Yes, Ethics Still Matter in an Emergency
My recent column about the legal status of people who took food from abandoned supermarkets after Hurricane Harvey hit Texas generated considerable and passionate disagreement. Now that Hurricane Irma is devastating large parts of the Caribbean and churning toward Florida, the same issues are likely to arise. So it’s worth taking some time to separate the legal questions that were the subject of my earlier column from the ethical questions I ignored.
The Harvey column began as a contribution to the online debate over whether hurricane victims looking for food should be called “looters.” I pointed out that under the “necessity” defense in criminal law, a person who needs food to sustain his family’s life is not guilty of a crime if he (nonviolently) takes food from an unattended store. This point is not new, and should not be controversial. I also noted that the Model Penal Code includes as an example of this defense a hiker who shelters in an empty cabin during a snowstorm and eats the food. This example, I argued, is essentially what some storm victims in cities do in an emergency.
The response was thunderous. Readers emailed to say that they were “disheartened” by my column, and that “theft is theft.” I was told that I had no respect for property rights, that my suggestion would lead to anarchy, and that I was in favor of looting. It was incredible, I was told, that I was allowed to teach law. 1 Any decent person, multiple readers wrote, would at least leave money to pay for the food. But most of these responses go to ethics, not legality. The distinction matters, because a thing can be wrong without being illegal.
My original column was only about law, and the thesis was simple: Those who take food from an unattended store in an emergency should not face criminal prosecution. This view is neither new nor unusual. Moreover, as I also wrote, those who take what they need by force, or who take what is not a necessity, should indeed face punishment. 2
I did not discuss the moral questions involved. Had I done so, I would have explained that taking the food is not wrongful, but trying to get away with not paying for it is. This is not the precise answer that one would glean from the substantial literature on emergency ethics, but I do think it is the correct one. Let me explain why.
When the so-called looter -- let’s call him Carter -- enters the abandoned store while hunting for food, his motive is commendable: He wants to keep his family from starving. But Carter’s motive, admirable as it may be, does not give him a right to the food; it merely excuses him from punishment. The store owner retains the property right in the food on the shelf, even if the store is unattended. As an ethical matter, then, Carter’s entitlement to the food remains smaller than the entitlement of the store owner. (If Carter’s entitlement were larger than the owner’s, he could take the food without paying even were the store occupied.) 3
Put otherwise, Carter has a moral justification for taking the food, but the justification is not large enough to allow him to place the cost of what he has done on the store owner. Carter should still be willing in principle to pay for the food, just as he would were there no emergency.
How does Carter pay? In an emergency it isn’t safe to leave the cash on the counter. The next person who wanders in might steal it. Therefore, Carter should endeavor to contact the owner. The hiker who hides from the blizzard in a cabin can leave a note. In the case of the hurricane, Carter should return to the store later and tell the owner what he has done.
This solution to the ethical problem also points to the correct legal outcome: Even if Carter is not prosecuted for taking the food, the law should still protect the owner’s property rights. As I noted in the original column, tort liability should still attach. The owner should be able to sue Carter later for the value of the food and for the damage Carter caused. (So should the owner of the cabin.) How will the owner know whom to sue? The easiest way is the one I just mentioned: Carter should exercise his moral responsibility and tell the owner what he did and why he did it.
Having said all of this, I hasten to add that the store owner, too, has an ethical responsibility -- in this case, a responsibility to be generous in an emergency. But the owner’s responsibility is not greater than anyone else’s. If we believe that the owner should forgive, say, $1,000 in food taken from the shelves, it’s reasonable for him to ask what his critics are willing to donate to hurricane relief.
True, as Irma rages across the Caribbean, not many people will be spending a lot of time on ethical reasoning as they struggle to survive in conditions of often unimaginable destruction. Those of us who sit at leisure hundreds of miles away should be wary of second-guessing, for we do not know what we would do until we face the same dilemma. For that reason, let’s dial down the fury at those who make the moral choice to save their families. In the classroom they’re wrong not to try to pay, but in the real world they have other things on their minds.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
One reader even threw in a gratuitous racial slur.
A few years ago, the New York Times invited teenaged readers to comment on whether stealing in an emergency is wrong. As I read the comments, the consensus among the young was that one may take food to feed one’s family, but may not take a television set or other non-necessities.
Another reason for emphasizing the smallness of the entitlement is to avoid the situation in which Carter takes the food by force from someone he encounters on the street.
To contact the editor responsible for this story:
Stacey Shick at firstname.lastname@example.org