The Theoretical Approaches to the Right of Action – The Implementation of Right of Action Theories in Legal Practice
The Theoretical Approaches to the Right of Action – The Implementation of Right of Action Theories in Legal Practice

Summary/Abstract: In general, interaction between legal theory and practice raises numerous questions. From the aspect of legal practice, the question arises as to whether legal theories exert any influence at all on legal practice and, if they do, how this is manifested in judgments, or otherwise, in the resolution of cases. Can court judgments be explained by legal theoretical argumentation? From the point of view of legal theory, what role do solutions to specific cases play in practice in legal theoretical explications? Within the problematics of interaction between legal theory and practice, these questions seem to be too general and impossible to answer within the scope of this short study, and so it would seem reasonable to examine them in the context of the practical implementation of a specific legal institution of civil substantive and procedural law. My topic concerns right of action theories relating to a plaintiff’s initiation of action. Right of action theories deal with rights and obligations relating to judicial protection, and the issue raised by legal dogmatics is: on the basis of what right can a plaintiff apply to the court? Is it, in fact, a right at all – that is, one which gives rise to specific obligations for the court - or is it a mere possibility with incidental consequences? The questions which various ‘right of action’ theories attempt to address concern1 : (1) the theory based on a private law approach, (2) theories based on a public law approach (the abstract right theory, the actual right theory, the dual right theory) and (3) modern theories (the socialist theory, the claim to justice, the right of action and the right of access to the courts).

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