Objective Law vs. Subjective Right: A Legal Framework

• Derecho objetivo (law): It is the set of principles and norms to which human relations in society are subjected. It is a code broad enough to address all aspects that can arise in every personal or social interaction. Thus, among other things, law (Derecho objetivo) establishes how legal contracts must be established between individuals, what duties a worker has, what is considered a crime, what the exculpatory circumstances are in case of committing a crime… Moreover, law also deals with the appropriate punishment for each type of crime.

• Derecho subjetivo (right): It is the faculty or ability of every human being to do what is allowed or to demand what is according to their dignity. Human rights are a clear example.

a) Positive Law (Derecho positivo)

It is the system of rules established by a particular State which is applicable or in force at a particular time and place. This is known as the legislation of a country. This positive law is also subdivided into different types, depending on the scope it is applied to or the specific function it has. So, we have a civil law (relationships between individuals), a criminal law (actions that are considered as a crime), a labour law (workers’ duties and rights), etc.

b) Natural Law (Derecho natural)

It is a set of principles and rules that are universal and immutable. Positive law must adapt to it because natural law establishes not what is legal, but what is fair. Not all thinkers have recognized the existence of this natural law, but those who have done so, the so-called iusnaturalists, emphasize that there are certain principles in law that are not a human creation, that is, they are not the result of an agreement between people. Actually, iusnaturalists think that the validity of these principles is identical in any community or human society. So, since this natural law establishes what is fair “by nature”, any concrete positive law should follow it as a model.

The Principle of Legality

One of the key features that characterizes the State based on the rule of law is the respect for the principle of legality. This principle consists in being in conformity with the law both in the relations between the State and citizens, and in the relations among citizens. This principle belongs to the field of positive law and, therefore, does not take into account the possible injustice of the laws. Something is legal if it matches the current laws, although these laws may seem unfair to us. From this point of view, only what is contrary to the laws can be considered illegal or criminal.

The existence and fulfilment of the principle of legality is a barrier against state arbitrariness, since it prevents unequal treatment of persons, because before the law, at first sight, we all are equal. It also gives the certainty that we all must be treated according to what establishes the law and not according to the wishes of the leader that governs at that time. In addition, law is public and, therefore, anyone can know whether someone is acting against law. So, the principle of legality guarantees legal certainty.

However, subjection to the principle of legality is not exclusive to the States based on the rule of law. An authoritarian State that does not respect human rights can also be subject to a legal system, although that system was likely unfair. Although the law is fulfilled, its content is discriminatory or cruel, or favours a dominant group. For example, in South Africa, during the apartheid regime, several laws prohibited members of the black majority from living in white neighbourhoods or going to their schools. During the dictatorship of Franco in Spain (1939-1976) hundreds of thousands of people were detained and executed indiscriminately by virtue of the content of the Francoist laws, although this violated several fundamental human rights. In these cases, the State was unfair and cruel, although it respected the principle of legality.

Because of that, the principle of legitimacy is often contrasted with the principle of legality. What is legal may not be legitimate, since what is legitimate is what coincides with justice and morality. In a previous section, we have already talked about the legitimacy of state power; now the legitimate State will try to ensure that what is legal is also fair.