Tuesday, 22 May 2012

Freeganism, Crime and Supermarkets 1: Are freegans criminals?

Freeganism is this. What’s the law’s view on it? That was my question, and I found a very good article on the topic by Dr Sean Thomas in Legal Studies[1]. He suggested that a freegan accused of theft (Mr Droog) could argue that you cannot steal abandoned goods, but noted that in some theft cases rubbish has not been treated as abandoned. He therefore suggested a more fruitful defence would be to say that Mr Droog has not been dishonest under the Ghosh test[2], because there is no requisite ‘moral obloquy’ attached to freeganism. He suggested these things in a very full and nuanced way.

Dr Thomas is obviously sympathetic to freegans, and I must say that I am too. But I’m not sure his article which answers “Do freegans commit theft?” with “No” is all that beneficial to freegans. One, he argues that the ‘crux’ of the matter is that ‘freegans cannot be understood to be harming anyone’. This isn’t as obvious as Thomas seems to suggest. If I own a shop, I want you to buy from me. When you take things from my bin, you don’t buy them from my shelf. My economic interests are harmed. And also, harm is not the crux of the matter. No harm is a good reason not to criminalise an act, but is not correct to say that "no harm" means that a crime cannot have been committed, even when the conditions for criminality are fulfilled.

His analysis of the relationship between abandonment and honesty is more important. The person who openly takes the car that he honestly thinks is abandoned and the scuba-diving, dead-of-night golf ball taker look very different. But if the balls were abandoned, there can be no theft. Thomas points out how honesty and abandonment have been (wrongly) conflated by the courts to just be about naughtiness.

But herein lies the problem. Thomas makes it easier for Fyodor Plc to argue theft. They just need to put signs over there bins saying “this is not abandoned”. This would seal the deal on the abandonment point, and would make it harder for Mr Droog to argue that he was acting honestly.  Freegans would be left only with a “we’re good people doing no harm” 'defence', which I reckon is shoogly at best.

This is an issue of real interest. Freegans probably do a good thing. It would be a shame if they were thieves (and a recent case suggests they are). It’s also a shame that interfering with bins is an offence, as Thomas puts in a footnote. It must be true that in reality, prosecutions aren’t brought very often (it’s not great PR for Fyodor Plc to report freegans to the police). But, in my opinion, what we’re left with are policy questions, because the legal situation does not favour dear old Mr Droog. 

[1] Legal Studies, Vol. 30 No. 1, March 2010, pp. 98–125

No comments:

Post a Comment