1 .- Concept D ° Subjective:
- Law in the objective sense is a set of legal rules governing the conduct of men
- Law in the subjective sense is contained in the substantive law (as when speaking of one or the other is because they look different aspects), is the faculty that has a subject to perform specific behavior, or refrain from it or require other The subject line of duty, serves to make, do and demand.
- These two concepts are related, since the definition of D ° objective is obtained for the individual right that could be formulated as follows: Power to act to satisfy their own interests guaranteed by law.
- There are some rights that are exercised without the consent, as the inherent rights (HR)
- We must make it clear that the subjective aspect allows us through the will to act, enforce, abstain and enforce our rights, all this goes hand in hand with the will.
2 .- Origins of the subjective notion of D °:
- Hugo Grotius (1583 - 1645): The law is the moral culidad for the person to possess or do something unfairly. This right is for the person even though sometimes follows the thing as the land easements which are called real rights compared to the merely personal.
The moral quality we call perfect SCHOOL (ACT) and the less perfect FITNESS (POWER)
The faculty is the proper law which contains the AUTHORITY which the call freedom domino full or less full, enjoyment ... etc.
3 .- Elements of the subjective right:
- There are always two elements:
a) Internal Element: The ability to love and work, within limits.
b) External Element: Unable to preclude anyone other than my acting and can demand of others respect for my actions.
4 .- Fomas Subjective Law of Manifestation:
- The right subjective states:
a) As a legal right to freedom: The titual may choose whether to run or not to conduct, eg, marriage
b) In order to create rights and duties or legal power: the individual right holder can create new rights and obligation, by autonomy, eg, establish a foundation.
c) As pretense or right to enforce the duty of others: The right holder may require other, the correlative of duty, eg, the right of the creditor of the debtor demanding payment.
d) As a right to fulfill one's duty: The owner to whom a duty is imposed is entitled to meet it and ask that others be prohibited from preventing you from such compliance, eg, the right of the debtor to pay when the creditor refuses to receive payment.
5 .- theories that deny the D ° Subjective:
a) Leon Duguit: Denies the existence of subjective rights and believes that the individual and the colectivadidad no rights and as a social entity must comply with the rule, an act that breaks this rule will bring a time-dependent reaction space.Subjective right to exist could only be based on a metaphysical notion of the will, and as there is physical (entity body) can not be demonstrated and will be only an assumption. Subjective right to exist would be a hierarchy of wills. The legal right is an abstraction and so there really are only STATUS groups that are based on the standard (of an objective and social, that normal for everyone), derived from a subjective legal standard when the standard is particular and individual so that the individual has no rights but only duties.
b) Hans Kelsen: There are legal right when there is a manifestation of will, quelrella or prosecution of an individual from injury in their interests for an unlawful act. Only when the individual is in a position to defend their interests creates a legal right to their favor. The subjective right exists for the right target. The fundamental legal norm is in the top hierarchy and without the other would not be valid (Grundnorm).
c) functional theory of law: It proposes the elimination of meaningless concepts and others that can not be defined on the experience, the only thing meaningful in the field of law is as decided by the courts and how they should decide, so that definirce with abstract concepts are what really see or do in these concepts is the subjective right.
6 .- Theories which assert the existence of individual rights:
a) Theory-based legal technique: