Smoke and the harm principle

One of the more interesting indicators of Nova Scotia’s political culture in the 1980s was the claim, “you can’t legislate common sense!”

I had thought that this understanding of the authority and power of government had died a good death. But, alas, I heard it again on the CBC morning show: you know, the one that more often than not appears to have difficulty genuinely praising Wolfville or especially Acadia, despite the compelling work of our “party-liner” and our considerable virtues. (Could it be the St. F.X. ring on one of the hosts makes seeing the light down here so difficult?)

Notwithstanding, just such a ray of light has shone again in the seemingly sleepy town of Wolfville, again setting a standard that others will follow. The decision of the Town of Wolfville to prohibit smoking in cars carrying children is one in a series of measures that makes the town one of the most forward-thinking in the country and which draws positive, sometimes, national attention to what we do well here. (And this is praise from one who used to smoke a couple packs a day, who still walks slowly past smokers outside pubs, secretly relishing just a whiff.)

Of course, any such law “works” only if it’s applied and application does indeed mean the use of sanctions against those who insist on breaking it. And, by enacting such law it seems, we rekindle a confusing debate on what the law ought and ought not do in our lives.

Where one starts in this debate depends upon whether we are liberal individualists or communitarians. And if the latter, it depends on whether one is a conservative communitarian (who believes the integrity of society requires a strong state defending our best conception of the good); a communitarian of the left (who holds that law should ensure the greatest degree of human social and economic equality); or a green (who considers the life of our planet and its eco-systems to be far more important than our mere individuality), for whom “freedom’s just another word for nothing left to lose.”

But let’s start with the liberal perspective, as it animates the more radical elements of the Conservative Party, those twitchiest with any limitations upon what they take as their liberty, those who envy New Hampshirites for their license plates (“live free or die”).

The liberal perspective

Joel Feinberg, on one page in Social Philosophy, sorts out the liberal perspective. He starts with the presumption in favour of liberty; that those who would limit us from doing what we want carry the burden of justification. Then he distinguishes a series of considerations that might be offered to justify limits on our prima facie liberty.

The first he notes is the harm principle, broken into private and public harm subsets. To harm a person is to damage their person or their interests.

To make a long story short, if you build an abattoir next to my swimming pool without my consent or enabling legislation, such that I can’t reasonably enjoy the pool, you may not have just hurt my feelings. You may well have harmed my interests. Not to mention beating the living daylights out of me when I complain.

Both are examples of plausible harm, one obviously stronger than the other, and are taken as justifications for effectively limiting the conduct of our abattoir-building friends.

Feinberg holds, as does some Anglo-American law, that harm done to others is the most secure, justifiable constraint upon liberty. Moreover, strict liberals insist that using the law to prevent offense to others (the “offense principle”); to prevent harm done to one’s self (“legal paternalism”); to prohibit sin (“legal moralism”); to benefit the self (“extreme paternalism”); or to benefit others (“the welfare principle”) is never justified. For them, intrusions into the space of our liberty or property, save to prevent harm, are never warranted.

My point is, if I can remember it, following Feinberg’s taxonomy, Wolfville’s smoking laws stand on the most secure liberal grounds, grounds only the odd anarchist denies.