Box 4.2: Smoking and liberty

The contemporary debate about smoking illustrates the difficulty of delineating the boundaries of freedom of action. In England and Wales, a total ban on smoking in enclosed public places came into force in July 2007. This followed bans which had been enforced in Scotland and Northern Ireland in the previous year. The British government had been divided on the extent of the ban, and eventually allowed a free vote in the House of Commons which produced tougher restrictions than many ministers had wanted. Soon afterwards, the age at which people could buy tobacco products was increased throughout the UK from 16 to 18.

The attempt to stub out smoking has a long and chequered history; indeed, the first ban came soon after the introduction of tobacco to Europe (see http://en.wikipedia.org/wiki/Smoking_ban), and opponents of the ban will not be surprised to hear that the Nazis were keen to outlaw the habit. But recent years have seen a remarkable trend among national and subnational political bodies to use the law against smokers. The US state of Minnesota enacted a ban in 1975, but the movement did not really take hold until California followed suit in 1998. Now more than half the states of the US have either total or partial bans. Ireland introduced Europe's first ban in 2004 (see http://news.bbc.co.uk/1/hi/health/3565899.stm for details), followed soon afterwards by Italy and Norway.

The main philosophical justification for such prohibitions is that smoking harms those who are forced passively to inhale the smoke of others. This principle is associated with J.S. Mill, who argued that 'other-regarding' actions (i.e. those which are injurious to others) can be banned (see pages 102-3). Mill was anxious to preserve a wide sphere of 'self-regarding' actions, where the law should never limit freedom. However, if it can be established that passive smoking is harmful, then this is one area where the case for intervention seems clear-cut. Of course, it could be argued that non-smokers choose to frequent places (such as pubs and clubs) where others smoke – and if smoking was so anti-social one would have expected smoke-free leisure premises to have sprung up in every village, town, or city, driving their rivals out of business. In reality, though, smoke-free pubs were very rare in Britain until the ban, and whereas an overwhelming majority favoured a ban in other workplaces, as regards pubs and clubs the population was quite evenly divided. In favour of extending the ban, it was argued that the right of non-smokers to choose a place of relaxation was severely curtailed by the hazard of second-hand smoke. More seriously, the health risks of those who work in smoke-filled environments are much greater because of the amount of time they are exposed to smoke.

In Britain, the pro- and anti-smoking campaigns were led by FOREST (Freedom Organisation for the Right to Enjoy Smoking Tobacco, see www.forestonline.org/output/home.aspx), and ASH (Action on Smoking and Health, see www.ash.org.uk/). Both of these organizations publish statistics on the effects of passive smoking, but neither should be regarded as wholly reliable (for examples of controversial research in recent years see http://news.bbc.co.uk/1/hi/talking_point/3033369.stm, and http://news.bbc.co.uk/1/hi/health/2053840.stm). The debate in the UK has now moved on to the alleged health improvements which have followed the smoking ban. However, the worldwide experience of smoking bans has certainly produced some strange anomalies. In the Netherlands, for example, it is legal to smoke cannabis is certain premises, but only in tobacco-free cigarettes! In the US, campaigners against tobacco have made more progress than those who want to outlaw the private ownership of firearms. In 2005, the state of California introduced a smoking ban in prisons, which applied even to prisoners awaiting execution on Death Row. The Federal government of the US has been notoriously slow to act against industrial pollution, which is certainly a health risk even if environmental campaigners are wrong to suppose that it threatens to bring all human life to an end. Some campaigners want to ban cigarette-smoking from films; if enacted in the present context, this would mean that it would be possible to show an actor simulating rape or torture, but to stop the cameras rolling if he or she wanted to light up afterwards.

There are two criticisms of J.S. Mill's harm principle that do not challenge the smoking ban, but rather suggest that it does not go far enough. The first is the argument that even smoking in private can, in many circumstances, harm others. This relates to the oft-stated criticism of Mill's principle that it is difficult to distinguish between 'self' and 'other' regarding actions. Thus, is it not the case that smoking, even in private, potentially harms others? If I become ill through smoking, this will impact upon family members who will be harmed – financially and emotionally – by my death or incapacity. Similarly, my ill health will have wider financial consequences, for the health service that has to treat me and the social benefit system that has to keep me if I am unable to work. (This is a subject which causes endless debate among campaigners on both sides. Although ASH, which campaigns against smoking, puts a high price tag on the cost of treating smokers who fall ill, it also points out that 80 per cent of the price of cigarettes is taken by the UK treasury in tax).

The second criticism is that even if we can denote certain actions as being purely self-regarding, there are good grounds for suggesting that the state ought to intervene to stop individuals from harming themselves. Mill himself rejected this view, arguing that people who harm themselves should be subject to nothing more than attempts to dissuade (like the UK government's idea of adorning cigarette packets with pictures of diseased lungs). The idea that the state should use the law to stop smokers represents a 'paternalistic' critique of the ideas of people like Mill. On this view my health and well-being may not be served by liberty, and indeed my happiness might actually be enhanced by restricting my freedom. In terms of smoking, it might be argued that the state should introduce a total ban on tobacco products on the paternalistic grounds that to do so will, in the long run at least, improve the health of those who would otherwise continue to smoke and thereby increase levels of happiness.

The obvious argument against the exercise of paternalism is that a ban on the sale of tobacco products would prove unworkable, like the prohibition of alcohol in the US between 1920 and 1933. On this (utilitarian) view, the existence of cigarettes might be regrettable, but on balance it is better to keep the trade in tobacco legal so that it can be subjected to regulation (and ever-heavier taxation). A more moral objection to an outright ban is that this might prove to be 'the thin end of the wedge', tacitly endorsing the intrusion of the state into more areas of life which were previously regarded as 'self-regarding' (for discussion of this 'civil liberties' aspect of the argument see http://news.bbc.co.uk/today/hi/today/newsid_7452000/7452298.stm, and www.prospect-magazine.co.uk/article_details.php?id=9954). As suggested above, one glaring inconsistency amongst the law-makers who have recently rushed to ban smoking in private places is their toleration of the private motor-vehicle. This is a killer in more than one way – either through accidents or its effects on health, not just among those who suffer from asthma. At a lower level, the car is also a considerable source of nuisance for millions of people – even for car drivers themselves, if they choose to travel on foot. Among other things, the prevalence of motor cars acts as an effective deterrent to many people who would otherwise enjoy the considerable health benefits of regular bicycle journeys.

A collection of articles on this subject is available at www.guardian.co.uk/uk/smoking. For an interesting online debate about the issues involved, see www.eridu.org.uk/blog/2007/07/02/the-smoking-ban-a-liberal-diagnotic/ . The views and findings of the government's advisers are set out at www.dh.gov.uk/en/Publichealth/Healthimprovement/Tobacco/index.htm .
For a humorous approach to this complex political issue, see an excerpt from an episode of Yes, Prime Minister at www.youtube.com/watch?v=-tLbzQCmOEI

Further reading:
John Stuart Mill, Utilitarianism, On Liberty, and Considerations on Representative Government, London, Dent, 1972 edition (nb: On Liberty is available separately in many other editions).

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Oxford University Press, Online Resource Centre, Box 4.2: Smoking and liberty.

Box 4.2: Smoking and liberty