Among both our legislators and ourselves there continues to be a muddle about the degree to which a state can intervene in the lives of individuals before it crosses the boundary into nannying and, eventually, unjustifiable diminution of individual liberty. Smoking is one of many examples where the question arises; others range from raised car seats for children and seatbelts in general to drink, drugs and prostitution. Yet the underlying principles are clear, and there are fewer grey areas than people think.
Isaiah Berlin is as good a place as any to start. In distinguishing between positive and negative liberty, he defined the former as the freedom to seek and realise various goals, and the latter as freedom from external compulsion. He favoured the latter because he thought the idea of the former could tempt the state to prescribe and even enforce behaviour that it believed would be in the people's best interests—and therefore what the people should desire, whether or not in fact they do so. By contrast, negative liberty defines the area within which people should be left to their own choices and preferences without interference from others. It is the classic conception of liberty as formulated by John Stuart Mill.
The equally classic constraint on the "negative" conception of liberty is the harm principle: in exercising one's liberty, one must cause no harm to others. It is the conjunction of these ideas that settles the location of the nannying boundary. Where the exercise of given choices can harm others, and where restraint is an insufficient safeguard, the state has a role in providing protection to possible victims. Where any harm that might occur is to the freely choosing individual alone, the state has no place intervening.
Banning smoking in public places is legitimate because it protects others' health. Banning smoking as such would not be legitimate. Legally requiring car seats for children is justifiable because children are not competent to ensure their own safety. Outlawing certain drugs (heroin, cocaine) is not justifiable, though it is justifiable to place the same kind of conditions on their use as on that other major drug, alcohol, to protect bystanders from the effects of their use and abuse. And so on: the principle is clear enough.
Grey areas remain, and have to be matters for decision. Legally requiring motorcyclists to wear helmets, and everyone to wear car seatbelts, are two. Each is certainly prudent, but that is the wrong motivation for a law enforcing it. Saving NHS bills is a better justification, but then that entails a justification for outlawing obesity. The latter is harder to enforce; evidently the (British) state chooses its battles, and nannies where it can—usually too far over the boundary, as drugs and other matters of private choice show; but smoking in public places is not one such.
Sent in by Rotney O'Shea, Brighton. Send your philosophical queries and dilemmas to AC Grayling at question@prospect-magazine.co.uk
