13 Ways to Steal a Bicycle: Theft Law in the Information Age
Author: Stuart P. Green
Publisher: Cambridge, MA; London: Harvard University Press, 2012. 400p.
Reviewer: Emmanuel Melissaris | July 2013
The ongoing global financial crisis is having radical ramifications for conceptions of property and its distribution. The boundaries between the public and the private, the political and the social are being shifted, mostly in the direction of the private, and so are institutional conceptions of who is entitled to what. Part of this shift relates to the criminal law generally and to offences against property specifically. What counts as acceptable financial practice and what crosses the threshold of criminality? How are we to make normative, as opposed to sociological, sense of interferences with others’ property rights by the disenfranchised and the increasing number of people at the receiving end of structural injustice? Such questions urgently call for answers.
Stuart Green has already produced a substantial body of work that has become a central reference in the field, dealing with the moral and criminal law significance of violations of property rights. In his previous monograph (Lying, Cheating, and Stealing: A Moral theory of White Collar Crime,Oxford; New York: Oxford University Press 2006) he offered a general account of the moral content of offences against property. In his imaginatively titled 13 Ways to Steal a Bicycle (a reference to Vittorio De Sica’s cinematographic classic The Bicycle Thief that is engagingly woven throughout the book alongside other examples both from fiction and jurisprudence) he deals specifically with theft — its wrongfulness and its normative-conceptual boundaries. It is a thorough and comprehensive study of the offence of theft –indeed, the first of its kind– and it tackles pressing questions that have so far largely fallen by the wayside of normative criminal law theory: What is distinctive about the blameworthiness of theft? What can be stolen, as opposed to being misappropriated in different ways, and how? How do rights over information or creative content fit in the law of theft? How do current institutional arrangements measure up against extra-legal normative standards regarding property rights and their violations?
Green’s book is incredibly rich in content and full of fascinating insights on various levels of abstraction, thus making it impossible to provide a comprehensive discussion of its entirety. I will therefore outline some basic points and, by way of critique, concentrate on one foundational and, I believe, recurring issue.
The author presents the book as offering an “idealized and ahistorical” (p.70) theory of normative reconstruction of the law of theft, thus taking on the notoriously difficult task of trying to straddle the boundary between description and revision. He does this through an intriguing combination of rationalism, intuitionism and a sort of constructivism partly enriched with the teachings of other social sciences such as anthropology and social psychology. I think this approach is what causes some unresolved tensions in various parts of the book.
The book begins with the question of the compliance of institutions with external standards. Green gives an account of the attempts at consolidating and rationalising property offences in a wide range of jurisdictions, but focusing specifically on the Model Penal Code and the reform of the English law of theft mainly since the enactment of the Theft Act 1968. He records the way in which legislators generally (it is interesting that in the USA in some states consolidation went hand-in-hand with seemingly ad hoc particularisation of various instances of theft) opted for suspending pre-existing offences and merging a wide variety of acts of unwarranted interference with property rights under the heading of theft. Green is not interested so much in whether consolidation has worked in practical terms, but rather in its normative soundness. His argument is that the project too often misses moral distinctions, which are salient to the way to which the criminal law ought to be attentive. This begs the question of what these distinctions are and why the criminal law owes such attention to them. Green points to fair labelling for an answer. Now, the principle of fair labelling alone cannot help us a great deal in this respect because all it governs is the correlation between institutional treatment of offences and some extra-legal standards of fairness; but it cannot tell us what these standards are.
Professor Green follows Ashworth in this and turns to shared moral intuitions for guidance. The criminal law regulation of property offences, the argument goes, ought to reflect the way in which we tend to think about and evaluate interferences with property rights. More often than not, criminal law theorists who take this approach are happy to rely on their own moral intuitions, tacitly projecting them onto the whole of the political community. Green made the effort to ask around. With Matthew Kugler, he conducted a survey of attitudes towards property rights and their violations. Green is aware of the limitations of this exercise. To start with, the sample was very small and rather homogeneous –all first year Rutgers University students — and there is very little by way of examining the role of institutional and para-institutional practices in forming the sample’s views. But I take it that the research was not meant as proof by way of somehow accurately mapping the universal landscape of moral beliefs, but rather as some validation that the author’s own intuitions are not extravagant and out of line with the community’s.
The goal of the remainder of the book is, in the author’s words, “in a sense, to analyze the reasoning by which such intuitions are informed” (p.68). The first step is to clarify the moral blameworthiness of theft. In line with his previous work, Green considers harm, mens rea, and wrongfulness qua violation of a freestanding moral norm, not as necessary or sufficient conditions of blameworthiness but as “relevant to determining whether an actor’s conduct should be regarded as blameworthy” (p. 72). The harm in theft is not only the violation of the property right itself, but also and in this Green follows Simester and von Hirsch, the undermining of the system of distribution of property rights, the maintenance of which is in the interest of everyone. And this Green considers to be a kind of harm. This idea seems a little underdeveloped. First of all, the disruption of allocative patterns does not satisfy, at the very least, the proximity requirement of the standard formulation of the harm principle that Green seems to subscribe to. Secondly, if the idea is that the wrongfulness of property offences consists in the violation of the law regarding governing property relations, then Green would be double counting since his basic position is that the wrongfulness of theft is the harm caused, which necessitates criminal law regulation.
One possibility could be that the wrong does not consist in the violation of the property right itself but rather in the disturbance of a public, i.e., political as opposed to moral, system of norms regarding property with static property rights being only one aspect, perhaps the culmination of such a system. This would be a promising tack to take and it could go in any direction, from a Kantian largely individualist liberalism to social democratic conceptions of the political community. But Professor Green does not take it in any of these directions. A little further on in the book he subscribes to a Lockean conception of property, which does not depend on the existence of any public system of distribution –property in this tradition is pre-institutional. This is combined with the intuitionism that I mentioned above but in a particular way. Although the private right to property is grounded in Lockean terms, Green regards our conception of stealing as developmentally shaped, but also determined to an extent by institutions. In this way he tries to temper the rigidity of the Lockean model but it is not all that clear that this is so easily achievable. If property is a natural right then all unwarranted violations of it are wrongful as a matter of reason (though not necessarily punishable; this may be differently determined) and this cannot be overridden by beliefs however internalised or generalised.
The same tension between political constructivism and rationalism of a certain type makes it difficult to differentiate between the wrongs in violations of property rights on the one hand and breaches of contract on the other. Green directly tackles that question (pp.87-90) and part of the answer (another part relates to mens rea) seems to be that in theft an already existing property right is violated whereas breach of contract is a violation of a “not-yet-ripened interest in property” (p.89). This sits well with the Lockean approach but not with the dynamic conception of property in terms of allocative patterns. If one opts for the latter as the ground of the wrongfulness of theft, then more work needs to be done to differentiate between breach of contract and theft. Finally, if property offences are not fundamentally subject to social constraints stemming from distributional patterns, then it is hard to see how much of Green’s argument (with which I am largely sympathetic) regarding the value of the stolen good as being salient to the wrongfulness of misappropriation (as opposed to making a difference in decisions on criminalisation or sentencing) and the necessary interdependence between basic structural injustice and the fairness of holding accountable for property offences those at the receiving end of injustice.
I will leave aside the question of the mens rea of theft and move on to the third element of blameworthiness, namely wrongfulness qua violation of a freestanding norm. Here the author distinguishes between a primary and a secondary level of wrongfulness in theft. The former is the violation of the property right per se and the latter the manner in which the property right is violated (e.g. by removing the property, by defrauding the other and so forth). The analysis here is meticulous and detailed, showcasing Green’s thoroughness and his impressive command of the criminal law regulation of property relations. I am, however, puzzled by one aspect. It seems to me that these two elements cannot both pertain to the wrongfulness of theft. Either it will be wrong to deprive others of their property or it will be wrong to defraud, to steal, to embezzle and so on. This is not to say that the modus operandi does not have an impact; on the contrary, there are distinct ways in which we interact with each other and this ought to be reflected by the law. This impact may pertain, for example, to the principle of legality –it is important to know in advance in the course of which of these ways of interacting we may be held liable for a property offence. But I cannot see how it accounts for the grounds of the wrongness of violations of property rights.
Professor Green then turns to the circumstances under which the state is authorised to punish for an offence against property. Many, most notably strict retributivists, may take issue with this separation of the question of wrongfulness and criminal responsibility. I think Green is right to treat them as distinct both analytically and substantively. And doing so allows him to take a hybrid approach to criminalisation. In the first instance, he holds publicity to be the minimum necessary requirement of criminalisation. However, he gives publicity a twist. I am quoting the passage at length, because it is especially important to his argument: “we would ask whether the crime typically or normally involved (1) the kind of conduct that is properly declared wrong by the community as a whole, (2) a non-negotiable wrong of the sort that one should expect to be categorically safe from, and (3) something more than a mere conflict that can be negotiated and resolved” (pp. 147-148; emphasis in original). I would have liked to learn more about this rather original conception of publicity. How is wrongfulness properly declared wrongful by the community? In the republican tradition, publicity would entail a robust sense of representation but there is nothing in this book to suggest this. How does publicity in relation to wrongfulness relate to publicity in relation to criminalisation? Green seems to think that public wrongs are moral wrongs, but public punishable wrongs are singled out in a different way. Is it the consequences of punishing or not as point (3) seems to suggest? In that case, how does publicity relate to the second, consequentialist criterion of criminalisation (see below)? How do (1) and (2) cohere with each other? If there are things that we should be categorically safe from, why do the beliefs of the community matter?
The second leg of the justification of punishment for property offences is openly consequentialist, and Green discusses under what circumstances to criminalise and punish for property offences is the most efficient thing to do. He also offers a very interesting and lengthy discussion of the application of the de minimis principle as well as various other borderline cases of theft.
The final part of the book is a truly welcome discussion of the place of intangible and semi-tangible goods in the law of theft. Should copyright infringement or unauthorised use of Wi-Fi be treated as theft? The obvious question is why it matters whether we call such things theft or something else. Is this just a semantic quibble? Green does not think so. He considers the category of theft to be of distinct and more serious moral demerit because it “connotes something more permanent and more substantial. To say that some property has been stolen is to say that its owner has to not only been denied the right to exclude others from use, but that he has also been denied the right to possess and make full use of the property herself” (p.207). This would be more convincing had there been greater clarity earlier in the book both as to what property offences are a violation of (a distributive pattern? A property right?) and what precise impact the mode of interfering with property is. Be that as it may, lthe discussion is thorough and the argument coherent and forceful. For Green, we properly speak of theft when the misappropriation relates to things that are commodifiable, rivalrous and subject to zero-sum transactions. He then goes on to discuss in some detail which new kinds of property fall under this definition of theft and which ones do not (the use of all sorts of intriguing examples make this part of the book flow particularly well). Professor Green does not consider the wrongfulness of unwarranted interferences with intangible and semi-tangible property, but I do hope that he will do so in the future. The expansion of knowledge economies and the issues of justice that they generate make pressing an analysis of their criminal law implications as lucid as Green’s.
13 Ways to Steal a Bicycle closes with some tentative suggestions of principles that legislatures should take into account when regulating property rights through the criminal law. Stuart Green is a scholar with a formidable command of offences against property, so legislators had better take note.
Emmanuel Melissaris, Department of Law, London School of Economics