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.

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.

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.

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.

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.

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.