an updated comparative list see also E. Cal, op. cit. pg. 23

following.24 M. Graziadei,Diritto soggettivo, potere, interesse(Subjective Law, Power,

Interest), in Trattato Sacco, 2,Il Diritto soggettivo, Turin, 2001, pg. 60.

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interposition or trusteeship) and managing others affairs, i.e. direct representation

where the separation of right and power to manage, is more pronounced in the first

case and subtler in the second.25

Thus, we have the case of the brother who is the sole relative of the

misanthrope living in a barn on the mountain who has received an order from thetownship to remove the peril of the collapse of the roof of the house that faces a

public road. His legal counsel recommends taking care of the matter by assuming the

management of the affair found in Art. 2028 and following, likewise stipulating a

transactional document with the neighbour of the house who threatens to sue. Thus,

the well-known singer is voluntarily subjected to psychotherapeutic treatment to end

his abuse of drugs. The pharmaceuticals which the therapeutic cycle itself imposes,

[imposes also] the management of his assets by a third party. Based on a suggestion

of the legal expert [to whom he turns], he grants his mother and single sister a general

power of attorney so that they can jointly take care of his interests. This is how the

elderly mother relegated to a wheelchair and congenital weakness for problems due

to her age which prevent her from taking care of herself, grants a general agency to

her four children to handle her assets with the faculty of sub-delegation. The children

grant one person a power of attorney to perform the actions of ordinary

administration. This way the patient in a mental hospital who is (presumed) incapable

of behaving independently outside those walls but not interdicted legally, grants a

general power of attorney to his only brother for the management of his assets. Thus,

the division of an inheritance between two brothers, one of whom has a slight

psychological handicap is concluded by his lawyer to whom he had granted a

mandate to help him in the division. This way the immigrant who is alien to theinternal judicial system, gives a power of attorney to her cousin who has been a

resident for some time, to purchase her house. Thus also the illiterate person is spared

reading the loan document with the consequent necessary and perhaps inexplicable

explanation of the several acronyms and expressions in English which the lending

bank uses to set the rate of conventional interest, not to mention the countless clauses

required in homage to the so-called principles of transparency, (which translate into

opacity in this case), by granting a suitable power of attorney to his son.

Sometimes the tutelary judge encouraged application of practices of this sort.

By turning to Art. 35, 6th paragraph of law 833/1978 which authorized her to assumethe measures necessary and urgent to conserve and administer the assets of a mentally

ill person. Regardless of the obligatory health treatments underway, she authorized ex

post facto the person who has assumed the burden of caring for and assisting the sick

person by recourse to negotiorum gestio.26

25 On the dissociations between subjective law and interest in the case of property on

trust, see M. Graziadei, op. cit. pg. 73 and following.

On the separations between law and power to manage, R. Sacco, Lesercizio deldiritto (The Exercise of Law), in Trattato Sacco, Il Diritto soggettivo cit. pg. 289 and

following.

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This all happens when examining a person who may be fragile; although he

does not fall under the standards usually used to ascribe normality, but he is not felt

capable of understanding and desiring. Thus the elderly lady brought in a wheelchair

before the notary to reject her inheritance from her [deceased] son in the company of

her numerous children, who interrogates her with the circumspection proper to aninvestigation conducted on an elderly person of supposed fragility, and the response

he receives is a strong, clear: No, never and again never, I want my sons share.

With this, the act of renouncement is quickly converted into an act of accepting the

inheritance. It is also this way for the son whose invasive mother accuses him as

having an uncertain capacity to desire. He appears before the notary to stipulate an

act of sale in an apparent state of subordination to his mother. Once the mother is

silenced and he is interrogated about the means of payment in the act to be effected,

he throws his arms to the skies and gives thanks. He is granted momentary liberation

from the maternal yoke, demonstrating that he knows how to oversee the operations

under way with uncommon acumen and wisdom.

Abnormality is often the result of a prejudice; thus the need to know how to

listen as a jurist who often has no time and desire to assume the burden of being

helpful.

This also requires that she not only listen, but she must also take into account

the comparison between competent and incompetent people concerning the

abnormality proper to the person with (presumed) attenuated capacity, which the

most sensitive doctrine has been forming over time.

We must think about performing acts which involve an advantage produced

solely for the agent,"27 such as real acts when they are resolved in an activity of amaterial nature (such as specification, occupation), many non-transaction statements

(treasury overdraft, request for transcription), as well as sentences of judgments and

desire which the law requires of minors (arts. 348,2 co., 363 I co., 371 no. 1 I.C.C. )

as well as those relative to performing the minute acts of daily life, including the use

of public services,28 in addition to performing purely receptive acts within the limits

of the regulations found in Art. 1190 I.C.C.29

26 A. Venchiarutti, Protection of the disabled and interventions of the tutelary judge

(note to the decr. Giudice Tutelare Pret. Pinerolo 14 December 1996,Dir. Fam. pers.

1997, 4, I, pg. 1486. Compliant : Milan Tutelary Judge, provv. 18. 6. 1985 inNuova

Gir. Civ. Comm. 1985, I, 622. The disposition in the text states: Whenever

necessary, the tutelary judge shall adopt the urgent measures which may be needed to

conserve and administer the sick persons assets.27 A. Venchiarutti, op. cit., p. 371-372, who quotes Falzea, Arena, Giunta and

Rescigno.28 Again Venchiarutti, ibidem, who quotes Falzea, Bianca, Cendon.29 P. Rescigno,Incapacit naturale and adempimento (Natural Incompetence and

Fulfillment), Naples, 1950, pg. 240.

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2 - Franco Basaglia , the putative father of psychiatric institution reform in

Italy, followed with the law of May 13, 1978 no. 180, managed to convince the

political sphere, and especially the Ministry of Social Affairs which proposed the

law, to rewrite Title XII of Book I of the Civil Code, providing for the introduction of

a Support Administrator. Adriano Bompiani, acknowledged that this law: At anyrate constituted a decisive change for defining the problem: it was no longer the

defence of society against disorder even of wealth, created by the mentally ill

person, but the recognition of a right to health and constitutional guarantees for the

mentally ill person as well.30 So, the School of Trieste coordinated by Paolo

Cendon31 worked hard on the foundations that laid out that reform, proposing the

creation of a structure that could offer all the tools of assistance and defence needed

by people who found themselves going through a crisis, abandonment and ineptitude

for a short or long period.32 The idea was a measure and recourse for anyone who

needs protection in performing the acts of civil life (art. 12 draft), applicable not only

to the person suffering psychologically, but also to the elderly, the physically

handicapped, the long term hospital patient, the prisoner, the subject committed to a

judicial psychiatric centre, a subject devoted to the consumption of alcohol, and the

drug addict.33 Cendons laudable activity alone did not inspire Bompianis relation;

there was Pietro Perlingeris thought that the permanently psychologically

30 A. Bompiani,Lamministratore di sostegno a favore di persone impossibilitate a

provvedere alla cura dei propri interessi, Ragioni giuridiche ed etiche di una recente

iniziativa legislativa (The Support Administrator for People who Cannot ManageTheir own Interests. Judicial and Ethical Reasons of a Recent Legislative Initiative),

inMedicina e morale, 1993, 6, pg. 1171 and following.

This is bill no. 2571 sent by the proposing Ministry to the Chamber of Deputies on

April 23, 1993. The text with the report by the Proposing Ministry was published in

Rass. dir. civ. 1994, pg. 206. This bill was followed by 448 on an initiative by senator

Perlingieri, presented to the Senate on 21 June 1994; bill no. 776 presented by

Minister Guidi on 10 August 1994, reproduced the Bompiani text; Bill 960 whose

first signer was Giacco on May 16, 1996 and bill no. 4040 initiated by the

government, presented on July 24, 1997(the so-called Turco bill). Although there

were some modifications, it was based once again on Bompianis project. These two

proposals merged in the unified text of the Commission of Justice (spokesperson

Maggi) presented to the Presidency [Chairmanship] on October 1998. This was then

followed by bill no. 340 of May 30, 2001 on an initiative from deputies Giacco, Duca

and Ruggeri and bill 69, first signer Turco, on June 2 2001. The last bill no. 2189s

text was approved by the Senates Justice Commission on December 21, 2001.31 A Bompiani, ibidem. Cendon advanced a proposal in an essay published in 1987, P.

Cendon,Infermi di mente ed altri disabili in una proposta di riforma del codice civile

(The Mentally Infirm and other Disabled People in a Proposed Reform of the Civil

Code) Pol. Del Diritto, 1987, pg. 621 and foll.32 A. Bompiani, ibidem.33 A. Bompiani, ibidem.

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handicapped individual presents a personal pathological state characterized by a

stability influencing his competence in performing a series of acts, activities, and at

any rate, the possibility to develop his personality adequately and freely or

normally.34 In the wake of this thought, Bompiani concluded that the basic concept

to assume is that a person has the right to participate in the life of relationshipsaccording to how competent he is to do it. This is of course, not just a judicial

principle, but a crystal clear ethic principle.35

This conclusion of a very long and hard fought legislative process was the new

law instituting Support Administration; it was approved January 9, 2004 col no. 6 and

published in Official Gazette no.14 of January 19. Its advocates saluted it as a

reform that is destined to affect profoundly the everyday life of people with

disabilities and their families.36 So it would seem first of all that Musils

Mossbrugger would be considered as a person to all effects: nature and law finally

would combine, the tertium which finally datur. The judicial normative paradigm

received from Musil seems to have been deconstructed (by the legislator!): the

judicial regulation set a behaviour code prior to its implementation. It had to provide

for the possibility of deviation in life and thus sanctioning it. Here the judicial norm

was replaced by the biological norm which coincided with the vital condition which

manifested the norm of life of a human organism was given by the organism itself,

contained in its existence... the norm of human organism coincided with itself.37

Support Administration tends to provide the subject which does not correspond

to the habitual standards of competence although not sick enough to be declared

incapacitated or interdicted, an operational tool that recognizes his subjectivity,

promoting his complete fulfilment as a person.Three institutions cohabit in not sick enough to be declared incapacitated or

interdicted, although they are the tributaries of differing philosophies [I would

suggest using numbers, 1, 2, 3 to clarify the phrase which follows]: those of

interdiction or incapacitation as regards diversity which are protective of nuclear

[familial] or expanded society, the newly coined one, promoters of the different

person. As well known to people who have been subjected to it, the pronouncement

of interdiction entails the total loss of their capacity to act, a sort of civil death of the

psychological sufferer38 who is completely removed from judicial traffic and entirely

34 P. Perlingieri,Diritti della persona anziana (Rights of the Elderly), in P. Stanzione

(edited by)Anziani e tutele giuridiche, Naples, 1991, pg. 81 and following.35 A. Bompiani, op. cit. pg. 1187.36 P. Cendon,Finalmente lAmministratore di sostegno (Finally the Support

Administrator) inMobilit no. 31, www. mobilita. Com/rivista/31/sostegno. htm.

E. Cal, op cit., pg. 1, quotes Victor Hugo on the approval of Law no. 6/2004,

instituting Support Administration: Nothing is stronger than an idea whose time is

ripe.37 G. Canguilhem, op. cit., pg. 206.38 G. Colacino,LAmministratore di sostegno and il diritto dei disabili. Profili

ricostruttivi ed attualit di unattesa riforma (The Support Administrator and the

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replaced by her legal representative in performing acts, based on the [Italian] model

of tutelage. Instead, incapacitation entails only partial loss of the capacity to act and

the activation of a mechanism, which is not substitution but necessary assistance just

for certain categories of acts, those of so-called extraordinary administration

according to the [Italian] guardianship model.39

These start with the supposition ofabsolute incompetence of the subject, but she is then acknowledged as having a

graduated capacity to act which grows little by little as her health conditions or

capacity to understand, come closer to the standard of normative normality.

Thus, there is a shift from the civil death of interdiction to the limited independence

of incapacitation. Art. 1 of the law introduces Support Administration in Paragraph I

in title XII of the first book of the Civil Code and vaunts the revolutionary finalities

of the new item compared to the codes paradigm of incapacitation: The present law

aims to insure, through temporary or permanent interventions of support in the

individual sphere and that of relations, the best protection of the quality of life,

dignity, needs, and interests of people who are wholly or partially lacking in

independence in performing the functions of daily life. The subject of State

protection is no longer the familial society or the expanded society, guaranteed

protection from the perils inherent in the deviancy of subjects who do not meet

the standard of normative normality. These have been promoted to subjects to all

effects, whose (quality of) life becomes worthy of defence from the personal

standpoint (the dignity evoked by the Constitution and norms of this rank40), from the

point of view of assets (the needs which refer to an equality not merely in income but

economically),41 and a judicial standpoint (such as subjects that are the holders of

legitimate private interests).42

Rights of the Disabled. Reconstructive Profiles and Reality while Waiting for the

Reform), 2, 8-9, 2002, pg. 1218.39 Regarding the institutions of interdiction and incapacitation, see A. Venchiarutti,La

protezione civilistica dellincapace (Civil Law Protection of the Incompetent

Person), Milan, 1995.40 A moral right makes itself into a legal right. The person who is placed at the

center of regulatory activities is a founding factor of rules that can be ascribed to

biological affirmation and not to regulatory negativity. Dignity precedes will; being

prevails over having to be. S. Semplici,La persona, la bioetica e due dizionari (The

Person, Bioethics and Two Dictionaries), inFilosofia e Questioni Pubbliche, 1, 2004,

pg. 104 and following. R. Esposito,Bios, Biopolitica e Filosofia, Turin, 2004, pg.

209.41 A. K. Sen,Dalla diseguaglianza di reddito alla diseguaglianza economica (From

Inequality of Income to Economic Inequality), inLa diseguaglianza. Un riesame

critico, Bologna, 2000, pg. 210 and following.42 L. Bigliazzi Geri, heading Interessi legittimi (Legitimate Interests), inDigesto

delle Discipline privatistiche, Sezione civile, 1993, pg. 527 and following. Legitimateinterest is therein defined as the substantial situation of advantage (because it aims at

pursuing on the substantial level, a favorable, coherent result, according to

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Further normative indices of such a revolution would be modification of the

list in Title XII of the Civil Code. This has changed from Mental infirmity,

interdiction and incapacitation into Measures to protect people wholly, or partially

lacking in autonomy. This demonstrated a further indication of a changed legislative

sensitivity to diversity as well as some modifications made to the regulation ofinterdiction and incapacitation. The index of Art. 414 first of all appears in relief; it

has been modified from people who must be interdicted to people who can be

interdicted. This eventuality is confirmed by the text of the disposition under

examination where the (abstract) obligation of interdiction can be attributed to the

phrase must be interdicted is replaced by the option of assuming such a measure

can be attributed to are interdicted wheresollen (should [to have to mussen])is

replaced bysein (to be) [a me sembra che venga sostituita da knnen- to be able] . It

further emphasized that this option can only be exercised in the exclusive interest of

the different people, to ensure their adequate protection. Here it is the different

person who is protected from the familiar or expanded society and they are not

protected from her diversity. This implicitly recognizes the abnormal, logically

second, is essentially first,43 that diversity should be protected because it is the

constitutional condition of the normal. Even the civil death of the disabled

person, or the civil absence of the incapacitated are released from the received

limitations from the viewpoint of capacity to act. Sentences which pronounce

interdiction or incapacitation may establish that certain acts of ordinary

administration can be performed by the interdicted person without intervention or

with the assistance of the guardian or that certain acts beyond the pale of ordinary

administration may be performed by the incapacitated person with the assistance ofthe []guardian as provided for in the new text of Art. 427.

Thus the interdicted person may be allowed to perform acts of ordinary

administration; the incapacitated person, of extraordinary administration. And that is

not all. According to the next text of 418: If in the course of the judgement of

interdiction or incapacitation, or in the recourse to guardianship or tutelage

[trusteeship], application of Support Administration {sic} appears opportune, the

judge, the court, or upon petition from the party, prepares to send the procedure to the

tutelary judge. This extends the option of commutation from one form of (in)

capacitation to another even during the course of one of them.44

conservation or modification - and therefore also extinction of a given legal reality)

that is inactive (since though it is directly protected as the subjective right, its

satisfaction does not depend on the behavior of the subject who aspires the absence

ofagere licere but on that of a different subject, the person entitled to a situation of

right or duty - rectius potest).43 G. Canguilhem, op. cit. pg. 206.44 Such ius commutandi is also sanctioned by Art. 413 which regulates the

revocation of Support Administration whenever the judge who decides on thecessation of the Support Administration has the power, whenever she thinks she must

advance the judgment of interdiction and incapacitation, to inform the Public

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Can all these dispositions legitimate the assumption that following the

legislative institution of Support Administration absolute incompetence is lacking

and that the incapacity to perform certain acts is the exception and the capacity to act

is the rule?45

3 - Liberating the different person from the institution that protects society

from his or her diversity is no small issue. Franco Basaglia knew this when he wrote

Lets ask what it means if Pirellas patient in Arezzo or mine in Trieste go around

town. Has the whole community accepted this situation or is there an ongoing crisis

in the city?46 Further on he writes: When we say that the institutions charged with

treating certain suffering have no reason to exist, we are the troublemakers for the

city.47 Destroying the relegating institutions may be dangerous. Basaglia indeed

continued: What counts is that when we demonstrate that it is false that the insane

asylum helps treat people because we can reinsert these people in the social

environment with negotiating power, the situation becomes a crisis.. () We are

asking for the assurance that the control is not missing. At this point, there is no link

between reality and the situation of liberation that we are offering through this

practice. () In substance, the problem lies in the fact that the State cannot

reorganize because its structural logic is still not ready to handle these problems.48

When it does manage to reorganize, the problem appears anyway, because there is a

strident note between the relegating institutions and the liberation movements. The

price to pay is still safety [security], immunization from the danger of diversity.

Basaglia concluded: The social organization accepted the new discussions of

liberation because it is evident that the insane asylum institution cannot survive in acivil society, because concentration camps are stigmatized, because Pinochet is

evil, and torture does not work... But there must be another way to handle these

things.49 Nietzsches warning echoes in the background: There is nothing,

Prosecutor so that he will take care of it. This is just like Art. 429 which decides that

the Court, when revoking the interdiction or incapacitation whenever this appears

opportune, can send the minutes to the Tutelary Judge for instituting the Support

Administration. E. Cal op. cit. pg. 7, regarding such a ius commutandi spoke

about the revolving door of incapacitation.45 Commission of Civil Law Studies of the National Notarial Council, Study, 4858

approved on January 20, 2004. It is clear that the Study continues to state that the

capacity to act may be restricted within minimum limitations, although it may not be

expunged from the subjects legal sphere.46 F. Basaglia,La nave che affonda. Psichiatria and antipsichiatria a dieci anni da

Listituzione negata: un dibattito (The Sinking Ship. Psychiatry and Anti-

Psychiatry Ten Years after The Denied Institution: A Debate), Rome, 1978, pg. 28.47 F. Basaglia, op. cit. pg. 46.48 F. Basaglia, op. cit. pg. 47.49 F. Basaglia, op. cit. pg. 68.

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following, which damages liberty so terribly as liberal institutions50 alongside

Foucaults considerations on liberal institutions which runs: Liberty must be

produced with one hand but this same gesture implies that limitations, as well as

controls, constrictions, and obligations based on threats are established with the other

hand,.51

After almost twenty years of debate, the political organization has accepted the

idea that regulations about the capacity of the different person be modified because

they could no longer survive in a civil society. However, it did not want nor was it

able to ignore Machiavellis observation that: A small part of them (people) want to

be free to command, but all the others, who are infinite, want libertyso they can live

safely.52 On the request to live immunized from the peril of diversity [verb?].

Thus, we have not forgone renouncing absolute incapacitation nor even the

limitations of the capacity to act except in enunciations of the principle.53

The paradigm of reference, that of normality, has been affected: I would dare

state just the opposite of what the first enthusiastic comments of the new regulation

have brought forth.

What was actually regulated by turning to habit has sidled up to normative

regulation, without forgoing the idea of absolute incompetence and the limitations of

the capacity to act.

We have put our hands on a bottom up scale from natural (in) capacitation to

absolute incapacitation, and top down, from interdiction to natural (in) capacitation.

Interdiction and incapacitation are anything but relics; they are current tools of

regulation. Even the regulation of these institutions have become the default

regulations of Support Administration (art. 411).Laura Cosmai, an attentive, sensitive judge, highlights the obligation placed on

Social Services to inform the Public Prosecutor [Ministry] of the people who should

be nominated as a Support Administrator, also due to its profiles of possible

50 F. Nietzsche,Il crepuscolo degli idoli(The Twilight of the Idols), in Opere, Milan,

1964, vol VI, 3, pg. 142.51 M. Focault,La question du liberalisme (The Issue of Liberalism), unpublished text

taken from R. Esposito, Bios, cit, pg. 75.52 N. Machiavelli,Discorsi (Discussions), I, 16, in Tutte le opere, Firenze, 1971, pg.

100.

Roberto Esposito comments on this by speaking of the immunization paradigm as a

skeptical experience of modern woman who seeks shelter from life in the same

powers that prohibit her development, R. Esposito, op. cit. pg. 54.53 In the solemn declamations of the finalities of law, value is given to the moment

that rights are enunciated; this appears detached from the regulation of exercising

them. Rights represent the emergence of a pre-political dimension and continuing to

speak about it as is the case, risks provoking their total incomprehension as we dotoday keeping clearly in mind the irrenounceable model of the State as a sovereign

protector, P. Grossi, Introductory Page, Quaderni Fiorentini, 2001, pg. 11.

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unconstitutionality.54 This penally significant obligation burdens Social Services with

a task of vigilance on diversity. Such a diversity also imports a branding

through an advertising system whose cogent and invasive character is probably at

odds with the rights to privacy and whose effective usefulness and concrete

applicability are disputable.55

Getting back to Basaglia, there must be another way to handle these things, but

it is not the way of this legislative novelty. Thus Paolo Grossi defines the other way

no longer just the State and no longer just the economic individual, but also the

person and the united community where the person is integrated. It is no longer just

abstract personal liberty that rewards the haves, but just as much the collective

liberty which supplies the have-nots with a dignity that is not high falutin and

verbal but actual.56

4 - If the new law does not manage to (and perhaps cannot) abandon the

immunity paradigm of liberal slant in terms of normative techniques during the

search for an approach to diversity, it presents itself according to the state of

exception as defined by Giorgio Agamben: The state of exception appears as the

use [opening of the ordering] of a false deficiency to safeguard the existence of the

regulation and its applicability to the normal situation. The deficiency is not within

54 The obligation to indicate does not exist for any cases of interdiction or

incapacitation.55 As Alberto Forte notes in his contribution in the book.56

P. Grossi, op. cit. pg. 12 mentions an order of the day of Dossetti for the [membersof the persons constituting] assembly: The necessary sociality of all people...

destined to complete itself and perfect itself by reciprocal economic and spiritual

solidarity, first of all in various intermediate communities, see in G. Dossetti,La

ricerca costituente (The Search for the Constituting Party), Bologna, 1999, pg. 104.

Even after the institution of the Support Administration, a persons actual dignity

should be safeguarded by expunging from the list of [a] considerable [number of]

similar things from this standpoint: those that can pass as recourse to the transaction

tools that are proper to the separation of law and the power to administer as discussed

in the first section of this essay.

Support Administration does not represent an alternative to transaction tools

(mandate and proxy) which a person - who finds himself in situations of physical

mutilation or incapacity, and is thus physically unable to manage his own affairs

directly although he appears perfectly compos sui, should use to take care of his own

assets. The regulation being examined does not even allow any perplexity about this,

because it must prevent the private person from being allowed to renounce, based on

an evaluation of his competence, the completeness of his own capacity to act. In

practice this would translate into the petition that aims to obtain for himself the

benefit of the Support Administration, if it comes from a person who is found in the

conditions described. G. Bonilini,La capacit di testare and di donare delbeneficiario dellammnistrazione di sostegno (The Support Administrators Capacity

to Will [Test] and Donate), inLa famiglia, 1, 2005, pg. 3.

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the law, but concerns its relationship with reality, the very possibility to apply it.57

To tell the truth, in our case we go beyond paradigm of the state of exception, we

make legislation of exception. The deficiency is within the law, this is not some

pre-constitutedfictio finalised to apply the law to reality. The gaps in the regulation

are not false, they are real, and the regulation is not applicative. The measure tonominate a Support Administrator must contain the indication of the object of the

charge and the acts which the Support Administrator has the power to perform in lieu

of the beneficiary, and the acts which the beneficiary can perform only with the

assistance of the Support Administrator (art. 405 nos. 3 and 4). Thus the tutelary

judge is left to create on his own, the object of the administration also through the

indication of the acts which the beneficiary may perform alone (i.e. residually, Art.

409). In other words, these are the acts which the administrator has the power to

perform as a substitute or in compliance.

The regulation has neither an operative nor an imperative character: it is a

blank regulation. Whenever the judge does not want to apply exclusively her

power to58in making decisions, she can use the default regulation of Art. 411. It

declares that as far as is compatible, certain kinds of dispositions in guardianship

and tutelage can be applied to the Support Administrator, and that he may act so that

certain effects, limitations or deadlines provided by the legal dispositions for the

interdicted and incapacitated person, can be extended to the beneficiary of the

Support Administration. In performing his duties, the Support Administrator is not

required to adhere rigorously to the judges regulation since he must take into

account the beneficiarys needs and aspirations. The judges regulation here is

likely to become the beneficiarys life regulation. Whenever the administrator isnegligent in meeting these needs and aspirations, she can petition (along with others,

among them the Public Prosecutor!)59 the tutelary judge who shall take opportune

measures.

This then is a blank (judicial) regulation which could become a regulation of

(full) life. Agamben writes: The state of exception is the mechanism which must in

the last instance, clearly state and unite the two features of the judicial-political

machine, instituting a threshold of indecisiveness between anomie and nomos,

between law and life, between auctoritas andpotestas () But when they tend to

coincide in just one person, when the state of exception which links them and makes

57 G. Agamben, Stato di eccezione(State of Exception), Turin, 2003, pg. 42.58 The State of Exception is a space of anomie, where the wager is force of law

without the law, G. Agamben, op. cit. pg. 52.59 A Public Prosecutor whose tasks should be imposing respect of imperative

regulations in the publics interest, is here called to do her duty for non-regulatory

reasons. In philosophy these would be called esthetic reasons: impose thesatisfaction of the needs and aspirations (!) of an individual: the need for

unpolluted air, the aspiration to participate in a reality show!

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them indeterminate, becomes the rule, then the judicial political system becomes a

lethal machine.60

So it was the sole reference to care of the person found in Art. 405 regulating

the ruling of the nomination of the administrator. This has allowed the tutelary judge

to issue measures about consent to medical treatment with which he has nominated aSupport Administrator [nominated himself a Support Administrator] solely to express

consent to medical treatment attributing to him the power to express consent in

name and in lieu of the beneficiary,61 where expropriation was possible (for damage

to a sick person) of his constitutionally guaranteed right,62 i.e. the slavish deferment

to the distinction between acts of ordinary and extraordinary admiinistration which all

the first commenters on the new regulation assumed was obsolete. The first provision

published, established that the acts of ordinary and extraordinary administration shall

be performed by the administrator as a substitute and in cooperation with the

beneficiary able to perform these acts in full autonomy. Whenever he used the wide-

ranging faculties conceded to him by the creation of the legislative regulations left

blank, the judge created a hybrid between the application of the default regulation

concerning interdiction and ascertainment based on the subjects natural capacity (!)63

Finally, the nature of the acts to be performed by the person being interdicted,

(regardless of the consideration of the state of discomfort which she found herself in)

leads the body [Court] to transmit the procedure to the nomination of a Support

Administrator.64

60

G. Agamben, op. cit. pg. 110.61 Rome Court, Prima sezione civile, Decree of March 19 2004.62 For more information, see the opposite position in Laura Cosmais contribution in

the book. She states: It is not possible to replace yourself in the beneficiarys desire

when lending consent to a health treatment which this person has knowingly rejected

and rationally not desired since this would violate a constitutionally guaranteed

principle (art. 32, Const.).63 Parma Court, Decree Nominating a Support Administrator, in E. Cal, op. cit. pg.

165.

See Laura Cosmais contribution in the book on the concepts of assistance and

representation, in other words assistance alone with the consequent exclusion of

imaginative hypotheses such as the one considered.64 Order of the Modena Court, Sez. II civile, November 15, 2004 Given the need of

the person being interdicted to manage her own checking account and collect her

pension, it would appear that nominating a Support Administrator, as long as it

works [she goes], who is therefore willing the transmit the acts to the tutelary judge

seems to represent the measure that is suitable to fully safeguard the beneficiary.

Free will is also expressed in substituting the legislator, setting application principles

of an abstract and general nature when drawing up the measure of a nomination,

which lay aside the matter in question submitted to the T. J.s examination.As in the case of the Pinerolo Court, Decr. Of November 9 2004 which can be read in

N. G. I.C.C., 1, 2005, pg. 1, there is a tendency to motivate the following principle,

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5 - These are the consequences of this singular legislative muddle which

obeys the rights fixed in the immunity paradigm on the point of sovereignty, and

the anomic paradigm on the point of the legal technique of the state of exception.

In point of law, diversity from the regulation standard is even more marked by the

fact that when it comes to the responsibility of the different person, the possiblebeneficiary of Support Administration, nothing is new. Articles 2046 and 2047 were

not touched by the reform and this is even more singular if you think about the state

of attenuated capacity in which the beneficiary finds himself and the figure of the

Support Administrator that can be defined as a person destined to supervise, just by

looking case by case at the nature of her task and the functions actually performed.65

The state of the different persons substantial irresponsibility already

criticized prior to the reform,66 today has become more than a sign of the merging of

regulations being reviewed in the field of insatiable rights,67 the hallmark of an

unforded crossing of individual diversity towards collective diversity.68 It is no

stated at the beginning of the measure: After the Law of January 9, 2004 no. 5

became effective, no mentally infirm person incapable of attending to his own

interests must be interdicted where the writers exegetic aspirations try to rise to

regulatory dignity.

Among other things, the measure is positively annotated by A. Venchiarutti.

An exhaustive catalogue of the judicial measures (and some disorientations) about

this subject can be read in the present book, edited by Maril Agresta.65

This issue is raised by S. Patti, Introduction, inLa riforma dellinterdizione anddella inabilitazione (The Interdiction and Incapacitation Reform), Milan, 2002, pg.

23.66 S. Patti, Once again in favor of civil law for the incapacitated (and on its

innovation, of the opposite sign, of the French Regulation System), inRiv. dir. civ.,

1983, 2, pg. 642.67 Law cannot be found inside a network, even one populated with obligations, P.

Grossi, introduction, cit. pg. 10 which quotes A. Pintore,Diritti insaziabili

(Insatiable Rights), in Luigi Ferrajoli (edited by)Diritti fondamentali, Un dibattito

teorico (Fundamental Rights, A Theoretical Debate), Rome-Bari, 2001, pg. 179. Here

law is truly insatiable not because it is founded outside political mediation, which

Pintore criticizes, but because politics renounces its mediation between the individual

and the collective dimension.68 The perception of individuality is trans-individual; it has an internal (psychological)

and an external (collective) dimension. The relationship between the individuals

taken in their private dimension, which is seen as other by society, is proper to the

sick person (the social substantiates itself into society for the delinquent and the

alienated), to people who do not have a clear perception of their own individuality. In

the case of a possible beneficiary for a Support Administration, whoever might not

have a full and yet acceptable perception of her own collective individuality, mayfind the institutional dimension, which rejects her image of individuality and removes

her responsibility, inexplicable. In other words, the collective dimension of

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accident that for some time now, even the meaning of therapeutic for the different

person 69 indicated a state of full responsibility and not just indemnity.70

The anomic paradigm (which is actually manifest even in the field of

responsibility), finds itself fully in the battle against the purely assets based concept

of the different persons interests, the estate which is counterpoised against theidea of the different persons personality in its various and diverse meanings.71

This may overlook the fact that the passage from status to contract only

meant [does not mean] the extension of the immunitary prerogatives due to the

corpus which the individual was part of, to the co-partners in general [verb?]:72

depersonalisation was the price to pay for such an extension of rights that came to

assume a marked assets-based valence due to the central role assigned to the

contractual exchange of the regulation system. It is no accident that regulations on

individuality is outside and beyond Foucaults (and Basaglias) institutional discourse

and the law on Support Administration.

In this dimension, the collective cannot be disassociated from a modality of relation

to itself or better a relation of something with itself, which conditions another

modality of relation to others, compared to the relation of the game regulated by the

inter-individual social relationship.

Not all of this could be included in a law which is the place where social rules are

institutionally formalized.

It also could not and cannot be included in forms of anti-institutional protest, whichwere the backdrop of Law 180 and this reform.

This is perhaps the dimension searched for (vainly!) by Basaglia: There must be

another way to handle these things.

On this issue, see: G. Simondon,Lindividuazione psichica and collettiva

(Psychological and Collective Individuation), Rome 2001.69 P. Cendon, Civil law guardianship of the mentally infirm inLa riforma (The

Reform), cit., pg. 41, states: Responsibility is the necessary price to pay for social

acceptance. According to G. Visentini,I fatti illeciti, 1. Ingiustzia del danno-

Imputabilit (Illegal Facts, 1. The Injustice of Damage-Assignabiilty), 1987, pg. 497,

new attention for this tool which would have been therapeutic since it made the

incapacitated person responsible for his assets, would be desirable.70 For focus on the state of the responsibility of the Support Administrator, read

Carmelo Fontana and Maril Agrestas contribution in this book.71 G. Colacino speaks about the asset approach (which permeates the whole Civil

Code) that prevails once again in the cases of guardianship and valorization of the

human person, quoting E. Russo, P. Cendon, C. M. Bianca, P. Perlingieri, G. Lisella,

F. D Innella.72 From this point of view, it is important to be careful not to distort the real sense of

the battle against individual or collective immunities fought by modernity as a whole.This is not a reduction of the intensification and generalization of the immunitary

paradigm. R. Esposito, op. cit. pg. 72.

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incapacitation were founded on the value of protection accorded by regulation of acts

performed by the incapacitated person.73

The reform somehow signals a return to the various kinds of status,74 in the

case of belonging to the group of the (slightly) different, but it does not signal the

beneficiarys liberation from the stereotype of the homo oeconomicus (or the homoconsumens),75 even if he is different, and from the value of the exchange that marks

the performing of his acts. It actually implies his own inferior safeguarding given that

his rights have been declassed to interests, not private legal ones,76 but vital ones,

those of best interest. This signals the link between the different persons interest

and personal identity almost as if the criterion of interest were the translation in

terms of decision making of the need to respect the right to identity and

safeguarding this best interest is entrusted to the legal procedure more than to the

substantial right. The recovery of the regulation is entrusted to the procedure, in the

sense that the failure to achieve the expectations of certainty of behaviour that is

considered to be legally obligatory and possible, converts to the expectations of the

process and certainty of behaviour relative to the same. The problem of guarantees

flows from the substantial terrain to the procedural one: the guarantee function of the

substantial regulation does not exist based on its lack of defined meanings, unless

they are in a combination with the architecture of the procedural guarantees.77

The shift away from an assets-based viewpoint in the regulation leads to its

revitalization, and gives the upper hand to self-determination in lieu of the different

73

Humboldt is exemplary People who are not in possession of intellectual faculties (.. . ) require special care for their material, intellectual, and moral well being. ( )

to attain thesafety of minors (according to H., what is applied to minors is also

applied to the alienated ed. note). To prevent people from taking advantage of their

inexperience or superficiality, the State must declare null and void those acts whose

consequences might be damaging to them and punish those who use these means to

their personal advantage, G. Humboldt, Saggio sui limiti dellattivit dello Stato

(Essay on the Limitations of the States Activity), It. ed. Milan, 1965, pg. 142.74 The return to status is heralded as the identification of the process of overcoming

an abstract model of the legal subject, understood in rigorously individualistic terms

() more precisely, the formula aims to valorize the position of the single within

determined communities, A. Venchiarutti, op. cit. pg. 370.75 Homo oeconomicus, the solitary egotistic and egocentric actor always searching

for the best deal and guided by rational choice () Homo consumens: the solitary,

egotistic and egocentric consumer who has read the research on the best deal to treat

his solitude and who knows no other therapy, Z. Barman,Amore liquido (Liquid

Love), Bologna-Rome, 2003 pg. 9676 L. Bigliazzi Geri, op. cit.77 P. Zatti, The Linguistic Icons: Interpretative Discretion and Procedural Guarantee

in Giustizia minore? La tutela giurisdizionale dei minori and dei giovani adulti(Minor Justice? Judicial Guardianship of Minors and Young Adults), Padua, 2004,

pg. 1 and following.

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persons other-determination. This means little for the liberation of diversity from

the regulation system markedly given in the civil code, since the system in turn is

founded on other-determination of the subject, paid as a sort of toll for

acknowledging her subjectivity. On the other hand, it places her at a disadvantage

compared to normality, entrusting her protection to solely procedural justice. Onyet another hand, the thought of John Rawls, a master of justice as equity,78 is

accepted but subjected to criticism by Amartya Sen who starts right away by

disputing the role of primary goods (rights, liberties, and opportunities, income and

wealth, and the social bases for self respect) which a person possesses as the

individuals sole actual possibility of to pursue his own goals, but [which should also]

include the main individual characteristics which determine the transformation of

primary goods into the capacity to promote your own objectives. The fact that a

disabled person can have a far wider range of primary goods but fewer opportunities

to lead a normal life (or pursue her goals), than a person who is not disabled that is

endowed with a smaller range of primary goods, shifts the economists attention from

inequality of income to attention to economic inequality represented by causal

influences on individual liberties and well being which are economic in nature but

they are not captured by simple statistics on income and goods possessed.79

78 Rawls criticizes the solely procedural justice proper to a democracy: what is

entrusted to a legislation that does not know the limitations with what law actually is,

is what is promulgated to respect the appropriate procedures, advancing the

conception proper to a constitutional democracy where jurisprudential laws andlegislative regulations must be compatible with certain fundamental liberties and

rights. This idea of justice is founded on the agreement of rational people who

establish the greatest equal liberty possible for themselves. J. Rawls, Una teoria

della giustizia (A Theory of Justice), Milan, 1982. The effectiveness of formal justice

evidently depends on substantial justice and the conception of legitimacy entails a

weaker idea of justice (of equitant justice [ed. note]) and imposes less severe limits

on what can be done. J. Rawls responds to Jurgen Habermas, in Jurgen Habermas -

John Rawls,Passione democratica and routine degli interessi (Democratic Passion

and the Routine of Interests), Micro Mega, Almanacco di Filosofia 1996, pg. 100. In

our case, what is at play is not so much Rawlss counterpoint of procedural and

constitutional democracy. The regulations instituting the Support Administration are

subject to the test of constitutional resistance, but [also] to suspension in case of

consent by intersection [overlap], fundamental to the rules of a liberal democracy.

The regulation is blank and what is important is that the disadvantaged be treated

in a discretionary manner [arbitrarily] even in these special cases where the

regulations could have protected them. Up to what point this is justified, is one of the

most intricate problems of political justice especially if it ends up damaging the

expectations that are based in good faith on the existing institutions. J. Rawls, Una

teoria (A Theory), cit. pg. 65.79 A. K. Sen,La diseguaglianza, un riesame critico (Inequality, A Critical Re-

Examination), cit., pg. 211 and following.

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The inequality implied in diversity forces the jurist through a strange

evolution in order to re-establish the principles of equality: from the contract to status

under the aegis of the de-patrimonialization [shifting focus off her estate and assets]

and the incorporation in a sub group of individuality,80 [and] the re-vitalization of

the subject of law who is safeguarded since she belongs to a sub-group, with merelyprocedural though no substantial regulations.

Instead of attempting the path of economists who capture the quality of life

within economic modelling to achieve equity, law proclaims the state of exception

and raises its hands in surrender.

No one dares to think about a different conception of regulation;81 they prefer

to think that the re-vitalization of law implies the recourse to suspension of

regulations. Thus principles are stated which lean towards taking care of the citizens

positive good which is left exposed to possible judicial will.

80 That of the almost competent, see G. Bonilini, last op. cit. pg. 4.81 1- Recovering the Ecce-ness of the homo in the phrase Ecce Homo, in place

of its incorporation in the person i.e. of the biological prevalence of flesh over a

corporative [nature], (citing a quotation from Arendt by [W.] H. Auden: Private

faces in public places /are wiser and nicer /than public faces in private faces

[places?]). This leads to discriminating the healthy part from the sick part within the

body, the real body from flesh without vital resonance so that the politicization of

life does not necessarily pass through the bodys semantics because it refers to an

anteceding world matter, or later, to the constitution of a subject of law, it opens arange of possibilities thus far unknown.

2 Subtracting its identifying worth at birth, deconstructing its meaning: it is not just

extraneousness that is closed within a political or biological body, but excorporation

of a person born situated in an irreducible difference compared to everyone who has

proceeded her. Birth is not limited to the unitary matrix of the nation, but a plural

event that is affirmed in the expected identity of the latter.

3 - Inclusion, not annulment of the regulation of life, because both are part of a

unique dimension in continuous evolution; the regulation does not precede with life,

but coincides with it, the regulation is open to the infinite unpredictability

[inexplicability] of life.

These might be points of departure used to delineate a different interpretation of the

regulation system when it comes to individuality.

The objective should be that every form of existence, even deviant or defective from

a narrower viewpoint, has the same legitimacy to live according to its own

possibilities and the set of relationships where it is located.[]

The quotations are by R. Esposito, op. cit. pg. 159-200.

I have dealt with many of these features in several papers. To mention a few, there

areForma and regole giuridiche(Form and Legal Rules) in Forma e mercato, Turin

2000 andFrammenti di un discorso sul documento giuridico (Fragments of aDiscourse on the Legal Document) available at www. notaiares. it and published on

Vita Notarile, 2005, 1.

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The State affirms a law and refuses to give it boundaries by regulating the

corresponding behaviour due. It even does something more (or less): it refuses to

dictate the applicative implications.

6 - How is a jurist to behave in applying the new regulations? A regulationrefuses to give shape to the matter because it refuses to delineate the lines of a

renewed revitalization of the concept of the subject of law and relies on regulation

technicality which handled the citizens private things to use Humboldts words82

(see the declaration of principles expressed in the finalities of the new regulation) and

care for the citizens positive good83 (note the expressions care of the person,

the beneficiarys needs and aspirations contained in the law). These are issues

which the philosopher felt were extraneous to the States tasks, almost as if paying a

toll for such intromission.

This finds residual or default regulation as we have said, by recourse to the

rules in the matter of interdiction or incapacitation where they may be compatible. In

application, the gap of legislative rule needs to be bridged. This cannot be done

unless you employ the tools of private autonomy, as opposed to the living law coined

by judges. Let me try to explain. From the procedural standpoint, nominating a

Support Administrator can be ascribed without hesitation to the field of voluntary

jurisdiction, confirmed in this book by Laura Cosmais contribution.

This means that we do not turn here to procedural guarantees that are proper

to the interdiction procedure and can be ascribed to voluntary jurisdiction, though in a

spurious manner.84 This is also due to the institution of the debate that is proper to

82 G. Humboldt, op. cit. pg. 1883 G. Humboldt, op. cit. pg. 27.84 The regulation changes forms and institutions in ordinary judicial enquiry, although

it does not contain an explicit reference to regulations (or the single regulation) of the

latter. These regulations must depend on this among other things, to integrate the

often fragmentary special set of regulations, as long as they are compatible with this.

The Tutelary Judge of Milan agrees on the nature of the process of voluntary

jurisdiction of the provision to nominate in his Decree of February 28 2005.

Contrario Appello Milan, Sezione Persone and Famiglia 15 February 2005. Both

provisions were issued concerning the need for a technical defense of the procedures

and they can be read inLa famiglia, 1, 2005, Le Sentenze, pg. 1 and following. A note

by A. Chizzini agrees with the idea of the ascribabilility of the provision of

nomination to the field of voluntary jurisdiction (in the case of a peculiar procedure

this would be reconstructing in terms of voluntary jurisdiction) and the un-

necessity of the technical defense.

P. Cendon was initially contrary to the idea of the need for a technical defense, and

now he advocates it in cases where the nomination of the Administrator has profiles

of controvertibility, as affirmed in the Convention The Support Administrator,Another Law for Weak Subjects, held under the aegis of the School of Medicine and

Surgery, Psychiatric Specialization School of the University of Insubria in Varese on

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the judicial enquiry (art. 419 I.C.C., Art. 713 C. P. C.) and the nature of the result of

the preliminary inquiry consigned to a joint sentence that can be appealed (art. 718 C.

P. C).

Promoting the procedure of nominating the administrator can also be set in

motion by the person directly interested, in addition to the subjects close to her. Thisthus actually becomes a request advanced to the judge which must be justified by

the health of the petitioner, supported by a medical certificate that does not contain

general information, but that specifically states the eventual beneficiarys degree of

independence. It must be filled with the contents proper to the object of the

administration.

I feel85 it should be supported by an inventory and better yet from a notary

of the beneficiarys assets, a list of the acts to be performed with the Administrators

assistance or with substitution of the beneficiary, with the remaining actions not

mentioned during recourse that are pertinent to the beneficiary alone, for managing

the assets inventoried, and a concrete statement of the needs and expectations of the

beneficiary himself whose satisfaction must necessarily also be related to the size of

his assets. In other words, the judge would have to authorize the nomination and its

content on the basis of a complete, motivated explication of: a) the existence of

subjective conditions which entail the institution of Administration;86 b) the precise

May 14, 2005.85 The question is confirmed in di Laura Cosmais contribution in this book.86

Must a jurist surrender to the evidence of a medical diagnosis? Must law act as ago-between in the legal-medicalization of diversity? Health is not at all a need of

economic order to be given value in the outlines of a legislation; it is a spontaneous

unity of the conditions of exercising life states Georges Canguilhem, Une pedagogie

de la guerison est -elle possible? (Is Pedagogy of Healing Possible?), inEcrits sur la

medecine, Paris, 2002, pg. 89.

The judge must pay maximum attention to this principle in expecting and contenting

herself with, for the purposes of existence, of the subjective conditions for

nominating the Administrator, to statements of ab-normality which used to be used

to certify the requirements for the purposes of pronouncing interdiction. This ran the

risk of accrediting a State Medicine of a non legislative but judicial nature which in

turn ran the risk of being compared to the Nazi counterpart which had made this bio-

economic procedure the hinge of its own politics of life and death.

In truth, the living person is someone who always exceeds lifes objective

parameters. In a certain sense, this person is always beyond himself, beyond the

statistic average based on which his suitability to live or die is measured. Here

regulation or normal means a pure mode or status of the living person. In this case,

not only does disease constitute a norm which is not superimposed on life, it also

expresses a specific situation about this. What is defined abnormal is not only

included, though with its own definite characterization within the regulation, but itbecomes the condition of recognition and this even before existence. R. Esposito,

Bios, cit. pg. 208. Kants reflection: It is diseases which have driven physiology, and

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indication of the object of administration. The risks of the provisions arbitrariness

will be more limited, the more precise the determination by the person turning to the

law of its object, and the existence of subjective requirements.

Substantially, I feel it can be stated that judgment is a judgment

acknowledging the arrangements before the reform. Since there was no appropriateinstitution, the practice has come into being, constructed through recourse to judicial

tools that allowed the dissociation between entitlement to rights and the exercise of

law as we have seen above. Private autonomy may still concretely model how to

exercise the different persons rights or legitimate private interests, after approval

by a tutelary judge of that arrangement. Looking at similar things, I think about

acknowledging the mutual agreement of separation between spouses which implies a

transaction by the spouses of the arrangements of interests that concern not only

property, but aspects of family life, an agreement which is subjected to judicial

approval. On the other hand, it is the family (having here a non technical conception,

extended to people stably living together and thus not necessarily founded on

marriage, Art. 408), which the legislator thought of both for determining the

legitimate subjects to present such a recourse, and to determine those that could be

nominated as administrators. The determination of the content of the provision of

nomination subjected to judicial approval can be ascribed to the category of family

conventions. This can in turn be ascribed toRechtgeshaftin German law: the

concept of transaction that can be applied to any kind of act, even one whose nature is

not economic, the expression of the autonomy of private individuals, such as stating

the will to voluntarily evaluate oneself through the statement of the decree of

compatibility between the value expressed of the transaction rule and the oneexpressed by the regulations of the system, bearing in mind that the matter is still

subject to constitutional reserve from the standpoint of protecting the weak subjects

in the family community. This judgment of congruity with the regulations falls to the

tutelary judge who will evaluate them in reference to the limitations proper to their

own private interests of public order, which distinguish the matter of family

relationships in the current regulation.87 The transaction value of the arrangement of

interests subjected to the judges examination is corroborated by the possibility that

it was not physiology, but pathology and the clinic that got medicine started. The

reason is that well being, to tell the truth, is not perceived since it is simply awareness

of living and only its impediment arouses the force of resistance, quoted by G.

Canguilhem inIl normale (The Normal), cit. pg. 196. This implies you have to

extract the normal from the pathological, and life from death, and not condemn life to

death.

The jurist who proposes Administration and the judge who rules are called to play

this subtle game. The issue is using the regulation to decide the vital conditions of a

subject who may be a beneficiary. The obligation imposed on the judge to hear the

person directly and the possibility of modifying or integrating the decisions made atany time, brings them closer to the capacity and dutifulness of investigation that is

proper to the notary when handling natural incapacity. For more, see above.

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the result of such a transaction be subject to modifications and controls during the

execution of the transaction. These are mandated to the beneficiary himself or the

administrator who (we think both despite the regulations unclear wording), can

resort to the judge in case of dispute. The act of designating a Support Administrator

for the eventual beneficiary, in expectation of his future incapacitation, by a survivingparent with a testament, public act or authenticated private document (art. 408) has

the same nature. The legal transaction founded on the statement of will, the

Willengeshaftof German law stands out here: the category of judicial transaction is a

large container capable of being used for a multiplicity of acts. These are not just acts

of exchanges proper to the market, but also acts where social relations that cannot be

understood through the model of exchange, such as the testament, the proxy,

desistance [remission, withdrawal] and marriage are expressed. One must bear in

mind, that the formal prescriptions of these transactions are cogent and thus tied to

the penalty of annulling the transaction itself.88

The practice for application suggested here would radically curtail improper

use (even by the judicial branch) of this institution and the attempt to ascribe it to the

field of public order regulations tout court. As we have said, the institution is

characterised by a low number of not only imperative but even available regulations.

The Public Prosecutor is present in the procedure is to guarantee compliance with the

regulation system of arrangements subject to judicial provisions. Even when there is

not family setting where those arrangements are defined, it leads to control by the

Public Prosecutor focussing on the arrangements that are the object of public

87 Privacy may not be abstracted from the cases of solidarity proposed by family

bonds mainly concerning the protection of weak subjects. The foundation of

transaction autonomy in family relations does not have this issue as its sole support in

Art. 1322 but it ha

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