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Unpublished Paper
Abuse of Rights: The Continental Drug and the Common Law
ExpressO (2009)
  • anna di robilant, Boston University
This article deploys a comparative approach to question a widely-shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian “invention”, absent in the common law. Drawing on an influential strand of functionalist comparative law, the article identifies the “functional equivalents” of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late 19th and early 20th century in fields as diverse as water law, nuisance, tortious interference with contractual relations and labor law. The article investigates the reasons why in the US, contrary to continental systems where rules limiting a malicious or unreasonable use of one’s right coalesced into a unitary category of “abuse of rights”, these rules remained largely non-integrated. Rationalization of these non-integrated reasonableness tests and malice rules, I argue, was achieved by means of a novel, unitary style of reasoning, hardly fitting the traditional portrait of 19th century “Classical” orthodoxy, rather than by means of conceptual integration. Further, the article suggests that abuse of rights’ potential as a tool for social reform was consistently defused. In the US, rarely and timidly did courts deploy malice rules to effect progressive distributive outcomes. And even when they did, they invariably resorted to the individualistic language of modern private law. This comparative insight casts new light on the actual impact of abuse of rights in France and Italy. Abuse of rights, I argue, was the terrain where crucial methodological and professional battles were fought rather than a “social corrective” reflecting a solidaristic/socialist agenda. As to the dynamics that triggered the curbing of abuse of rights’ social potential, the article envisages abuse of rights as one of the legal elements of larger strategy aimed at “avant-garde capitalism”.
Publication Date
August 18, 2009
Citation Information
anna di robilant. "Abuse of Rights: The Continental Drug and the Common Law" ExpressO (2009)
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