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The Ethics of Urban Foraging July 11, 2009

Posted by Ian Duckles in Criminal Justice, Culture, Ethics, Food and Drink.
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Recently I have taken to foraging for some of my food and I have wondered about the morality of such an action. Some types of foraging I engage in are clearly morally acceptable. I recently foraged some oranges and lemons from the trees of neighbors, but I asked permission first, so there is clearly no problem there. In addition, I found a nice patch of nasturtiums on an empty lot that appears to be city-owned. Again, picking a few flowers from this patch to throw in a salad does not seem problematic. These two examples seem to show that foraging is uncontroversial in those situations where one has permission or the item being foraged is not owned (issues arising around the tragedy of the commons might play in here, but I am going to ignore them for now).

Far more problematic of course is the situation where one takes fruits or flowers from private property without permission. Occasionally on my many walks around town I see some lovely ripe fruit on a tree hanging over a wall or in someone’s front yard. In some situations I have gone ahead and taken the fruit. The question, of course, is: Is this stealing? On one hand it clearly does appear to be that. I cross over onto privately owned land and take something from that land for my own use. In some sense, the taking of a lemon from a tree does seem to be identical in kind to, for example, taking someone’s lawn furniture.

In my defense, there is a very old (going back at least to the Romans) legal principle know as “usufruct” which, according to an online law dictionary is defined as “the legal right to use and derive profit or benefit from property that belongs to another person, as long as the property is not damaged.” This legal principle helps distinguish between the two sorts of acts discussed above. When I take a lemon from a tree, the tree still exists and remains undamaged (in some situations, removing lemons from a particularly fruitful tree can actually contributes to the health of the tree) and can still be used by the owner. By contrast, taking the lawn furniture deprives the owner of her ability to use that furniture. Thus, perhaps we can justify the former and still find the latter impermissible.

The problem with this solution is that, as near as I can tell, one must be granted usufructory rights. That is, I don’t have a generalized right to usufruct, I only have this right in situations where that right has been granted by some individual. Thus, issues of usufruct really only apply in those situations described above where I get permission to harvest my neighbors lemon and orange trees. In these situations I have been granted usufructory rights to those trees, but not to the trees of strangers.

So, I seem back in the position I started, is there any justification for taking fruit or flowers without permission from someone’s garden? Am I just a thief? The problem here is that these questions are articulated within a particular, western legalistic frame that takes property rights as absolute. There is, in fact another way of looking at the issue, one which does seem to justify the actions I have described above. I came across a very nice articulation of this point in Wendall Berry’s The Unsettling of America. He cites a letter he received from David Budbill that, in part, describes the principles of property and land ownership that are operative in his community in Vermont,

…we always, with our neighbor, pick apples in the fall off trees on a down-country owner’s land. There is a feeling we have the right to do that, a feeling that the sin is not trespass, the sin is letting the apple’s go to waste.

I find this quotation to be a nice summary of my own feelings on the subject. The one change I would make is in that italicized word ‘right.’ As the author describes the situation it almost seems as if the word ‘obligation’ is more accurate. That is, when the earth produces its bounty, especially when we are the ones that have nurtured it, we have an obligation to make use of that bounty and not allow it to go to waste. This very much describes my own feelings when I pass a  tree that is so heavy with fruit that it is falling off the tree and rotting on the ground. This seems like such a waste, that I almost feel an obligation to harvest and enjoy some of that fruit myself. In many cases, particularly if there is no one around, I go ahead and give in to those feelings.

Now I do worry that I am guilty of rationalizing here, but at the same time, I also feel that my feelings concerning waste have legitimate validity and need to be entered into my moral calculus. Beyond this, there are a variety of reasons related to US food policy and my interests in local food that provide buttressing justifications for the kind of foraging I have been considering. Anyway, these are my thoughts and I would be very curious to hear what others think of this issue (particularly people who have nice gardens).

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Comments»

1. Moriae - July 12, 2009

This seems to share a lot less to do with ethics than it does ‘rationalizing’ favored inclinations—a particularly American scourge.

2. Ian Duckles - July 13, 2009

You are certainly correct that there is a rationalization here, but I was trying to find a framework to justify the very strong emotional feelings that arise when I see perfectly good food rotting away in someone’s yard. Something about that seems very wrong and the post was my attempt to sort through those feelings. I was definitely trying to rationalize those feelings, but I think this is an important part of what one does in ethics. One is confronted by a situation requiring a moral judgment (and this situation is, itself, revealed through our emotional responses), one thinks through the situation and tries to see if the initial emotional responses were justified or rational. So, it is a kind of rationalizing, but not, I think, the fallacious kind.

3. Dwight Furrow - July 15, 2009

Ian,

I’m not sure I see why we have an obligation to use something that might go to waste. Usually, an obligation is a moral requirement to avoid some specific harm. But I’m not sure I see an interest here that can be harmed. Surely, the fruit is not harmed by you not eating it. And I take it there is no way to harvest the fruit to feed the hungry. Even if you are benefiting the tree by harvesting the fruit I’m not sure a tree is something that has interests. I just don’t see a basis for obligation.

As to whether foraging counts as theft, if it is possible to determine that the owner is not going to use the fruit, then it is theft in only a technical sense. It is someone else’s property, but the property owner is not being harmed. Again it seems to me obligations are related to requirements to avoid harming something, and if nothing is being harmed I’m not sure I see the basis for an obligation (to refrain from taking the fruit). But it does strike me as presumptuous that you could determine whether someone intends to use the fruit or not without asking.

I agree that “usufruct” is not going to help here. That principle would make a hash out of copyright law, etc.

Ian Duckles - July 16, 2009

Some interesting responses to my earlier post! I would like to say a few things about the obligation I identified above. In particular, it does seem to me that there are situations where we can have obligations even if there is no direct interest that is harmed. In the environmental realm, there does seem to be a sense among some writers that we have obligations to the earth and to the environment (I am thinking of the deep ecology movement here). In addition, it does seem that we have a general obligation to not be wasteful. The justifications for this is related to potential and actual interests that are deprived, but often there is not a specific subject of harm. In either case, I would argue that there is a general obligation not to be wasteful.

In the context of foraging, it does seem to me that a kind of debt is incurred when we devote energy and resources to growing a plant and then fail to consume those resources. Fruit that is not eaten is a waste of water, fertilizer, and energy. I do think that we ought to try and harvest that fruit to donate to food banks (and there are groups that do this), but more generally, I feel a strong physical revulsion at the sight of so much good food going to waste. Perhaps this is an inappropriate emotional response, but I think not.

Lastly, about how to tell whether someone wants their fruit or not, if there is fruit rotting on the tree, it seems safe to assume that the owners do not have any interest in that fruit (not to mention that some trees, particularly citrus trees, produce more fruit than a family could reasonably consume).

4. Barbara Kadan Ochoa - December 10, 2012

I returned from the grocery store today to find a pair of women had cut an armful of bird of paradise flowers from the plants on either side of my driveway. I had planted them, watered them, pruned them and enjoyed them. They did not ask permmission. They took the flowers with them leaving only the wilted ones behind. I was not happy to witness them taking what I consider to be mine. Granted, the plants are located in the parkway between the sidewalk and the street so I’m not sure what my rights are but it felt like a violation. We grow lemon,orange, avocado and lime trees on our property and we share with our neighbors and strangers if they ask. I think it is wrong to help yourself to the the fruit of another’s labor without permission.
Barbara


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