The comments on the Ethics Quiz on shooting looters was edifying. Now let’s examine the question of “legal looting,” according to a Yale Law School professor.
In a post for Bloomberg, Stephen L. Carter argues that “Peacefully taking what you need from a supermarket isn’t the same as looting.” he writes in part,
Should we conclude that people taking food from an empty store during an emergency are not committing a crime? That’s exactly what we should conclude — they are not lawbreakers — but it’s important that we understand exactly why.
Let’s start by considering our own instincts. If I were trapped and my family was starving, I would grab the food; I suspect most readers would too. Already our instincts tell us, then, that the moral situation in which we find ourselves is different when a disaster has struck. I believe, very deeply, in the importance of strong property rules. In an emergency, however, we should interpret the rules differently…. A well-known example in the Model Penal Code posits a hiker who, trapped by a blizzard, breaks into a cabin and eats the food to survive. The hiker has taken both food and shelter without the permission of the owner. By choosing to violate a property rule rather than starve to death or die of exposure, the hiker has selected the lesser of two evils. This is one form of the defense known as “necessity,” and is generally considered to mean that there is no crime.
(You need to read the whole post to fairly consider Carter’s argument.)
Your Ethics Alarms Hurricane Harvey Ethics Quiz of the Day is…
Is looting an abandoned supermarket for food still a crime?
My answer? “Oh, be serious, professor. Of course it is.”
Even as he carefully tries to narrow the scope of his position to minimize its obvious slippery slope perils, Carter gets in trouble. Here, for example:
Key to our conclusion that they’re not looters is that the stores from which they are taking food are unattended — empty. So now imagine a different case: When the hungry people arrive at the flooded supermarket looking for food, the owner is standing in their path. He is an ornery sort. He listens to their pleas but says no. They demand food anyway. He brandishes a shotgun and says that he will defend his property. If they overpower him and take the food anyway, is the case the same?
Plainly it isn’t. For one thing, they have added assault to the crimes with which they might be charged. Pilfering food when you’re hungry is one thing; injuring someone to get it is another. In other words, the defense of necessity weakens as the crime becomes more serious.
You teach law students with logic like that?
1.The claim that unattended property that obviously belongs to another can be taken at will without committing a crime is so unethical that it hurts my teeth. This isn’t abandoned property. Nobody could walk in and legally claim that he now owned the store. Similarly, it doesn’t matter ethically or legally whether the store is guarded by the owner or not, unless he left a sign that read, “Help Yourselves!” The food is still his. He paid for it. He is counting on the proceeds to pay his bills and feed his family.
2. Carter thinks assault is what makes his scenario theft? How about the fact that the owner is standing there saying, “It’s my food, and you can’t have it,” and it IS his food. He is present, and has denied permission to take his food. Carter just finished saying that the fact that store was empty was “key.” Now he abandons that position to argue that the “needy” storm victims can still legally take his property as long as they don’t assault him!
The reality is that once you take the position that anyone can break the law as long as they feel they “need” to, you are making law enforcement impossible and undermining the principles behind law-abiding civilization.
Carter’s article is pure abstract navel-gazing that intentionally ignores practical complexities—in other words, the kind of things they argue about in law school. If your child is dying of hunger and you take food to feed him or her, you still don’t magically own the food, and you still committed a crime. When an ethical and law abiding person is forced to engage in such conduct, he must also resolve to compensate the owner later. A compassionate prosecutor, jury or judge may well waive punishment, but a crime was still committed.
In a footnote, Carter leaps down his own slope, writing,
“Should he also suffer no penalty should he take food from the store when there is no emergency? After all, he is every bit as hungry. In a much-discussed 2016 decision involving a homeless man who stole food from a supermarket, Italy’s highest court said yes — he committed no crime.”
That decision was bats, and in Italy: why is Carter citing it? For a distraction, it seems. He knows his argument leads directly to that question, he knows that the answer, “Sure, hungry people should be able to steal food at will” marks him as far left, anarchist nut, so he points and says, “Hey! ITALY says it’s not a crime! See?”
It’s an “everybody does it” dodge, the rarely used “Italy does it” variation.
Let me clarify for the Professor:
- If the looter is desperate and takes food from an abandoned supermarket, he is making a defensible utilitarian decision, committing a wrong in order to safe a live. That doesn’t mean what he stole is his, or that there has been no crime. . He is still guilty. The circumstances mitigate the appropriate punishment.
He is still looting. The looting is just less wrong than it usually is.
- That means, however, that the individual is only taking what he (or she) needs to survive. How much food does a looter have to take before he has exceeded Carter’s desperation standard? If he goes back ten times and carried out armfuls of steaks, salmon, lobster bisque and caviar, is that still acting on need and necessity? The professor doesn’t even raise this issue.
What does Italy say, Professor?
- Who is sufficiently needy to ignore the law? Who decides, and how? How hungry is hungry enough to wipe out the laws against theft, or to trigger the Stephen L. Carter “It’s OK to take the food even as the owner is standing there telling you to stop, as long as you don’t beat him” Rule? Is mildly hungry enough? Is it legal to steal potato chips if a looter has a bad case of the munchies?
Again, it’s easy making pronouncements like Carter’s if you ignore the details…where the devil resides.
Anyone who takes someone else’s property under such conditions must do so a) recognizing that he is committing a crime b) realizing that he has harmed another, and c) accepting the commitment to make restitution to the owner if possible. Prof. Carter’s reasoning inevitably creates a rationalization for guiltless and shameless theft.
Pointer: Prof. Glenn Reynolds