The surprising complex ethical questions regarding theft.
The question of what theft is, seems rather easy when taken at its face value. The simple answer would be to reply, “taking something that does not belong to you.” While this is, in many forms true, it is worth understanding how complicated such a simple answer actually is. I will provide a brief example from an anecdote that took place in my life recently, explain the ethical questions therein, and propose a revision of how people consider the dilemmas related to theft.
Recently I was at a hobby shop where I completed my gaming there, and it was time to pick up a pack for participating in the event. Paying the event cost and playing in the commander night for Magic the Gathering earns the participant a free pack. I had asked for my pack and promptly picked it up. It was after picking up my pack that one of the workers in the store said, “here is your [insert card name here]” while speaking in my general direction. I had forgotten that there was a person behind me, and I thought that the clerk was talking to me.
I thought maybe the clerk was being nice and offering me one of his own cards or that it was a give away from the store. Apparently, the card was being purchased by the person behind me, and I scooped up the card against the wishes of all other present parties. It was then that I had stopped to consider why such a card was being given to me, and there was a brief moment of silence before the proprietor of the store chimed in and added, “that was not for you.”
Much to my opprobrium, I had taken something that I was not the intended recipient of. I apologized profusely and tried to shake off the embarrassment of the situation. While no one was particularly rancorous about the turnout of my actions, it did give me cause to wonder over the course of the next couple of days. I began to puzzle deeply about my actions, the morality or immorality of my actions, the ethical ramifications of theft in general, and to what extension personal dominion or shared perception of dominion apply.
When I picked up the cards accidentally had I violated the trespass of theft in a moral (if not legal sense?) The moments while I pondered why I was given that card was a period in which I was in violation of the code of conduct in that establishment. Does being a “thief” only apply to the moments in which I had property which did not belong to me? Is such a perjorative label only applied to a person who makes a living or a long-term habit out of such (albeit intentional) behavior? It was true that I both committed theft and was a thief while that card was in my possession.
Once told about the nature of my mistake, I put the card down with all due haste and many might consider the matter to be over. Was I absolved purely for my actions because the people present did so? Not to mention the fact that it was the proprietor, not the clerk or the cards intended recipient, that actually remanded my transgression. Forgiveness for such a mistake does or does not require universal agreement. I am uncertain the standard by which one would make such a determination.
The proprietor would seem to be logical choice for absolution due to the fact that it remains his property until the transaction was completed. However, given that store credit or payment might have been made, might put the proprietor's opinion of me as secondary to that of the customer. The person who was to become the card’s new owner never actually said anything to me about the manner. Perhaps I was should have been obliged to check with him. Perhaps, more importantly, I should have been obliged to ask if the card was for me when I picked it up in the first place.
This is where the matter of theft and ownership become mired in the social contract of proprietary agreements, that we as humans, are in the habit of making. There must be some societal agreement that the cards in the store belong to whomever owns the store, and that the cards I bring into the store still belong to me. The particular hobby shop (and others like it) include a nebulous zone of ownership because people bring their own possessions into the store.
The person who bought the card, as far as I could tell, was trading in his old cards and purchased a new one. The store had to agree to remove his property and exchange it with their own. This transaction is commonly accepted as barter and not in any way theft. One could also argue that the stores only take a small percentage of the cards retail value in trade and therefore commit theft of another kind. We also do not know how the customer got the cards that he was trading to the store. Were the cards his property as a result of opening packs, trades, theft, gifts, swindling old mothers at garage sales? I do not know.
Taking something that both parties agree to, but that one party may have greater need for, may change the fairness of the transaction. Is not fairness essential to all property agreements? Is not fairness the corner stone that tells us not to take packs of cards off of the store’s walls and walk out the door with them? Then why is it fair for the store to give a person 40% of a card’s fair market value to a person, simply due to their willingness? If I were a person hungry to eat, the store could easily be committing a form of theft for the purpose of making a profit.
Let us return to the very earliest part of this story, whereby I took the card that didn’t belong to me. If I had picked up the card, with headphones in, and walked out of the store quickly enough, we might have had a much bigger problem. Also, if I simply ignored the comment about the new owner of the card and walked out, then wouldn’t we also have a much larger problem? This is of course, dealing with the two major issues of criminal intentions, and that of much larger scope of unintentional actions. I will try to address both without adding obfuscation unnecessarily to the subject at hand.
Let us discuss what the legal world refers to as criminal intentions or mens rea, which literally translates as "the guilty mind." Mens Rea characterizes behaviors as criminal in nature or such that it was my intention to do something that is unscrupulous in nature for personal gain. This would have been considered to be the case if I tried to ignore any attempt of the vendor to return the card, or if I had taken it in the first place, with the intention to deceive all parties into thinking some other version of the events. This type of behavior is usually antithetical to a valid ethical framework and is often the antagonistic force of the ethics philosopher.
The challenge in determining mens rea, lies within several factors, which include whether other people have accurate knowledge of my intentions. Did they know I thought I was just getting a random free card, or did they think it was a sneaky plan to abscond with a shiny new Magic card? Furthermore, there is the consideration of why exactly I would have taken it. What if I wanted to give it to a friend who was just learning to play Magic but didn’t have any money to spend? Would the presence of mens rea be any less significant or change the outcome in any meaningful way?
Now we will turn away from the possibility of an intentional plan to deceive or steal a Magic card. Let us turn to the world of unintentional action. The actual impact of the mistake I had made can vary with both the choices I made, and blind luck. I chose to pick the card up and hold my ground for a few moments, allowing time for clarification to be inserted into the situation. It was a triumph of my better judgement overruling my poor judgement not to ask who the card was for. How much can we blame people for the damage their mistakes cause, and how much to blame are they?
What if, during my attempt to grab it, I ripped it in half. This scenario could have caused no end of problems with no real intentional malady present. The card in question was retail valued at $3.00 at the time (May 2025), but if the card was valued much higher, would not the impact of my unintentional theft be a more significant problem? We can also factor into the equation the issue of Magic cards’ in a dynamic marketplace where even a small valued card could be worth thousands of dollars years later. Even though I didn’t rip it, I did smudge it with my fingerprints (even if they weren’t especially greasy.) Theft, unintentional, even for 3 seconds, can have a practical effect with detrimental consequences.
Consider how many people pickup items in a grocery store that are cold and set them down in the middle of aisles. This is enough for them to go bad and become unsellable. The average person thinks that you don’t steal groceries when you still have them in your basket. Moving them around the store, even innocently being lazy, still causes damages that someone can be liable for. Even on a small scale, the cost of destroyed groceries causes shrink, which causes further inflation of grocery store prices, which is passed on to other consumers. Without leaving the store with a single item in your pocket, you essentially stole $0.00000001 from everyone in that store.
This shows that shoplifting is more than merely surreptitiously tucking a candy bar into a pocket. It shows that the act of theft is far more complex than that. It is the case that we think of that way, because that is theft in its easiest terms to understand. The robber with a pistol trained on an elderly woman with the intention of taking unearned money, is a trope that lacks any explanatory power. Why make so many distinctions or distort what people to consider to be a simple matter? Like anything, to understand all of the moving parts, allows us to avoid making mistakes that we might be more unaware of.
What of the opposite situation? That would be gifts or donations, that perhaps, someone might not want to be the recipient of. If someone puts something into your pocket that you might not want, it is colloquially referred to as a “plant.” Sometimes it is more obviously something that a person wouldn’t want, such as a murder weapon, illegal contraband, or even an offensive doodle. What if the recipient of a plant decides that they suddenly desire the item in question? Does this mean that ownership becomes attached to desire? Doesn't the fact that the desire was placed against the will of the person unethical? This doesn’t constitute theft as many people would call it, but it does get to the fundamental issue at work here.
This fundamental issue is agreements of personal dominion. Personal dominion and agreements generate sphere of understanding or compartments about pairing up items and persons with them. This is how someone understands and item as “yours” or “mine.” We make agreements with other people, and we share those agreements with other people in the world. Sometimes those agreements need to be defended in a court of law, which upholds (from a legal standpoint) which of those item and person compartments we agree is true. We needed to decide, based on objectivity and impartiality, what reasonably is considered a fair connection between person and item as bound in dominion.
Back to the whole reason that this mess got started. Maybe a court of law would not have prosecuted me for picking up that card, or maybe they would have. Maybe to make an example of me. We can also agree that the card never belonged to me, even though I erroneously assumed that it was a gift from the clerk or for patronizing the store. The false narrative that I constructed leading up to my hands touching the card is the basis for many so-called mix-ups. Some would also try to hide the presence mens rea as a mere product of the above mistake for cover if caught.
In conclusion, I have learned not to take something given to me with being absolutely certain that it was a gift. If I had asked the clerk, “Is that for me?” I could have saved myself some embarrassment, the risk of further embarrassment, or the possibility of causing unintentional damage. This is why we should stop and consider things like this as more than mere ethical commonplace and truly evaluate where we stand on these issues. People should take just a minute in their day to consider if the things they move around in the universe fall under their moral justification to do so. They could consider why they have this justification and whether those around them agree with it.
Edit: The author erroneously used the term misfeasance in his original version of this essay, which is in reference to a lawful authority, which I, personally, am not. While the general meaning of the word is synonymous, the subject in question is not.
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