Disabusing the Common Law of 'Abuse of Rights': The Only Legitimate Rule Redux

84 Supreme Court Law Review (2d) 201

22 Pages Posted: 23 May 2018

See all articles by Bruce Pardy

Bruce Pardy

Queen's University - Faculty of Law

Date Written: May 10, 2018

Abstract

Under the doctrine of abuse of rights, people may not exercise their rights for improper purposes such as defeating the objectives of others. The concept of abuse of rights is based upon moral imperatives and social values whose innate validity cannot be established. Between competent adults, there is only one legitimate substantive rule of obligations: force is prohibited. The doctrine of abuse of rights is incompatible with this rule. Rights provide autonomy within which rights holders may resist force from others for any reason and in pursuit of their own objectives. If judges and state officials are empowered to decide when a subjective purpose is legitimate, then that autonomy is a fiction. When the enforcement of rights is dependent upon the proper motivation of the rights holder, rights are transformed from markers of mutual freedom to instruments of social control. The common law does not contain a general obligation of civility nor does the exercise of private rights require achievement of public good. The doctrine of abuse of rights reflects a paternalistic compulsion to supervise.

Keywords: abuse of rights, common law, obligations, tort, property, contract, rights, legal theory, philosophy of law, moral reasoning, autonomy, judicial reasoning, public good

JEL Classification: K10, K11, K12, K13, K42

Suggested Citation

Pardy, Bruce, Disabusing the Common Law of 'Abuse of Rights': The Only Legitimate Rule Redux (May 10, 2018). 84 Supreme Court Law Review (2d) 201. Available at SSRN: https://ssrn.com/abstract=3176605

Bruce Pardy (Contact Author)

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L 3N6
Canada
613-533-6000 Ext. 77570 (Phone)
613-533-6509 (Fax)

HOME PAGE: http://law.queensu.ca/facultyAndStaff/facultyDirectory/pardy.html.htm

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