Pursuing “the Subjective” in “Subjective Rights”

Abstract

This paper is a contribution to the conceptual history of subjective rights. The subjective right is generally understood as an individual right in contradistinction to the system of legal rules, which are named the ‘objective right.’ These notions have enjoyed immense popularity among Continental legal scholars and historians. This article gives an explanation of how the terms “subjective” and “objective” right came into usage in Germany, and it shows how these terms were elaborated within a metaphysical context. This paper suggests that the origin of this terminology is to be found in the philosophy of Christian Wolff and in particular in that of one of his pupils, Joachim Georg Darjes. The notion of a subjective right thus has its origin in an intellectualistic and perfectionist philosophy, where rights in a primary sense are at the same time conceived as duties.