Subjective Right(s)

ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW, J. Husa, J. Smits & C. Valcke (eds.), 3rd edition (Edward Elgar Publishing, Forthcoming)

17 Pages Posted: 6 Jun 2022 Last revised: 6 Jun 2022

See all articles by Helge Dedek

Helge Dedek

McGill University - Faculty of Law

Date Written: May 31, 2022

Abstract

“Rights” are a foundational concept in Western political, philosophical, and legal thought. In English, the connection of “rights” with the qualifier “subjective” originally occurs in translations from languages such as French, German, Italian, or Spanish, in which one word can express right as much as law (e.g., French “droit,” German “Recht,” Italian “diritto,” Spanish “derecho”), which can be combined with a qualifier indicating or emphasizing the “subjective” dimension as a right. Such composites (e.g. “droit subjectif,” “subjektives Recht,” “diritto soggetivo”, etc.) gained currency in the Continental civil law orders in the nineteenth century, originating in German-language legal scholarship. Predating such academic writing in the vernacular languages, scholars writing in Latin (the lingua franca of European academics) had reflected on the ambiguity of "ius," which could be understood as referring to a legal and/or moral order on the one hand, and as pertaining to a property of a person in the sense of a moral quality, power or faculty, on the other. From the mid-eighteenth century onwards, these alternative significations began to be addressed as ius understood in the “objective” and “subjective sense” respectively, a usage that was subsequently adopted into the vernacular terminology.

Associated with legal orders that are understood to participate in the civil law tradition, the language of “subjective rights” is frequently perceived by comparatists as one of the hallmarks of the civil law tradition, to be distinguished from common law rights terminology. The question then arises whether this usage is also indicative of a specifically “civilian” concept of rights connected to the term, which might differ from conceptualizations of rights in the common law tradition. However, the terminology is not only used in technically legal contexts; it is also employed in philosophical, sociological, and other literatures. However, the terminology is not only used in technically legal contexts; it is also employed in philosophical, sociological, and other literatures that reflect theoretically on the institution of rights. In such theoretical contexts, the composite “subjective rights” can more and more frequently be found in contemporary Anglophone literatures on rights. This phenomenon has given rise to the question as to whether the qualifier “subjective” has the potential to enhance or limit the meaning of “right” in English - or whether “subjective right” is rather a pleonasm (or even a solecism) since, as Professor Mautner has put it, “rights cannot but be subjective”.

Keywords: Civil law, common law, comparative law, rights, subjective rights

JEL Classification: K1, K10, K19, K30

Suggested Citation

Dedek, Helge, Subjective Right(s) (May 31, 2022). ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW, J. Husa, J. Smits & C. Valcke (eds.), 3rd edition (Edward Elgar Publishing, Forthcoming), Available at SSRN: https://ssrn.com/abstract=4123676 or http://dx.doi.org/10.2139/ssrn.4123676

Helge Dedek (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec H3A 1W9
Canada

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