3.4.3 Subjective Rights

By Laurence Diver

On this page

1. Working definition
2. Examples of how ‘subjective rights’ is used
3. The meaning of ‘subjective rights’ in terms of MoE, affordance and LPbD
   1. Mode of Existence
   2. Affordance
   3. Legal Protection by Design

Working definition

1. A subjective right is always relational (between legal subjects, with regard to one or more legal objects, such as a property or an obligation). It can be one or more of the following:
   1. a claim – attributed by positive law – of a legal subject, that one or more other legal subjects act or do not act in a certain way in relation to that legal subject, and/or
   2. a liberty – attributed by positive law – of a legal subject, that they are free to act in a certain way in relation to one or more other legal subjects, and/or
   3. a legal power – attributed by positive law – of a legal subject, that they are free to use in relation to one or more other legal subjects.
2. In private law two generic types of rights are distinguished:
   1. Rights ad personam, or relative rights, that can only be invoked against specified other legal subjects. Such rights include those resulting from a contract, a tort action, unjustified enrichment.
   2. Rights erga omnes, or absolute rights, that can be invoked against any and all legal subjects. Such rights include ownership, usufruct, right of way and intellectual property rights.
3. A claim right assumes an obligation or a duty on the side of one or more other legal subjects, e.g. a legal obligation to pay compensation (in the case of a tort or breach of contract), or a duty of non-interference (in the case of ownership).
4. A liberty right assumes that other legal subjects do not have a claim that one does or does not act in a specific way, e.g. in the case of ownership other legal subjects have no claim that the owner uses their property in a certain way, which demonstrates that property rights are bundles of claim and liberty rights.
5. A legal power assumes that one or more other legal subjects may be required to act or not act in a specific way, e.g. the legal power to transfer property implies that all legal subjects must now respect the right to property of the new owner and refrain from interference (in case of a property right), or the legal power of the government to impose taxes that implies that citizens must pay taxes (in case of the right of the state to unilaterally impose a duty to pay taxes).
6. In legal theory further distinctions are made, such as immunities, permissions and competences.
7. The precise meaning of claims, liberties, powers, immunities, permissions and competences often differs between private and public law (and between national and international law).

Examples of how ‘subjective rights’ is used

Subjective rights are relations between legal subjects that depend on the rule of law for their recognition and enforcement.

Subjective rights are closely connected with legal powers, the exercise of which change the set of rights and duties legal subjects hold and are subject to. For example, a property right in some good, such as a car, entails the legal power to dispose of it, for example by sale.

Subjective rights entail concomitant duties on one or more other legal subject(s). For example, when you purchase a car, the contract of sale attributes to you a right to receive the vehicle, as well as placing you under a duty to pay the agreed purchase price. By the same token, the contract places the showroom under a duty to supply the vehicle, but also gives it a right to receive the purchase price.

Subjective rights can be relative, existing between specified legal subjects, as in the example above of the contract between the purchaser of the car and the showroom. This is also known as a right ad personam – it is enforceable only between the purchaser of the car and the showroom.

Subjective rights can also be absolute, existing between a legal subject and all others, as in the right of the owner of the car not to have her possession of it interfered with, or her right as a driver to be treated with reasonable care by fellow road users. This is also known as a right erga omnes – it is enforceable by the owner or driver of the car against every other legal subject. Someone who tries to steal the car, or who damages it through negligent driving, infringes that right, and becomes liable to a court judgment requiring in the former case restitution of value and punishment, and in the latter the payment of damages.

In private law, subjective rights are horizontal between legal subjects, with the state ‘watching over’ as guarantor of the relationship and adjudicator of any dispute.

In public law, subjective rights are vertical between the legal subject and the state (although relationships with the state can be horizontal too, for example where a car manufacturer supplies vehicles to the government under a contract, in which case the state is acting in a ‘private’ capacity).

Fundamental rights are also subjective rights. For example, the collection of personal data by the various sensors in a (self-driving) car will be subject to the limits set by the fundamental right to data protection.

The meaning of ‘subjective rights’ in terms of MoE, affordance and LPbD

Mode of Existence

The ‘practical effectiveness’ of rights depends on their mode of existence, since it is upon this that the whole normative and protective apparatus of the rule of law relies.

As with many other concepts in law, the mode of existence of legal rights is one of institutional fact, borne of the legal norms that define them as such and that subsequently attribute them to particular legal subjects as a matter of legal effect. This means, again, that legal rights are artificial constructs and not direct representations of pre-existing moral norms or ‘natural laws’ (although of course the articulation of rights in the text of positive law will often reflect such norms).

The ‘practical effectiveness’ of such rights again depends on their mode of existence, since as we have seen it is upon this that the whole normative and protective apparatus of the rule of law relies. Through the interpretability of the text, the institutional fact of the right can be argued for by the legal subject or their representative, and in turn authoritatively deduced by the court by means of another speech act, namely a judgment.

This is true even where the right is not unequivocally laid down in an explicit rule. It is often the case, for example, that the court will adopt a principled interpretation of legal sources to identify a right where previously it might not have been recognised. This is made possible by the mode of existence of text-driven law, since the multi-interpretability of the legal text, and its necessary distantiation from the legislature that authored it, allows for the court to interpret ‘into being’ the institutional fact of the right, within the justificatory limits imposed by valid legal reasoning.

For this kind of process to be initiated will require a party with standing to do so, usually the legal subject or their direct representative. Once again, this ability depends on the mode of existence of such rights — their accessibility as texts, their interpretability in light of the other norms and facts with which they can be said to interact, and ultimately the ability to formulate these into a novel legal argument that, if successful, finds the existence of the right as argued for.

Affordance

The section on legal subjectivity above identified two levels of affordance, the first of which concerns those affordances of the technological medium that underpins law. The effects at that level of affordance with respect to subjective rights are the same as with other institutional concepts that make up the legal system – their mode of existence relies upon the externalisation of norms in text, which in turn allows for the multi-interpretability, contest, and iterant closure of judicial interpretation that is a hallmark of the rule of law. Without these affordances of the underlying technology, institutionality in the form we know it is likely impossible. When those affordances are present, the legal subject can, before the court, assert the existence of a right by reference to those materials that can validly evidence its existence within the legal Welt.

Without certain affordances provided by the underlying technology, institutionality in the form we know it is likely impossible.

As before, on the second level of affordance we focus on what it is possible for the legal subject actually to do within the legal Welt. Here we can think of subjective rights and legal powers as affordances within that Welt, made possible by its mode of existence. We return again to the roots of affordance theory, and the idea of the legal ecology and its legal-institutional dimension, discussed earlier. We saw there how the legal subject is an agent, situated within an institutional environment that both co-constitutes it and delimits how it can act in that environment.

To paraphrase Gibson’s oft-quoted definition of affordance, rights and powers specify what the legal-institutional dimension “offers the animal [i.e. legal subject], what it provides or furnishes, either for good or ill.” The actions made possible by the legal system for the legal subject to perform are thus affordances of the legal-institutional dimension, in turn built upon the affordances of text that exist within the material dimension.¹ This adaptation of the definition of affordance highlights that legal rights and powers have no necessary connection to ethical norms (they might be ‘good or ill’). It also emphasises their contingent nature, and how they depend on the nature of a specific legal subject in a specific legally-relevant context.

Taking this ecological analysis even further, we saw above how the idea of a niche refers to the set of affordances that imply a certain kind of agent. The ‘empty form’ of the legal subject is co-constitutive of the legal-institutional dimension, in the sense that institutional law only makes sense in light of a certain kind of legal subject, and vice-versa. We can think of the contingent set of rights held by the legal subject as its niche within the legal-institutional dimension. There, the possible types of affordance — rights and powers — are defined by positive law, in accordance with a particular guiding philosophy, or pre-position, summed up in the notion of the constitutional state or Rechtstaat.² This guiding philosophy combines the legal certainty of positive law with the prospect of ex post judicial interpretation, which reflexively prefigure the niche that the legal subject inhabits and by means of which it interacts with other legal subjects. This implies a reflexive equilibrium between the kinds of right and power that are compatible with a constitutional state, and the kind of niche, legal subject, and institutional normative order that can support their existence.

Legal Protection by Design

This, then, brings us back to the first level of affordance: whether or not the underlying technology or medium affords the legal-institutional dimension determines the kinds of rights and powers that can in turn afford. If whatever notion of ‘right’ that is present does not embody the same spirit as legal-institutional rights, then the normative order which relies upon this shared characteristic will likely start to falter.

One can see from the examples above that the set of relationships between legal subjects can quickly become complex, even for ostensibly simple transactions such as sale. Some measure of complexity is inevitable, however, given the aim of legal protection: while the vast majority of interactions between citizens conclude without incident, when things do go wrong the parties must be in a position to know where they stand in relation to one another, i.e. what their respective rights and duties are. This necessitates a system that is as complex as necessary (but no more³) to conceptualise these relationships in light of the goal of legal protection, and in turn to make clear what their consequences are for a dispute.

This is where the question of design arises, when computational platforms and artefacts are introduced to law. Does their design uphold the various dimensions of the normative order that make it possible to determine legal subjects’ rights, including in novel sets of circumstances? And, prior to that question, does the design support the institutionality that begets the form of legal right that lies at the heart of the protection that law offers? That form reflects an ongoing tension between on the one hand the universality of the legal texts that specify the right, and on the other the ability of the court to interpret their nature and extent in response to a particular dispute, in light of governing legal principles, the rule of law, and the purpose of the textual norm.⁴

When considering Legal Protection by Design, we must consider whether or not the very concept of a legal right is protected.

‘Rights’ which fail to reflect that tension are not legal rights; instead they are more akin to individuated permissions that facilitate isolated acts outside of the normative framework of the law. The latter is built on institutionality, which implies a role for checks and balances and the authoritative but ever-evolving ‘closure’ provided by judicial interpretations of legal norms.⁵

The design of technologies that are involved in the practice of law must therefore pay close attention to the nature of the rights they are tasked with representing, upholding, or enforcing. Any new technology will inevitably be a novel introduction, designed in relative short-order and ‘dropped’ into the legal system without the benefit of centuries of legal culture that can incrementally sediment it within the slow emergence and evolution of the legal Welt. The perturbations that ripple across the system as a result of this must be anticipated.

When considering legal protection by design, therefore, we must ask not just whether one or more specified rights are protected within any new computational artefact, but whether or not the very concept of a legal right is protected, with all the normative depth that necessarily comes with it.

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References

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