Taking, not stealing

Aquinas says that when a starving person takes food needed for survival from someone who has too much, the act is a case of taking but not stealing. Aquinas’ reasoning is that property rights subserve survival, and in case of conflict the property rights cease, and the food ceases to be the property of the one who has too much, and so it is not theft for the poor to take it.

I think what is going on may be a bit more subtle than that. Suppose Alice and Bob both have too much and Carl is starving. Both Alice and Bob refuse their surplus to feed Carl. According to Aquinas’ analysis, both Alice and Bob lose their ownership.

But I think things may be a bit more subtle than that. Suppose that shortly after Alice and Bob’s wrongful refusal, Carl suddenly wins the lottery. It does not seem right to say that Carl can now take Alice and Bob’s surplus. Yet if Alice and Bob lost their ownership upon refusal to feed Carl, then either the surplus now belongs to Carl or it belongs to nobody, and in either case it wouldn’t be stealing from Alice and Bob for Carl to take it. Similarly, if after Carl’s lottery win, Alice were to take Bob’s surplus food, Alice would be stealing from Bob.

We could say that Alice and Bob regain their property when Carl wins the lottery, but it is strange to think that something that belongs to nobody or to Carl suddenly becomes Alice’s, despite Alice having no deep need of it, just because Carl won the lottery.

Here is a different kind of case that I think may shed some light on the matter. As before, suppose Alice has a surplus. Suppose Eva the mobster has informed David that if David doesn’t take Alice’s surplus, then Eva will murder Alice. Any reasonable person in Alice’s place would agree to having her surplus taken by David, but Alice is not a reasonable person. David nonetheless takes Alice’s surplus, thereby saving her life.

I think David acts rightly, precisely because as Aquinas thinks one needs to resolve a conflict between property and life in favor of life. But I don’t think we can analyze using Aquinas’ loss of ownership account. For if David takes Alice’s stuff, then Eva who made David do it is a thief (by proxy). But if under the circumstances Alice loses her ownership, then Eva is not a thief. I think the right thing to say is that Alice retains her ownership, but it is not wrong for David to take her stuff in order to save her life.

What should we say, then? Is David a thief, but a rightly acting thief? That is indeed one option. But I prefer this one. When you own something, that gives you a set of rights over it and against others. I suggest that these rights do not include an unconditional right not to be deprived of the use of the item. Specifically, there is no right not to be deprived of the use of the item when deprivation of use is the only way for someone’s life to be saved. This applies both in Aquinas’s case of starvation and in my mobster case. It is not an infringement on Alice’s ownership over her surplus when Carl takes her stuff to survive or when David takes her stuff in order to save Alice’s life. But when Carl’s need terminates, he does not get to then take Alice’s stuff, as if Alice had lost ownership, and the mastermind behind David’s taking the stuff, who unlike David isn’t acting to save Alice’s life, is a thief.

In fact, if we think about it, it becomes obvious that there is no unconditional right not to be deprived of the use of an owned item. Suppose I have my car on a plot of land that I own, and I foolishly sell you all the land surrounding the small rectangle that the car is physically on top of. By buying the land, you deprive me of the use of my car, barring your good will—I cannot drive the car off the rectangle without trespass. But you don’t steal my car by thus depriving me of its use.

Thus, neither Carl (when in need) nor David is stealing, even though both take something owned by someone else.

Aquinas quotes St. Ambrose with approval: “It is the hungry man’s bread that you withhold, the naked man’s cloak that you store away, the money that you bury in the earth is the price of the poor man’s ransom and freedom.” While St. Ambrose’s sentiment is very plausibly correct, on my account above it is not correct to take it literally. When Alice wrongfully withholds her surplus from starving Carl, the surplus is not literally owned by Carl. It is still owned by Alice, who has a duty to pass ownership to Carl, and Carl in turn is permitted to use Alice’s surplus—but it remains Alice’s, even if wrongfully so.

Indeed, here is an argument against the hypothesis that ownership literally passes to the needy. Suppose Carl is starving, and Alice and Bob refuse their surplus. Now, shortly after Carl coming to be starving, so does Fred. On an account on which ownership literally passes to the needy, Alice’s and Bob’s surplus belongs to Carl, and if Carl comes to claim it and at the same times so does Fred, Carl gets to defend that surplus, violently if necessary, from Fred, as long as that surplus is all needed for Carl’s survival. But it seems plausible that as long as Carl’s and Fred’s need is now equal, they have equal rights, even if Carl came to be needy slightly earlier. Furthermore, suppose Alice has ten loaves of bread and Carl needs one to survive. Which loaf of bread becomes Carl’s possession? Surely not all of them, and surely no specific one. It seems better to say: while Carl is in dire need, Alice has no right to withhold surplus from her. As soon as Carl and any other needy person has taken enough not to be in dire need, Alice may defend the rest of her surplus.

Constructive presence

This morning, I was reading the Georgia Supreme Court’s Simpson v. State (1893) decision on a cross-state shooting, and loved this example, which is exactly the kind of example contemporary analytic philosophers like to give: "a burglary may be committed by inserting into a building a hook, or other contrivance, by means of which goods are withdrawn therefrom; and there can be no doubt that, under these circumstances, the burglar, in legal contemplation, enters the building."

Murder and theft

Roughly:

1. To murder is to intentionally kill a juridically innocent person.

And:

2. To steal is to intentionally appropriate something that belongs to another.

Here, I am bracketing questions of special divine authorization, starving persons taking food for themselves, etc. Instead, the question I am interested in is this: What is the scope of “intentionally” in the two accounts?

There are killings where the killer intends to kill a juridically innocent person. For instance, a particularly evil terrorist organization or invading army may specifically choose to kill children in order to more effectively terrorize their enemy by killing the innocent. Similarly, someone might rob an enemy not just in order to have the enemy’s goods at their disposal, but may do so maliciously in order to dispossess the enemy of something the enemy owns.

But in many cases, the juridical innocence of the victim is not a part of the murderer’s reasons. Suppose Alice kills her rich uncle Bob in order to inherit his property. If it turned out that Alice was an agent of the state and Bob a guilty party whom Alice was supposed to kill, Alice’s killing Bob would serve the end of her inheriting the property just as well. Thus, Bob’s juridical innocence is not relevant to Alice’s reasons.

In fact, even Bob’s personhood may be irrelevant to Alice’s reasons. Imagine that Bob snores so loudly that his neighbor Alice can’t sleep. So Alice fills Bob’s apartment with chlorine gas. If it turns out that Bob is just a dog, Alice was still successful in her action. Thus, Alice’s intention need only have been to kill Bob, not to kill a person.

Similarly, often a thief is interested only in acquiring some item but does not care about dispossessing its rightful owner. Imagine that when Alice is turned away, Bob swipes the apple that was lying in front of her and eats it because the apple looks so delicious and not out of any malice towards Alice. If it turned out that the apple did not belong to anyone, Bob would still have fulfilled his intention, because his intention was to appropriate the apple. Bob may have thought that the apple belong to another, but the fact that the apple belonged to another was irrelevant to his intentions.

In particular, it follows that while a murderer or a thief has to intend to kill or appropriate, they need not intend to murder or steal. And if to attempt to ϕ entails intending to ϕ, as seems plausible, it follows that a murder or theft attempt need not be an attempt to murder or steal. For the the attempted murderer or thief, just as the actual murderer or thief, need not intend murder or theft, but may simply intend to kill or appropriate, while believing, correctly or not, that the victim is innocent or an owner, respectively.

It seems more precise to say:

3. To murder is to intentionally kill someone whom one believes to be a juridically innocent person.

4. To steal is to intentionally appropriate something that one believes to belong to another.

But I think that’s not quite right. If Bob takes the apple that he thinks belongs to Alice, but the apple is ownerless, then Bob hasn’t stolen. And if Alice kills Bob whom she believes to be a person but it turns out that Bob is a dog, then Alice hasn’t murdered. In both cases, the agent has done something wrong, something morally on par with theft or murder, respectively, but the thing wasn’t theft or murder.

Here is another suggestion:

5. To murder is to intentionally kill someone who actually is a juridically innocent person.

6. To steal is to intentionally appropriate something that actually belongs to another.

But I am inclined to think that’s not right, either. If I take your pen thinking you’ve given it to me, I haven’t stolen. And if Carl intentionally kills Dave while thinking Dave to be a deer and not a man, Carl hasn’t murdered.

Perhaps we need to combine the above two suggestions:

7. To murder is to intentionally kill someone whom one correctly believes to be a juridically innocent person.

8. To steal is to intentionally appropriate something that one correctly believes to belong to another.

This is my best bet. But I don’t like its messiness. (Note that replacing “correctly believes” with “knows” will narrow things too much. If I take what I correctly believe to be your pen, but my reasons for believing that the pen is yours are fallacious, I am still a thief.)

Actions that are gravely wrong for qualitative reasons

Some types of wrongdoing vary in degree of seriousness from minor to grave. Stealing a dollar from a billionaire is trivially wrong while stealing a thousand dollars from someone poor is gravely wrong. A poke in the back with a finger and breaking someone’s leg with a carefully executed kick can both be instances of battery, but the former is likely to be a minor wrong while the latter is apt to be grave.

On the other hand, there are types of wrongdoing that are always grave. An uninteresting (for my purposes) case is where the gravity is guaranteed because the description of wrongdoing includes a grave-making quantitative feature as in the case of “grand theft” or “grevious bodily harm”. The more interesting case is where for qualitative reasons the wrongdoing is always grave. For instance, murder and rape. There are no trivial murders or minor rapes.

Of course, even if a type of act is always seriously wrong, the degree of culpability might be slight, say due to lack of freedom or invincible ignorance. Think of someone brainwashed into murder, but who still has a slight sense of moral discomfort—although her action is gravely wrong, she may be only slightly culpable. My interest right now, however, is in the degree of wrongness rather than of culpability.

We can now distinguish types of wrongdoing that are always grave for qualitative reasons from those that are always grave merely for quantitative reasons. Here is a fairly precise characterization: if W is a type of wrongdoing that is always grave for qualitative reasons, then there is no sequence of acts, starting with a case of W, and with merely quantitative differences between the acts, such that the sequence ends with an act that isn’t grave. Grand theft and grevious bodily harm are examples of types of wrongdoings that are always grave merely for quantitative reasons.

On the other hand, it is intuitively plausible that murder and rape are not gravely wrong for merely quantitative reasons. If this intuition is correct, then we get some very interesting substantive consequences. In the case of rape, I’ve explored some relevant issues in a past post, so I want to focus on murder here.

The first consequence of taking murder to be always gravely wrong for qualitative reasons is that there is no continuous scale of mental abilities (whether of first or second potentiality) that takes us from people to lower animals. An unjustified killing of a lower animal is only a minor wrong (take this to constrain what “lower” means). If there were a continuous scale of mental abilities from people to lower animals, then murder would be gravely wrong only for quantitative reasons: because the victim’s mental abilities lie on such-and-such a position on the scale. So once we admit that murder is gravely wrong for qualitative reasons, we have to suppose a qualitative gap in the spectrum of mental abilities. This probably requires the rejection of naturalism.

A second consequence is that if killing a consenting adult in normal health is murder—which it is—then euthanasia is gravely wrong. For variation in health and comfort is merely quantitative, and one cannot go from a case of murder to something that isn’t gravely wrong by merely quantitative variation, since murder is always gravely wrong for qualitative reasons.

I suspect there are a number of other very interesting consequences of taking murder to be gravely wrong for qualitative reasons. I think these consequences will motivate some people to give up on the claim that murder is gravely wrong for qualitative reasons. But I think we should hold on to that claim and accept the consequences.

Theft

Common sense says that if you leave a more valuable item out, it is ceteris paribus more likely to be stolen. If we're asked why, I think we'd say: "The temptation is bigger." But this can't be the whole story. For while the reason for stealing is proportional to the item's value v_t to the potential thief, the moral reason not to steal seems proportional to the value v_o to the owner (after all, surely it's about equally bad to steal two items that are worth 50 thalers each than to steal one that's worth a hundred). Moreover, roughly, v_t is proportional to v_o (with a convex tapering off at the high end of v_o as very valuable things are hard to fence). So we might expect that as we double v_o, we roughly double the strength of the potential thief's reason to steal and roughly double the strength of the moral reason not to steal, and we might expect the two effects to cancel out, leaving the chance of theft unchanged. Compare theft to bribery. One has no greater a moral reason to refuse a large bribe than to refuse a small one, at least if the briber can afford it. In the bribery case, there is nothing surprising about people being more likely to take greater bribes.

The above analysis, however, neglects the fact that one also has a non-moral reason not to steal from the chance of getting caught and punished. And the punishment is not directly proportional in intensity to v_o: one doesn't go to jail for ten thousand times as long for stealing ten million dollars as for stealing a thousand dollars, I assume. Moreover, there is an initial non-proportional disvalue just in getting caught, dealing with the legal system, etc.

However, I do not think the lack of exact proportionality in punishment fully accounts for our intuition here. For, I think, we may also have the intuition that more valuable items are more likely to be stolen in the case of thefts where the thief thinks he can't get caught. We just see the more valuable items as "more corrupting". (Actually, maybe, the function is somewhat more complex. Items of very low value may get stolen more easily "because it doesn't do any harm", and items of very high value may get stolen more easily "because they corrupt", while items of middle value might be less likely to be stolen. I will ignore the extreme low end of value.)

The "more corrupting" intuition can, I think, be accounted for in this way. We recognize an intrinsic disvalue in acting viciously or becoming a vicious person. But the disvalue is more binary: being a thief versus being a non-thief; committing this theft versus not committing this theft; being a criminal versus being innocent. Catholics might make a ternary distinction: acting rightly versus sinning venially versus sinning mortally. But still there is a lack of proportionality.

It may be quite beneficial to have such a lack of proportionality—it keeps us from first stepping over the threshold of a new kind of moral evil, such as theft. If we were willing to commit small thefts on the grounds that they are not really morally all that wicked, we would be likely to slide towards greater ones. So it makes sense for there to be a bar against embarking on a new kind of wickedness. And then the greater temptation helps overcome that initial bar. If so, then the felt disvalue of committing a theft when one has not done so as yet is: B+cv_o, where B is the initial bar against "becoming a thief" and c is some proportionality constant. If that is the right story, then we might predict that people who see themselves as thieves are as likely to steal small amounts as great when they do not expect to get caught, while people who do not see themselves as thieves are more likely to fall for a greater amount.