Representation and/or participation: formation of the will “by” others and/or “by means of” others in the individual and collective relationships, of Private and Public law, Roman and positive law

Abstract

The legal notion of “representation” emerges and makes sense as part of a specific form of the binomial, that includes ‘unitary conception and regime’ of a plurality of men. This binomial ‘specific form’ is “legal entity and representation”. The “abstraction” of the plurality of men, achieved with the notion of “legal entity”, is instrumental to its volitional “substitution” (or, the substitution in the exercise of its power) by “one” or “a few” persons, obtained with the notion of “representation”. This ‘binomial’ takes this ‘specific form’ by applying a feudal organizational logic: initially, in the late Middle Ages and progressing to the current time. The Pandectistics have strengthened the ‘feudal binomial’ at the point of erecting it as a true postulate of reason and assigning it to a “forgotten” Roman legal logic. The application of the notion of representation to the category of individual volition acts with intermediaries (mandatum - procuration), reinforced even more in the medieval binomial. The result of all this process can be summarized with the scheme of “acting for others”, that expresses the agency of the “representative” (subject of the action) and the eclipse of the “represented” one (“the other/s”). Despite the voices critical of the idea of “political representation” (that is more exposed to them for appearing as a “spearhead” from the operational part of the feudal binomial), it seems to have no alternatives, precisely because of its superposition onto Roman law during the 19th century. For this reason, we ought to re-read the Roman sources to challenge the logic of “acting for others” and recover the logic of “acting by means of others”. This is the logic of the dominus negotii, and it goes against the feudal binomial of the “dematerialization” of the plurality of men in the “legal entity” and its consequent “substitution” by the “representative”. This will enable us to recover the republican binomial of the “concrete corporate body” and its consequent participation in volition, with the collaboration of a subordinate commissioner.