Brief reflections on the study of legal action: or how procedural theorists subtracted the concept of “substantive law action” from tort theorists in order to bring it to an end

Abstract

This essay seeks to analyse the theoretical development, since the 19th century, regarding the concept of “substantive law legal action”, highlighting the replacement of the term action by the term claim (first advanced by Windscheid) and the appropriation of the tem action by procedural lawyers, responsible for making it an ambivalent definition. Brazilian procedural theorists, except for a few honourable cases, brought the concept of substantive law legal action to an end, even though it was an established institute in our legal practice ever since classic scholars such as José Homem Corrêa Telles, João Monteiro and Paula Baptista. All of it led to a quasi-Italian conception of rights protection, seeking to reinforce a model of (procedural) “action”, of jurisdiction designed for the state and not for individuals.