Understanding Legal Rights in Jurisprudence

Legal rights are fundamental concepts in law, typically understood as entitlements or interests protected by legal rules. They grant individuals the power to act or claim something from others, or to be free from interference. However, some schools of thought and specific jurists have questioned or denied the existence of purely subjective legal rights, focusing instead on objective law or social functions.

Jurists Who Rejected Subjective Legal Rights: Duguit and Kelsen

The question asks to identify jurists who do not recognise the existence of any legal right. Based on prominent legal theories, the jurists most associated with challenging the traditional concept of subjective legal rights are Léon Duguit and Hans Kelsen.

Léon Duguit's Perspective

• Duguit, a French jurist, was a proponent of administrative law and rejected the traditional concept of "subjective rights" derived from individual will or natural law.
• He argued that law is essentially an objective phenomenon, rooted in social facts and the interdependence of individuals within society.
• For Duguit, the primary focus should be on the function of law in maintaining social order and solidarity. He believed that what are commonly called "rights" are merely reflections of duties imposed by objective law to serve the social good.
• He famously stated that the only reality is law, and the "right of the individual" is a metaphysical notion that should be abandoned in favour of the concept of legal duty arising from social interdependence.

Hans Kelsen's Perspective

• Hans Kelsen, an Austrian legal philosopher, developed the "Pure Theory of Law".
• While Kelsen's theory extensively analyzes the structure of legal systems and norms, his conception differs from the traditional view of rights.
• In Kelsen's view, a legal right is essentially a technical term used within the legal order. It represents a specific type of legal norm that empowers an individual or entity, often by stipulating a sanction if a duty is breached or by granting a power.
• He emphasized that rights are not pre-legal entitlements but are created and defined by the legal system itself. The existence of a right is contingent upon the validity of the legal norm that establishes it within the hierarchical structure of the legal order (Grundnorm).
• Some interpretations of Kelsen suggest he viewed subjective rights primarily as functional aspects of the objective legal order, rather than independent entities.

Analysis of Other Options

Let's briefly consider why the other pairs are generally not associated with rejecting legal rights entirely:

• Hegel and Cicero: Both philosophers/jurists acknowledged and explored the concept of rights. Hegel saw rights as essential for individual freedom and recognition by the state. Cicero, influential in Roman law, discussed natural law and rights derived from it.
• Salmond and Savigny: John Salmond, a prominent positivist jurist, clearly recognized and analyzed legal rights. Friedrich Carl von Savigny, a key figure in the historical school of jurisprudence, emphasized the role of custom and the "spirit of the people" (Volksgeist), implicitly acknowledging rights that emerge from these social norms.
• Austin and Bentham: John Austin, known for his command theory, recognized legal rights as commands of the sovereign backed by sanctions. Jeremy Bentham, a utilitarian philosopher, viewed rights as crucial for maximizing overall happiness and believed in establishing legal rights to achieve this goal.

Therefore, Duguit and Kelsen represent the viewpoint that challenges the traditional notion of inherent, subjective legal rights, focusing instead on objective law, social function, and the structure of legal norms.