Diritti potestativi e processo: alle radici della tutela costitutiva, in Storia, metodo, cultura nella scienza giuridica

The essay starts from the consideration that it is precisely in the process that the rights to obtain a legal modifcation have had greater systematic relevance and aims to conduct a critical analysis of commonly accepted solutions. Firstly, it affrms the structural distinction between substantial powers to obtain a legal modifcation through extrajudicial statement and those through judicial judgment, challenging the doctrine that usually groups them together. Secondly, it demonstrates that a so called ‘constitutive judgment’, as judgment for the alteration of legal rights or relationships, is never based on a power that can be typologically classifed as similar to the rights to obtain a legal modifcation exercised through extrajudicial statement.