Subjective Rights: Public And Private

The subjective rightsare the powers conferred by the legal system on a person in order to claim against others certain actions or omissions, understanding them as an obligation. There is no conflict between subjective and objective right.

On the contrary, subjective right is justified and recognized thanks to objective right, which at the same time makes sense in providing objective rights to third parties. Some legal duties are identified with the one who exercises subjective right; This is the case, for example, of parental authority, right and simultaneous duty to educate.

Subjective rights

It is what is called rights-duties; reciprocity is contemplated. For some jurists – like Savigny – the reason that subjective rights exist is the will; However, other currents do not agree since they affirm that the will has no function when it comes, for example, of rights acquired at birth.

For example, the German jurist Von Ihering considered that the objective of granting subjective rights is to provide individuals with tools to safeguard their interests, whether material or immaterial. If an excessive value is given to subjective rights, the social function is lost.

Hence, a theory appeared that does not admit the existence of subjective rights, since it understands that these rights are unnecessary for the benefit of social rights.

Public subjective rights

They are the subjective rights of the people who participate in public legal relations. It is important to highlight the superior and relevant position of the State and public bodies vis-à-vis the individual. It is totally different than in the private sphere, where there is coordination.

Public subjective rights are based on personality and not on a specific thing as in private law. They focus on the person, their origin is the powers that the regulations grant them.

Its subjectivity is exhibited through the acceptance of the individual’s status as part of a community; without this acceptance it is meaningless.

It is about recognizing man as a person within the public sphere. What happens is that from the moment in which a subject is, even temporarily, under the power of a State, he immediately has not only the consideration as a subject, but also already has public rights and duties.

There is a reciprocity between the State and the individual, which recognizes the latter as a person, but at the same time there are rights against himself. Therefore, it is a balanced two-way legal relationship where there are rights and obligations.

The different types of public subjective rights are the following:

Status activae civitatis

They are the rights considered political that the laws grant to the citizens so that they can participate in a direct or indirect way in the government of the State; that is to say, exercise sovereignty (active and passive suffrage).

Status civitatis

They are the rights that favor private individuals to demand that the State intervene on their behalf. An example of this status civitatis is the right of action that guarantees economic and civil rights.

As a citizen, the individual has rights that the State has the obligation to facilitate and guarantee their safeguarding.

Status libertatis

It refers to the scope of freedom within which the State does not intervene and guarantees individuals rights such as correspondence or the right to freedom, among others.

The most important are reflected and guaranteed in the Constitution in a special way, especially in terms of their protection.

State versus individuals

They are what are called public charges or benefits, which must be borne by individuals belonging to a State.

There are several types, such as patrimonial, such as contributions and taxes; and other benefits such as the obligation to serve on a polling station as president or compulsory military service in the States where it still applies.

Individuals in front of the State

According to the particular organic distributive justice, particular individuals have subjective rights that they can confront before the State.

Private subjective rights

They are the subjective rights that a particular individual has against other private individuals and also against the State, in which cases in which it exercises as a private law entity.

The State is presented in two different dimensions: on the one hand as a public person, and on the other as a private person.

It is to this last meaning that we refer: for example, when you are the owner of properties, whether movable or immovable, or when you carry out the sale of goods.

It is about the State acting, in some way, as an individual; that is, without using the force and power conferred by its status.

Within the private subjective rights we find the following:

Absolute rights

They are the rights with force and effectiveness against all. Some call them rights of exclusion or lordship. In absolute rights, the holder of the rights is granted a force or a power against all.

Correspondingly, they have a legal duty and an obligation to respect everyone. For example, the owner of a building or a premises is clear that his domain is total.

Among the absolute rights are:

-Real rights such as property.

-Inheritance rights (for example, the legitimate heir that forces a percentage of the inheritance to be left to certain people).

-Political rights that allow participation in the election of representatives (right to vote).

-Personality rights (they safeguard the identity or the physical body).

Relative rights

These rights grant the ability to demand of other specific people a certain conduct.

An example is the right to credit: if a person owes us money that we gave him on loan, our right is only demandable before that person; that is, it is relative. You cannot claim that subjective right from anyone.

Among these relative rights, the following stand out:

-Family rights: right to inheritance, alimony for minors and anyone that originates from a kinship relationship.

-Credit rights.

References

  1. Legal research institute. Subjective rights. Unam.mex
  2. Humberto Nogueira. Subjective rights. Legal files.unam
  3. Online Legal Encyclopedia. Subjective rights. Mexicoleyderecho.org
  4. Definition ABC. Definition subjective rights. Definicionabc.com
  5. Wikipedia. Subjective rights
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