Paternalistic interference

David Hockney on the smoking ban:

I have utter contempt for it [the 'health lobby']. I feel I am entitled to my opinion. I don't mind prigs but when they want to take my little corner as well, I have a right to argue against their dreary view of life contaminating mine.

J.S. Mill in On Liberty

That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant

If Mill was right, then Hockney is too. He and other smokers are entitled to a public corner. A common counter-argument (see first letter here) is that the ban is not to prevent smokers from harming themselves, but to protect others - particularly those working in pubs - from secondary smoke. I don't find this argument persuasive: it doesn't meet the point that sealed areas could be set aside for smokers in some pubs, these areas to be serviced by no one other than those choosing to use them, except after the smoke has (been) cleared. Working conditions need to be as safe as possible given the circumstances of the job; but some smokers voluntarily tucked away in a room would, in this case, be one of the circumstances of the job, and there are other lines of work more hazardous than it, so rearranged. If the health of others were truly the overriding concern here, then there should be an early move to ban smoking in the home, or at least in homes containing children, since children are as defenceless as anyone in this matter.

The smoking ban looks to be motivated, as Hockney suggests, by a bossy paternalism. Can it, though, be justified on that basis? If we go with the letter of J.S. Mill's dictum, then no: 'his own good... is not a sufficient warrant'. Some would indeed go with Mill on this, and say that as applying to mature adults paternalistic legislation is never justified. For my own part, I think that paternalistic legislation can sometimes be justified, but it isn't justified in the case of the smoking ban.

I think that paternalism can be defended wherever there is a compelling argument that the law substitutes for the individual's own considered judgement. A paradigm example would be the compulsory wearing of seatbelts. With rare exceptions, someone who gets into a car and doesn't fasten their seatbelt isn't acting that way on a principle (that they wish to be unencumbered or whatever); more likely they can't be bothered, are in a hurry, are thinking 'What the hell, just this once', and so on. If pressed, they are unlikely to say that the risk of serious injury from which the seatbelt might save them is worth it for the freedom they exercise in not fastening up. The law in this instance is a way of saying: 'Yes, do be bothered. It's for your own good, and if you take a moment, you yourself will freely acknowledge this.'

The same thing doesn't apply, however, in cases where a person undertakes something risky knowing it to be so, but willingly incurring the risk because they get something valuable to them out of the activity to which the risk attaches. The best examples would be dangerous sports - or merely sports whose participants bear a higher risk of coming to serious physical harm than do the rest of the population. It is not acceptable in a free society to make such activities illegal. Those who engage in them do so because they have decided the risks are worth it for the difference for the better that these activities make to their lives. The principle at stake is that those lives are theirs to do as they will with. It would be disingenuous here to appeal to the seatbelt type of argument; it is not the considered judgement of the participants that they should avoid risky sports.

The case of smoking isn't exactly like participation in high-risk sports, because smoking is addictive. There are smokers who want to give up, find it difficult to do so, and might accept as applicable to themselves the reasoning that a law that turns smokers into pariahs, closing off to them every public space, acts on behalf of their own better judgement. However, there are other smokers who don't want to give up - who, knowing the health risks, are willing to accept them, and who derive something positive from smoking. They have considered it; they have deliberated; this is the choice they make about an aspect of their lives. With reference to them, paternalistic legislation is as repugnant as David Hockney says it is.