On the right to steal for the preservation of dignity and life (revisited)

Ask for work. If they don't give you work, ask for bread. If they do not give you work or bread, then take bread.

-Emma Goldman

Often one hears liberals say of someone who stole ‘You must understand that he was poor’. Usually, this is meant as a mitigating factor in a loose, wishy-washy way that liberals are so fond of. Give him two years imprisonment instead of five. I want to go beyond that. I want to argue where it is necessary for a dignified existence, one has the right to steal, at least in the sense that the government has no right to punish you for it.

This position is modest in historical terms. Aquinas argued need can justify theft sometimes. Many moralists have acknowledged such a right for a long time. Although the law in common law countries has been extremely reluctant to accept the necessity caused by poverty as providing a defense to theft, ethically, the law is wrong.

I’d propound that:

1. Conditional on society and government being in a position to provide it, society ought to ensure everyone has access to at least dignified subsistence. What dignified subsistence means will vary from culture to culture and on the basis of the level of economic development, but in general, it means a level of income sufficient for the necessities of survival, reasonable recreation, community participation, and any other matters necessary for dignified, fully human life. It also means the capacity to acquire this level of income in a reasonable amount of time. A meager income does not count if it takes 60 hours a week to get it. Note that providing access to dignified subsistence does not necessarily mean giving subsistence, for example, the government could offer everyone a job, as an employer of last resort.

2. The government is, in fact, in a position to provide dignified subsistence at least in most or all OECD countries but the government has not done so in most-perhaps even all OECD countries.

3. Where A) the government has the means to provide dignified subsistence but has not done so, and B) The government cannot establish, to the standard of criminal proof, that an act of theft was not an attempt to obtain the means necessary for a dignified life, then except in special circumstances (special circumstances like cruelty in the commission of the theft or a target known to be especially vulnerable) the government cannot legitimately convict anyone of theft. In this narrow sense- that the government may not morally convict- there is thus a right to steal to achieve dignified subsistence.

I take this to establish, in some sense, a right to steal to achieve dignified subsistence. I do not regard this right as exhausting all cases the right to steal. For example, you can steal a lifesaver to throw into the water when someone is drowning. I’m simply outlining a narrowly defined but all too common case where such a right to steal exists.

A few restrictions on this right are worth being clear on:

A) The theft must be proportional to the need.

B) The theft must be non-violent.

C) The theft must be from someone who clearly has a lesser need of the thing than oneself, and if possible, a much lesser need.

D) The theft must not be more cruel, destructive, or disruptive than it needs to be.

We will refer to theft to achieve dignity which meets the above conditions as TAD. For some, the legitimacy of TAD will be immediately clear, for others the very proposition is horrifying. I will give my core argument below, after some preliminaries

Commonplace necessity.

Let us first establish that it is relevant in the sense that there are people who have no choice but to steal or face indignity. Personally I’m shocked anyone could doubt the existence of such a condition, but it seems some do.

Here are some pretty undeniable examples of people who have no legal possibility for dignity. We can infer this from their revealed reference to die, rather than continuing to live in poverty. https://www.theguardian.com/world/2022/may/11/canada-cases-right-to-die-laws

Plainly, if stealing enabled them to achieve a dignified life, and they did so in a way that respected the conditions I outlined, it would fall under TAD.

I could go on about this far more, but there are plenty of people who due to disabilities, children, or even a simple run of bad luck, face homelessness and or hunger. Some of these people become thieves even habitual thieves. Anyone who believes that our spotty social welfare system lines up in such a way that no one is left with nothing despite their reasonable efforts believes in magic. If you’ve ever had to move back into your parent’s house, there’s a good chance that you avoided this category only by virtue of having living parents with whom you have a good relationship.

Why believe in a right to access dignified subsistence?

Why do I think that people have a right to dignified subsistence when it is possible to provide them with such?

It’s worth being exceedingly clear that when the government doesn’t provide access to dignified subsistence for everyone, this is an act, not an omission on its part. The state, through its laws and enforcements, creates the order of property rights and the economic order generally- the whole thing runs on their legal software and military and police hardware. To the extent that someone is left out, that is through the positive action of the state in the assignment of those rights. The state’s mistake isn’t analogous to a failure of charity, it’s morally more like a choice to exile someone to a barren wilderness.

I’m a consequentialist, so my main reason for thinking there is a right to dignified subsistence is because, as a principle, it would maximize human welfare, which is an important component of the good as I see it. Thus I think the government should provide the means to dignified subsistence.

If I were not a consequentialist though, I would look at society through the lens of a social contract. People give up an enormous amount when they enter society, and some people gain an enormous amount from that agreement. Especially when we consider that before the state, no one could claim property and wealth on the scale, and with the security, that they do. Property rights themselves are a massive imposition on our freedom, we are forbidden the right to touch, use, or walk upon most of the world. To consult my favorite academic paper of all time Coercion and Distribution in a Supposedly Non-Coercive State:

What is the government doing when it protects a property right"? Passively, it is abstaining from interference with the owner when he deals with the thing owned; actively, it is forcing the non-owner to desist from handling it, unless the owner consents. Yet Mr. Carver would have it that the government is merely preventing the non-owner from using force against the owner. This explanation is obviously at variance with the facts-for the non-owner is forbidden to handle the owner's property even where his handling of it involves no violence or force whatever

The destitute person is like a sailor who, surrounded by water, finds he has not a drop to drink. Only the problem is not that the water is salty, it’s that everything around him has been tied by an invisible thread to an owner by the state’s law and force. Poverty amid plenty.

When you look at the world as a series of decisions about property assignment, market design, etc. etc. the nature of destitution as a form of internal exile becomes very clear. The fact that the state allows the transmission of rights by markets, markets which it effectively designs, maintains, and defends, is not particularly relevant. The state chooses the broad outlines of possession and dispossession, actively defends the existing order, and has the power to change it ad libitum. Certainly, the state is restricted by economic tendencies and laws, but not to such a degree that it would be impossible to guarantee decent subsistence.

While one could argue the details in several ways I don’t think the social contract is a good enough deal if some people have fabulous wealth, often for nebulous reasons with little to do with their merit, but the contractually established state chooses to deny the destitute access to the things needed for dignified survival. The destitute don’t have to be irrational to reject the imposition of that contract. Ending up like the sailor from The Rime of the Ancient Mariner, surrounded by untouchable plenty, isn’t good enough. A contract forced on people that’s not in their best interests is extortion.

But what if one were to respond ‘The social contract isn’t great for people who can’t secure dignified subsistence, but if they’re not literally dead, it’s still better than a state of nature.”

To this, I would reply:

1. It’s not clear to me that if you put a button in front of a person they can press- and if they press it society will collapse into anarchy and we will roll the dice on building a new one- they wouldn’t be better off pressing it if they are destitute.

2. Even if would be better off not pushing that button, a contractual arrangement that -very avoidably- puts some people in opulence and some people in marginal squalor is indecent, and it is unjust to expect people to accept it, and unreasonable to enforce it. Remember, the distribution of property and the rules for rearranging distribution are part of the contract.

An acquaintance of mine at Sydney Uni is interested in ‘virtue politics’. Here, I think, the case is very clear. A virtuous polity simply does not create economic conditions under which some people lack dignity. It’s a violation of both justice and compassion, perhaps the two most fundamental political virtues. To the extent the state puts people in a poverty trap, it undermines not only its institutional virtue, but the individual virtue of everyone directly involved, and even, to a degree, all of its citizens.

Why believe that the state has no right to punish us for stealing if we do so to achieve dignified subsistence?

But one could maintain that while the state is required to give me the means of a dignified life if they don’t, you have no individual recourse, and the state can legitimately punish you for trying to seize them for yourself.

The question of whether you have a moral right to individual recourse is interesting (I think yes), but it’s not the one I’ll get into directly here. Instead, I want to concern myself with the question. Does the state have a right to punish you for stealing under such conditions?

Here, I want to make an appeal to ethical intuition. While the state is failing its obligations to me, if I’ve taken non-violent and proportional action to redress that, meeting the conditions I described above, and that action is necessary to secure a dignified existence, it would seem extraordinarily cruel and inequitable for the government to prosecute me while it is not keeping its end of the bargain, and I am acting out of compulsion.

This is because, as a general principle:

1. If A wrongs B

2. B wrongs C to correct the effects of A’s wrong against B.

3. And B’s wrong is less than A’s wrong.

4. Then A does not have moral standing to punish B for B’s wrong against C.

It is difficult for me to think of circumstances in which this is not true. The only cases I can think of are those in which the punishment of B is in B’s own best interests.

Call A Alice and B Bob. Why think that A’s wrong is greater than B’s wrong?

Keep in mind that we have constrained TAD with several conditions. To repeat:

A) The theft must be proportional to the need.

B) The theft must be non-violent.

C) The theft must be from someone who clearly has a lesser need of the thing than oneself, and if possible, a much lesser need.

D) The theft must not be more cruel, destructive or disruptive than it needs to be.

By contrast, to such a theft government’s action in creating a distribution which unjustly excludes the thief is: 1. Unforced by the circumstances. 2. More harmful to B than B’s actions are to C. To be clear, we are not conceding that TAD is morally wrong, only that if it is morally wrong, it is a less grave wrong than the government’s distributive wrong against the thief.

What about the argument that theft is uniquely corrosive to the social fabric? This argument cuts both ways because A) Poverty is also uniquely corrosive to the social fabric and B) Poverty causes theft. These both go on the government’s side of the ledger.

But there’s another problem with punishment in these circumstances, beyond its intrinsic repugnance.

Suppose A’s harm against B is habitual, as the state’s harm of poverty against the poor is. She does it all the time- as the government reinforces existing property relations all the time. Now she comes to consider whether or not to punish B. Either:

1. She does so without ceasing her habitual harming of B.

2. Or she does so while continuing her habitual harming of B.

If 1. then there is a clear alternative, and clearly preferable alternative- now that she has changed her practices, forgive Bob, using the change of her practices as an opportunity for a clean slate, but making it clear that further infractions will be punished. Punishing given such an alternative seems clearly morally inferior.

If 2. then Alice is laughably compromised. Not only was her wrong against Bob the cause of her actions, she could not even bring herself to stop her harm.

In either case, Alice’s action in punishing despite her own habitual wrong looks even more repugnant than the base case of A punishing B we described earlier.

Why on earth are you doing this Philosophy Bear?

I’m writing this article, fundamentally, as a protest. Our society can ensure there is zero involuntary poverty- for example, by acting as an employer of last resort. We have not done so and this is a titanic crime.

You don’t have to be a Rawlsian to think it is a dreadful wrong to force people to obey the rules of a society without caring about them enough to ensure they have access to a decent life. If we do not care about someone living in our society enough to ensure they do not go without the means of life through no fault of their own, then it’s frankly indecent to think we have the moral high ground to tell them what to do. However, this is especially true when it comes to taking what they need to live.

I want to make my opposition to this grotesque order plain and to urge any reader who finds themselves on a jury to consider these arguments. We should put pressure on the government by trying to prevent it from enforcing an unjust order.

Afterword

I wanted to make a few points that, in hindsight, weren’t clear enough.

I want to drive home the point that this is a strategy. If we can get lots of people to agree that stealing is valid in these circumstances, if we can create a culture of skepticism around theft prosecutions where TADS is possibly the reason, then that puts pressure on the government to create alternatives to poverty. This isn’t just an abstract moral point, it’s a program to pressure the government to change its ways, a program you can join in. It is not an attempt to promote theft either, in a way it is the opposite- it is an attempt to create a society in which morally justified theft doesn’t exist or is extremely rare because everyone can access a dignified existence. A state of affairs where most of the public agrees that a lot of thefts are morally valid is unsustainable, so adopting this belief can be a way to try to force the government to mend its ways.

Finally, I don’t necessarily support job guarantee policies (or oppose them). It’s just an example of a scheme for abolishing involuntary poverty. Many others are possible.

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