Breve relación histórica sobre la formación y el desarrollo de la noción de derecho definido como facultad o potestad («derecho subjetivo»)

Abstract

The paper describes the key milestones in the history of the notion of legal right, modernly called «subjective». From an argument regarding the absence of that notion in the science of the Roman jurists and their likely origin at the Middle Ages, we examine the contributions of Marsilio de Padua, Guillermo de Ockham and Juan Gerson, on one hand, and Francisco de Vitoria and the sixteen century’s NeoScholastic one the other, in which Hugo Grotius founded to introduce the concept in the rationalist natural law of the seventeenth and eighteenth centuries, than collected from the German Pandectism of the next century, expanding it universally. By this study it is showed that the idea of subjective right lies essentially in the right or faculty, an attribute belonging to the category of quality, which explains that in the past it has been attributed to animals and inanimate, which also have facultative attributes, and that today rights are being claimed under the view of having right to what is claimed.