¹ Some writers, see R. Dworkin, for example, Taking Rights Seriously, Harvard University Press, (1977) at p. 267, refuse to connect the constitutionally explicit rights to the basic freedom of action. In denying the clear and natural relation between the two, such writers lack a convincing justification for the constitutionally explicit rights. Dworkin's tortuous attempts to supply the reason why we include the rights we do in constitutions and not others is well discussed by H. L. A. Hart, “Between Utility and Rights” (1979) 79 Columbia Law Review 828.

² See S. C. Coval and J. C. Smith, Law and Its Presuppositions; Actions, Agents and Rules, Routledge & Kegan Paul (1986), Chaps. 1 and 3, and Donald Davidson, “Agency,” in Essays on Actions and Events, Clarendon Press (1980), p. 43.

³ Alan Gewirth, Reason and Morality, U. of Chicago Press (1978).

⁴ Coval and Smith, supra, note 2 at Chap. 5.

⁵ We intend no difference between “the right to freedom of action” and “the right to action.”

⁶ In spite of this fundamental connection between property and action. John Rawls holds. “Of course, liberties not on the list, for example, the right to own certain kinds of property (e.g., means of production), and freedom of contract as understood by the doctrine of laissez-faire, are not basic; and so they are not protected by the priority of the first principle:” in Laslett, P. and Fishkin, J., Philosophy, Politics and Society Fifth Series, Yale University Press (1979), at p. 7.Google Scholar

⁷ See “Action, Reasons and Causes,”in Davidson, supra, note 5 at p. 3.

⁸ Bentham, Jeremy, The Principles of Morals and Legislation, Hafner Publishing Co. Inc. (1948), at p. 209.Google Scholar

⁹ C. B. Macpherson in “Liberal-Democracy and Property,” in Property: Mainstream and Critical Positions, ed. C. B. Macpherson. University of Toronto Press (1978), at p. 199 sees this, although his reasons do not reach in our directions. New forms of property such as those described by C. A. Reich, “The New Property,” (1964) 73 Yale Law Journal733, can be viewed as new possibilities of means, or means which previously had not been granted protection from interference but now are receiving it.

¹⁰ This thesis is implicit in McDougal, Myres S. and Burke, William T., The Public Order of the Oceans, A Contemporary International Law of the Sea, Yale University Press (1962).Google Scholar

¹¹ See Fleming, J. G., The Law of Torts (6th Edition, The Law Book Company Limited, 1983), at p. 43.Google Scholar

¹² See Smith, J. C., Legal Obligation. University of London. The Athlone Press (1976). at pp. 213–227.Google Scholar

¹³ Hart, H. L. A., The Concept of Law, Oxford University Press (1961), at p. 97.Google Scholar

¹⁴ One of the longest lasting and vigorously argued disputes in international law has been as to whether mere discovery and a symbolic act of appropriation is sufficient to acquire title to new lands, or whether effective occupation is a necessary condition. See for example A. S. Keller, O. J. Lissitzn, and F. J. Mann, Creation of Rights of Sovereignty Through Symbolic Acts 1400–1800, Columbia University Press (1938); F. A. F. Van Der Heydte, “Discovery, Symbolic Annexation and Virtual Effectiveness in International Law” (1935) 29 American Journal of International Law 448; B. Orent and P. Reinsch, “Sovereignty Over Islands in the Pacific” (1941) 35 American Journal of International Law 443; J. Goebel, The Struggle for the Falkland Islands, A Study in Legal and Diplomatic History, Kennikut Press (1927), at p. 70. This issue is easily resolved when a functional view is taken of property. Discovery is the initial step in establishing particular lands as means. Symbolic acts such as the planting of a flag and a public proclamation announce the fact that the discoverers have begun the process of establishing means. If effective occupation does not follow within a reasonable time, it can be concluded that the newly discovered lands are no longer serving as means. It is the continuity between symbolic appropriation and effective occupation which is critical in resolving such claims and counter-claims.

¹⁵ Locke, John, Of Civil Government, Second Treatise, Henry Regnery Company (1955), Chap. 5, p. 22 (no. 27).Google Scholar

¹⁶ Nozick, Robert, Anarchy, State and Utopia, Basic Books Inc. (1974), Chap. 7.Google Scholar

¹⁷ 248 U.S. 215. 63 L.Ed. 211 (1918).

¹⁸ (1937)58C.L.R. 479.

¹⁹ Supra, note 17 p. 248 (U.S.), 224 (L.Ed.).

²⁰ Supra, note 18 p. 496.

²¹ Ibid., at p. 509.

²² Supra, note 17, p. 235 (U.S.), 219 (L.Ed.).

²³ Ibid.

²⁴ Ibid., pp. 239–240 (U.S.), 221 (L.Ed.).

²⁵ See The New York Times, 11 December 1985, p. 1.

²⁶ See Perry et al. v. Sindermann. 408 U.S. 593. 33 L.Ed. 2d 570 (1972).

²⁷ The Fifth Amendment of the Constitution of the United States provides that “No person…shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.” The Fourteenth Amendment provides, “nor shall any State deprive any person of life, liberty, or property, without due process of law.”

S.7 of the Canadian Charter of Rights and Freedoms in Sch. B, Part 1 of the Constitution Act, 1982, as enacted by the Canada Act, 1982 (U.K.), c. 11 provides that, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Dickson J. in The Queen in Right of New Brunswick v.Fisherman s Wharf Ltd. (1982) 135 D.L.R. (3d) 307 at 315, (New Brunswick C. of Q.B.) held that the phrase “right to…security of the person” in s.7, entails the right to security of property even though there is no mention in the Charter of a right to the protection of property. His judgment has come under criticism (sec for example. G. J. Brandt. “Canadian Charter of Rights and Freedoms—Right to Property as an Extension of Personal Security” (1983) 61 Canadian Bar Rev., 398), nor has it been followed by other courts (see for example Re Worker's Compensation Board of Nova Scotia and Coastal Rentals (1983) D.L.R. (4th) 564 at 566. (Sup. Ct. of Nova Scotia); Re Becker and The Queen in Right of Alberta (1983) 148 D.L.R. (3d) 539 (Alberta Ct. of A.).

The relevant passage in Dickson J.'s judgment can be taken to mean that since a right to security of the person must entail a right of non-interference, then it must extend beyond interfering with the mere body and include the means which is used in bodily action. Given that meaning, there is much merit in his conclusion that s.7 of the Charter “must be construed as comprising the right to enjoyment of property…“ and his critics can be taken as having failed to meet his argument.