The subjective right refers to the rights that are effectively guaranteed to the individual by the law. It is the concrete form of a right that has been determined by law and can be enjoyed by a person.
Thus, the subjective right or faculties agendi can be defined as the right to demand , it is the power that a person has to enforce an individual right that was previously guaranteed by law.
Therefore, it is the subjective right that allows a person to invoke the provision of the law to guarantee the fulfillment of a right.
The subjective right receives this name, as it is a reference to the subject of law, that is, to who has the right.
Public and private subjective right
The subjective right can be subdivided into public subjective right and private subjective right.
The subjective public right is the right of action, of petition, right of freedom and political rights. It refers to the State, thus, it is related to rights that must be provided (guaranteed) to citizens by the State, through governments.
Some examples are: the right to health, education, public transport, among others.
The subjective private right refers to patrimonial and non-patrimonial rights. It is related to the persons of private law.
Examples are: property rights, inheritance rights, intellectual property, child support payments, among others.
Objective law consists of the general and abstract provisions present in the legal system. It is the whole set of norms and rules in force in a State, which must be respected by society, under penalty of sanctions.
It is said that objective law is abstract, as it is provided for in a generalized way in the legal system, indiscriminately affecting all individuals and situations that fit the predictions.
Objective law encompasses laws, jurisprudence, customs and any sources of law permitted in the legal system. The concept is called in Latin by the expression norma agendi , which means “norm of action”, as it consists of the set of norms that govern a society.
In summary, the expression objective law is used when the word law is synonymous with the legal system.
Part of the Brazilian doctrine considers that objective law and positive law are the same thing. However, some authors understand that objective law is the entire legal system in force in the State, while positive law is only the part of the legal system that was officially legislated and originated from the Public Administration itself.
The subjective right consists of the prerogatives conferred by the legal system to individuals. Thus, whenever a prediction of objective law occurs in a concrete way, the norm affects the individuals involved and they become holders of subjective rights. Therefore, the subjective right is the result of the incidence of a legal norm to a legal fact.
The subjective right is the ability to invoke the legal system in defense of one’s own interests. It is all that rights holders can do without infringing on the rights of others. For this reason, the idea of subjective right is conveyed in Latin by the expression facultas agendi , which means “faculty to act”.
In short, the expression subjective right is used when the word right is synonymous with prerogative.
- Right to collect an amount owed through a lawsuit.
- Right to claim compensation for damage caused by the Public Administration
subjective public right
The prerogative that must be demanded from the State itself is called subjective public right. Thus, when a subject is the holder of a right such as education, basic sanitation, etc., this right is simultaneously public and subjective.
Other subjective right classifications
In addition to the subjective right being divided into public and private, it also has other classifications. See what they are:
- Available : these are rights that the holder can waive if he so wishes.
- Unavailable : these are rights that the individual cannot give up, even if he wants to.
- Real : rights that are related to a thing or good.
- Personal : rights related to a charge or fulfillment.
- Accessories : are rights that depend on another right, called principal.