Tra pubblico e privato. Il diritto potestativo dopo la “grande dicotomia”

This article traces the historical and conceptual trajectory of Gestaltungs- recht (discretionary right) in German and Italian civil law doctrine, from its emergence in nineteenth-century Pandectist scholarship to its gradual exhaustion in contemporary debates. The theory of discretionary rights is analyzed as a chapter within the broader theory of subjective rights and in- scribed in the public/private dichotomy as an instrument for rationalizing the relationship between civil society and the State. Through comparison with Hohfeld’s analysis of fundamental legal concepts in the Common Law tradi- tion, the Author highlights the limitations of the traditional approach based on the right/duty opposition and proposes a more nuanced perspective for analyzing legal positions. The second part of the essay applies this perspective to controversial issues in contemporary private law: abuse of rights, therapeu- tic self-determination and end-of-life decisions, ius variandi in asymmetric contracts, and warranty in sales. The analysis demonstrates how abandoning traditional schematism allows for a better understanding of the complexity of private relations beyond the paradigm of subjective rights.