Smoking Bans

I am, generally, a conservative in matters of government regulation.   However, I agree with the use of government force to keep visible pollutants out of my air.   Simple as that.

There has to be a limit, of course, based on practicality. Controlling perfume, for example,  is not practical and the problem (though legitimate) is about one millionth the scale of the smoke problem.

Banning smoking on public property (owned by the community) is a straightforwardly conservative (even libertarian) exercise of government force.  The conservative principle is that whoever owns the property gets to use it however they want.   Ergo, a public ban of smoking on public property.   Let private property owners (which includes bars, restaurants, ball parks, etc.) decide for themselves.

But beyond the question of who owns a building is the further reaching question, legitimate even for libertarians:  who owns the air?  And then, what economists call the problem of externalized costs, i.e. it isn’t ethical to dump the costs of your choices onto property that is not your own.   Simple, right?  So, smoke, exhaled into air that is outside of your personal air space, it is an unlawful seizure of the air of those around you and should be constrained by force, if necessary.

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“Does that mean we can ban my neighbor from barbecuing in his yard?  The fumes enter my yard.”

In theory, yes.  But it isn’t practical for the courts to opine.

The libertarian principles which clarify these issues into legitimate grievances are the only way to avoid the avalanche of illegitimate grievances now covering us over.

Suppose you and I were neighbors.   You have an absolute right not to breathe my fumes — pleasant, unpleasant, or otherwise — on your property.   That is an unarguable point.  And I have the same right to my own air.  The questions that remain are not moral ones, but practical ones.   How do we adjudicate it, since air moves at random?

But the moral principle derives directly from libertarian thought and is not hard.  It’s just that libertarians, like other mortals, think clearly (or not) depending on whose ox is being gored.

Most people are sane enough to be able to distinguish between the significant and the insignificant, and reasonable enough to work out things without a judge.   And a good legal system will recognize there are issues that are technically implicated by the law, but as a practical matter too small for people to not work out among themselves.   So, no, it would not be a productive thing to sue over a barbeque.

But let’s be serious in the other direction: suppose you had lived in your house 30 years.  A paper factory moves literally next door and makes the air unbearable. Can you seriously argue your property rights have not been infringed at all? Just move? Suppose you find, as you prepare to move, your land value has gone down by half overnight. Does the paper factory owe you anything?

I would argue it does, and this is libertarian respect for property, not liberal hypersensitivity about feelings.

But, more importantly, the principle by which we conclude the paper factory must make you whole is the same principle that says you have a right not to breathe pig stink in your yard, a right not to breathe cigerette smoke on public (government) property, and, yes, a right to insist your neighbor cook in such a way that it does not bother you inside your own property.  If his barbeque bothers you, though, you should be able to work it out with him, or ignore it.  There’s an unwritten law that neighbors have to concede small (though legiitmate) grievances, in a sub-system of trade-offs which fly beneath the radar of the civil justice system.

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