Smoking manners

[storeynicholas]

“Law alone can accustom men to bow their heads under the yoke of foresight, hard at first to bear, but afterwards light and agreeable.” (Jeremy Bentham)

The faithful application of the Bentham idea here must surely depend on an objective judgment of the nature and the degree of the ill to be avoided and of the percipience of the foresight claimed and tends, in any event, to a rather paternalistic doctrine. I prefer this passage, from chapter 4 of J S Mill's On Liberty (Of the Limits to the Authority of Society Over the Individual:

The acts of an individual may be hurtful to others, or wanting in due consideration for their welfare, without violating any of their constituted rights. The offender may then be justly punished by opinion, though not by law. As soon as any part of a person's conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it becomes open to discussion. But there is no room for entertaining any such question when a person's conduct affects the interests of no persons besides himself, or needs not affect them unless they like (all persons concerned being of full age and the ordinary amount of understanding). In all such cases there should be perfect freedom, legal and social, to do the action and stand the consequences.

This principle perfectly applies to smoking in public, in my view. It should be in all a matter for each individual's sense of courtesy and consideration and for the application of social sanctions, for breach of the rules of courtesy. When a law interferes with the rights of a cigar smokers' club to smoke together in their own club, much worse is done than the offering of a discourtesy, the very heart of Liberty suffers a grievous blow and, once the hacking away at it starts, as we learn from Costi's other post today, it is not long before we will have to watch whether our underpants' elastic is visible above our Daks tops.
NJS

Bentham’ quotation, however, does not taste of paternalism, for it seems to me that he does not mean that laws should be enforced in order to change individuals’ sense of what is agreeable or repugnant. This would be a downright un-Benthamite position. As for Mill, the passage you quoted supports your point, but remember: Mill committed himself to a very unreasonable understanding of the diversity of things which may count as “agreeable”. There are for Mill forms of pleasure which are intrinsically superior to other forms of pleasure. This is a quite un-Benthamite position, for Bentham assumed that push-pin was no worse than poetry. Now, for our discussion in this thread, it would be a matter of uttermost importance to discover: (1) whether Mill smoked; (2) whether he counted smoking among the superior forms of pleasure, (3) whether he wore a smoking jacket or something sartorially equivalent.

Bentham's words, cited by you, could, without further qualification, be used to support the policies of every dictator that the world has ever known; to whom men have bent their heads and borne their yokes. The enforcement of unjust laws is their only true expression of 'value'; for, if they are ultimately held to be unenforceable (as that against showing your knicker elastic seems to be in at least one state of the USA) they are void and worthless. So, maybe Bentham was, sometimes, 'un-Benthamite' - I can live with that - we are all somewhat contradictory! As for Mill - I am glad that you agree that this genius's words accord with my position - not accord, exactly, since this short book helped, more than any other, anybody or anything, to form my views and is, probably, short though it be, one of the most significant things (not just books) that I have ever encountered and I would that every law-giver should read it; even just chapter 4: to the greater benefit of individual liberty and, moreover, to the saving of state resources, in needless over-regulation and the employment, in the acts of over-regulation, of so many people, in so many areas of human activity - when they could be more usefully employed in tailoring, cobblering and haberdashery. It is late and I must end soon - but what is merely personally disagreeable should never be made into the legally criminal - and I repeat what I have often said: that a resort to regulate purely social behaviour, by meting out criminal sanctions (as the social sanctions have evaporated in a welter of chaos). is a sure sign that the society in which it happens is on the brink of collapse; even if some people, for the time being, feel comfortable enough in their cocoons.
NJS

[RWS]

. . . . what is merely personally disagreeable should never be made into the legally criminal . . .

On this, I hope, we all are agreed, even those for whom the whiff of burning tobacco is physically nauseating.

. . . a resort to regulate purely social behaviour, by meting out criminal sanctions (as the social sanctions have evaporated in a welter of chaos). is a sure sign that the society in which it happens is on the brink of collapse . . . .

On this, NJS, you and I and others, too, are agreed.

[storeynicholas]

. . . . what is merely personally disagreeable should never be made into the legally criminal . . .

On this, I hope, we all are agreed, even those for whom the whiff of burning tobacco is physically nauseating.

. . . a resort to regulate purely social behaviour, by meting out criminal sanctions (as the social sanctions have evaporated in a welter of chaos). is a sure sign that the society in which it happens is on the brink of collapse . . . .

On this, NJS, you and I and others, too, are agreed.

Thank you RWS - despite all my resolutions, I shall always rise to certain baits! I am sure that those who place them enjoy doing so - rather the same enjoyment (predictable but still enjoyment) in winding up a clockwork toy!
NJS

[RWS]

Quite!

[marcelo]

The faithful application of the Bentham idea here must surely depend on an objective judgment of the nature and the degree of the ill to be avoided and of the percipience of the foresight claimed and tends, in any event, to a rather paternalistic doctrine. I prefer this passage, from chapter 4 of J S Mill's On Liberty (Of the Limits to the Authority of Society Over the Individual:

The acts of an individual may be hurtful to others, or wanting in due consideration for their welfare, without violating any of their constituted rights. The offender may then be justly punished by opinion, though not by law. As soon as any part of a person's conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it becomes open to discussion. But there is no room for entertaining any such question when a person's conduct affects the interests of no persons besides himself, or needs not affect them unless they like (all persons concerned being of full age and the ordinary amount of understanding). In all such cases there should be perfect freedom, legal and social, to do the action and stand the consequences.

This principle perfectly applies to smoking in public, in my view. It should be in all a matter for each individual's sense of courtesy and consideration and for the application of social sanctions, for breach of the rules of courtesy. When a law interferes with the rights of a cigar smokers' club to smoke together in their own club, much worse is done than the offering of a discourtesy, the very heart of Liberty suffers a grievous blow and, once the hacking away at it starts, as we learn from Costi's other post today, it is not long before we will have to watch whether our underpants' elastic is visible above our Daks tops.
NJS

Bentham’ quotation, however, does not taste of paternalism, for it seems to me that he does not mean that laws should be enforced in order to change individuals’ sense of what is agreeable or repugnant. This would be a downright un-Benthamite position. As for Mill, the passage you quoted supports your point, but remember: Mill committed himself to a very unreasonable understanding of the diversity of things which may count as “agreeable”. There are for Mill forms of pleasure which are intrinsically superior to other forms of pleasure. This is a quite un-Benthamite position, for Bentham assumed that push-pin was no worse than poetry. Now, for our discussion in this thread, it would be a matter of uttermost importance to discover: (1) whether Mill smoked; (2) whether he counted smoking among the superior forms of pleasure, (3) whether he wore a smoking jacket or something sartorially equivalent.

Bentham's words, cited by you, could, without further qualification, be used to support the policies of every dictator that the world has ever known; to whom men have bent their heads and borne their yokes. The enforcement of unjust laws is their only true expression of 'value'; for, if they are ultimately held to be unenforceable (as that against showing your knicker elastic seems to be in at least one state of the USA) they are void and worthless. So, maybe Bentham was, sometimes, 'un-Benthamite' - I can live with that - we are all somewhat contradictory! As for Mill - I am glad that you agree that this genius's words accord with my position - not accord, exactly, since this short book helped, more than any other, anybody or anything, to form my views and is, probably, short though it be, one of the most significant things (not just books) that I have ever encountered and I would that every law-giver should read it; even just chapter 4: to the greater benefit of individual liberty and, moreover, to the saving of state resources, in needless over-regulation and the employment, in the acts of over-regulation, of so many people, in so many areas of human activity - when they could be more usefully employed in tailoring, cobblering and haberdashery. It is late and I must end soon - but what is merely personally disagreeable should never be made into the legally criminal - and I repeat what I have often said: that a resort to regulate purely social behaviour, by meting out criminal sanctions (as the social sanctions have evaporated in a welter of chaos). is a sure sign that the society in which it happens is on the brink of collapse; even if some people, for the time being, feel comfortable enough in their cocoons.
NJS

I do not know if I understand your point, I do know even know if there is a dissent here. The “yoke of foresight”, it seems to me, is the mental anticipation of a punishment: men “bow their heads” – they put out their cigarettes in a pub – in that they anticipate what will happen to them if they do not abide by the law, to wit: they will be punished. At the beginning, as Bentham says, it is “hard …to bear”. – Some Longers have reported, for instance, of an almost unbearable feeling of discomfort during long flights, since law would prohibit them from smoking. But later on, what was “at first” unbearable becomes “light and agreeable”. Then, some persons even come to regard their former practice as somehow loathsome. Now, they are likely to take pleasure in doing exactly what law requires them to do. Yet, nothing in Bentham’s sentence implies that what is “agreeable” is always morally good. If laws are unjust, chances there are that people will acquire a disposition to do unjust things. For Bentham and Mill, we decide if something is morally good – or bad – not by appealing to one’s sentiments, to one’s individual sense of what is agreeable to oneself, but – in their vocabulary – to the “calculus of utility”: good are the actions which provide the greatest amount of happiness to the greatest amount of persons. The ban on smoking has caused not only a lot of unhappiness among smokers (and, by the same token, a lot of happiness among non-smokers), but also a sense of unhappiness through the realization that some basic rights, something which enable even non-smokers to amass a fairly amount of happiness, have been trumped.

[storeynicholas]

Bentham’ quotation, however, does not taste of paternalism, for it seems to me that he does not mean that laws should be enforced in order to change individuals’ sense of what is agreeable or repugnant. This would be a downright un-Benthamite position. As for Mill, the passage you quoted supports your point, but remember: Mill committed himself to a very unreasonable understanding of the diversity of things which may count as “agreeable”. There are for Mill forms of pleasure which are intrinsically superior to other forms of pleasure. This is a quite un-Benthamite position, for Bentham assumed that push-pin was no worse than poetry. Now, for our discussion in this thread, it would be a matter of uttermost importance to discover: (1) whether Mill smoked; (2) whether he counted smoking among the superior forms of pleasure, (3) whether he wore a smoking jacket or something sartorially equivalent.

Bentham's words, cited by you, could, without further qualification, be used to support the policies of every dictator that the world has ever known; to whom men have bent their heads and borne their yokes. The enforcement of unjust laws is their only true expression of 'value'; for, if they are ultimately held to be unenforceable (as that against showing your knicker elastic seems to be in at least one state of the USA) they are void and worthless. So, maybe Bentham was, sometimes, 'un-Benthamite' - I can live with that - we are all somewhat contradictory! As for Mill - I am glad that you agree that this genius's words accord with my position - not accord, exactly, since this short book helped, more than any other, anybody or anything, to form my views and is, probably, short though it be, one of the most significant things (not just books) that I have ever encountered and I would that every law-giver should read it; even just chapter 4: to the greater benefit of individual liberty and, moreover, to the saving of state resources, in needless over-regulation and the employment, in the acts of over-regulation, of so many people, in so many areas of human activity - when they could be more usefully employed in tailoring, cobblering and haberdashery. It is late and I must end soon - but what is merely personally disagreeable should never be made into the legally criminal - and I repeat what I have often said: that a resort to regulate purely social behaviour, by meting out criminal sanctions (as the social sanctions have evaporated in a welter of chaos). is a sure sign that the society in which it happens is on the brink of collapse; even if some people, for the time being, feel comfortable enough in their cocoons.
NJS

I do not know if I understand your point, I do know even know if there is a dissent here. The “yoke of foresight”, it seems to me, is the mental anticipation of a punishment: men “bow their heads” – they put out their cigarettes in a pub – in that they anticipate what will happen to them if they do not abide by the law, to wit: they will be punished. At the beginning, as Bentham says, it is “hard …to bear”. – Some Longers have reported, for instance, of an almost unbearable feeling of discomfort during long flights, since law would prohibit them from smoking. But later on, what was “at first” unbearable becomes “light and agreeable”. Then, some persons even come to regard their former practice as somehow loathsome. Now, they are likely to take pleasure in doing exactly what law requires them to do. Yet, nothing in Bentham’s sentence implies that what is “agreeable” is always morally good. If laws are unjust, chances there are that people will acquire a disposition to do unjust things. For Bentham and Mill, we decide if something is morally good – or bad – not by appealing to one’s sentiments, to one’s individual sense of what is agreeable to oneself, but – in their vocabulary – to the “calculus of utility”: good are the actions which provide the greatest amount of happiness to the greatest amount of persons. The ban on smoking has caused not only a lot of unhappiness among smokers (and, by the same token, a lot of happiness among non-smokers), but also a sense of unhappiness through the realization that some basic rights, something which enable even non-smokers to amass a fairly amount of happiness, have been trumped.

I don't agree and I don't concede but it is too late today to state my reasons but they will follow shortly. However, I can and will say that it is no business of the law to inquire into our personal habits which do not affect the legitimate interests of others. Bentham and Mill are put together as utilitarians but, to my mind, Mill always has the edge because he objects to interference in the exercise of freedom, except where it plainly interferes ith the RIGHTS of others. The question is what are those RIGHTS and what equivalent OBLIGATIONS do they carry?
NJS

[marcelo]

At the end of the day – sorry for the pun – Mill’s defence of rights, as H.L.A. Hart has shown, is incompatible with his utilitarianism. If individuals, qua individuals, have certain basic rights, then no amount of happiness on the part of other individuals will justify an interference in his rights.

[Costi]

Perhaps they have the RIGHT to breathe? Anything more basic than that?
I think it is a false thesis that the smoking ban does nothing but raise to the rank of law a mere etiquette rule. Etiquette applies to many things, smoking included, but while failing to salute is not harmful to others' health, the same cannot be said of smoking. No law punishes the use of cheap cologne that may well offend others' noses, so the individual remains free to use it if he pleases. In my view the smoking ban represents no intrusion of the state in the exercise of individual fredom, it simply defends a basic right of non-smokers.
I continue to believe that if the majority of smokers were willing to follow simple etiquette rules, they would not only be unaffected by the ban but they would render it superfluous.

[sartorius]

In my view the smoking ban represents no intrusion of the state in the exercise of individual fredom, it simply defends a basic right of non-smokers.

Quite so, Costi.

The simplicity of your point bears out its efficacy, particularly when compared with the contorted lengths to which smokers will go in an effort to construct arguments to the contrary. They have lost the argument and would be better off simply acknowledging that simple fact.

[storeynicholas]

In my view the smoking ban represents no intrusion of the state in the exercise of individual fredom, it simply defends a basic right of non-smokers.

Quite so, Costi.

The simplicity of your point bears out its efficacy, particularly when compared with the contorted lengths to which smokers will go in an effort to construct arguments to the contrary. They have lost the argument and would be better off simply acknowledging that simple fact.

Now that the opposing forces in what has been an argument lately centred around the utilitarian school of thought are strengthened by the arrival of sartorius, I am reminded of two things, first, that it is 30 years ago to the day, on 1st October, that I was roughly shaken out of a most agreeable state of vacancy to struggle with the principles of Roman Law; very little of which I absorbed for longer than necessary to get through my first year in the very hotbed of Utilitarianism, and still less of which can I now recall. But I recall enough to remember that, before points can have efficacy, they must lay some claim to validity and, all too readily, laws are framed and enforced without proper consideration of whether they are necessary or even appropriate.

Secondly, I do recall that Roman Law knew of ius non scriptum or custom which had no legal sanction for breach; there were just social sanctions - such as being told off or ostracized. So what are the levels of social control? Law, morality, custom and courtesy. I thought that it was a premise of this thread that smoking should be regulated by courtesy. But, apparently, there is a strong feeling that non-smokers have rights which exceed smokers' rights and that these superior rights need to be and should be enshrined as legal rights: courtesy, custom and morality having failed to avail. However, smokers and non-smokers are not the only ones involved here and indeed the smoking ban relied for its moral imperative upon a call to protect the workers. Those who gauge and express non-smokers' rights as superior use as their basic touchstone that they have a right to protect their own health. And so they do. However, let us say that there are no workers in Francesco Bianco's coffee shop. He runs it himself. There is no law about smoking in public and Sr Bianco is completely neutral about customers smoking and 50% of them do smoke and 50% do not. Next door there opens up Harry Nutter's Cocoa Tree where the owner bans smoking as a condition of entry and no one smokes. The non-smokers in Sr Bianco's establishment learn of the Cocoa Tree and decide to go there instead. However, the non-smokers realize how they have been imposed upon all these years in Sr Bianco's coffee shop and they start a political campaign to ban the smokers left in Sr Bianco's from smoking in there and they win. Sr Bianco, left with no choice, enforces the ban against his remaining customers and they stay at home and he goes bust. My point here is that Sr Bianco has rights too and this is an added complication. Moreover, no one has a right or a greater right to dine in a particular restaurant than anyone else and there is always somewhere to accommodate everyone, even if custom and courtesy are failing.
NJS

[storeynicholas]

Bentham’ quotation, however, does not taste of paternalism, for it seems to me that he does not mean that laws should be enforced in order to change individuals’ sense of what is agreeable or repugnant. This would be a downright un-Benthamite position. As for Mill, the passage you quoted supports your point, but remember: Mill committed himself to a very unreasonable understanding of the diversity of things which may count as “agreeable”. There are for Mill forms of pleasure which are intrinsically superior to other forms of pleasure. This is a quite un-Benthamite position, for Bentham assumed that push-pin was no worse than poetry. Now, for our discussion in this thread, it would be a matter of uttermost importance to discover: (1) whether Mill smoked; (2) whether he counted smoking among the superior forms of pleasure, (3) whether he wore a smoking jacket or something sartorially equivalent.

Bentham's words, cited by you, could, without further qualification, be used to support the policies of every dictator that the world has ever known; to whom men have bent their heads and borne their yokes. The enforcement of unjust laws is their only true expression of 'value'; for, if they are ultimately held to be unenforceable (as that against showing your knicker elastic seems to be in at least one state of the USA) they are void and worthless. So, maybe Bentham was, sometimes, 'un-Benthamite' - I can live with that - we are all somewhat contradictory! As for Mill - I am glad that you agree that this genius's words accord with my position - not accord, exactly, since this short book helped, more than any other, anybody or anything, to form my views and is, probably, short though it be, one of the most significant things (not just books) that I have ever encountered and I would that every law-giver should read it; even just chapter 4: to the greater benefit of individual liberty and, moreover, to the saving of state resources, in needless over-regulation and the employment, in the acts of over-regulation, of so many people, in so many areas of human activity - when they could be more usefully employed in tailoring, cobblering and haberdashery. It is late and I must end soon - but what is merely personally disagreeable should never be made into the legally criminal - and I repeat what I have often said: that a resort to regulate purely social behaviour, by meting out criminal sanctions (as the social sanctions have evaporated in a welter of chaos). is a sure sign that the society in which it happens is on the brink of collapse; even if some people, for the time being, feel comfortable enough in their cocoons.
NJS

I do not know if I understand your point, I do know even know if there is a dissent here. The “yoke of foresight”, it seems to me, is the mental anticipation of a punishment: men “bow their heads” – they put out their cigarettes in a pub – in that they anticipate what will happen to them if they do not abide by the law, to wit: they will be punished. At the beginning, as Bentham says, it is “hard …to bear”. – Some Longers have reported, for instance, of an almost unbearable feeling of discomfort during long flights, since law would prohibit them from smoking. But later on, what was “at first” unbearable becomes “light and agreeable”. Then, some persons even come to regard their former practice as somehow loathsome. Now, they are likely to take pleasure in doing exactly what law requires them to do. Yet, nothing in Bentham’s sentence implies that what is “agreeable” is always morally good. If laws are unjust, chances there are that people will acquire a disposition to do unjust things. For Bentham and Mill, we decide if something is morally good – or bad – not by appealing to one’s sentiments, to one’s individual sense of what is agreeable to oneself, but – in their vocabulary – to the “calculus of utility”: good are the actions which provide the greatest amount of happiness to the greatest amount of persons. The ban on smoking has caused not only a lot of unhappiness among smokers (and, by the same token, a lot of happiness among non-smokers), but also a sense of unhappiness through the realization that some basic rights, something which enable even non-smokers to amass a fairly amount of happiness, have been trumped.

Yes, actually, I do see your point and I am not sure that we do disagree in seeing that there is something imponderable here and incapable of anything but a pragmatic solution, which I suppose is the thrust of my argument against those who cannot compromise. We certainly agree that there is at least potential unhappiness in the very fact that a legal mechanism is being used to regulate this kind of human activity. I am going to have a rest, for to good reasons: first of all, you teach this subject at the highest level and I can just about recall the only the outlines of the arguments of Hart and Devlin (here it all leads next), secondly and most importantly, the DVDs of Edward and Mrs Simpson which you kindly sent to us have just arrived!!
NJS

[storeynicholas]

Perhaps they have the RIGHT to breathe? Anything more basic than that?
I think it is a false thesis that the smoking ban does nothing but raise to the rank of law a mere etiquette rule. Etiquette applies to many things, smoking included, but while failing to salute is not harmful to others' health, the same cannot be said of smoking. No law punishes the use of cheap cologne that may well offend others' noses, so the individual remains free to use it if he pleases. In my view the smoking ban represents no intrusion of the state in the exercise of individual fredom, it simply defends a basic right of non-smokers.
I continue to believe that if the majority of smokers were willing to follow simple etiquette rules, they would not only be unaffected by the ban but they would render it superfluous.

There is something in the point that the discourteous smokers have spoiled it for the courteous smokers and, anyway, when, one day we meet, as I hope that we shall, even if it is somewhere where there is no ban, there will be no smoking.
NJS

[Costi]

Dear Nicholas,

When we meet, and I also hope that the day comes, I am sure you will say "Do you mind if I smoke?" and I can already assure you that I'll say "Of course not, please do" if we are in a place where it is not forbidden. I have no doubts whatsoever about your genteel and considerate behaviour, but this is not about you and me, is it?
I see we are getting tired of this, but I had already written the following while you posted your latest reply, so here it goes:

I reiterate my opinion that smoking in public, constituting a possible and probable inconvenience for those around the smoker, is generally forbidden according to etiquette and only permitted under certain circumstances.
Some people MAY, out of courtesy, compromise and allow others to smoke in their presence (assuming a civilized smoker will ALWAYS ask for permission to smoke in a place where others might not like it), but they must not be FORCED to compromise. Such would be the case, I feel, if the smoker had a legal right to smoke anywhere he pleased and decided he couldn’t care less if someone else were offended by the smoke. The reality is that, before the ban, smokers DID smoke anywhere they pleased and almost never bothered to ask anyone or even wonder if it was a nuisance to others – why, they had a right to smoke! While the smoker could refrain from smoking for a while, the non-smoker cannot help breathing; who is in a position to compromise here? I remember recently seeing an announcement in a small antiques shop in Bruges: “Thank you for not breathing while I smoke!”. Full of attitude, wouldn’t you say? Of course, it was the owner of the shop himself who, like the Caterpillar in Alice in Wonderland, produced clouds of thick tobacco smoke, the kind you can cut with a knife.
Smokers have a perfect right to smoke where they don’t offend others: at home, in a park, on a street (which is not very busy), in their own car, in their privately owned shop as above etc. Therefore, the ban does not affect the RIGHT of the smoker. It only regulates THE WAY he can exert it in relation to others – which only seems reasonable to me and perfectly in line with any legal system. I think this ban really lies in the category of public hygiene regulations, along with the interdiction to urinate at any street corner: nobody forbids the act itself (how could one?!), but we must have rules on how and where to do it so as not to offend or create a health hazard for others.
Courtesy requires not to gossip or speak ill of someone, but there are also laws punishing calumny – and calumny presents no hazards to one’s health.
I would not deplore the bar and restaurant owners too much – I don’t know what happened in GB, but I do know what happened in Italy: everybody continued to go out undisturbed every day and every evening, perfectly adjusting to the ban. Nobody went out of business. Many restaurants have a smoking area, separated from the rest and more or less (usually the latter) ventilated. However, for me it’s a nightmare when I go out with friends, because I invariably end up in the smoking area because at least one of them is a smoker and won’t even think of refraining especially that there is a smoking area! So much for courtesy.
The problem is, I think, that smokers are so fond of (or addicted to) their habit, that they simply won’t (or can’t) suspend it while they are together with others who might not like it. Courtesy still regulates what happens in our own homes, and the fact is that I have never been to any private party anwywhere in the world where smokers (whether hosts or guests) abstained for a few hours for the sake of the others. It is usually the others who, rights or no rights, inhale a good portion of free tobacco smoke.

PS: I may have just rewinded the clockspring mechanism, but that's a risk I assumed from the outset of all this

[storeynicholas]

Dear Costi,
I am certainly not tired of reading the opposing views on this topic. I have learned quite a bit and refreshed my memory on topics which I haven't revisited for a long time; topics which, I suggest, hold lasting and important relevance to the pursuit of harmony and elegance. Indeed, strangely enough, when we met up with Marcelo and his wife near the Sugar Loaf Mountain, we discussed the social principle of utilitarianism, in which he has an interest and a far deeper understanding than I - certainly of the criticisms which can be levelled at J S Mill's own brand of it - the utility calculus and the differing levels of human happiness or unhappiness bound up with a main recurring question: how should the greatest good of the greatest number be secured without consequential harm to minorities? If I understand him correctly, Marcelo has also identified that a general social unhappiness might result from the use of law to regulate the minutiae of our lives, which used to be regulated by manners. Part of this unhappiness might result from the conclusion that manners have broken down to an alarming extent and are perceived by some to need to be trumped by legal provision. Another identifiable unhappiness is the smokers' unhappiness in having others' interests put before their own. I am not sure that the fact that smokers fumigate the air (and have done so for some time) is all that much to this point, since no one could seriously claim that some exposure to tobacco smoke, in ventilated accommodation is going to have any clearly identifiable detiment to the health of those unwillingly exposed.

Even when I was a youngster, smoking was still fairly widespread and I have to acknowledge that the old formula of offering a cigarette to a new acquaintance and, when declined, often following up with the question 'Do you mind if I do?' held the expectation of the response 'Of course not' - green light and out with the lighter.

Now, the boot is on the other foot because many people now don't smoke; don't like smoke and want to stop themselves being subjected to something that they don't like. Lately, the anti-smoking lobby has persuaded governments all over the place to introduce legislation (maybe also resulting from EU decisions) to ban smoking in buildings which people share - from shops and offices to public buildings, railway stations, bars, restaurants, clubs and hotels - just about everyhere, except outside and in the home - but even outside is sometimes included - for example, remote, deserted open-air railway platforms. But it has all been done without any sense of compromise or even, sometimes, common sense (why shouldn't owners of clubs and restaurants be free to decide whether they wish to make careful and comfortable provision for smokers inside, provided that the provision protects everyone except those who want to smoke together?). The overall ban results from people being too polite to say to smokers 'yes, I do mind' - but they are not, actually so polite that they will willingly, put someone else's comfort before their own indefinitely. All these years, they haven't meant 'no, of course I don't mind', they've wanted to say 'please smoke somewhere else'. If the claim to avoid smoke is such an imperative that it justifies legislation and criminal sanctions, why on earth did non-smokers not speak up in a purely social context and, as I am prepared to do now on the other side, loose the clockwork spring (nicely wound, by the way) and rattle around the track rambling endlessly on about their point of view and their rights to fresh air? After all, if non-smokers' rights outweigh smokers' rights, they must always really have done so and non-smokers could have started the conversation by saying, 'I don't smoke and I hope that you don't either because that would really annoy me.'

There is no moral difference so far as I can see between X creating smoke for Y to breathe unwillingly and Y making X breathe clean air when X wants to smoke.

NJS

[couch]

There is no moral difference so far as I can see between X creating smoke for Y to breathe unwillingly and Y making X breathe clean air when X wants to smoke.

NJS

Dear NJS,

Here I must reluctantly beg to challenge your assertion. We are all born into this world with a requirement to breathe an atmosphere containing a certain proportion of oxygen. If we refrain for more than a few minutes, we die. We must breathe air and whatever it contains. There is no intention or choice involved, so it is not an ethical or moral question. Those who are around smoke are obliged either to breathe it or die. It is not possible to compromise. If the sulphur dioxide from the coal-fired generator upwind of your house reaches levels that will result in contracting chronic obstructive pulmonary disease or emphysema, you must either move or accept the disease. You can't hold your breath.

Smoking is a chosen behavior, not an essential attribute of mammalian life. Smokers voluntarily add a toxic irritant to a substance necessary for life. That is a choice, and a moral one. If 'rights' are based in natural law (I am not a lawyer) then there is a right to breathe (if life is indeed one of the inalienable rights). There is not a right to compromise someone else's breathing. There may also be a right to compromise one's own breathing, so long as no one else is involved.

In my experience, many smokers (I do not say this of you) fail to acknowledge this fundamental difference, which with any other kind of hazard or pollutant would be taken for granted. There are now legal prohibitions against excessive levels of lead in public water supplies. The health effects of ingested lead are slow to develop, cumulative, and uneven in severity among individuals--just as the health effects of smoking. That doesn't prevent their being recognized and regulated.

Your assertion that "no one could seriously claim that some exposure to tobacco smoke, in ventilated accommodation is going to have any clearly identifiable detriment to the health of those unwillingly exposed" is unfortunately now also disproven by many well-conducted and peer-reviewed research studies on the effects of secondhand smoke.

I say these things simply to make the point that yes, all these years nonsmokers would have said, "I'd rather you didn't" had they known there was something other than their personal discomfiture involved. Now that smoking is a well-documented health hazard, they are no longer constrained by shame at the social sanction of seeming oversensitive or inflexible. Some adopt a self-righteous tone which is quite regrettable, but it doesn't diminish the strength of the moral case I've outlined above.

So the etiquette of smoking must always be one of forbearance by the agent capable of doing injury. This is the age-old foundation of politesse between the sexes as well: the (generally) stronger, more aggressive male restrains his behavior out of consideration for the more vulnerable (Latin 'easily wounded') female. If a nonsmoker, out of politeness, agrees to allow a smoker to smoke in her presence, it is a sacrifice of self-interest that is morally superior to any forbearance that could be shown by the smoker. I would think it would be shameful to insist, if the nonsmoker's preferences were known.

I entirely agree that the law should not restrain where no injury may occur. Thus designated smoking areas where consenting adults want to smoke should be preserved. Nonsmokers who wish to enter do so at their own risk and have no right to demand that any smoker desist within those confines. However, absent a universal etiquette of forbearance by smokers in public places (where any nonsmoker might innocently, meaning without prior warning, venture unawares), I see no inconsistency in the law protecting the passive party (minding her own business, as it were) from injury or affront by the active party, the smoker.

What makes this all so hard in practice is the difficulty many people have in accepting that smoking really is all that dangerous or offensive. They tend to feel the nonsmokers are being unreasonable. This attitude is almost entirely the fault of prior conditioning--"if it was so bad, why did everybody used to do it?"

To be candid, my views are inevitably colored by my own life experience. I've never been a regular smoker, though I have a few times really enjoyed a pipe. But I detest the stench of cigarette smoke that clings for weeks to wool clothes worn where I couldn't avoid smoke. And like others here, I have been closely affected by fatal smoking-related disease. That is not a fair argument to adduce in detail, however, so I won't.

If the etiquette and the law are both derived from an accurate acceptance of the unequal moral status (and power relationships) of the smoker and nonsmoker, then polite individuals will behave well and the law will respect rights in accordance. Presumably that means if smoking establishments can find employees who will, when well informed, knowingly take the risk of working there, the law should license them so to do.