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 \r\nthat the rights to obtain a legal modifcation have had greater systematic relevance and aims to conduct a critical analysis of commonly accepted solutions. \r\nFirstly, it affrms the structural distinction between substantial powers to obtain a legal modifcation through extrajudicial statement and those through \r\njudicial judgment, challenging the doctrine that usually groups them together. \r\nSecondly, it demonstrates that a so called ‘constitutive judgment’, as judgment \r\nfor the alteration of legal rights or relationships, is never based on a power \r\nthat can be typologically classifed as similar to the rights to obtain a legal \r\nmodifcation exercised through extrajudicial statement.