Subjective rights

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Subjective right^[2] is a legal advantage granted by legal rules, establishing a relationship between the holder of the law^[3]It is the right of the holder, the addressee 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. O system^[4] legal limits on subjective rights on the basis of the public interest^[1]These rights reflect changing social norms and legal interpretations, and are fundamentally linked to legal duties and the wider legal framework governing social interactions. 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.

Terms definitions

1. ↑ public interest. The public interest is a complex concept to define precisely, involving political, sociological and legal perspectives. Rooted in historical philosophies from Aristotle to the French Revolution, it represents the collective well-being of society. Scholars such as Dalmo de Abreu Dallari and Ernest S. Griffith have proposed various analytical frameworks to understand its essence. The concept plays a crucial role in Administrative Law, evolving from the protection of individual rights to satisfying broader societal needs. Despite its importance, the public interest is criticised for its ambiguity and potential for manipulation. Critics such as Lenio Luiz Streck argue that it lacks substantive meaning. Practical application requires clear criteria, balancing public and private interests, ensuring transparency and accountability in decision-making. Ultimately, the public interest aims to serve social welfare by adapting to changing social values and emerging collective needs.

2. ↑ Subjective right ( Subjective right ) 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 an objective right in that it confers a specific advantage on an individual, implying a corresponding duty on another party. Theories on subjective rights 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 legal positivism (rights are created by the 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.

Subjective rights (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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