We explain what subjective law is, we give you some examples. In addition, we tell you how it differs from objective law.
What is subjective right?
Subjective right is the set of powers, freedoms and legal faculties that the law and legal norms grant to individuals. They are based on any reason admissible in law, such as human nature, mutual agreement (in the case of contracts) or the national legal system (that is, objective law).
The permissions or freedoms granted by subjective law arise from the law and the legal framework contemplated in each country. That is, the subjective right gives individuals the possibility of demanding compliance with an obligation contracted by third parties that is, to exercise a right acquired by law. These are the freedoms derived from the obligations imposed by objective law.
See also: Civil law
Classification of subjective law
There are three ways to classify subjective law, based on different criteria:
Depending on the person affected by the right, a distinction can be made between:
- Subjective right to own conduct. When the law allows a person to do or omit actions. For example, the right to free movement.
- Subjective right to the conduct of others. When the law allows requiring positive behavior (doing something) or passive behavior (stopping doing something) from another person. For example, the right not to be attacked by third parties.
Depending on the nature of its effect, a distinction can be made between:
- Relative subjective law. When a right is asserted against another specific person or persons. For example, the right to acquire parental authority over a child.
- Absolute subjective right. When a right is asserted before the whole of society. For example, the right to own property.
Depending on the type of their legal regime, a distinction can be made between:
- Public subjective law. When it comes to powers that are asserted against the State and represent the limits that it imposes on itself. For example, the right to due process when detained by the police.
- Private subjective law. When it comes to powers that are asserted against third parties or individuals, or against the State acting not as a sovereign entity, but as another legal actor. For example, the right to demand fair performance of a contract.
Examples of subjective law
The following are examples of subjective law:
- Freedom of expression and freedom of worship.
- Family and parental rights that establish legal ties between citizens.
- The right to private property and the right to freely dispose of and market the assets one has.
- The right to free exercise of politics, free association and free participation in society.
- Commercial and intellectual property rights.
Differences between subjective and objective law
The fundamental difference between subjective law and objective law has to do with the nature of their rules and provisions: Subjective law grants powers, while objective law imposes obligations.
In other words, subjective law grants the permissions and functions derived from the legal norms with which objective law governs life in society.
For example, signing a purchase-sale contract gives the buyer the subjective right to freely use and dispose of the purchased good (subjective right), but such a contract can only exist within a legal framework that establishes what things are allowed to be sold and which ones are not (objective right).
The differences between objective and subjective law can be summarized as follows:
| Subjective law | objective law |
|---|---|
| Grants permits, licenses and powers to individuals in accordance with the provisions of the law. | Regulates the conduct of society through the imposition of general obligations. |
| Fulfillment of the granted right depends on the will of the individual. | The State is responsible for making compliance mandatory, that is, it is coercive. |
| Your freedoms or rights are limited by a pre-existing objective norm. | From each objective norm that is imposed, a series of subjective rights is also created. |
| It is born through the imposition of a law or the signing of a contract. | It is born from the legal system (positive) or from legal tradition (customary) |
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References
- Álvarez Ledezma, M. (2008). Introduction to law. McGraw-Hill.
- Couture, E.J. (2006). Legal Vocabulary. Euro Editors.
- Villoro Toranzo, M. (2004). Introduction to the study of Law. Porrúa.
- Royal Spanish Academy. (2023). “Subjective law”. Pan-Hispanic dictionary of legal Spanish. https://dpej.rae.es/
