Just Between the Law and Us: Persons and Property, 2e
Canadian Legal Studies Series

Neil Sargent & Logan Atkinson (Eds.)     

Captus Press, ISBN 978-1-55322-348-1 (2016)
328 pages, 770 g, 8.5 X 11, $47.00 (US$37.60)

Just Between the Law and Us: Persons and Property, 2e is an edited collection of readings in private law theory, focusing in particular on the social and philosophical context of private law rules. It is intended to introduce readers to the nature of the public/private divide, individualism and legal personhood. The book opens with a set of readings on the nature of classification in private law, continues with exploration of some fundamental assumptions about the nature of personhood, and concludes with materials related especially to property law.

For purposes of illustration, it includes extensive readings on the place of women, children and aboriginal peoples in private law theory.

Table of Contents   top



1 Private Law and the Social World


(a) Of Persons and Property: The Politics of Legal Taxonomy

      David Cohen and Allan Hutchinson

(b) Donoghue (or M’Alister) v. Stevenson

(c) The History of the Public/Private Distinction

      Morton J. Horwitz

(d) Noble & Wolf v. Alley


2 Legal Individualism


(a) Ancient Law

     Sir Henry Sumner Maine

(b) The Basic Ideas of Individualism

     Steven Lukes

(c) Atomism

      Charles Taylor

(d) Towards an Ethics of Relationships

      Eugene Fontinell

(e) Malette v. Shulman

(f) Assisted Suicide and the Notion of Autonomy

     Gordon DuVal

(g) Carter v. Canada (Attorney General)

(h) R. v. Latimer


3 Legal Personality


(a) Degrees of Personhood

      Christian Perring

(b) The Personality of an Idol

      P.W. Duff

(c) The Development of Capitalism

      Tom Hadden

(d) Note on Santa Clara County v. Southern Pacific Railroad Company

(e) Walkovzsky v. Carlton

(f) Transnational Corporations and International Law: Bringing Out of the Accountability Vacuum

     Alice de Jonge


4 Women and Personhood


(a) Rights of Persons

      Sir William Blackstone

(b) Bradwell v. The State

(c) Seneca Falls Declaration

(d) Henrietta Muir Edwards et al. v. Canada (A.G.)

(e) The Canadian Charter of Rights and Freedoms

(f) Can Law Challenge the Public/Private Divide? Women, Work, and Family

     Susan B. Boyd

(g) R. v. Morgentaler

(h) Tremblay v. Daigle

(i) Halpern v. Canada (Attorney General)


5 Partial Personhood: The Legal Construction of Disability


(a) E. (Mrs.) v. Eve.

(b) Disabling Autonomy: The Role of Government, the Law, and the Family

      Carole Smith

(c) R. v. K.(M.)

(d) Children Start to Flex Legal Muscles

      Sean Fine

(e) Can’t We Allow This Boy Some Dignity in Death?

      Rachel Giese

(f) B.(R.) v. Children’s Aid Society of Metropolitan Toronto

(g) Re Y.(A.)

(h) Ontario Hospital Cannot Force Chemo on 11-year-old Native Girl, Court Rules

      Kelly Grant

(i) Winnipeg Child and Family Services (Northwest Area) v. G.(D.F.)


6 The Legal Construction of Family: Parenting, Law, and the State


(a) Parenting and the Best Interests of Minors

      Robin S. Downie and Fiona Randall

(b) Stanley v. Illinois

(c) Miron v. Trudel

(d) Johnson-Steeves v. Lee

(e) A.A. v. B.B.

(f) In Re Baby M

 (g) Johnson v. Calvert

(h) King v. Low

(i) Children’s and Family Rights and the Role of the State in Custody and Child Protection Matters

      Kate A. Hughes and H.T.G. Andrews

(j) United Nations: Convention on the Rights of the Child


7 Collective Identity and Personhood: Canada’s Aboriginal Peoples


(a) An Historical Overview

      A.C. Hamilton and C.M. Sinclair

(b) Tribal Philosophies and the Canadian Charter of Rights and Freedoms

      Menno Boldt and J. Anthony Long

(c) People to People, Nation to Nation

      Royal Commission on Aboriginal Peoples

(d) Native Women’s Assn. of Canada v. Canada

(e) Elements of the Legal and Legislative Systems That Create Barriers to First Nations Child and Family       Services

(f) Native Families in Jeopardy — The Child Welfare System in Canada

      Barbara Pimento

(g) Racine v. Woods


8 The Outer Limits of Personhood: Natural Rights of the Environment and Sentient Animals


(a) Should Trees Have Standing? —Toward Legal Rights for Natural Objects

      C.D. Stone

(b) Sierra Club v. Morton.

(c) Whanganui River Agreement: Indigenous Rights and Rights of Nature

      Elaine C. Hsiao

(d) The Transition from Property to People: The Road to the Recognition of Rights for Non-human Animals

      Derek W. St. Pierre

(e) Reece v. Edmonton (City)


9 The Legal Construction and Justification of Property


(a) Of Property

      John Locke

(b) Principles of the Civil Code

      Jeremy Bentham

(c) What Is Private Property?

      Jeremy Waldron

(d) The Justification of Property

      Morris Cohen

 (e) Stephen J. Field and Public Land Law Development in California, 1850–1866: A Case Study of Judicial Resource Allocation in Nineteenth-Century America

      Charles W. McCurdy (f) Edwards v. Sims

(g) Trachuk v. Olinek

(h) The Commercial Space Race Is About to Begin

      Cassandra Steer


10 Rights and Obligations Associated with Land


(a) Images of Property in Canadian Law

      Michael Mac Neil

(b) Harrison v. Carswell

(c) Shelley v. Kraemer; McGhee v. Sipes

(d) Ontario (A.G.) v. Dieleman et al.; Torcan Women’s Reproductive Health Clinic et al.

(e) A Private Property Duty of Stewardship: Changing Our Land Ethic

      James P. Karp

(f) Palmer v. Nova Scotia Forest Industries

(g) Hickey et al. v. Electric Reduction Co. of Canada, Ltd.


11 Rights of Property and the Family


(a) Married Women and Property Law in Victorian Ontario

      Lori Chambers

(b) The Twentieth-Century Revolution in Family Wealth Transmission

      John H. Langbein

(c) An Ambiguous Victory: The Married Women’s Property Act of 1882

      Mary Lyndon Shanley

(d) Murdoch v. Murdoch

(e) Pettkus v. Becker

(f) Caratun v. Caratun

(g) Moge v. Moge

(h) M. v. H.


12 Rights of Property and Canada’s Aboriginal Peoples


(a) Common Law Aboriginal Title

      Kent McNeil

(b) St. Catharines Milling and Lumber Co. v. R.

(c) Canadian Charter of Rights and Freedoms

(d) Guerin v. The Queen

(e) Delgamuukw v. British Columbia

(f) Tsilhqot’in Nation v. British Columbia


13 Changing Conceptions of Property


(a) The New Property of the Nineteenth Century: The Development of the Modern Concept of Property

       Kenneth J. Vandervelde

(b) Moore v. The Regents of the University of California.

(c) Harvard College v. Canada (Commissioner of Patents)

(d) Monsanto Canada Inc. v. Schmeiser

(e) Plant Breeders’ Rights in Canada and Abroad: What Are These Rights and How Much Must Society Pay for Them?

      Natalie M. Derzko

(f) Universal Declaration on the Human Genome and Human Rights


(g) Fencing Cyberspace: Drawing Borders in a Virtual World

      Maureen A. O’Rourke

(h) Combating Cultural Appropriation in the American Southwest: Lessons from the Hopi Experience Concerning the Uses of Law

      David Howes



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About the Author   top

Neil Sargent, is an Associate Professor in the Department of Law and Legal Studies at Carleton University in Ottawa, where he teaches courses on introduction to private law relations, the legal regulation of corporate crime, and legal method and social inquiry. His research interests focus on private law, the legal regulation of multinational corporations, corporate criminal liability, law and literature, and alternative dispute resolution.

Logan Atkinson, is General Counsel & Corporate Secretary at the Real Estate Council of Ontario. Prior to that, he was University Secretary & General Counsel at the University of Waterloo, a faculty member in Law & Legal Studies at Carleton University, and University Secretary at Carleton. He has a doctorate in Legal History, interdisciplinary masters degrees in both the Humanities and the Social Sciences, a law degree and an undergraduate degree in the Arts. Prior to joining faculty at Carleton, Dr Atkinson practiced commercial law in St. John's, NL for many years.