Explanation of the term: Right (law, claim, authority)
The term “Right” (German: Recht, Anspruch, Befugnis) possesses a variety of meanings and areas of application in legal science. In normative systems, such as national and international law, “Right” fundamentally denotes an authority recognized by legal norms, which is attributed to certain persons or groups. This authority is manifested in the ability to demand certain conduct, to exercise it, or to protect oneself against interference.
Definition and use of the term
In Anglo-Saxon jurisdictions, “Right” encompasses numerous legal dimensions, including fundamental rights, subjective rights, participatory rights, as well as contractual and proprietary rights. In German-speaking legal systems, “Right” corresponds to the terms “Recht,” “Anspruch,” “Befugnis,” or “Rechtsposition.”
Types of Rights in the Legal System
The classification of “Rights” is usually based on their purpose, scope of protection, and legal character.
Subjective Rights
Subjective Rights represent individual legal positions to which a person is entitled. These rights enable the right holder to demand certain conduct from another legal subject or to defend against infringements.
Claim (Claim Right)
A claim (“Claim Right”) gives its holder the legal possibility to demand an act or omission from another. A classic example is the contractual claim for payment arising from a purchase agreement.
Liberty (Liberty Right)
With a liberty right (“Liberty Right”), a person has the right to carry out or refrain from an action without another being able to assert a conflicting claim. Core freedoms such as freedom of expression are examples.
Power (Power Right)
The power right (“Power Right”) concerns the ability to bring about changes in legal relations through one’s own legal acts. This includes concluding contracts, exercising discretionary rights, or granting powers of attorney.
Immunity (Immunity Right)
Immunity rights (“Immunity Rights”) describe protection against interventions, or the exclusion of the influence of others on the right holder. Constitutional immunities or the right to refuse to testify fall into this category.
Absolute and Relative Rights
Another division is made between absolute rights (effective against everyone) and relative rights (effective only between certain parties).
- Absolute Rights: Effective against everyone (e.g., property right).
- Relative Rights: Effective only against certain other legal subjects (e.g., contractual claim for performance).
Statutory Principles and Sources of Rights
Rights originate from different sources of law, which determine their scope and level of protection.
Constitutional Rights
Constitutional rights form the core of individual and collective legal positions. They are mostly designed as fundamental rights, protect central values such as human dignity, personal freedom, or equality before the law, and are enshrined in national constitutions and international human rights conventions.
Civil Law Rights
In civil law, rights are primarily based upon contract, property, family, and inheritance law. This includes claims arising from contracts, property rights, proprietary rights, as well as other personal rights in private law transactions.
Public Law Rights
In public law, rights are established, among others, as participatory rights, administrative rights, or as rights of protection against state actions. Social law claims and rights in administrative procedure also play a role.
International Law Rights
In international law, rights are created by treaties, agreements, and conventions under international law. They primarily apply in relations between states but can also confer rights upon individuals (e.g., through the European Convention on Human Rights).
Dogmatic Structures and Application Categories
The systematic consideration of “Right” in legal science is carried out based on various categories, enabling a differentiated understanding.
Hohfeldian Model of Rights
According to the theory of Wesley Newcomb Hohfeld, rights are divided into four fundamental forms: claim, liberty, power, and immunity. This analytical model supports the precise classification and differentiation of legal authorities.
Rights against the state versus against third parties
Rights are also distinguished by whether they are directed against the state (defensive and protective rights) or against private parties (e.g., contractual partners, neighbors). Defensive rights particularly ensure freedom from state interference, while positive rights establish obligations for the granting of certain benefits or protective measures.
Exercise, Enforceability, and Protection of Rights
Creation and Acquisition of Rights
Rights arise through law, contract, unilateral legal acts, custom, or judicial legal development. The prerequisites for their acquisition are usually the fulfillment of statutory requirements.
Exercise and Limits of Rights
The holder of a right can exercise it according to their own interests, provided that no statutory restrictions, good faith, or the rights of third parties stand in the way. The exercise may occur through legal transaction, litigation, defense, or actual use.
Protection and Enforcement of Rights
State bodies, especially courts and administrative authorities, guarantee the protection and enforceability of rights. Violations of rights may be pursued and remedied through court action, interim legal protection, administrative orders, or enforcement measures.
Extinction and Transfer of Rights
Rights may expire due to statutory provisions, the passage of time, contractual agreement, fulfillment, termination, or through a court decision. Transferability depends on the nature of the right: while proprietary rights are usually transferable, this is regularly excluded for highly personal rights.
Significance of Rights in the International Context
With globalization and the development of supranational legal orders, rights are gaining an increasingly transnational significance. They serve to protect fundamental legal positions, safeguard individual equality, and guarantee minimum standards in the interaction between states and their citizens.
Human Rights and International Rights
Human rights as universal rights are considered the fundamental rights of all human beings—regardless of origin, gender, religion, or political belief. Their protection is a goal and benchmark of international legal communities.
Conclusion
The term “Right” is a central category in the legal system and forms the foundation for numerous legal relationships and proceedings. Rights protect individual interests, ensure social order, and guarantee a balance between individual freedoms and collective interests. Their precise content, scope of protection, and enforceability vary depending on the legal system and subject area. Precise knowledge of the various types of rights, their origins, and their limitations is essential for any legal professional in order to make full use of legal possibilities and ensure compliance with norms.
Frequently asked questions
Who is authorized to exercise a legal right?
The authority to exercise a right, for example a claim, generally belongs to the person who holds the right either originally or derivatively. In a civil law context, this is usually the legal holder (owner, creditor, holder of an intellectual property right). Exercise by third parties is only possible within the framework of effective representation (e.g., by power of attorney) or after transfer of the right (e.g., by assignment, transfer, inheritance). In the case of joint rights—for example, in partnerships or co-ownership—disposition jointly or at least the participation of all involved is generally required, unless the law or a differing agreement stipulates otherwise. Legitimate exercise also requires that no objections exist that extinguish or inhibit the right (e.g., limitation period, defenses).
Under what circumstances can the right to exercise a right be restricted?
The right to exercise a right can be restricted by statute, contractual agreements, or judicial decision. Statutory restrictions result, for example, from the principle of good faith (§ 242 BGB), the prohibition of abuse of rights (§ 226 BGB), or particular statutory limitations (e.g., in tenancy law or personality rights). Contractually, parties may restrict the exercise of certain rights by granting participatory rights, agreed deadlines, conditions, or consent requirements. Finally, courts may, in individual cases, temporarily prohibit or modify the exercise of a right by preliminary injunctions, conditions, or deferrals, for instance in the event of impending unreasonable hardship or to protect higher-ranking legal interests.
What requirements apply to the effective assertion of a right?
For the effective assertion of a right in legal terms, it is generally necessary to exercise it in the correct form and within the relevant period. Depending on the type of right (claim, formative right, continuing right) and the relevant legal area (public law, civil law), special requirements such as written form, advisory duties, proof of entitlement, or observance of preclusive deadlines may apply. Assertion can take place out of court, for example by warning, request, or defense, or in court, by filing a claim or application. The entitled person must clearly and unequivocally invoke and substantiate the right; otherwise, the claim may be dismissed as unfounded or insufficient.
How does limitation (statute of limitations) affect a right?
Limitation constitutes a defense by which the claim in principle continues to exist (natural obligation), but can no longer be enforced in court if the debtor invokes limitation (§§ 194 ff. BGB). After expiry of the limitation period, which may vary depending on the type of claim, the entitled person may still assert the right, but must expect that the debtor is entitled to refuse performance permanently. The suspension or recommencement of the limitation period (e.g., by filing a claim, acknowledgment, negotiations) can delay expiration. In public law, different limitation rules may apply.
When does an abuse of rights exist?
An abuse of rights exists when the formal exercise of a right contradicts the purpose of the right or the principles of good faith. Abuse may be assumed in particular when the right is used exclusively to harm another (harassment) or to obtain unreasonable advantages not sanctioned by the legislator. In such cases, § 242 BGB precludes the enforcement of the right, allowing the opposing party to raise an objection. In each case, a thorough assessment of all circumstances must be made. Abuse of rights is also given special consideration in company law, family law, and for formative rights.
Can a right that has been exercised be revoked or withdrawn?
Whether and to what extent a right that has been exercised may be revoked or withdrawn depends on the type of right in question: One-sided (unilateral) discretionary rights (e.g., cancellations, contestations, withdrawals) are generally irrevocable after they have been exercised, unless the law expressly provides otherwise or the parties have agreed to a right of withdrawal. In contrast, obligations requiring mutual consent (e.g., offers) can be revoked under certain conditions, such as prior to reaching the recipient (§ 130 BGB). For continuing rights, such as continuing obligations or relationships, the exercise (e.g., exercise of a special right of termination) may be repeated if the statutory requirements still apply.
What is the significance of good faith in the exercise of rights?
The principle of good faith (§ 242 BGB under German law) permeates all of civil law and serves as a general limitation on all rights. Every exercise of rights must comply with this principle. In particular, exercise is prohibited when it is accompanied by recklessness, arbitrariness, or the intent to inflict harm. In addition, gaps or ambiguities in contracts and rights are regularly interpreted by recourse to good faith. Violations result in courts being able to prohibit or modify the exercise of rights in individual cases. Good faith also plays a decisive role in the creation, exercise, and extent of legal positions when enforcing claims, discretionary rights, or defensive rights.
