ABSTRACT

The renewed emphasis placed on the principle of the «universal destination of goods» by the recent encyclical Magnifica Humanitas confronts the civil-law scholar with a question of method: in order to give legal shape to that principle — including in its projection onto the new, intangible «goods» — is it necessary to posit an autonomous category of «common goods», or is this a task already accomplished by the technique of functionalisation? Moving from a functional theory of goods, according to which what is relevant is not title but interest and use, the usefulness of the category of «common goods» is called into question; the social function of property (Article 42 of the Italian Constitution), in its present biological-environmental dimension (Articles 9 and 41), and the destination constraint (vincolo di destinazione) under Article 2645-ter of the Civil Code, as an instrument of «functionalised property», are thereby reconstructed. The assessment of the interests’ worthiness of protection (Article 1322, paragraph 2, of the Civil Code) — distinct from mere lawfulness and understood as an axiological evaluation grounded in solidarity (Article 2) and horizontal subsidiarity (Article 118) — governs its legitimacy through a reasonable balancing of interests. Constitutional legality already possesses the instruments apt to implement the principle, without any categorial innovation.