A subjective right is the legal power granted to an individual by objective law to protect his or her legitimate interests . In contrast to this, there is a mere legal reflex when the individual himself is not entitled to claim , but is only favored by a norm.
Subjective rights can be found, on the one hand, as rights of domination and, on the other, as creative rights . Dominance rights are absolute rights that are directed against everyone and must be observed by everyone, such as personal rights or the right to property. Design rights are relative rights that only exist in relation to a specific person, typically from contractual relationships . This includes, for example, the termination or contestation of contracts.
In the area of public law, the term subjective public law is used.
In addition to legal (usually positive ) rights, subjective rights are also relevant in a political and moral context. In moral philosophy , they are postulated as individual claims to which the individual is entitled as an over-positive right regardless of state granting .
It is widely believed that subjective rights are an early modern intellectual achievement . Historians of philosophy have recently contradicted this view. According to Richard Tuck , the idea of an ius possessed by single individuals was developed by several medieval theologians, particularly in the context of the poverty struggle . But this reading is not undisputed.
The rights granted by the legal system are referred to as subjective rights because they entitle a bearer : the legal subject . This can be either a natural person (in Germany: every man , of the Civil Code ) as well as a legal entity ( GmbH , registered association act, etc.). Both have the same legal capacity .
Right and duty
In the German law of obligations the individual are obligations described as mandatory circles. The sales contract, for example, obliges the seller of an item to provide the buyer with ownership of the item ( (1) sentence 1 BGB); the service contract means that the person who promises to provide the services is the other Partly obliged to grant the agreed remuneration ( Paragraph 1 BGB). In order to enforce the obligations, Paragraph 1, Clause 1 of the German Civil Code (BGB) , which applies to all contractual obligations, stipulates that the obligee is “entitled” to “demand” performance from the debtor.
Only then is it clear that the performance obligations are offset by corresponding rights . This is not a matter of course, because the same rule continues in its paragraph 2: According to its content, the obligation can “oblige” each part to take into account the rights, legal interests and interests of the other part . There is therefore no subjective right to these protective obligations . If the contractual partner violates these obligations, he may be obliged to pay compensation . However, his counterpart does not have a right to fulfill the protective obligations, they are "not actionable".
Visitor B slips on a banana peel in the K department store. Then K has violated the obligation under(2) BGB to be considerate of B's health. If necessary, K owes damages in accordance with (1), (2), (2) BGB (to which B then also has a right, (1) BGB!). But if B had discovered the banana peel without slipping on it, he could not ask K to remove the peel: K may be obliged to do so, but B.
Classification of subjective rights
In public law
- Defense rights
- ( Latin status negativus ), with which the holder of fundamental rights can demand that the state refrain from interfering with the protected area of freedom;
- Participation rights
- ( Latin status activus ), where participation can be requested (e.g. right to vote);
- Performance rights
- ( Latin status positivus ), which entitle the holder of basic rights to state benefits.
In civil law
German private law distinguishes between absolute and relative rights. Absolute rights work towards everyone (erga omnes). Every legal subject is therefore the addressee of each of these rights. These are primarily rights of rule that grant the bearer power over a certain object. Dominion rights exist to things, BGB (then also rights in rem ), like property according to BGB. However, there can also be lordship rights to intellectual property (such as patents and copyright ). Personality rights are any people as a personality such. B. the naming right, BGB. The rights act as defense rights. Absolute rights are protected in accordance with (1) and analogous to the BGB and often also by special law.
Relative rights can only be directed at certain addressees and work inter partes . They consist of claims, ie “the right to demand that another act or omit” ( (1) BGB). Claims are subject to the statute of limitations . Claims under the law of obligations are called claims . A distinction must be made between this and the design rights . They give the agency the power to influence an existing legal situation without the involvement of others. Examples are the right of termination , the right of contestation , the right of withdrawal and withdrawal . In order to protect the contractual partner , the exercise of these rights regularly requires a declaration (design declaration ), which must be submitted to him, i.e. must be sent to him , (1) BGB. For example, the employer can only demand the service from his employee , but not from his uninvolved neighbor. Likewise, the employee cannot terminate his employment contract with X who happens to be passing by: This is not a party to the employment contract and has "nothing to do" with the employee's right to terminate.
Determination through interpretation of objective law
Whether the legal system only stipulates obligations in individual cases or also grants a legal entity a right to fulfill these obligations can be determined by applying the interpretation methods.
In public law , this question is of particular importance for primary legal protection: An action before the administrative courts presupposes that the plaintiff's rights have been violated ( (2 ) VwGO ). If there is even no possibility of such an infringement (" right to bring an action"), the action will be dismissed as inadmissible. The legal guarantee of , para. 4 GG is linked to the breach rather than the objective law, but of subjective rights of the plaintiff to.
According to the wording ( fundamental rights and rights equivalent to fundamental rights are first of all such subjective public rights. In the doctrine of fundamental rights, however, a slightly different terminology has emerged: the content and bearers of fundamental rights are treated under the term of the (objective or personal) area of protection in which the state can intervene . But numerous norms of ordinary law also grant rights to the individual. If there is a lack of express provisions, then, according to the protection norm theory , a subjective right exists if an obligation is not only in the public interest, but also in the interest of individuals. This is to be determined by interpretation.Para. 3 GG, No. 4a GG), systematics (heading of Section I), genesis and meaning and purpose,
The powers of the organs are not subjective rights in the classical sense . Their carriers are not legal subjects , but organs (or their members) of such a legal subject, namely a legal person under public law. For example, the mayor and the municipal council, both organs of the municipality as a person, can each have their own powers. They can assert their violation against one another in the municipal constitutional dispute , even though it is only a matter of internal “rights” . The procedure is then a purely internal legal dispute. Another example in Germany are the powers of the highest federal organs ( Federal President , Bundestag etc.), for the violation of which the Basic Law provides a separate procedure, the Organstreit , No. 1 GG.
In the case of legal disputes about powers between organs, one speaks of an inter-organ dispute . If, on the other hand, it comes to the powers of individual members of organs, there is an intra-organ dispute .
In civil law , too, it happens that an obligation is not matched by a corresponding law. A classic example is the condition, BGB: "The testator can oblige the heir or a legatee to perform by a will without granting another right to the benefit" (differently the legacy, BGB).
The so-called imperfect liabilities or bonds in kind occupy an intermediate position . They do not entitle to demand the service, but on the other hand they can be "fulfilled" insofar as what has been done on them can no longer be reclaimed (see game, bet, marriage brokerage, , BGB).
In addition, substantive law can grant rights that are enforceable but not enforced ( ZPO : establishing the marital union).(3)
There are no rights to the so-called obligations . These are not duties, but mere "duties to oneself": one obeys them in one's own interest in order to avoid disadvantages (e.g. the obligation to minimize damage in BGB, the obligation to complain in HGB ). If there is no obligation, they can certainly not be countered by any subjective right.
In the course of time, the following definitions of "law" have become established in private law:
- "Power of will given to the individual by the legal system" ( Windscheid )
- "Legally protected interest" ( Jhering )
- "Private law standard-setting powers" (Bucher)
- Buyer X has signed a sales contract with seller Y for a used car and paid the purchase price. The right to transfer ownership and handover of the used car to X against Y is a subjective right.
- If X had not paid the purchase price, Y would be entitled to refuse to hand over the used car. This right is also called a subjective right (namely a reciprocal right against the right of X).
- When the sales contract has been completed and X has acquired ownership of the used vehicle, he is the owner and therefore the owner of all rights to the vehicle. His right of property is also called a subjective right (right to rule).
Origin of and disposal of rights
The parties concerned can create relative rights through a legal transaction , in particular a contract . With the employment contract, for example, employer and employee justify reciprocal claims: on the one hand to remuneration, on the other hand to performance of the promised services. This is not a problem as third parties are not affected.
Absolute rights can also be established by contract if this only encroaches on an already existing right. For example, the owner can pledge his movable property through a real contract and handover and thus encumber his property with a lien on the part of the contracting party.
However, absolute rights must also be able to arise for the first time through statutory order. One then speaks of an original acquisition . In this respect, the appropriation of abandoned items comes into consideration, but also the processing through which the processor acquires property. For example, the owner becomes someone who takes thrown away furniture ( bulky waste !) For this purpose, or who builds a cupboard out of other wood.
About rights may by way of business has to be ( available business ). This is understood to mean an effect on the law through which it is directly transferred, encumbered, changed in content or repealed.
- Relative rights are transferred through assignment (assignment). There are usually deviating regulations for absolute rights (e.g. transfer of ownership of movable property through agreement and handover). One then speaks of a derivative acquisition of rights in contrast to the original acquisition.
- Relative rights can be waived, for example, through decree , an agreement between debtor and creditor. Claims are typically extinguished upon fulfillment. In terms of absolute rights, the relinquishment of ownership ( dereliction ) is particularly important . In principle, a right also expires if the carrier and addressee coincide in one person ( confusion , consolidation ).
Wesley Hohfeld (1879–1918) pointed out in 1917 in his seminal essay Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays that the concept of a subjective right is ambiguous and must be broken down into several individual meanings. Failure to make such distinctions leads, according to Hohfeld, to errors in the legal justification. Hohfeld's analysis is widely accepted in Anglo-American legal theory and philosophy and is considered to be one of Hohfeld's fundamental insights.
According to Hohfeld, the term "[a] right" (English, (subjective) right) must be differentiated into four possible meanings. Each meaning expresses a legal relation, i. H. a normative relationship between two people. These are in detail:
- In the first meaning, “right” indicates “liberty” or “privilege”; H. a freedom of action or a privilege to act. Conversely, if A has a right to B to do H, this means that A has no duty to B to do H. According to this analysis, the right to listen to music in one's own home is the absence of an obligation towards the neighbors to listen to music.
- In the second - and according to Hohfeld central - meaning “right” means a “claim”, i.e. H. a claim. Claims correspond to duties: if A has a right to claim H against B, then B has an obligation to do H.
In addition to these first-order Hohfeld rights, there are two further distinctions on the meta-level.
- So “right” can also mean “power”, i. H. a power. If A has authority, then A can change certain rights - all four forms of Hohfeld's rights - i.e. H. create new rights or change existing rights. According to this analysis, a property right to a property is the authority to transfer the freedom of action, privileges, claims, etc. associated with the property.
- In the last sense, "right" means an "immunity" or immunity. If A has immunity, certain rights of A cannot be changed. According to this analysis, the right not to be enslaved is the right that certain Hohfeldian rights of the first and second order cannot be withdrawn.
In modern Anglo-American jurisprudence it is customary to speak of “bundles” of Hohfeldian rights. It is assumed that behind such seemingly simple rights as the right to freedom of expression there is a complicated “molecule” of Hohfeld's “atoms”.
The Hohfeld schema must not be misunderstood as a substantive thesis about the existence or justification of rights; it is primarily a linguistic analysis and a more precise differentiation of the legal term.
Claim in a structured context of “economy and personality” according to Schapp
For Jan Schapp , the legal norm or the law is not the last resort to establish subjective rights. Rather, according to Schapp, the law does not justify a claim in an “empty space”, but in a structured factual context “economy and personality” in which conflicts arise from conflicting interests, which the law decides. With this, Schapp creates a starting point for the discussion and understanding of the phenomenon of subjective law that was missing until then, beyond the positive law of the law and yet “in the full reality of the lifeworld”. According to Schapp, the recognition of the claim as a right does not happen arbitrarily or merely factually by the legislature. It is based on the circumstances of the life situation, but cannot be read from it, but must be carried out through “legal work”, through “finding” the prerequisites, as a conflict solution, i.e. H. as a “just decision”. Thus the decision of the case as a question of justice moves into the center of legal interest. According to this basic line of law developed by Schapp, the decisive bearer of public law can no longer be the superordinate / subordinate relationship between the state and the citizen, but a legal relationship between the state and the citizen in which both face each other at the same level.
Property and entitlement are not subjective rights in the same sense; entitlement protects property. In the same sense, Roman law distinguishes between res and actio ( Gaius: Institutiones ). So a distinction was made between what was protected (property) and how it was protected (by lawsuit, today claim). The traditional unified concept of subjective law as the power of will to satisfy human interests conceals this context that is constitutive for law.
Nature of rights
Regardless of the linguistic analysis of rights, the question of the function and nature of rights arises. What kind of subject are rights? The two most prominent approaches in modern philosophy are interest theory and choice theory .
Theories of interest are based on the natural understanding that rights use individuals in some way, protect them, or otherwise give them an advantage. Joseph Raz , one of the most prominent defenders of the theory of interests, defines (subjective) law as follows:
- "'X has a right' if and only if x can have rights, and other things being equal, an aspect of x's well-being (his interest) is a sufficient reason for holding some other person (s) to be under a duty . "
- “'[A person] X has a [subjective] right' if and if and only if X can have rights and, regardless of other considerations, some aspect of X's well-being (his interest) is a sufficient reason to defeat one or more others To put person (s) under a duty. "
According to the theory of interests, the central function of rights is to protect and promote the individual well-being of individuals. What counts for the well-being of individuals must be explained in detail by a specific philosophical theory of welfare . This can be luck , utility or even perfectionistically understood goods that individuals possess.
It should be noted that interest theory is not a form of utilitarianism . In the justification of a right, the aggregate well-being of all is not cited, but the tendency of a right to promote individual well-being.
The central modern defender of the opposite approach is HLA Hart , one of the most important legal philosophers of the 20th century. For Hart, the function of rights is not to be seen in their protection of interests, but in their function of giving individuals control and choice in a certain area.
Hart's initial assumption is that rights are something that individuals possess and exercise:
- »Rights are typically conceived of as possessed or owned by or belonging to individuals, and these expressions reflect the conception of moral rules as not only prescribing conduct but as forming a kind of moral property of individuals to which they are as individuals entitled [...] . "
With this in mind, Hart analyzes rights as the ability to control the duties and actions of other individuals. This ability does not necessarily have to be in the interests of individuals, as the theory of interests claims.
Hart's theory immediately leads to two controversial results. First, animals and non-autonomous people cannot have rights. Because if rights are typically “exercised”, this presupposes the ability of the legal entity to be an autonomous “ agent ”. Interest theory, on the other hand, only requires the weaker assumption that legal entities can have interests, which includes animals and non-autonomous people.
Second, Hart's analysis implies that there cannot be any “inalienable” rights. Inalienable rights are characterized precisely by the fact that individuals have no control over them.
Interest theory and choice theory do not exhaust the logically possible positions. Nor are they necessarily incompatible: it is theoretically conceivable that rights protect interests as well as confer control.
Some authors have proposed “multifunctional” theories that rights have multiple and varied functions. Other theorists suggest that the two theories are not in competition, but merely describe different forms of rights.
Establishment of rights
Regardless of the structure and function of rights, the question arises of how rights can be normatively justified. Here the great theories of normative ethics are reflected.
According to consequentialist approaches, rights are based on their positive consequences.
What counts as a "positive consequence" can vary widely. In an egalitarian consequentialist position, rights exist if and only if they contribute to the creation and maintenance of an egalitarian society. Should rights of such a society be a hindrance, they do not exist. In a utilitarian position, another sub-form of consequentialism, rights are seen as well-founded when they maximize the aggregate total utility in society. Other ways of evaluating consequences are conceivable. Instrumental perfectionists will judge rights, for example, according to the extent to which they contribute to the moral perfection of individuals.
In contrast to consequentialist theories, deontological approaches establish rights through certain intrinsic properties that are assigned to legal entities. In Kant's ethics and legal philosophy, for example, persons have dignity , and this is the basis on which specific rights are established.
Modern philosophers take up this basic idea: Individuals as such have a form of moral status that demands moral respect from the state and all other individuals . Thomas Nagel argues, for example, that individuals are characterized by having their own independent mind (independent thinking being) . The exercise and the forms of expression of this spirit are therefore to be respected ceteris paribus . On this basis, Nagel argues that all individuals have a right to freedom of expression - regardless of the consequences.
Strength and Conflicts of Rights
Another question regarding rights is what kind and how strong are the moral reasons that express rights. Do rights have to be respected under all circumstances, even if this means that moral claims that are not based on rights must be receded?
Ronald Dworkin answered “yes” to this question in a famous essay. Dworkin used the metaphor of trumps in a card game : individual, subjective rights are "trumps" that "outperform" all other social and moral considerations.
Robert Nozick argued similarly in Anarchy, State, and Utopia: Rights-based side constraints . If A has a subjective right that others not do an act H, then other individuals are not allowed to do an H. Actions that are forbidden by rights thus fall out of the action calculation of all individuals.
Other philosophers have tried to weaken the strength of rights: rights have indicated particularly strong moral reasons, and we should always try not to violate them under normal circumstances; but in certain situations their violation is justified if this violation is otherwise to be assessed positively.
Closely related to the question of the strength of rights is the question of whether rights are in conflict and how conflicts between rights can be resolved through rational arguments. Some legal theorists deny that rights are in conflict. According to this view, the full description of the content of a right would be so specific that the rights of different individuals never give us conflicting instructions. Another, libertarian approach is to just ascribe negative rights to individuals in the belief that they generally do not conflict.
The more widespread opinion, however, is that rights can and do conflict on a regular basis. Anyone who accepts this must, however, deny that rights must never be violated. This is a difficulty, for example, for Nozick's theory: because when a person's right forbids us to do H and a conflicting right forbids us to omit H, the actor is faced with a paradoxical decision .
Importance of rights in the moral realm
Another question that has preoccupied philosophers is the importance of rights for the whole of morality. Ronald Dworkin has distinguished three approaches in ethics: rights-based moral theories (rights-based morality), duty-based moral theories (duty-based morality) and target-based moral theories (goal-based morality). As their names suggest, each of these theories accepts a concept as a basic concept in ethics, from which the others are then derived. Dworkin identifies Kant's ethical theory as a duty-based moral theory: the categorical imperative is central to Kant, and this expresses a duty to act (“act like that ...”). The rights of individuals - and what counts as the goal to be achieved - were derived only secondarily from the categorical imperative.
Ronald Dworkin tried to defend a rights-based moral theory against these theories. Dworkin's critics have rejected this approach.
- Ulrich Ramsauer : The Dogmatics of Subjective Public Rights, in: JuS 2012, p. 769 ff.
- Arno Scherzberg : The subjective-public law - basic questions and cases, in: Jura 2006, p. 839 ff.
- Eugen Bucher: The subjective right as authority to set norms . Mohr / Siebeck, Tübingen 1965, cf. PDF
- Jan Schapp : The subjective law in the process of obtaining rights . Duncker & Humblot, Berlin 1977, ISBN 978-3-428-03849-7 .
- Wilhelm Henke : The subjective right in the system of public law , DÖV 1980, 621ff.
- prominent Tuck, Richard: Natural Rights Theories: Their Origin and Development, Cambridge University Press, 1981; Tierney, Brian: The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150-1625, Wm. B. Eerdmans Publishing, 1997.
- See Fortin, Ernest (1996): “On the Presumed Medieval Origin of Individual Rights”, in: Collected Essays, II: Classical Christianity and the Political Order, ed. by J. Brian Benstead, Lanham, MD (USA), Rowman and Littlefield, pp. 243-64.
- Wesley Hohfeld: Fundamental Legal Conceptions as Applied in Judicial Reasoning . In: Faculty Scholarship Series . January 1, 1917 ( yale.edu [accessed January 10, 2019]).
- See, for example, the article in the Stanford Encyclopedia. A very thorough explanation of Hohfeld's schema can be found in Kramer, Matthew, Nigel Simmonds, and Hillel Steiner: A Debate over Rights: Philosophical Inquiries, Oxford, Clarendon Press, 1998.
- Jan Schapp: The subjective right in the process of obtaining rights. Duncker & Humblot, Berlin 1977, ISBN 978-3-428-03849-7
- Wilhelm Henke . Book review: Jan Schapp, The subjective right in the process of gaining rights in DVBl, June 1, 1978, p. 417
- Jan Schapp: The subjective right in the process of obtaining rights. Duncker & Humblot, Berlin 1977, especially chap. 7, ISBN 978-3-428-03849-7
- Jan Schapp: Methodology and System of Law. Articles 1992-2007 . S. 55ff, Mohr Siebeck, Tübingen 2009. ISBN 978-3-16-150167-8 .
- Joseph Raz: "On the Nature of Rights". In: Mind 93/1984, pp. 194–214, 195.
- H. LA Hart: Are There Any Natural Rights? In: The Philosophical Review 64, No. 2, 1955, pp. 175-191.
- For example Wenar, Leif: "The Nature of Rights", in: Philosophy & Public Affairs 33, no. 3 (2005): 223-252.
- Van Duffel, Siegfried: "The Nature of Rights Debate Rests on a Mistake", in: Pacific Philosophical Quarterly 93, no. 1 (2012): 104–123.
- Thomas Nagel: Personal Rights and Public Space. In: Philosophy and Public Affairs 24, no. 2 (1995): 83-107.
- Ronald Dworkin: Rights as Trumps . In: Jeremy Waldron (Ed.): Theories of Rights . Oxford University Press, Oxford 1984, pp. 153-67.
- Robert Nozick: Anarchy, State, and Utopia . Basic Books, New York 1974.
- Dworkin's and Nozick's theory are compared in Philip Pettit: Rights, Constraints and Trumps . In: Analysis 47, No. 1, 1987, pp. 8-14.
- Russ Shafer-Landau: Specifying Absolute Rights . In: Arizona Law Review 37/1995, pp. 209-225.
- For example, Jeremy Waldron: Rights in Conflict . In: Ethics 99, No. 3, 1989, pp. 503-519; FM Kamm: Conflicts of Rights . In: Legal Theory 7, No. 3, 2001, pp. 239-255.
- Mackie, JL: "Can There Be A Right-Based Moral Theory?", And Raz, Joseph: "Right-based Moralities," both in Waldron, Jeremy (ed.): Theories of Rights. Oxford University Press, Oxford 1984.