From the Dignity of Man to Human Dignity: The Subject of Rights
Human rights are a specific category of “subjective rights”. Ever since the 19th century, the term “subjective right” or “right in the subjective sense” denotes what had earlier – towards the end of the Middle Ages – been understood as quality (qualitas), ability (facultas), freedom (libertas), or power (potestas), of an individual. This distinguishes “right” in the subjective sense from “right” in the objective sense. Right in the objective sense is simply the right thing (das Richtige) according to the virtue of justice – Aquinas approvingly quotes Isidor in this way: “Something is called ‘right’ because it is just”.1 Or to quote Suarez: “‘Right’ denotes … the law that is the norm for morally good action, and it determines certain equality among things”.2 Justice (the morally good with respect to equality) determines certain relations amongst men in regard to what someone has done; this is called “right” in the objective sense. For example, if a victim's property is returned to him or her according to the laws of commutative justice, it is a right (in the objective sense). In distinction to this, if someone “has a claim an an object”, we speak (as Suarez does) of a right in the subjective sense. Furthermore, we then speak of a capacity or freedom of the one entitled to this claim to treat the object in question as he or she chooses. When speaking of subjective rights as capacity or ability, two things are implied: a subject's “(moral) capacities for putting others under obligations”, as Kant says3; i.e. under the obligation to respect and not to intervene with the subject's exertion of this ability in respect to an object. Subjective rights enable, in this they are subjective: They enable someone (a subject) to something vis-à-vis others.
Document Type: Research Article
Publication date: January 1, 2007
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