International Journal of Tourism, Travel and Hospitality Law 2023

TOURISM ENTERPRISE AND CULTURAL HERITAGE PROTECTION The «just» right, in other words, must be able to orient economic reasons to prevent civil rights from coinciding with economic ones, preventing the commercialisation of society57. The State, therefore, is a Social State under the rule of law only when it organizes itself effectively and solidly and when productive and useful investment for the market is also a social investment58. Only in this way does the category of having become instrumental to that of being, making possible a unified reading of the three paragraphs of art.41 Cost. capable of enabling the realization of the right relationship between situations – means and final situations, and capable of conditioning all manifestations of autonomy, without excluding a more penetrating legislative intervention, and, even more, able to make the assets situations strictly functional to the realization of final existential situations59. It follows that the law (in the knowledge that the reasons of economy, equity and justice are not mutually incompatible) must be able to achieve a social market economy, based on ethical arguments, or must know “with economic efficiency and human rights, market and democracy”60. 57 Because it guarantees the preservation of reality and, above all, tends to guarantee within society a free and dignified life for all, the right has a “its social justification which does not allow individualistically independent rights to be considered and does not exhaust them in their patrimonial content, making them privileges, but, in contributing to improving the quality of life, tends to spread them generously, attributing to them a social function derived from the cultural and ethical level of the socio – regulatory system. By proposing the reconciliation between individual and general interest, significant moral support is given to the market economy”. See P. Perlingieri, O.U.C., p. 93. 58 In this context it is certainly possible to guarantee freedom without denying it in order to achieve the sociability of which it is capable and, even before that, the function of the market can be derived from those values, which legitimize economic freedom as a power of constitutional importance precisely because they bind it. In the same way, solidarity can be configured as a real act of liberality, that is, the fulfilment of a moral duty, that is, the fulfilment of a juridical duty founded on the values of our constitution. Confr. in this sense P. PERLINGIERI, o.u.c., p. 103. 59 In this connection, E. CATERINI, From the agricultural undertaking to the agricultural undertaking, in Rass. dir. civ., 4, 1998, p. 736, where the author claims that “The Basic Charter aims firstly to create a relationship between patrimonial and existential situations, then between middle-situations and final situations; secondly, and as a consequence, to demarcate in varying degrees (in consideration of the regulated matter) a freedom-arbitrary in a freedom- -discretionary or in a freedom-directional. This gives reason why the 2 paragraph does not express a legal reservation, unlike what happens in paragraph 3. The sanction not contrary to the social utility, freedom, security and human dignity express a C.D. reserve of legality suitable to legitimize a discretionary freedom (and not arbitrary) and to connect a situation pa-trimoniale (the economic initiative) to the values-aims of the constitutional order (social and economic solidarity)”. 60 Cf. textually P. PERLINGIERI, o.u.c., p. 117, according to which “every shock given to the social state is a shock given also to the liberal conception of a modern society and to the deep human meaning of solidarity that demands a society with a human face. The point is not: market yes, market no. The market is for what it is, not simply because it is there; it deserves weak or conditional praise, without confusing economic reasons and ethical arguments: the latter deserve priority and provide the economy with an ethical foundation that, in the concrete historical reality, can combine economic efficiency and human rights, market and democracy”. In the same sense, see also A. PALAZZO E I. FERRANTI, Ethics of private law, Vol. II, cit. “Perfect competition does not exist in nature but is the patient construction of a juridical order, which oversees the observance of the rules and defends the weakest against the oppression of the strongest”.