September 21, 2005
When does "looting" become legal?
The events following Katrina have raised disturbing questions about what to do about "looting" in situations such as those.
One grants that looting just for the sake of personal enrichment or to take advantage of another person's weakness is wrong on both legal and moral grounds.
But what about looting for survival? If people are hungry and thirsty, is it appropriate for them to break into a locked store and take food and water, against the wishes of the owner? Or what if they steal a vehicle to escape from danger? In this Reuters photograph by Rick Wilking the caption reads "Texas game wardens force people who used a mail truck to escape the flooded areas of East New Orleans to lie on the highway Aug. 31, 2005. The people were freed but forced to continue on foot." The photograph clearly indicates that the people were being treated like criminals.
Except for those who have raised property rights to the level of a fetish, most people would concede that those who "looted" food and water out of desperation had the moral right to do so because all of us can easily envisage ourselves being in that kind of situation and doing the same thing. But most of us would also likely argue that while the action itself was legally wrong (on some absolute scale), such people should not be prosecuted, which is what seemed to have happened to the mail truck appropriators. The truck was taken away from them but they were not arrested.
But do such people also have a legal right to do this? In other words, could it be that they were not even guilty of theft under the law, even if some zealous prosecutor values property above all other considerations and orders them arrested and charged? Jonathan Rowe argues that they do have such legal rights. He says:
There is a legal tradition that justifies such action, and it comes from the theological teachings the President harkens to on other matters, and also the Natural Law teachings so favored by rightward judges. It is called the doctrine of "overruling necessity", and it says that property is secondary in times of urgent human need. "Necessity sets property aside," wrote Thomas Rutherford, a noted 18th century legal commentator, in his Institutes of Natural Law. At such times there is a "community of goods."
Natural law theory typically is invoked to establish the sanctity of private property. But as Rutherford said, it contains the seed of this exception too. Here's John Locke in his Second Treatise on Government, which is a bible of the property rights camp. It is a "Fundamental Law of Nature," he said, that the property claims of the rich man "must give way to the pressing and preferable Title of those who are in danger to perish without it."
A kindred world view is evident in the colonial laws permitting people to hunt and fish on other peoples' land so long as it wasn't fenced. When push came to shove, the need for sustenance came before abstract rights of property. What is most interesting though is how the proponents of the law of necessity justified it. It was not that a needy individual had a claim on what belonged to other people. Rather, it was that the needy person had a prior property right - a common property right - that trumped the latter one in this circumstance.
At some point in the distant past, the argument went, all property was a commons. From this common pool, individuals asserted private claims, justified in Locke's version by their own toil upon the land.
But these private claims are provisional not absolute. They are valid in normal times but not all times. "[I]n cases of extreme necessity," observed Hugo Grotius, the noted 17th century jurist, "the original right of using things, as if they had remained in common, must be revived; because in all human laws, and consequently all laws relating to property, the case of extreme necessity seems to form an exception."
Natural law theory assumes that people consent to the impositions of society by a kind of implied contract. Property is part of that contract. "No one," observes Novak, summarizing the commentators, "could be assumed to have consented away the right to use another’s property when self or social preservation were in jeopardy."
Not being a legal scholar, I cannot really judge the validity of Rowe's thesis. But I found the idea that at one time all property was considered to be in common and that this prior right to property can be legally (and not just morally) invoked in times of extreme need to be highly intriguing.
POST SCRIPT: The "battle" for the New Orleans Convention Center
One of the many curious, if not tragic and outrageous, things about the plight of the people housed at the New Orleans Convention Center in the wake of Katrina was how quickly they became viewed by some of the security forces as some kind of "enemy" to be defeated in a manner similar to the way Iraqi insurgents are battled, with the Convention Center itself being viewed as a hostile stronghold to be conquered like, say, Falluja.
This extended blog item describes this mentality and is worth reading.