On Abuse of Rights and Judicial Creativity (by N. Lipari)

The abuse of rights doctrine, which has received renewed attention in the judicial and scholarly debates, raises the fundamental tension between the formal attribution of a right and the concrete exercise of that right. In this article, the Author argues that the abuse of rights paradigm should not be reduced to asking only whether conduct is legal or illegal. That divide is simplistic, because any legal entitlement may be used as a screen to conceal arbitrary (‘abusive’) behavior, thus unreasonably impairing others’ legitimate expectations. Moving beyond the distinction between common-law and civil-law traditions, the Author vigorously defends the autonomy of judges, highlighting that the art of interpreting the law always entails a certain degree of creativity, to be exercised with the utmost rigor.