Is Theft Dishonest?

ABSTRACT:

The tests for dishonesty given in Ghosh and, more recently, Ivey are widely regarded as problematic. Writers have been concerned that the tests are too subjective or too objective, that they ask the jury to make a moral judgment, that there will inevitably be discrepancies between different juries’ standards of dishonesty, and that this makes the law insufficiently certain, and so on. But it is at least generally agreed that one the paradigmatic crimes in this area – theft – is a crime of dishonesty in some intuitive sense. In this article I question this more basic judgment: is theft really dishonest? Or rather, is theft necessarily dishonest? This is not the question whether theft is ever justified. Of course it is, and - as has been pointed out many times - it can still be dishonest even when it is justified. The question is, rather, whether even all cases of theft that we would clearly regard as criminal – and as ‘manifestly theftuous’, to use George Fletcher’s inelegant yet apposite phrase - are really dishonest. To what sorts of behaviour, then, is dishonesty appropriately ascribed, and what – if anything – unites them? An examination of the sparse philosophical literature yields two basic proposals – the first links dishonesty with deception in a way that leaves some central cases of theft outside the scope of dishonesty; the second, less ambitious but more comprehensive, proposal links dishonesty directly to respect for property rights in a way that would make the concept redundant in the criminal law.