This article was written by Shidarta and published in the Constitutional Magazine.

This article was originally prepared as part of a book to be published on the initiative of the Center for Human Rights Studies, Islamic University of Indonesia (Pusham UII) Yogyakarta. This draft will certainly not be entirely the same as the contents of the book (a collection of writings with other authors) which is expected to be launched in 2022. One of the materials in the article highlights the relationship between human rights and civil law. Based on this background, this article leads us to a perennial theme in the philosophy of law, namely about rights and obligations.

In legal studies, it is very common for us to juxtapose the concept of rights with obligations. Apeldoorn traces these two concepts by saying that they are two sides of one legal relationship. As if when there is a right on one side, there is an obligation on the other side (arising reflexively). Kelsen provides a slightly different explanation, saying that the configuration of rights and obligations is related to the relationship between law and morality. In the book “Pure Theory of Law” (Chapter IV Section 29), Kelsen states that morality always prioritizes obligations, while law always prioritizes rights.

In German and Dutch, the words “hak” and “hukum” (both meaning 'right' or 'law') do use the same terminology, namely Recht. Hukum is Recht im objektiven Sinne (law in the sense of objective), while hak is Recht im subjektiven Sinne (law in the subjective sense). Every individual is understood from birth to have the freedom to do or not to do something. That is the essence of a right, namely freedom for the legal subject to behave. Kelsen refers to such a right as positive permission. If we have a right, it means we have permission to do something that is generally prohibited. Up to this point, we understand that because everyone has such permission, this permission ultimately creates unfreedom as well. This unfreedom comes from the clash of freedoms that creates the potential for conflict. Conflicts occur when the permission to do something is carried out beyond limits, which is often called abuse of right (misbruik van recht).

The law is said to be objective if it contains rules that are generally applicable. Meanwhile, the law is said to be subjective if the law deals with concrete legal relations involving legal subjects in it. This is where each legal subject will claim to have rights over that legal relationship and demand that the opposing party respect those rights. In other words, the rights are mutually striving to be fulfilled by the opposing party in that legal relationship.