The Harms and Wrongs of Stealing: The Harm Principle and Dishonesty in Theft
University of New South Wales Law Journal, Vol. 31, pp. 712-737, 2008
26 Pages Posted: 25 Oct 2008 Last revised: 9 Nov 2008
Date Written: October 24, 2008
In 'On the Nature and Rationale of Property Offenses' A. P. Simester and G. R. Sullivan argue that the Harm Principle can be used to justify property offenses. This article provides a critique of that essay. It begins with an overview of the Harm Principle and some key criticisms of it. It then considers Simester and Sullivan's argument that the conduct proscribed by property offenses causes harm to the property regime generally. The article suggests that this is an overly broad notion of harm on which to base criminalization, and one that fails to adequately identify which particular breaches of property rights should be criminalized. The article suggests that criminality requires breach of a specific moral wrong and that for property offenses this is the concept of dishonesty. Thus, contrary to Simester and Sullivan, it is argued that dishonesty is a core criminal concept that cannot be removed from such offenses. The article goes on to suggest that instead of searching for broad abstract forms of harm, it may be useful to consider theft as a overarching offense that prohibits a number of more specific harms that correspond to lived experience. These harms could include the potential for violence in non-consensual takings, and the abuse of trust in fraudulent conversions.
Keywords: theft, larceny, dishonesty, harm principle, simester, sullivan
JEL Classification: K14, K00
Suggested Citation: Suggested Citation