The Ethics of Crime; C. McGath

Gary McGath PRESIDENT JOHN F. KENNEDY said that "every American ought to have the right to be treated as he would wish to be treated."l The political consequence of the philosophy be hind this statement has been rapid growth in government control, as politicians have worked to make people do what others wish them to do. Any statement about rights is not simply a political statement, but an ethical one as well. And the effects of such ideas go beyond politics. Al though Kennedy clearly intended that the government would be the enforcer of this "right," many people have drawn a further inference: that if the government is lax in enforcing it, there is little or nothing wrong with taking personal action to make sure one is treated as he would like to be. This view of rights stands in sharp Mr. McGath is a computer programmer and freelance writer in Hollis, New Hampshire. 616 THE ETHICS OF CRIME contrast to the kind of rights pro claimed in the Declaration of Inde pendence. The rights to "life, lib erty, and the pursuit of happiness"

come from the laissez-faire view of rights-that is, the view that rights are a moral sanction on one's free dom to live and act without un wanted interference from others. On the other hand, the "right to be treated as one would wish to be treated" implies an obligation on the part of others not only to refrain from interfering, but to engage in posi tive action as required by the claim ant of the right. This formulation stems from what might well be called the devez-faire ("must do") view of rights in contrast with the laissez faire or "let do" view. Sometimes the devez-faire theory of rights serves as an explicit justi fication for committing crimes; po litically motivated groups that take over buildings and offices in order to THE ETHICS OF CRIME 617 press their demands on the· owners of the property are an obvious ex ample. The more typical way in which it encourages crime, though, is simply through giving a stamp of legitimacy to a person's desire to at tain his goals by illegitimate means.

What is at issue here is not the psychology of criminals-a matter on which I claim no expertise-but the logical consequences of certain moral premises which are widely accepted today. The argument that these premises promote crime rests only on the observation that they offer encouragement and vindication to people who are inclined to crime, and that they make the victims of crime feel less sure that they can really regard themselves as victims. Cer tainly other factors also contribute to the decision to resort to crime; but anyone who has any capacity for" self esteem on the one hand or guilt on the other has to be affected by his view of the moral rightness of his actions. The average mugger or burglar is not a philosopher; but for exactly the reason that he is not, he passively absorbs the influences around him and lets other people's beliefs mold his own moral values. When a per son with no convictions of his own hears that people who are better off than himself are robbing him of what is rightfully his, he will see little reason to balk at taking it "back."

Anyone who has not descended to the mental state of an animal must recognize, however vaguely, that he has to follow certain principles to exist, whether he lives in isolation or in a society. A person who real izes that people cannot live together without property rights may still decide to steal, but he is likely to be discouraged by his knowledge that everyone else in the world can legit imately regard him as an enemy. If, on the other hand, one believes that people who own property are al ready his enemies because they have what he doesn't have, then he may as well take their property as not; he may even think he increases his self-respect by righting the "injus tice" they are doing to him. Devez-Faire vs. Property Rights The devez-faire view of rights un dercuts the principle of property rights and thereby lends an air of legitimacy to crime. The right to property is a laissez-faire right; the obligation it imposes is the obliga tion not to take or damage another person's property. Under a devez faire theory, the right to property is a conditional one at best, since a person's right to his property may be overridden by another person's "right" to be provided for. A tho roughgoing advocate of this theory may even regard property as an im pediment to the implementation of rights.

Proudhon's dictum that "property 618 THE FREEMAN October is theft" has been absorbed-to the extent that a mind can absorb con tradictions-by a large part of our culture. Businessmen are reluctant to use the principle of property rights in their own defense. Many self-pro claimed defenders of capitalism avoid the issue of property rights, prefer ring to talk about secondary social issues rather than to upset people. The Supreme Court has told us that "neither property rights nor con tract rights are absolute."2 Attacks on property are often based on the egalitarian variation of the devez-faire view of rights-on the notion that everyone is entitled to the same degree of well-being, whether he has earned it or not. By this criterion, a person who is more successful than the average, and who keeps what he earns, is depriving others of their rightful share of the products of his effort. In granting him the right to keep his property, the government is helping him to op press those who want it.

What gives egalitarianism its ap peal is the belief that one person can gain in society only through some one else's loss. This idea effectively wipes out the concept of productiv ity, leaving distribution as the only issue. If one person's gain were al ways another's loss, there would be no basis either for trade or for prop erty rights, since the only way to ac quire wealth would be to take it from someone else. The concept of property (as well as that of theft, which means the taking of someone's prop erty) would become meaningless, leaving only the concepts of posses sion at a given time and of force as the sole means of gaining posses sion. A Distorted View This "zero-sum" view of society cannot stand up to examination; when people engage in productive activity, they do not simply redis tribute what already exists, but cre ate new wealth. Those who believe that wealth is static regard the pos session of it as the mark of a looter.

Therefore, they speak of businesses "exploiting" workers or "ripping off' customers in the course of voluntary transactions, and they cannot see any moral difference between the source of a well-paid business employee's money and the source of a thiefs in come. Since wealth is not created, but only transferred, some of them conclude, the fairest thing to do with it is to distribute it equally among all people. Others who share this be lief draw the conclusion that the only right is the right of superior force. An opportunistically inclined per son can switch at will between these two conclusions. A genuine egalitarian society would not reward anyone for his achievements or permit anyone to benefit from his own efforts; to do so would be to acknowledge the exis1983 THE ETHICS OF CRIME 619 tence of productivity and to permit inequality. The idea of such a soci ety ought to horrify anyone who fully understands it, but it can be attrac tive to a person who ignores its ul timate implications. In popular lan guage, egalitarianism takes the form of denouncing the "injustice" in dif ferences between the rich and the poor. A thief does not have to under stand the theory of egalitarianism to get the message that he should resent those who have what he doesn't.

ArguingAgainstCrime If someone accepts the egalitarian philosophy and sees others earning more than he does, what reason can we offer as to why he should not take it from them? Can we tell him that he should not use force to attain his goals? Modern usage has so diluted the concept of "force" that it has become nearly meaningless. The society that does not provide a person with as pleasant a job as he would like is said to force him to take the job he is offered. The property owner who does not allow people to use his property for their political purposes is said to force his views on them. This broadening of the idea of force comes from the devez-faire view that a person can have a natural claim on the services of others. Under lais sez-faire theory, rights are nega tives-prohibitions on what one Person may do to another-and force is a positive action against a per son's rights. The devez-faire view, on the other hand, makes rights into positive claims on people, and cor respondingly expands the definition of force to include the failure to sat isfy the claims that people make by right.

A thief who has heard the word "force" applied so broadly is not going to regard his own use of force as par ticularly distinctive or reprehensi ble. "I force people to give me their wallets?" he might say. "So what? They force me to live in a dump!" Can we morally deter the crimi nal by telling him that he should obey the law? It would not help, at least not in the United States; Americans have never placed a high value on obedience to authority, ex cept when they have been convinced that its demands are justified. If they do not believe there is a good reason for a law, they will not give it their support. This characteristic of Americans may, in fact, be the rea son why crime is a worse problem here than in many other parts of the world. In Europe, people are more likely to wait for the government to provide the property of others which they are told is rightfully theirs. In many other parts of the world, they are apt to join revolutionary move ments in order to create a govern ment that will provide it to them.

Both of these kinds of people think 620 THE FREEMAN in terms of having an authority set things right rather than doing it for themselves. In the United States, though, peo ple are more likely to act on their own initiative. If they do not reject force as a means to their ends, then they may .decide to correct their "inequities" by direct and forcible action. The source of American ini tiative is, in fact, the laissez-faire principle; Americans have recog nized that they do not have a claim on other people to give them what they want, and that no one has the right to direct their actions, so they have gone out and done things for themselves. Today, however, many people who reject laissez-faire have learned to take matters into their own hands; they have seen, without under standing its source, the example, of those who live by their own initia tive. People of this sort are likely to be only a transitional phase if cur rent trends continue; the next step beyond the criminal's pseudo-inde pendence is the mentality that Keeping the Peace clamors for a dictator. It is not much of a consolation, though, to think of this as a longterm solution to crime.

The devez-faire principle simply does not offer any solid moral argu ments against seizing people's prop erty. At most, it can serve as a basis for arguing that the government should be doing the seizing and that individuals should not make up their own distribution plans for society. Legal remedies alone will not stop crime. As long as criminals can be lieve that what they are doing is right, punishment alone will not discourage them. Only the laissez faire principle of rights provides a fully satisfactory reason why theft is wrong; thus, this principle is as im portant a weapon against crime as it is against dictatorship. , -FOOTNOTESIJohn F. Kennedy, June 11, 1963, quoted in T. H. White, The Making of the President 1964, Mentor, 1965, p. 210. 2f>runeYard Shopping Center VB. Robins, 447 U.S. 74,81, 100 S. Ct. 2035,2040 (1980). IDEAS ON LIBERTY IN SPITE OF repeated attempts to curb it, "patronage" continues to grow as government gets bigger and bigger. And how could it be otherwise?

Government, among other things, is today a huge business, handing out contracts, awarding franchises, and filling jobs of influence all over the world. These are often rich rewards for favors conferred. It is not sur prising that crime finds its way into such an arrangement. W.M. CURTISS Ridgway K. Foley, Jr. The Myth of Self-Regulation MYTH shrouds the concept of indus trial and professional self-regula tion like a thick coastal fog, obscur ing fundamental truth and casting light and shadows of chimera and deception. Analysis should disperse the fog and dispel the myth, reveal ing to the world the true nature of the apparition and its inherent ten dencies. Regulation necessarily implies the application of coercive force to vol untary human behavior. It consists of normative restraints upon other wise free conduct. It matters not that the policing function derives from some or all members of an associa tion or related group of similar busi nesses: the end result must be con striction of otherwise unimpeded acts-compulsion.