04 Giugno 2020
This is an edited translation of the introduction to “Constitution and Private Law. A Reform for Cuba”.
Edited by Andrea Barenghi, L.B. Pérez Gallardo, and Massimo Proto, Costituzione e diritto privato. Una riforma per Cuba. (2019). Italy: Editoriale Scientifica.
On the sixtieth anniversary of the Revolution (1959), a new Constitution was promulgated in Cuba on April 10, 2019, the first important act of the new presidency of the Republic.
Although the Constitution introduces limited institutional political changes - it continues the single-party political system and does not contemplate constitutional interpretation by the courts - 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 committed to the rule of law. The Constitution identifies several key characteristics:
- social justice,
- the centrality of the working class (work revenues must constitute the 'main' source of income, although not the only one),
- humanism, dignity, equity, equality, and solidarity.
The Constitution emphasizes the centrality of human dignity and describes ways in which the individual is to be legally protected. It identifies humanism as the pivotal value of society and specifies in modern terms the need for social, economic, and technological development and, in particular, the right of future generations to a healthy environment.
To these rights, the new charter introduces the concepts of the "prosperity" of individuals and society and gives that equal status with the objective of "individual well-being". In short, the Constitution now expresses an aim to provide the individuals and the collective “bienestar” (well-being) while guaranteeing the individual and collective “prosperidad” (prosperity).
This new perspective - giving equal emphasis to obtainment of prosperity along with equality, solidarity, and equity - is a significant development. It is the foundation of this new "economic constitution" that now contemplates a system based on an economic plan with an acknowledged role for an open market.
This new Constitution recognizes a variety of forms of property:
- Property held by the State (“for all the people") continues to be the principal form of property.
- Private property is no longer limited to "personal" property, as has usually been the case in socialist systems.
- Land and the means of production (except those that are strategic or of national interest) may be owned or managed by private individuals, cooperatives, and foreign institutions whose investments in the country are now explicitly guaranteed by the Constitution.
The State enterprise, therefore, is no longer the exclusive actor in the national economy; it is exclusive only in the management of essential social and public functions. This reflects a move towards a mixed economic regime, in which co-exist State economic activities, joint ventures with foreign investors, and private enterprises of a much larger scale than the domestic micro-enterprises the Cuban government has typically tolerated in the past.
The adoption of the new constitutional charter also serves as a concrete force for political and juridical transformation. The Constitution calls on Cuban society to revise prior relationships to implement the new goals. Moreover, it empowers the legislature to adopt legislation defining and implementing the new constitutional concepts.
Accomplishing such an ambitious program of reform can only be achieved through the hard and detailed work of reviewing and revising existing legislation and adopting new legal norms to create the new legal order. All of which could lead to a decisive, even if as yet unrealized, innovation of the Cuban economic and political system.
Andrea Barenghi is a full Professor of Civil Law at the University of Molise, JSD at the University 'La Sapienza'. He has been a visiting scholar and visiting professor at leading academic institutions abroad (including Panthéon-Assas, Heidelberg, Harvard, Havana and BSB-Dijon. Professor Barenghi is an honorary member of the Cuban Society of Civil and Family Law. He serves on the Advisory Board of the Italian Hub of the European Law Institute. Professor Barenghi is author or editor of several books and numerous articles as well as a handbook on Consumer Law (Cedam-WKI, 2017).
Massimo Proto if a full Professor of Private Law at the Link Campus University in Rome, Italy. Professor Proto has been a visiting research scholar and lecturer at the Pontifícia Universidade Católica do Rio Grande do Sul, Brazil, Universidad Complutense de Madrid, Spain, and the Universidad de la Habana, Cuba. He serves as a member of the ABF (Bank of Italy’s alternative dispute resolution committee for banking and financial disputes. Professor Proto is author of two monographs and many articles on current issues of private law, primarily contract law and human rights.