This essay defends the thesis that the common law of property exhibits an internal unity worthy of moral respect. There are three distinct elements to this claim, each of which may be elucidated through a contrast with the position it opposes. First, the unity we seek in the law of property is an internal one. This means that we unabashedly seek property law’s own unity, regarding artificial constructions as a defect of interpretation rather than its normal product. We do not set out in advance the underlying ground for the possibility of faithful interpretations of legal practice; for that ground will emerge as the unifying theme of property law and so must be methodically drawn from the object rather than baldly asserted beforehand. Nevertheless, it is possible to indicate at the outset how an internalist understanding of property law will differ from interpretations that are constructionist, or that impose on the object a unity alien to it.

The central question for this paper is whether communities should have rights. This is a question that I will consider in a certain ideological or normative context, namely, that of liberalism. There are other contexts in which the question could be asked; for in non-liberal ideological settings there have sometimes been clear positive answers to the question of whether minority communities should have rights. Thus, the Ottoman Empire’s millet system provided a system of group rights. Various other autocratic states like Czarist Russia have also provided at least some de facto if not de jure protection for various minority groups. One might even argue that various nineteenth and twentieth century European colonial regimes protected to some extent minority ethnic rights. On paper, Marxist governments in the Soviet Union and Yugoslavia have made provision for various sorts of group rights; but as current events attest, neither Moscow nor Belgrade is very comfortable with the vigorous exercise of such rights. Indeed, in both the origins and the consequences of the First and Second World Wars, group rights played an extensive role.

In the common law world the oath has long provided one way of ensuring that trial witnesses tell the truth. The moral power of the oath supplements the judicial power of perjury laws. But unlike laws forbidding perjury, the oath cannot be used automatically. Through ignorance, belief or conscience a person may be incapable of meaningfully swearing an oath. Over the years there have been many legislative enactments and judicial pronouncements which sought to clarify conditions for the use of the oath and establish alternatives to it. With increasing secularization of society, the traditional ground rules have required modification. Because there has been little serious, theoretical discussion of the nature of the oath, these modifications have often exhibited inadequate understanding of the moral dimensions of the oath. As a result, judicial discussion has reached an impasse. In January, 1988 Bill C-15 became law. It contained yet another attempt to satisfactorily harness the power of the oath to the needs of the judicial system. The interpretation of this new legislation will offer excellent opportunities to eliminate some of the confusion surrounding the oath in Canadian law. This paper will analyze the nature of the oath with special attention to its obligation-generating capacity. The analysis developed here may help provide the understanding necessary for sensible judicial interpretation and reform.

Most liberal democracies exhibit cultural pluralism, that is, citizens of the same country belong to various cultural communities, and so speak different languages, read different literatures, practice different customs. Most contemporary liberal political philosophy, on the other hand, assumes that countries are “nation-states”. Citizens of the same state are assumed to share a common nationality, speak the same language, develop the same culture. My concern in this paper is with how liberals have adapted their principles to deal with cultural pluralism.

A first task of a philosophy of law and morals is to try to make explicit and authenticate a standpoint that allows for the evaluation of things in normative terms. It cannot begin straightaway with conceptions of the right, the good or the moral worth of persons. For these are notions whose adequate elucidation presupposes that we are already occupying a standpoint which, taken by itself, is unqualifiedly normative and complete. The account of what I shall refer to as “the standpoint of the normative” is thus prior to the explication of the criteria and contents of our normative conceptions.

It has always been the rule in Anglo-American common law that there is no general duty to come to the aid of strangers, no matter how great the need or how easily the aid could be given. The rule is based upon the fundamental distinction between misfeasance — active misconduct that causes positive injury to another — and nonfeasance — inaction that represents a failure to take positive steps to benefit another. Courts have consistently held that the common law of private obligations does not impose affirmative duties simply on the basis of one party’s need and another’s capacity to fulfill that need. In this century, the courts have with increasing frequency avoided the most morally offensive applications of this general rule by basing affirmative duties to render aid upon various “special relationships” found to exist between potential rescuers who failed to act and the victims they failed to save.

In recent years, there has been an increased interest in considering collectivities to be moral agents and holders of collective rights. Peter French and others have argued that corporations are agents and bear moral responsibility for their actions. Virginia Held makes similar claims about nations. She also believes that we have “obligations to humanity collectively, to bring about its continued existence, and perhaps also to such lesser groups within it as our fellow nationals or conceivably the ethnic group to which we belong or the family or clan of which we are a member” and that in some of these cases—humanity, nations—the obligation correlates with a collective right. Perhaps, the area where claims of collective rights have aroused the greatest interest is that of the alleged rights of minority groups within some larger political unit. Thus, in recent political debate in Canada, collective rights have been ascribed or invoked in relation to Quebec and to aboriginal peoples. It is with this last group of alleged collective rights that I will be particularly concerned in this paper.

Quite by accident, Scarlett is in imminent danger of losing life or limb. You know this, and can rescue her without any unreasonable cost, inconvenience, or danger to yourself. Yet you stand by idly, and she suffers accordingly. Assume that morally speaking, you failed to do your duty; you ought to have done your best to rescue her. Should there be a criminal law penalizing your omission?

Joel Feinberg imposes the following two constraints — which may be called “liberal” — on any answer to our question. First, if it is reasonable that there should be a criminal law requiring rescue, then whenever there is a morally wrong omission to rescue, there must be someone who is victim of that omission. There must be no victimless crimes. Secondly, all criminal law must protect individual moral rights. When law protects people who need to be rescued and when others can rescue them at no unreasonable inconvenience, cost, or danger, the imperilled people must have a moral right to be rescued. If so, what precisely is the moral right that comes into play? Who are the victims? Joel Feinberg offers answers to these questions, answers intended to support the view that it is indeed reasonable for there to be a criminal law penalizing omissions to rescue, where rescue would involve no unreasonable cost, inconvenience, or danger to the potential rescuer.

Rather than advancing a refined theory of judicial decision making or puzzling over the nature of law, Marxist jurisprudence offers a critique of liberalcapitalist conceptions of law. As part of its general undermining of bourgeois consciousness, Marxism aspires to manifest the legitimating functions of law as a contributor to ideological distortion and as a solidifier of the political status quo. Accordingly, there is not so much a Marxist theory of law as there is a Marxist unmasking of law’s alleged unsavoury participation in domination and oppression.

In this paper, I distinguish two views of collective rights, viz., rights of collective agents and rights to collective goods. My argument is that although both have a place in moral, political and legal argument, only the second can fulfil the political function generally assigned to collective rights, and that even it can do so only partially.

The question addressed in this paper is whether there are any collective rights. I am inclined to answer this in the negative; but the main challenge is to provide a reasonably clear sense to the notion of collective rights. My negative answer will then be defended from a general viewpoint utilizing what we may call a kind of ‘individualism’. Some are inclined these days to reject a priori anything with that label. I shall have something to say later on that inclination. Individualism, as I shall explain, by no means implies that there are no group rights in any sense that may reasonably be given to that term. Very much the contrary. A careful explication is needed.

According to Sir Henry Maine, “a clear and consistent meaning was for the first time given to the expression ‘a right’ by the searching analysis of Bentham and Austin.” There is no question at least that clear thinking respecting the concept of ‘a right’ has been — and still is — closely associated with the work of legal philosophers, in particular, legal philosophers working in the positivistic tradition of Bentham and Austin. In Bentham’s case, clarity and consistency of thought respecting rights are purchased by confining attention to the legal arena. In truth, Bentham writes, “there are no such things as natural rights — no such things as rights anterior to the establishment of government — no such things as natural rights opposed to, in contradistinction to, legal [rights].” In short, all rights are artificial, products of human action. Consequently, that a certain “point of conduct” is a right does not turn on whether that point of conduct passes a moral test. It is neither necessary nor sufficient for the truth of such a claim of right that the conduct in question is right conduct. To think otherwise is to confuse questions of existence with questions of merit. One may have a right, say, to burn the flag of the United States in a peaceful political protest even though, in terms of widely accepted criteria of right conduct, say, of conservative Americans, this is wrong. So it has become a commonplace among contemporary rights theorists that there is a distinction between ‘a right’ (moral or legal) and ‘the right thing to do’ (morally or legally), unless a point were being pressed with respect to natural rights.

This paper focuses on Quebec language legislation which has the effect of prohibiting the use of the use of English on signs. The controversial “Frenchonly” sign law is considered in spelling out an argument for collective rights and assessing some of the obstacles which a collective rights thesis must overcome. No attempt is made in this discussion to resolve the question of the relative weight of the collective and individual rights which come into conflict in this situation. No doubt this latter is itself a difficult task. If the argument of this paper is sound, however, a solution phrased wholly in terms of individual rights and the public good is simpler only because it omits important dimensions of the problem.

Recently, in the American literature concerning the justification of civic correction, two views have been presented in defence of paternalism as a proper basis for punishing wrongdoers. The first of these was introduced in Herbert Morris’s paper “A Paternalistic Theory of Punishment” and the second in Jean Hampton’s “The Moral Education Theory of Punishment”. Both views are strongly opposed to the therapeutic, or rehabilitative, theories of correction, and both stress the personal autonomy of human beings and aspects of punishment which are supposed to respect that autonomy. The opposition to the ideology of therapy is mainly based on its inherent paternalism which is both deleterious and wrongful as far as autonomy is concerned.

When the liberals of the 18th and the 19th centuries demanded that the rights of men, of citizens or of peoples be guaranteed, it was in opposition to the abuse of power. They proclaimed in the name of mankind rights inherent to individuals and nations. From the French Revolution to President Wilson, one might have believed that individuals and peoples had been winning their freedom together. Individuals participated as citizens of a single nation in the power of the state. This power enforced civil and political, private and public rights. The Old Regime had to be destroyed, the empires dismembered and the nations liberated so that the people could be organized into states. But in practice, things were not so simple.

Since all peoples could not become nation-states, it was hoped that minorities could be protected. But how can they be protected? Who will protect them? How can one define a minority? What rights should they have? Are the collective rights of a people or a minority compatible with individual rights? These are the questions that arise spontaneously and which will be discussed in the following pages. We shall find no simple answer, but rather shall see why the answer is so difficult.

The very idea of collective rights has for a long time now been regarded with suspicion by moral and political philosophers. In recent years, however, this attitude has become more difficult to sustain, for the language of collective rights has come to dominate some of the most contentious political issues of our day. Consider, for example, the controversy surrounding the alleged injustices suffered by the indigenous peoples of North America. The arguments that best capture the core of these allegations appeal to collective rights. These arguments maintain that the injustices commonly suffered by an indigenous people involve the violation of rights held collectively by them rather than by particular individuals.

The principle of national self-determination asserts the collective right of the nation for self-government. This principle is now a corner-stone of modem political thought. The idea of “home rule” or the ideal of a self-governed political community is a very old one which originated in classical Greece. Yet the modern idea of the free self-governed community differs in some important aspects from the old one.

National sovereignty, or the community’s collective right of “home rule”, means today the right of the political community to its own State. The State, at least the modern liberal democratic Nation-State, is conceived as an instrument by which sovereignty is constituted and national interests are promoted. In this way antiquity poses an interesting problem, since the State is a product of the modern era and was hardly known in the ancient world. The absence of State was not accidental to the ancient community; it was accompanied by an adequate system of ideas concerning the nature of the political community.