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Subjective rights

See also the discussion of subjective rights in our Working Paper on Text-driven Normativity.

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).

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This page was last updated on 13 July 2021.