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
[2]
Which I’ve discussed before, at: http://businessbehavingbadly.blogspot.co.uk/2012/04/scrapping-dishonesty-from-cartel.html
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