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: 13 May 2009
Date Written: October 30, 2008
In ‘On the Nature and Rationale of Property Offences’ A P Simester and G R Sullivan argue that the Harm Principle can be used to justify property offences. 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 offences causes harm to the property regime generally. The article suggests that this is an overly broad notion of harm on which to base criminalisation, and one that fails to adequately identify which particular breaches of property rights should be criminalised. The article suggests that criminality requires breach of a specific moral wrong and that for property offences 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 offences. 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 offence 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: Criminal Law and Procedure
Suggested Citation: Suggested Citation