How Not to Take Rights Seriously

Readers of this blog are no doubt aware that I’m no fan of paternalist public health policies and the unquestioned assumption that the regulator knows the utility function of a person they’ve never met better than that person knows it themself. There’s one academic paper, however, which since I read it around a year ago has pissed me off more than almost anything else I’ve ever read. It is Katz, J.E. 2005. ‘Individual Rights Advocacy in Tobacco Control Policies: An Assessment and Recommendation.’ Tobacco Control 14: ii31–ii37.

Katz begins with some confused waffling about the philosophy of individual rights, stating that:

Three subtypes of individual rights can be distinguished: the right to life, liberty, and use of private property. The first two of these rights can be considered political rights in contrast with the more restricted right of property use; however, there is an overlap and this can lead to confusion. All three aspects of individual rights are central to ETS [Environmental Tobacco Smoke] but in different ways. It is clear that ETS interferes with an individual’s physical and mental health, and thus can be construed as violating one’s right to life. This interference occurs whether or not ETS is sanctioned by governmental or corporate policies. Another interference caused by those who smoke is that their activity (that is, creating ETS) violates the rights of others to be let alone to pursue their own interests and activities—that is, it harms their liberty. The third individual rights subtype is to use one’s own property as one wishes. This may include producing, marketing, and using a commercial product, such as tobacco. (…)

Failing to stop tobacco use in public places is a violation of the rights of non-smokers, as may be seen by the definition of rights referring to the obligation to act to help others have their rights. Hence tobacco control is a justified way to protect the individual rights of the non-smoker. Indeed, the theories of Robert Nozick, an influential Libertarian philosopher, can be readily used to justify restrictions on smoking in public places.

Katz obviously isn’t very familiar with moral philosophy. I can’t really be bothered arguing against this nonsense. Suffice it to say that harm != rights violation. It’s not this confused and/or obscurantist characterization of rights which offends me most, however.

What really grinds my gears is the horribly Machiavellian attitude taken towards individual rights language. Katz argues that it is important for tobacco control advocates to take individual rights seriously not because individual rights are something which ought to be taken seriously, but because it will further their goal of banning smoking in public places. Katz is quite clear that the rights of nonsmokers to not be exposed to secondhand smoke should be placed firmly above the rights of smokers. Katz concludes:

As a general posture, policy should be designed to be responsive to individual rights of both smokers and non-smokers, with right to life/health (that is, rights of non-smokers) having priority. Policy could be framed so that smoking would not be permitted in co-occupied places, such as offices, sidewalks, and parks, but that appropriately informed adults would, with some restrictions, still be entitled to smoke in private. A policy along these lines could serve the cause of tobacco control advocacy by reinforcing further the community’s dedication to the concept of individual rights. Especially commended to advocates is the use of the hierarchy described above (which places life and health above liberty to use property). (…)

Still greater emphasis on individual rights of non-smokers should help maintain or even accelerate progress towards smoke-free air in all public and shared private places.

So individual rights are not something tobacco control advocates need to seriously consider, but rather something to be cynically manipulated to achieve their goals of stopping me from smoking as I walk along the road. I guess I should be happy that in Katz’s utopian society I’ll be permitted – if appropriately informed, of course – to smoke in private. That’s more than some influential people at home and abroad would grant me.

6 Responses

  1. Seems that Katz is prof of communication at Rutgers University. This may explain why he doesn’t know much about philosophy. He looks like a I hate smokers and any argument against them will do type.

  2. To a certain extent I disagree with you – I think the problem of externalities would benefit to a certain extent from a more rights-based approach than it is often given.

    You’re probably right though that this guy doesn’t understand the first thing about moral philosophy, and is just scrounging around for arguments to ban things he doesn’t like.

    • I agree that welfare economics would do well to think more in terms of rights than it currently does when considering externalities. I wasn’t meaning to suggest otherwise, it’s just that this guy doesn’t take rights at all seriously.

      He moves from the premise that we have rights to life and liberty to the conclusion that any action another takes which harms our health or makes it more difficult to pursue our own interests is a violation of our rights. I don’t think all talk of rights is confused waffling – but this guy’s certainly is.

      Just about every action we take is bound to have many positive and negative spillover effects on others. That’s what we get for living with other people. We need to think carefully about what sorts of harms we think it should be reasonable for one person to impose on another without their consent. I don’t think its enough to say that we should be against externalities if and only if they lead to Kaldor-Hicks inefficiency. That approach excludes pecuniary externalities as a valid object of regulation, but leaves the moral and aesthetic externalities of choosing an unpopular lifestyle or being an unpopular colour in tact.
      I think the holocaust would have been wrong even if the pleasure of the Nazis far outweighed the suffering of the Jews. If welfare economics is going to provide solid policy advice, it needs to consider what is to count as a genuine harm to which people can justifiably object. A punch in the face clearly counts; being forced to look at ugly people when walking down the street clearly doesn’t. It takes a a rights-based approach to decide where the line is.

  3. Brad, good thinking in that article. The antismoking movement is very skilled at what they do and they have plenty of money to hire the right PR advisers. They’ve become aware that those of us fighiting smoking bans have had success with arguments based upon freedom and property rights so they’ve begun to cite, almost as a mantra, such things as “This is a health issue, not a rights issue.”

    Unfortunately for them that hasn’t worked as well as they’d like. So now they’re trying to redefine the language about rights in the same way that they’ve redefined it around addiction, youth, taxes (heh… “This isn’t a tax, it’s a voluntary user fee.”), and even smoking bans (“This isn’t a smoking ban. It’s a Freedom To Breathe Act.”)

    Remember Orwell:

    “If thought corrupts language, language can also corrupt thought.”

    By corrupting the meanings of basic words and phrases the antismoking movement has made it almost impossible to have rational conversations about some topics. Which is *exactly* their goal: anything that impedes communications and the flow of information outside of controlled or expensive channels is to their advantage.

    You mention a “punch in the face.” Not only has secondary smoke been compared to that, but over the past year or so I’ve started seeing it compared to randomly firing a shotgun through apartment walls.

    Michael J. McFadden,
    Author of “Dissecting Antismokers’ Brains”

  4. He’s even wrong about ETS. There is no good reliable evidence that ETS has a significant impact on a person’s health. ETS can be unpleasant, I can agree on that as I dislike it myself, but the evidence that it causes harm is missing. To assert otherwise one has to play misleading games with statistics.

  5. […] smoke at all for at least 3 days.  This is to help get you out of the daily routine of smoking so you can more easily tell the difference between feeling an urge to smoke and actually wanting to […]

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