Subjective right

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One law^[3] A subjective right is a legal position granted by a legal norm, establishing a relationship between the holder of the right, the recipient and the object. It differs from the objective right in that it confers a specific advantage on one individual, implying a corresponding duty for another party. The theories on subjective rights^[1] These vary, including the will theory (power of the recognised will), interest theory (legally protected interest) and mixed theory (power over a good or interest). These rights can be categorised as classical, binding, public, absolute or relative. The origin of subjective rights is debated between jusnaturalism (rights precede the law) and the legal system. law^[4]) and the legal positivism^[2] (rights are created by law). The concept involves complex interactions between legal norms, individual powers and protected interests, reflecting the dynamic nature of legal systems in recognising and safeguarding individual rights.

Terms definitions

1. ↑ subjective rights. A subjective right is a legal advantage granted by legal rules, establishing a relationship between the holder of the right, the recipient and the object of the right. It represents a legally guaranteed power to defend and protect tangible or intangible property, characterised by being personal, inalienable and exclusive. Different theoretical approaches, including volitional, interest and mixed theories, explain its nature. Subjective rights arise from legal relationships and can be property, personality, intellectual, family or procedural rights. They are acquired through legal acts, contracts, inheritance or administrative decisions, and are not absolute. The legal system limits subjective rights on the basis of public interest, social order and individual freedoms. These rights evolve dynamically, reflecting changing social norms and legal interpretations, and are fundamentally linked to legal duties and the broader legal framework governing social interactions.

2. ↑ legal positivism. Legal Positivism is a philosophical approach to law that emphasises the distinction between law as it is and law as it should be. Emerging in the 19th century, it focuses on understanding law as a human construct derived from social and political institutions, rather than moral or natural principles. Key theorists such as H.L.A. Hart and Hans Kelsen developed frameworks explaining legal systems as hierarchical normative structures, where legal validity depends on procedural sources rather than inherent moral value. The theory encompasses several streams of thought, including analytical jurisprudence and different positivist approaches ranging from exclusive positivism (law and morality are separate) to inclusive (moral considerations can sometimes inform legal interpretation). Legal positivism challenges traditional theories of natural law by arguing that the legitimacy of law comes from its formal creation and social recognition, not from abstract moral standards.

Subjective right (Wikipedia)

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O subjective right is the situation legal, consecrated by a standardThe subjective right is the right of the holder of the right, through which the holder is entitled to a certain act vis-à-vis the recipient. In general, the subjective right is enshrined in a rule of law that leads to a trilateral relationship between the holder, the recipient and the object of the right.

Illustration of the operation of subjective rights (in red) with bearer (T) and obliged recipient (A). On the left, a relative right; on the right, an absolute right.

Thus, the subjective right ("right of the subject", lato sensu) is the advantage conferred on the subject of legal relationship due to the incidence of legal norm to legal fact. The legal duty, as opposed to the subjective right, will therefore be the disadvantage to be borne by the other subject affected by the incidence of the norm on the factual support. Therefore, a subjective right is an advantageous legal position based on the objective law.

E.g. subjective rights: "to be allowed to marry", "to start a family", "to adopt someone as a child", "to have home inviolable", etc. Right, in the subjective sense, means the power of action legally guaranteed to every person for the defence and protection of any and all kinds of material or immaterial goods, from which derives the "power to demand" the performance or abstention from acts, or the fulfilment of an obligation, to which another person is subject. "facultas agendi".

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