Costituzione e diritto privato. Una riforma per Cuba

On the sixtieth anniversary of the revolution (1959) a new Constitution was promulgated in Cuba on April 10, the first important act of the new presidency of the Republic. Although it maintains clear limits with respect to our sensitivity and institutional and political systems (a single-party political system, and no constitutional scrutiny), it opens a path towards economic modernization and introduces a very modern catalogue of civil rights. According to the new Constitution, the Cuban Republic is a socialist state, and still it is put under a rule of law. Its characteristics are social justice, the centrality of the working class (work revenues must constitute the 'main' source of income, though not the only one), humanism and dignity, equity, equality, solidarity. To these, the Charter now combines the "prosperity" of individuals and society with the objective of "individual well-being". This perspective - dignity, prosperity, as well as equality, solidarity, equity - is important news, to be carefully recorded and valued. It is the ground, in fact, of the "economic constitution" in which the legislator draws a decisive, even if only potential (because it depends on the legal and political implementation), innovation of the system. A system based on economic plan, but which must also take into account the market, as it is explicitly stated. Seven different forms of property are recognized, among which state property (the property "of the whole people") is only the main form, while the road of further forms of private property is open, not limited to the merely "personal" one that usually it exhausts it in socialist systems. Also, the land and generally speaking the means of production (provided that they are not strategic and of general interest) may be managed by private individuals, cooperatives, foreign institutions, whose investments in the country are, indeed, promoted and guaranteed at the constitutional level, and this is another important news. The state enterprise, therefore, is only the main subject of the national economy, though the essential social and public functions are an exclusive State field. However, the latter is not the exclusive agent of economic activity, moving towards a mixed regime, in which there is a coexistence of public activities, foreign investments and cooperative and private initiatives, complementary but not confined to the domestic micro-enterprise that the Cuban economy already has already experienced. Ultimately, the new Constitution opens with determination to foreign investment, and to additional private property and its transmission for consideration, and, at least in potential terms, to the coexistence of private economic initiative with the planned state enterprise, although the most empathetic observers of the Cuban reality have expressed some reservations about the fate of the achievements that the revolution, among extraordinary difficulties, seems to have achieved (and to this end it may be agreed that the comparison must be directed to contemporary regional experiences). The turning point, in short words, can be summarized in the passage from a Constitution aimed to reach the individual and collective 'bienestar' to a Constitution that also aims to guarantee the individual and collective 'prosperidad', which accentuates the centrality of dignity human and the different articulations in which the person needs to be legally protected, thematizes humanism as the pivotal value of society and specifies in updated terms the need for social economic and technological development, making explicit the rights of future generations in environmental matters . The adoption of the new Constitutional Charter, of which it is a question of verifying not only the proclaimed, abstract potential (which undoubtedly returns the idea of an extremely advanced constitutionalism) but also the concrete force of political and juridical transformation, which it goes beyond what the technician may determine. The effectiveness and realization of such a large programme of reform can only be achieved through a long and hard work of revision of the normative instruments but also of the social relationships, to which the Cuban political society is called, and which is certainly not guaranteed by the mere introduction on the -no form of the new constitutional provision ("the laws alone are not enough", wrote Lenin). However, the issue of the impact that the new Charter may have on the private law system is of considerable importance. The constitutional amendment was, in fact, long overdue, and today it is expected to be put to the “labors of Hercules” (as the Cuban jurist states), by a new legal order, to the rewriting of laws and codes ( and in particular the Civil Code of 1987, marked, as it is still stated by the Cuban observer, by "a destiny of precocious obsolescence"). To allow this path a renewal of international relations is indispensable, to guarantee that Country a new phase of respect for rights, access to information, the dignity of individual and collective life projects. Therefore, one may welcome, supposing the new American Presidency will have the energy to accept it and implement it, the vote expressed - for the twenty-eighth time - by the UN on November 7th with 187 votes in favor and 3 conventions (USA, Brazil and Israel) for the lifting of the US embargo.