International Journal of Tourism, Travel and Hospitality Law 2023

INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW spirit of liberality and solidarity. In addition to what has been said, following the advent of the post – industrial society and the globalization of markets, the relations between law and the economy are increasingly destined to intensify42, so much so that, in some cases, there is talk of a new Lex Mercatoria to allude to a universal right (such as that of merchants), created by the business class, with the aim of regulating uniformly the commercial relations established within the economic unity of the markets43. It is not enough, however, to find the ethical sources of private law in the fundamental principles, such as human dignity, freedom, equality, the democratic principle and the principle of the social state44, but it is necessary to understand the dignity of man not only in the sense of recognizing a certain prevalence of personal value over the collective one, but also in the sense of imposing a limit on the calculation of costs – benefits45. Attributing it an ethical dimension46, avoids that the enterprise ends up dispersed « the tangle of situations of conflict of interest, as well as on the other hand in that tangle is ended even-that every theorization of the 42 “In today’s society of finance, industrial technology is replaced by contractual technology: financial products take shape and come to life only by virtue of the wise use of legal technology. At one time contracts fulfilled only the function of circulating things; today they are also used to produce new properties, to create financial products. As at the time of the ancient lex Mercatoria, jurists return to the scene; their creative attitude of ever new generations of financial instruments is being tested”, cf. F. GALGANO, Law and Economics at the Threshold of the New Millennium, in Contratto e impresa, 2000, p. 189. In fact, the main instrument of legal innovation, according to the author, will no longer be the law but the contract, which replaces the law in an increasingly large number of sectors; in this regard think, just to give a few examples, the protection of community interests, such as consumer interests, or the mechanisms and instruments of self-regulation. Cf. in this sense F. GALGANO, cit., p. 197, where the author justifies his thesis by deducing the ineptitude of the law to play an innovative role both because the economy is no longer a national economy, Both because, being an economy in continuous transformation, more streamlined tools are required to adapt the right to reality. 43 In this sense our own Court of Cassation in a well-known judgment, the judgment n. 722 of 8 February 1982, in Foro it. 1982, I, c. 2285, which even went so far as to recognize in the Lex Mercer a true and proper original legal order expression of the mercantile society, which makes use of the courts of the national States as organs of coercion. 44 This result can only be achieved after defining the rules required to supervise the exchange of resources and only after having evaluated, in a preliminary way, whether the values that have marked our Constitutional Charter, if others have been added and if, Because of new ethical cultures, traditional values have been transformed or outdated. In this sense see A. PALAZZO E I. FERRANTI, Ethics of Private Law, Vol. II, Padua, 2002, 1, p. 3, according to which “the constitutional normative result rather than marking, as some have said, a compromise between different cultures, has meant the recognition of common values, among which one, of which the moral nature, which is tolerance, as part of the achievements cultural”. 45 See L. MENGONI, Note on the relationship between law and morality, in Iustitia, 1998, p. 309 46 An ethics of finance or business that places increasing attention on the relationship between duties and consequences. In the opposite sense, however, see G. ROSSI, The ethics of business, in Riv. soc. 1992, p. 542, which warns against recourse to the C.D. ethics buffer, since the reference to ethics is allowed only when it is done through legislative changes, of delegations, that is, Finally, with the appeals that our system addresses to public morality to morality and good faith.