Understanding Subjective Rights: Structure, Content, Exercise
Concept of Subjective Rights
A legal right is a power granted by law, specifically concerning a certain social reality. It is conceived for a person whose discretion is left to its exercise and defense.
Characteristics of Subjective Rights
- It is a power composed of a set of sub-powers.
- Its exercise and protection are left to the discretion of the holder.
- It is institutionalized and typified by the legal order.
- It has a unitary character, with all powers that compose it manifested in content and elasticity.
- It presents independence or self-governance.
Distinctions from Other Legal Concepts
- Powers: Legal power attributed to its owner, not to satisfy their own interests, but to ensure and protect the interests of another person.
- Faculty: Part of the subjective right (a sum of powers).
- Expectations and Interim Situations: The acquisition of a right can take time. Theories related to this include:
- Level of development of law (mere hope, expectation).
- Theory of future right.
- Theory of interim legal situations. These are legal powers born with limitations, ultimately resolving the situation.
- Action: The power to initiate a process leading to legal guardianship, referring to a specific case, by invocation of a right or legally protected interest against another person.
Classes of Individual Rights
- Public rights and private rights.
- By content: personality rights, family rights, and property rights.
- Real and absolute rights, or rights relating to credit.
- Transmissible or transferable rights.
- Principal or accessory rights.
Structure and Content of Subjective Rights
I. Subject of Subjective Rights
The subject is the person, either physical or legal, to whom the legal order confers the legal power that constitutes the right. This is what we mean by ownership. Types of ownership:
- Full, physical, or independent ownership.
- Ownership of enjoyment or subordinate ownership.
- Plural ownership.
- Apparent ownership.
- Provisional ownership.
- Trust ownership.
There is always a subject/titleholder of the right.
II. Purpose of the Subjective Right
It is the social and legal reality, and the incumbent power. These may be personality rights or property rights.
III. Content of the Subjective Right
The set of possibilities of action that the legal right gives to the holder for its purpose. Any legal right implies a set of powers and a set of duties or obligations.
Exercising Subjective Rights
Exercising a legal right is the action of its contents, or the embodiment of an act or series of acts or activities for which the holder of the power granted by law is empowered or authorized. Broadly, the exercise of rights includes the enjoyment of opportunities for action, reporting a profit or meeting the interests of the holder, the conservation, insurance, and protection of one’s own right.
The requirements for the act of exercising a legal right are legal capacity to act and legitimation.
Legitimation is the recognition that the legal order makes for a person to effectively perform a legal act, based on the relationship between the subject acting and the goods or interest to which the act affects.
- Active legitimation: Refers to exercising the right.
- Passive legitimation: Refers to who bears the right.
- Direct legitimation: Matching the right holder and the one who is exercising it.
- Indirect legitimation: There is no overlap.