Being a bit of an old anarchist at heart, this has really jolted me – and quite forcefully reminded me of why I thought reading a couple of law books might actually prove interesting. It has, however, put paid to my old joke about why anarchists only drink herbal tea, which may not be a bad thing either.
Let’s explore this premise – found in a textbook on land law – in a bit more detail.
The definition of theft according to Section 1 of the Theft Act 1968 is “the appropriation of property belonging to another with the intent to permanently deprive the owner of it”. It’s quite exact and also requires a specific mental element – one must intend to permanently deprive. To intend to temporarily deprive is borrowing, to intend not to deprive is “oh sorry, I had no idea it was yours”. Simples, yes?
Now, Section 2 of the Fraud Act 2006 is a bit more complicated as it’s in a few parts but for the purpose of this exercise, we can state that a person commits fraud if they dishonestly make a false representation and intend to make a gain for himself or to cause loss for another. It’s fairly specific, but there’s plenty of room to manoeuvre in terms of what constitutes a false representation, what constitutes a gain or a loss and so on. There are few things that lawyers like more than vague wording in a statute.
Right, so let’s now apply these definitions to property. For property to be theft, ownership of anything must include an intention to deprive everyone else of that object – be it land, a car, a cup of herbal tea – permanently. The anarchists seem to have the right idea, but I think the slogan is wrong. Property itself is not theft, but non-communal ownership may be – if property was owned in common, nobody could be permanently deprived of it, and so theft could not be committed. On the other hand, it’s not such a catchy slogan.
So why – according to my land law textbook – would property be fraud?
As an example, let’s say I own my house. That statement gives the impression that I am lady and mistress of all I survey and I can do what I like with it as an absolute right, but that’s simply not the case. I am subject to planning laws, building regulations, rights of way, access and light and if I have a mortgage, the bank may want a say in things as well. It all erodes the concept that I “own” my property. It’s a misrepresentation. It would only be fraud, though, if that misrepresentation was knowingly made with the intention to cause loss to another or for me to gain at their expense. This, I think, is where the premise falls down. Who gains? Certainly not the owner of the property. In which case – assuming we hold that the property owner has made a loss because they do not “own” their house – who has made the representation that they do? I cannot see how this works, at an individual or a social level.
There is a way to cut through this particular Gordian knot, and that is to say that any form of ownership which makes a profit from another is morally questionable – this would give justification to penalising unscrupulous landlords and people who have more than one home. Let’s face it, you can only live in one at a time, can’t you? I doubt this will satisfy the anarchists though. Perhaps they should stick with the old slogan after all. It’s definitely got a ring to it.