Todesco, Sara (2008) Per una ricostruzione teorico-generale del concetto di abuso del diritto. [Tesi di dottorato]
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This work examines the notion of abuse of rights. It is a choice solicited by the ascertainment of its vitality and of the increasing interest shown towards it by the elaborations of the doctrine as well as by jurisprudential applications.
It is, moreover, a notion arisen from the doctrine and the jurisprudence. Only some legal systems, not our own, have absorbed it as a prescriptive rule, and there is no doubt that this circumstance represents a peculiar matter of interest.
The perspective of investigation chosen, and considered most helpful for the purpose of understanding the abuse of rights, certainly involves dedicating space to the elaboration of the doctrine and to the jurisprudential cases that have made use of this instrument. Nonetheless, this does not mean to engage once more again (several have been the monographs dedicated to the abuse of rights by now) in an as most complete reconstruction as possible of its systematic traits and of its conditions of use.
This work rather wants to be a reflection on the general theory of law.
As a matter of fact, the notion of abuse of rights calls the attention of the expert to numerous and structural issues, which question the instruments that in the positivist and formalist vision of the regulations of inter-subjective relations still predominant today, constitute its protagonists (the rules, and the subjective rights meant as expressions of the same rules); the role of the interpreter and the jurist; finally, it questions in a particularly perceptive way about the function and the methods of the theoretical understanding of juridical phenomena and of the role of juridical science.
It appears possible to reasonably assert that the notion of abuse of rights - beyond its practical function and its concrete application to many situations that emerge in the progress of relations and do not find any other adequate solutions - is especially relevant in this last perspective, that is to say in pointing out the function that the juridical science fulfils and must fulfil in interpreting, understanding and directing the solution of questions that involve the ratio and the structure itself of the juridical system.
More explicitly, the thesis that this work means to prove is that the category of abuse of rights, which arises and then exists as an operative instrument of the interpreter and the jurist in order to satisfy well determined needs of the juridical system (and historically, in reaction to well determined conceptions of the juridical system), may be usefully, and perhaps especially considered and investigated as an instrument of the juridical science, that is as a "juridical concept" by means of which the jurist approaches the understanding, the interpretation and theorisation of the juridical experience.
To this end the structure of this work has been arranged in three parts.
The first part intends to define the boundaries and the structural significance of the notion of abuse of rights. This implies, first of all, that the conceptual categories that contribute to reconstruct the notion are to be accounted for: the category of subjective rights (in that the notion of abuse of rights originates in reaction to its strictly individualist foundation, and a control of the exercise of rights is proposed) and that of offence. Traditionally, the abuse of rights is considered as a tertium genus between the prospect of acting in accordance with a right and acting unlawfully. The abuse of rights as a concept defines itself necessarily in relationship with these other two concepts.
On the other hand the thorough understanding of the conceptual autonomy of the abuse of rights demands to account for some instruments - of a former origin, that is widely elaborated and used in other legal systems - which share the same ratio of the prohibition of abuse and with it contribute to the identification and sanction of unlawful occurrences. These are the notions of exceptio doli generalis, the prohibition of venire contra factum proprium and the institution of the Verwirkung.
The second part of the work directly deals with the questions relating to abuse through the investigation of the standpoints of the doctrine and the jurisprudence.
Ample space is dedicated to the analysis of the most representative elaborations of the doctrine, both Italian and French.
This survey leads to the identification of a significant line of development that starting from the first standpoints that deal with abuse as an issue of exclusively moral or ideological nature, rather evolves in the direction of an increasing awareness of the conceptual autonomy and of the utter juridical essence of the notion of abuse.
Likewise significant appears to be the examination of jurisprudential verdicts, whilst the awareness of the conceptual and systematic significance of the notion of abuse undoubtedly proves to be inferior. Nonetheless, the reference to it is more and more frequent and reveals to be an instrument necessary to highlight crucial requirements of the system of inter-subjective relations.
The last part is concerned with explaining precisely these conclusions suggested and justified by the analysis of the discipline and the jurisprudence.
Moreover, in the light of the starting thesis, according to which the abuse of rights may be considered as a juridical concept and thus the lines of its development may represent the path of formation of a juridical concept, this last part also wants to account for the acquisitions of the philosophy of law and of the general theory of law on the theme of juridical concepts.
Thus the standpoints of the famous controversy of the years 1935-1945, which had as its protagonists particularly Pugliatti, Jemolo, Cesarini Sforza and Calogero, are dealt with as well as the standpoints elaborated with regard to juridical concepts pertaining to the analytical philosophy, in a particular way in Scarpelli's and Pintore's works.
Besides, the examination of these authors' beliefs leads to the ascertainment of the inadequacy of the reading keys that they propose in order to understand what a juridical concept is, how it is born and what power of understanding it grants.
In the yet big differences of presuppositions and attitude that characterize these authors, however, they do not actually diverge form the epistemological horizon that asserts the conventional and operative nature of concepts and their inevitable dependence on the positive datum.
Therefore, the answer to the hypothesis that the examined question of abuse lets perceive still remains open: that of a concept which delineates itself as such not from a prescriptive provision but from a real, substantial need of "ordering" of inter-subjective relations that is progressively received, elaborated, "systematised" by the work of the doctrine and the jurisprudence.
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