“Le Droit Subjectif” and English Law

Abstract

Some years ago Professor Lawson reminded a Continental audience that “[i]n the English language there can be no confusion between the two legal senses attaching to the German word ‘Recht’ which has made it necessary to coin the two technical terms ‘objektives’ and ‘subjektives Recht.’” For in the English language ”the former is ‘law’, the latter ‘a right.’” In fact, as Lawson went on to explain, the notion of a “subjective right” in the civilian systems is not quite the same as “right” in the English system, in that as far as English lawyers are concerned “the term ‘right’ has no metaphysical significance.” Yet Professor Lawson suggested at one point in his report that although in America one speaks of “interests” rather than rights, the two terms are synonymous; and the association of rights with interests has also led one Belgian theorist to conclude that the common law does recognise the concept of the le droit subjectify It is the purpose of this article to return to this topic of the subjective right and English law in order to suggest that the association of le droit subjectif with “protected interest” ought to be treated with caution.