I would like to thank Professor Philip Goldman of the Department of Political Studies and Faculty of Law, Queen's University, Kingston, Ontario, for his valued advice and support regarding this paper.

1. [1857] 60 United Slates Reports, 397.

2. [1989] 1 Supreme Court Reports, 30.

3. Canadian Charter of Rights and Freedoms [1982], s. 7.

4. Quebec Charter of Human Rights and Freedoms [1975] chap. 1, ss. 1 and 2 (English translation).

5. [1989] Rapports Judidaires de Quebec, 1,739.

6. [1989] R.J.Q. pp. 1,753–1,754. Lebel derives part of his conclusion regarding the status of an unborn child within tort law, especially from the perspective of Quebec civil law, from Linden, Allen M., Canadian Tort Law (Toronto: Burterworth, 1988), pp. 262–63.Google Scholar

7. [1989] R.J.Q., 1,755–1, 757.

8. For example, see Frank, Jerome N., Law and the Modern Mind (Garden City, NY: Doubleday, 1963), pp. 30,66Google Scholar; and Rumble, Wlifrid E. Jr., American Legal Realism (Ithaca, NY: Cornell University Press, 1968), pp. 63–66.Google Scholar

9. Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 206.

10. [1991] 20 Supreme Court Journal, 9.

11. [1991] 20 S.C.J., 14.

12. Nowak, John E., Rotunda, Ronald D., Young, J. Nelson, American Constitutional Law (St. Paul, MN: West Publishing Co., 1986), pp. 525–27.Google Scholar

13. United States Constitution, Amendment XIV, section 1.

14. [1973] 410 U.S.R., 156–57.

15. [1973] 410 U.S.R., 157.

16. [1973] 410 U.S.R., 163–64.

17. Arguments in support of this “Human Life Statute” are addressed in Galebach, Stephen H., “A Human Life Statute,” The Human Life Review 5 (1981).Google Scholar

18. [1985] 1 S.C.R., 183.

19. See, for example, Dworkin, Ronald, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), pp. 11–13Google Scholar; and Lloyd, Dennis [Lord Lloyd of Hampstead], The Idea of Law (London: Penguin Books, 1987), pp. 309–318.Google Scholar John Rawls prefers to talk about concepts of fairness, natural duty, obligations, and the concept of being and doing right, rather than a concept of autonomous rights and liberties claimed by individuals against other individuals and the state, Rawls, John, A Theory of Justice (Cambridge, MA: Belknap Press, 1971), pp. 108–117.Google Scholar Jack Donnelly discusses aspects of this conceptual problem and the definitional confusion to which it contributes, Donnelly, Jack, The Concept of Human Rights (London Routledge, 1989), pp. 1–9.Google Scholar

20. It is fundamental to an appreciation of the modern liberal understanding of rights and liberties to compare Hobbes with Locke regarding the notion of entitlement as a basis for rights claims. For example, see Hobbes, Thomas, Leviathan, ed. Macpherson, C. B. (London: Pelican Books, 1968), pp. 295–301Google Scholar; and Locke, John, Two Treatises of Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1963), pp. 337–41, 366–68Google Scholar. Such a comparison has been done very well in Shapiro, Ian, The Evolution of Rights in Liberal Theory (Cambridge: Cambridge University Press, 1986), pp. 40–54,100–118.Google Scholar A somewhat broader survey of this subject is addressed in Tully, James, A Discourse on Property: John Locke and His Adversaries (Cambridge: Cambridge University Press, 1980), pp. 53–94.CrossRefGoogle Scholar

21. Donnelly, , Concept of Human Rights, pp. 4–5.Google Scholar This definition is similar, in many respects, to that offered in White, Alan R., Rights (Oxford: Clarendon Press, 1985), pp. 115–32Google Scholar; and in Thomson, Judith J., The Realm of Rights (Cambridge, MA: Harvard University Press, 1990), pp. 37–60.Google Scholar

22. Many authorities seem to imply such a definition. Some other authors, however, do address this fundamental definition, such as Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), pp. 184-86Google Scholar; Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 218–21Google Scholar; and Gerwith, Alan, “The Basis and Content of Human Rights,” in Human Rights [Nomos, vol. XXIII], ed. Pennock, J. Roland and Chapman, John W. (New York: New York University Press, 1981), pp. 119–23.Google ScholarSome authors associate human rights and liberties more specifically with the concept of human “needs,” both physical and psychological, including Bay, Christian, “Civil Disobedience: the Inner and Outer Limits,” in Dissent and the State, ed. Franks, C. E. S. (Toronto: Oxford University Press, 1989), pp. 44–51Google Scholar; and Maslow, Abraham H., Toward a Psychology of Being (Princeton, NJ: Nostrand, 1968), pp. 171–73.Google Scholar This approach is also discussed in Donnelly, , Concept of Human Rights, pp. 27–31Google Scholar, and White, , Rights, pp. 105–106.Google Scholar Bentham rejects the idea of rights based in a concept of “needs,” acknowledging only the legitimacy of so-called legal rights enacted as the result of general negotiation and social consensus, Bentham, Jeremy, The Works of Jeremy Bentham, ed. Bowring, John (Edinburgh: William Tait, 1843), 3:221.Google Scholar

23. This definitional problem also lies behind such controversies as whether the ninth amendment of the United States Constitution (which guarantees that “unenumerated rights” are retained by the “people”) in fact acknowledges that civil rights and liberties transcend the limits of positivism, Hartely, John, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980), pp. 34–41.Google Scholar Bentham experienced a similar frustration in his attempt to arrive at a definition of “civil law.” He was annoyed at the manner in which scholars used the term so loosely and inconsistently. “A word [civil law] which is used promiscuously in so many different senses, all of them on occasions on which they require to be distinguished from each other is incapable of answering the purposes of him who wishes to understand, or of him who wishes to be understood” (Bentham, , Works, 6:9 noteGoogle Scholar).

24. Cicero, Marcus Tullius, On the Commonwealth, ed. Sabine, George Holland and Smith, Stanley Barney (Columbus, OH: Ohio State University Press, 1929), pp. 135–37Google Scholar; Gaius, , The Institutes of Gaius, ed. Gordon, William M. and Robinson, O. F. (Ithaca, NY: Cornell University Press, 1988), p. 20Google Scholar, and commentary, p. 546; Ulpian, , “The Institutes of Ulpian,” in The Civil Law, ed. Scott, Samuel Parsons (New York: AMS Press:, 1973), 1:223–27.Google Scholar See also vol. 2, pp. 5–8, regarding this concept as found within the Civil Code of Justinian, with commentary by Ulpian.

25. The classic expression concerning this idea seems to originate with the statement that a civil right is merely “a natural right exchanged” found in Paine, Thomas, The Collected Writings of Thomas Paine, ed. Foner, Philip S. (New York: Citadel Press, 1945), p. 276.Google Scholar The difference between “natural rights” and “human rights” is ambiguous, and, it could be argued, the two terms can be regarded as being roughly synonymous. The difference between these two concepts of universal rights and liberties is discussed briefly in Pennock, J. Roland, “Rights, Natural Rights, and Human Rights—a General View,” in Human Rights, pp. 6–7.Google ScholarA strict legal positivist would undoubtedly differ with such a definition, insisting instead that civil rights and liberties (to the extent that a strict legal positivist recognizes the concept) are merely those that have been created through an identifiable process of political consensus and formally recognized by the state. For a classic example of a positivist-utilitarian critique of rights and liberties see Bentham on the French Declaration des droits de l'homme et ducitoyen in Bentham, , Works, 2: 491–34Google Scholar, and a general critique, vol. 3, pp. 218–21. Also, see Dworkin, , Taking Rights Seriously, pp. 184–85Google Scholar, and Feinberg, Joel, Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press, 1980), p. 153.CrossRefGoogle Scholar

26. A good example of such a categorization of civil rights and liberties can be found in Dworkin, , A Matter of Principle, pp. 16–17,23–28,93,251–53,374–75,393–97.Google Scholar

27. This latter perspective upon the idea of equality has been encouraged by Keynesian and other interventionist notions of distributive justice and finds further articulation in Finnis, , Natural Law and Natural Rights, pp. 173–75Google Scholar; and Rawls, , Taking Rights Seriously, pp. 298–303.Google Scholar

28. For a fuller considera tion of the implications of “membership” as it applies to liberal democratic societies see Walzer, Michael, Spheres of Justice (New York: Basic Books, Inc., 1983), pp. 31–63.Google Scholar

29. Nowak, , Rotunda, , and Young, , American Constitutional Law, pp. 525–27Google Scholar, explain how the concept of standing, including the basic category of citizenship, can be very exclusionary—provided that any exclusions from membership are not made, nor enforced, arbitrarily. For example, all individuals under 18 years of age are excluded from full standing (and thus full rights, liberties, duties, and privileges) of citizenship, and not just certain individuals who are under 18. Civil rights and liberties may thus be held exclusively by those individuals who fall within a society's category of “citizenship.”

30. Hogg, Peter W., Constitutional Law of Canada, 2nd ed. (Toronto: Carswell, 1985), pp. 666–68.Google ScholarTribe, Laurence, American Constitutional Law (Mineola, NY: Foundation Press, Inc., 1978), pp. 145–54.Google ScholarSection 2 of the Criminal Code of Canada illustrates how this categorization relates to the liberal concept of property upon which other concepts such as “personhood” and civil rights and liberties are based.

31. Thomson, Judith J., “A Defense of Abortion,” in The Philosophy of Law, ed. Dworkin, Ronald M. (Oxford: Oxford University Press, 1986), pp. 124–25.Google Scholar

32. Ibid., p. 125.

33. For a brief discussion of this universal movement and its influence upon twentieth century constitutional change see Cairns, Alan and Williams, Cynthia, Constitutionalism, Citizenship, and Society in Canada (Toronto: University of Toronto Press, 1985), pp. 5–8.Google Scholar

34. The problem of the male dominated practice of applying abstract, rather than contextual, legal definitions (like that of a “person” or even a “citizen”) has been addressed succinctly by Mclntyre, Sheila, “Address to the National Conference of Women and the Law” (Unpublished: Toronto, 03, 1986).Google Scholar The idea of rights and liberties in general is considered by many feminist scholars to be a defensive instrumentof male dominance against possible challenges to that dominance. Some Marxist scholars have made similar claims regarding the use of rights and liberties as a means of protecting the power of owners against the claims of workers, Mandel, Michael, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Wall and Thompson, 1989), pp. 184–238.Google Scholar Two different interpretations of a feminist approach to society, law, and rights and liberties that illustrate a similar concern are Gilligan, Carol, In a Different Voice (Cambridge, MA: Harvard University Press, 1982), pp. 128–50Google Scholar; and Mackinnon, Catharine A, Feminism Unmodified (Cambridge: Harvard University Press, 1987), pp. 163–97.Google Scholar