Chapter Sull’abuso del diritto. Riflessioni a margine della recente giurisprudenza sul rapporto di lavoro

Abstract

Moving from Del Punta’s observations and the most recent labour jurisprudence, the author reflects on the abuse of rights as an autonomous juridical category, reconstructing its troubled doctrinal and jurisprudential background. She considers that a legal system cannot be complete without a general principle of prohibition of abuse and suggests searching for abuse within the objective perimeter of application of a given right, investigating the consistency between the way the right is exercised and the ratio of the legal recognition: a functional approach that allows abuse to be identified in the diversion from the “causal factor” of the right exercised. In this perspective, abuse is a serious contradiction: it determines the subjugation of the right to purposes unrelated to law and values.