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Source link: http://archive.mises.org/4936/where-theres-smoke-you-dont-have-to-be/

Where There’s Smoke, You Don’t Have to Be

April 21, 2006 by

Yet again, the anti-smoking activists want the government to intervene in the economy and the private property (or what should be considered truly private property) of entrepreneurs. But you do not have to breathe in any second-hand smoke while you are eating, drinking, socializing, or gambling. You do not have to serve, bartend, or deal cards in a smoke-filled environment to earn a paycheck. The confusion results from a lack of clarity on what “public” and “private” mean. FULL ARTICLE

{ 150 comments }

Robert Wutscher April 22, 2006 at 5:55 am

Are non-smokers therefore to be relegated to an underclass in ‘open’ society, facing less choices than smokers? Smokers can choose to have a good meal at establishments that allow for smoking as well as at establishments that prohibit smoking (in which case they can desist from smoking for their time there). Committed non-smokers on the other hand only have the non-smoking places to choose from. Have you heard of places where the proprietor has asked the people not smoking on his premises to kindly leave?

The problem with the argument is not so much with its content (or logical structure), but with what’s missing or with what the applied logic cannot answer. One of the missing things is the implicit denial of the existence of discrimination. Non-smokers are generally discriminated against in situations where interactions are to occur between smokers and non-smokers. (Smokers are not bothered whether the non-smoker does not smoke, whereas non-smokers face the lesser alternative of interacting with their own kind, reducing the benefits of wider association otherwise open to the smokers).

Why is it that there are more establishments where smoking is allowed or that the areas reserved for smoking in restaurants are generally the aesthetically better ones? Surely the answer is not simply that there are more smokers than non-smokers, or that smokers spend more money than non-smokers or that smokers happen to be more social than non-smokers (who are having – voluntarily of course – to choose to stay at home). I may of course be proven wrong on empirical grounds!

Why is it that even as a committed non-smoker, it may be a bad entrepreneurial decision to open an establishment for non-smokers only? By opening a non-smoking establishment, I am automatically excluding the market of those who would also like to smoke with their meals. Why is it not, as in the case of alcohol, that proprietors do not sell cigarettes on the premises at more than triple their retail price or charge a ‘corkage’ fee for smoking? By opening up an establishment ‘open to all’, I can, in addition to the smokers whose enjoyment of eating and drinking at my restaurant is enhanced by their ‘free’ smoking, lure in some non-smokers, who are the ones facing the choice of having to balance being subjected to secondary smoke against some social enjoyment or business association/material advancement (whose returns increase through wider association). Why should some of the cost of smoking fall squarely on the shoulders of the non-smokers, particularly as they cannot control the cause, except by shunning social contact with smokers (who in turn do not have this concern)?

To advocate that logic dictates that non-smokers and smokers both have the choice as to smoking in their ‘private establishment/public places’, whilst at the same time appeasing those that feel discriminated against in an ‘open’ society, is to advocate complete segregation, i.e., BOTH non-smokers should be banned from smoking-designated areas and smokers from non-smoking ones. The free market will then work to support both parties within their compounds, allowing for representation of private establishments/public places on the basis of the needs of their patrons. Only in this way could one conceive of the contentment of both parties, even though the contentment of smokers could be enhanced by allowing them to go into non-smoking areas (in which case, if also allowed to smoke again, discrimination will again work itself in crowding out the non-smokers as proprietors see the benefits of opening up establishments ‘for all’).

This brings me to the next point of contention: the definition of public places. Should an establishment that happens to be privately owned be defined as a private place in terms of the physical property of who owns the place? And should this be considered no different as my home privately owned? In which case, is a council house owned by the government provided for some citizen to be considered a public place? Surely it is contradictory and therefore wrong, at least from a subjectivist point of view, to define private property purely in terms of physical ownership.

I think that what most people have in mind of a public place is one where the free association of different groups of people are to be allowed (even where service or entrance fees are charged, regardless of whether the place is run as a private businesses or subsidized). And what any individuals going to a public place do not want is to have discrimination working against them. To the extent that an establishment is expressly established for a specific class, such as a cigar lounge, all cigar smokers will be happy to go there as long as any particular group of cigar smokers does not feel discriminated against. Non-smokers are effectively discouraged from frequenting cigar lounges as proprietors lose out on revenues to the extent that non-smokers are occupying their premises (if too many non-smokers frequented the lounge, the proprietor would have to consider charging a type of ‘corkage’ fee for non-smokers in order to keep his business running, which would only further discourage the non-smokers from frequenting). Cigar lounges differ to other ‘open for all’ establishments (even if one adds – “at your own risk”) as cigar lounges have been expressly established for smoking, with snacks and drinks forming a subsidiary part of the atmosphere.

In the case of a restaurant soliciting business ‘from all’, however, why should the smoker be feeling discriminated against because he is not allowed to smoke, when for all intents and purposes of providing good food, both the smokers and non-smokers are receiving the same service and paying the same money? By allowing smoking you are only enhancing the enjoyment of the smokers and reducing the enjoyment of the non-smokers. To argue otherwise is to conflate the choices of ‘eating meal at restaurant’ or ‘enjoying public scenery’ with the choices of ‘smoking and eating’ and ‘smoking and enjoying the public view’; and to ignore the implications of discrimination on an ‘open’- truly liberal for all individuals – society.

W.E. Schetlick April 22, 2006 at 8:07 am

Thanks for your thoughtful note.

Property law is the oldest corpus of Anglo-Saxon law. Rights that inure to people who “own” a fee simple absolute include the right to include or exclude anyone from the property they desire for any reason whatsoever. In a free society, discrimination for and against people in the use and disposal of one’s property is part and parcel of what it means to be free.

The physical property itself (the corpus defined by metes and bounds) is not what you get when you purchase a business and a piece of property. Property law traditionally recognizes “property” to mean a bundle of rights that the owner has to peacefully use and dispose of at her sole discretion. These rights are good against claims of the whole world, including groups of people calling themselves “legislators”. This “bundle of rights” is what we loosely call “property”.

The idea of “public property” is actually the queer duck in the soup, not private property. Some of the same rights respecting use and disposal inure to “government” agencies when they acquire property, either by purchase, condemnation or regulation (inverse condemnation). But no matter how government acquires property (defined as a bundle of rights) it must pay for the property it so acquires for public use.

In practice, a bar owner opens her door to everyone who seeks to purchase her product at the agreed upon price and comport themselves according to the owner’s rules while on the owner’s property. In so doing, however, the owner reserves the right to refuse either entrance upon her property or purchase of her product.

It is not now and never has been the proper province of government to abrogate the peaceful exercise of private rights to property no matter the reason that legislators may think admirable to salubrious. This is the whole stinl about eminent domain and regulatory takings.

I would suggest that all those who wish to comment upon the legitimacy of “property” to find a good substantive book on the subject.

W.E. Schetlick April 22, 2006 at 8:53 am

I neglected to mention:

There is no such indentifiable “thing” as a “class” of smokers and “class” of non-smokers with special, cognizable, social interests that justify some legal intervention on their behalf and against discriminating property owners.

This kind of quasi-sociological mumbo-jumbo is nothing more than hyperbole, hypostacy and reification and is the primary cause of confusion in respect of the rights to property and has falsely “legitimized” all manner of immoral interference with the rights that property owners may exercise in respect of their property.

No one, irrespective of their individual proclivities to be smokers nor non-smokers, have the right to dictate the terms of the use of the someone else’s property. You go on to another’s property at their invitation only, and subject to their rules and regulations. If you do not like their rules and regulations or you find the owner objectionable for any reason whatsoever, you have the right not to do business with that property owner.

M E Hoffer April 22, 2006 at 8:56 am

“Do these really exist or are they just an excuse for lazy financial modelling in regard to pricing?
Or, are they the “backdoor” that allows State intervention to “cure” marketplace “inefficiencies”?”

banker, exactly. I think it’s obvious that what is subsidized by the State becomes of/for the State, even the majority of what passes for Economics.

The following may be off-topic, but serves as an example that was the basis of my original Q’s in regard to Negative Externalities.

A friend of mine is an Engineer that can(w/ IP) literally put Industrial Smokestacks out of business. Power plants are the largest single-point source of “pollution”. Within that stream itself, there is enough energy(Heat,primarily) to allow the cryogenic fracturing into its constituents. Namely, CO2, CO, O2, O3, N, H, Ar, all the way to carbon-black(particulate-pollution)and Hg. The constituents listed, not exhaustively, are Industrial Gases and Chemicals, all. Do we find PPL Inc.(or, the Ute near you) leveraging their massive headstart into these fields? Right. “We comply with the EPA and are investing U$D MM’s in “scrubbers” “Hey, give us a break, we were just recently de-regulated.”
“APD is one of our largest electricity customers”(this one being a better Finance answer, but, still, poor Economics)

The problem may seem to be the Engineer’s, but it’s a problem for all of us. The State’s effective verticalization of just about any segment of our Economy, you’d care to think about, leads to massive wastes(pollution, included, no extra charge)…

Back on topic, if we still have redress to the Constitution, Public Smoking bans are a violation of the 5th Amendment.

W. E. Schetlick April 22, 2006 at 9:27 am

The 5th Amendment, to the extent that it recognizes a government power to take property for public use, is a queer duck, indeed, especially since the Bill of Rights was supposed to be about individual rights against the government, not the other way around. Strange locus for the enumeration of a power . . .

I presume you are refering to the regulatory taking that are the sum and substance of bans on smoking on private property.

Of course, an originalist understanding of the 5th Amendment applied to the issue at hand would require “just compensation” for a partial, regulatory taking” of the property rights that bar and restaurant owners to draw up the terms of their realtions with their customers and employees. However, as you well know, the Supreme Court’s jurisprudence in this area is a horrible mess, and the prevailing doctrinal approach of the court would not lead to a “just compensation” for the “taking” for a “public use”.

M E Hoffer April 22, 2006 at 9:43 am

“an originalist understanding of the 5th Amendment applied to the issue at hand would require “just compensation” for a partial, regulatory taking” of the property rights that bar and restaurant owners to draw up the terms of their realtions with their customers and employees.”– yes, exactly.

And, as others have had the grace to note, W.E., you are an appreciated light that Diogenes, himself, would have been proud to wield.

BillG (not Gates) April 22, 2006 at 9:46 am

banker wrote:

“How EXACTLY do you find the cost of a negative externatility? Use an example, please! REAL numbers, an actual example!”

BillG responds:

we know scientifically what the carbon concentrations where in the air in the past (pre-industrial – 280 ppm) with no externalities and what it is today (380 ppm) with externalities.

using the best science possible we determine what carbon concentrations will not produce externalities and sell permits for that amount of carbon to be released into the sky to use as a sink.

the economic rent raised in the purchase of those titles to pollute (actually titles to exclusive use of our common asset the sky as a sink) represents exactly the cost of what had previously been negative externalities – a tax on the wages of all those individuals being excluded from an equal access opportunity right to use the sky as a sink up to the sustainbale yield to derive their sustenance.

Robert Wutscher April 22, 2006 at 10:27 am

Does Schetlick support Apartheid? In South Africa, the whites had ownership of the majority of the land and justified their position by retorting that the blacks had their own homelands and if they came to work in the white suburbs, they did so of their own choice (very much like non-smokers having to put up with secondary smoke for some other benefit). If they did not like to be discriminated against – for example, not being able to use beaches for whites only or not being able to go to private restaurants or use toilets designated whites only – let them choose to stay in their homelands!? (In fact let them open up their own restaurants!) The point I am making is not so much about the definition of property which seems to be Schetlick’s fortei, but acts of discrimination that are part of human nature (if they can get away with it). In no way do I support government intervention in general, particularly if the ends of government intervention have the opposite effect of the intended consequences! But we should not become lazy to work out the consequences of the intervention because we simply believe in the ‘holy creed’ of any and all government intervention is bad. It is necessary to work out the consequences for each particular case. All I hear is lobbying for smokers against non-smokers and the only consequence is that smokers will lose out on some pleasure at nobody’s expense, which I would define as nothing but a group interest. I read nothing about unintended consequences, such as banning smoking in public places creating more smoking in public places. There is something as due regard for your fellow man (even if he happens to be black or a non-smoker).

Or does Schetlick also not support the view that the state has a role to play in upholding the law, particularly with regard to theft and murder, even on private property, however you may wish to define it? If your answer is yes, but only in that role, then why only in that role? The true test of state intervention lies in the real consequences of that intervention, which in most economic cases, gets bungled because people, particularly legislators do not understand economics. And particularly because in most economic cases the market can sort itself out. But one must not become dogmatic about it. Smoking or not smoking is not, however, so much of an economic issue (just as being law-abiding is not economics). It is more an issue of self-interest and how to accomodate such self-interest amongst the interest-groups in a free society. And such accomodation necessitates a political process. Just as the interest groups of apartheid or in slavery have had to be negotiated with, so too I believe, decades from now, smoking in public will be looked down upon as barbaric, even though the aprtheid whites and the slave owners of the South did not consider themselves barbaric at the time.

If you go to Italy, a country not generally known for being law-abiding, and where a ban has recently been passed, all smoking at public places has practically stopped. And no one is complaining, instead people have become considerate of non-smokers.

Sione April 22, 2006 at 10:34 am

Externalities? An arbitrary term designed to evade principle. There is a good article on the Mises site that deals with it. Check it.

People evaluate the factors necessary to come to their decisions. They determine the weighting of each factor and they make their decisions. The notion of externalities is a sly way of saying, “Hey! These people don’t value what I value.” That quickly leads to, “There needs to be a mechanism where I can make people value what I value.” And that soon leads to a justification for force etc. etc.

“Sustainable” is another such term.

This smoking business is such an easy issue to deal with. We all have knowledge about smoking and the places where people smoke. We also know about property. We have preferences. And best of all we know how to make decisions. Stay or leave. How easy is that?

Sione

Sione April 22, 2006 at 10:47 am

Robert

Don’t try to play the race card as an analogy unless you understand the principle behind what you are arguing.

I own a tavern. Should I decide that anyone called Robert who happens to have a European surname shall be prohibited from my tavern, that’s my business and you have no right to enter the premises. Tough!

Of course should some other fellow decide Pacific peoples are not allowed on his property, then that’s me banned. Fair enough. That’s his place. Simple stuff.

Why do you tie yourselves up in such mental knots attempting to justify forcing other people to act as you want? It’s a dishonest thing to do.

You have a choice when entering the premises of another person. You can stay or, if you don’t like it there, you can leave.

Sione

BillG (not Gates) April 22, 2006 at 10:51 am

Sione wrote:

“People evaluate the factors necessary to come to their decisions. They determine the weighting of each factor and they make their decisions. The notion of externalities is a sly way of saying, “Hey! These people don’t value what I value.” That quickly leads to, “There needs to be a mechanism where I can make people value what I value.” And that soon leads to a justification for force etc. etc.”

BillG responds:

in the case of externalities, the decision made between two parties subjects a third party to an economic obligation (force)…how can that ever by justified?

Sione Vatu April 22, 2006 at 10:52 am

BTW if you do enter someone else’s premises and they want you to leave, then you leave. It’s their place and not yours.

Sione

BillG (not Gates) April 22, 2006 at 10:59 am

Sione wrote:

“if you do enter someone else’s premises and they want you to leave, then you leave. It’s their place and not yours.”

BillG responds:

the logical conclusion being that if all locations are legally owned then you have no right to be anywhere at all unless you part with some of your wages under threat of force…do you believe we are born with rights – meaning not having to be purchased or gifted?

Sione April 22, 2006 at 10:59 am

BillG

Depends on context. Depends what arbitrary meaning you assign the term “externality.” Depends on why you determine “economic obligation” and “force” to have the same meaning.

Sione

BillG (not Gates) April 22, 2006 at 11:05 am

Sione wrote:

“Depends on context”

BillG responds:

can you please give me the context for the justification in obliging someone via the threat of force to be responsibile for the what transpires from two other independent party’s contract?

Peter April 22, 2006 at 11:16 am

The only real problem with apartheid is that it was enforced by the state. The answer, as always, is simply to get rid of the force in the equation, not to add more (e.g., forcing stupid racists to let black people use their toilets, or whatever).

Robert April 22, 2006 at 11:43 am

Peter,

This completely ignores the fact that apartheid existed long before it became institutionalised and enforced by the state. People really did believe and dare I say some still believe that some races are inferior to others. Merely getting rid of the force in the equation would also not have been enough in the transformation that South Africa has undergone.

Robert Wutscher April 22, 2006 at 12:05 pm

Sione,

you seem to be in complete denial of the assymetry of the relation between smokers and non-smokers. Your logic also does not answer the question posed by this assymetry, i.e., that smokers are not bothered by the non-smokers, but the non-smokers are bothered (and, even if only possibly as you may wish to contend, harmed) by the smokers; resulting in less choice in this world for the non-smokers.

Your answer to me appears to be simply tough to the non-smokers. You can’t help it that smokers can tolerate non-smokers, but the opposite does not hold. See, smokers are such tolerant people!

By the way, I am not forcing you to give up smoking, you are free to do so in your private space – if we could only agree on a definition of what a private and public space is – I am only forcing you to take non-smokers into consideration in your actions in just the same way as I would have the law force you not to steal from, harm or murder people in your tavern. For if smoking is harmful to non-smokers, does that not qualify as assault? You cannot get away with a sign outside your tavern saying, “you enter my tavern at your own risk of being assaulted by me” .

We are dealing with a social issue here, not economics and neither government intervention in economics. You seem to be hung up on ‘can do with my property what I want without regard for others who may pass over it’. And on this issue only a political resolution will settle the matter. You may be disgruntled after the ban, but you will get over it. Non-smokers do not have that luxury. They have to stay at home for life.

Sione April 22, 2006 at 12:08 pm

BillG

Now you are starting to change your definitions and context somewhat. Here we have the introduction of a “threat of force” instead of an “economic obligation.” They are different.

Returning to your original comment:- “in the case of externalities, the decision made between two parties subjects a third party to an economic obligation (force)…how can that ever by justified?”

How about this? I ask Siotu (the owner of the local telephone exchange) to refuse to handle your phone traffic. He agrees and informs you of the fact he will no longer switch your phone calls or handle your communications. Around here that would mean your business would be finished, especially once everyone else found out. I come to you and say I’ll handle your phone traffic but for triple the tariff. I route your communications through Sione’s exchange. Siotu and I split the fee.

Or what about this? You are an importer of gasoline and diesel to the islands. I approach the regional fuel wholesaler and sign an agreement with him. We start importing fuel into the islands. I know that we can sell the fuel well below your costs and keep doing it for long enough for you to go out of business. So now I come to you and inform you that one way or another you will be selling your facility at knock down prices. Either you sell it to me now or I shall wait until you go out of business and you’ll only get cents on the dollar. Meanwhile I inform the supplier and the bank of your precarious business position (they’d already know). We start discussions about what is to happen as your business collapses. [a situation exactly like this actually occurred recently- No! I wasn't involved]

Or what about this? Instead of competing with you in fuel the importation business I start making fuel in an anerobic digester. My new technology allows me to do this for well under your price, especially as people are paying me to collect the feedstock for my process from their properties (so my new technology gets me two income streams for the one process). Your profits evaporate etc. etc.

Note there is no force involved. Economic obigation perhaps, but not IOF.

Anyway I think what you’d be best to do is define your terms and context. As with the term “rights”, the term “externalities” can be used to mean many things. It is poorly defined.

My preference is to look to the situation, identify and evaluate the various factors and make a decision. There are factors which necessarily receive a higher weighting than others but that does not argue to the existnce of “externalities.” All it means is that some factors were not as imporant as others.

Sione

Sione Vatu April 22, 2006 at 12:20 pm

BillG

I do not accept that anyone is born with “rights” in the sense that they are something that you can possess or own.

Should all property be privately owned that does not mean you can’t legally be on or at a certain property. In each particular case it would depend on what the owner determined. Whether the owner wants you to pay a fee for being there or not is up to the owner of that particular property. I note that none of my friends, business colleagues or associates charge me for visiting. Nor do any of the local shop-keepers or store owners. The local movie theatre does charge, the boundahs!

You do not have a “right to tresspass.”

Sione

Sione Vatu April 22, 2006 at 12:26 pm

Robert

Just because I allow people access to my property that does not make it become their property. It is and remains MINE. All of it. So I determine whether smoking is allowed or not on MY property.

Of course the same applies for you and your property. There, you make the decisions.

Perfect symmetry!

Sione

BillG (not Gates) April 22, 2006 at 12:41 pm

Sione wrote:

“Now you are starting to change your definitions and context somewhat. Here we have the introduction of a “threat of force” instead of an “economic obligation.” They are different.”

BillG responds:

an economic obligation is either backed by force, as in the case of land where you either pay the owner the economic rent or be thrown off or it is imposed without any choice as in the case of negative externalities.

BillG (not Gates) April 22, 2006 at 12:51 pm

Sione wrote;

“I do not accept that anyone is born with “rights” in the sense that they are something that you can possess or own.”

BillG responds:

well therein lies the problem…

Sione wrote:

“Should all property be privately owned that does not mean you can’t legally be on or at a certain property.”

BillG responds:

not without that permission being gifted or purchased – hence no right of self-ownership is possible as I don’t believe a right needs to be purchased or gifted.

BillG (not Gates) April 22, 2006 at 12:52 pm

Sione wrote;

“I do not accept that anyone is born with “rights” in the sense that they are something that you can possess or own.”

BillG responds:

well therein lies the problem…

Sione wrote:

“Should all property be privately owned that does not mean you can’t legally be on or at a certain property.”

BillG responds:

not without that permission being gifted or purchased – hence no right of self-ownership is possible as I don’t believe a right needs to be purchased or gifted.

W.E. Schetlick April 22, 2006 at 1:18 pm

Whole libraries have been written on the idea of property and what it necessarily entails.

I do not support state-sponsored (forced) segregation or descrimination. No state should force anyone to association with anyone else, nor should it prohibit people from peaceably associating with anyone on one’s own property for any reason whasoever. Government-ordered and sponsored aparthied is a violation of property right. As for the government itself in iths dealings with citizens: to the extent that government exists, it must treat everyone the same (similarly situated, no invidious discrimination) in public matters before the law.

Private descrimination, of course, as an extention of one’s right to property (one of the sticks in the bundle) is not to be banned or interfered with by government.

Again, I would urge all of you to read a good comprehensive, legal text on the issue of property law and rights. Properly understood and applied, property rights define and delimit legitimate, arms-length human relationships and virtually eliminate conflict and its related resolution costs. When reading this book, pay particular attention to the law as it defines a trespass to property.

The problem with the law today is its intrusive positivism: the idea that some disembodied group like a “class” or a “society” has rights superior to those of property owners with respect to the peaceful use and disposal of the owners’ property. No such group rights exist with respect to the property of others.

For the umteenth time: this is not about smoking. It’s about the right of a property owner to maintain an alleged hazardous condition on his own property. The rest of the commentary I read in here is simply a [pardon] smokescreen.

banker April 22, 2006 at 1:26 pm

A person just does not materialize into this world out of thin air. The parents (or one of them) who bares the child must own some sort of property or at least rent some. And I doubt most people would leave a child to simply die if the parents of the child abandoned him/her.

I think that deals with the crutch of your argument.

BillG (not Gates) April 22, 2006 at 2:06 pm

person wrote:

“A person just does not materialize into this world out of thin air. The parents (or one of them) who bares the child must own some sort of property or at least rent some. And I doubt most people would leave a child to simply die if the parents of the child abandoned him/her.”

BillG responds:

yes a parent has custodial rights that require positive legal obligations until emancipation.

it still begs the question though…when do persons get the opportunity to excercise their right of self-ownership that does not need to be gifted or purchased?

banker April 22, 2006 at 4:03 pm

“it still begs the question though…when do persons get the opportunity to excercise their right of self-ownership that does not need to be gifted or purchased?”–B

Um, the same way you are exercising your right right now. Land ownership has worked since the beginning of time. A person cannot exist without someone “gifting” them with life. I think this point is obvious. So if a person is to be born, someone would have had to have birthed them. Thus, a baby is given the gift of life and some piece of property to exist. You cannot be born and not be given the gift of property. Impossible, unless babies are left to die in street or are incinerated.

W.E. Schetlick April 22, 2006 at 4:30 pm

You all must read professor and economist Walter Block’s treatment of the the issues you have raised respecting the origins of self-ownership; the rights of parents and others respecting children; and the overall impact that these relationships have on the ultimate nature of all legtimate property rights.

To locate the relevant material, go to WalterBlock.com and select his article entitled, “Libertarianism, positive obligations and property abandomnment: childrens’ rights”.

While you’re at it read his article entitled, Compromising the Uncompromisable: Speed Limits, Parades & Cigarettes”.

Most telling is his footnote in the “cigarette” answering the charge that cigarette smoking in a closed space is per se invasive (answering the “kick” scenario offeded by a some of you). Essentially, his simple argument is that even if second-hand smoke is per se invasive, one cannot complain of being invaded by it after having been warned of its existence on another’s private property any more than a boxer, having voluntarily gone in the ring, can complain of being punched”.

Yep. If you can’t take the heat in someone else’s kitchen, you needn’t go in the kitchen. But having gone in there, you can’t thereafter demand that the chef turn off the stove.

BillG (not Gates) April 22, 2006 at 4:33 pm

banker wrote:

“Land ownership has worked since the beginning of time”

BillG responds:

maybe for some (the entitled) but not for all as is my claim and the difficulties of your position soon to be discussed…

banker wrote:

“A person cannot exist without someone “gifting” them with life. I think this point is obvious. So if a person is to be born, someone would have had to have birthed them. Thus, a baby is given the gift of life and some piece of property to exist. You cannot be born and not be given the gift of property. Impossible, unless babies are left to die in street or are incinerated.”

BillG responds:

generally I agree that parents create a baby via their effort and that in utero the parents gift the life as the fetus begins the process of asserts their independence…that they can take that potential life up to a certain point in utero but not beyond as the child is recognized as having rights independent of their parents.

at birth we generally say that we are “born with certain rights” as a human being (although as I have shown it happens earlier) which has to mean that they do not have to be purchased or otherwise aquired like gifted…but because parents have custodial rights over the child and thus a positive obligation they are required to provide a legal place to *be* and the necessities of life (food, clothing, shelter, etc) up until emancipation.

but the question still remains…

how can you have a right to self-ownership at birth that does not require a purchase or gift yet no place legally to stand at emancipation free from tribute to another (either gifted from parents or purchased from a landowner)?

it is logically inconsistent…

Sione April 22, 2006 at 5:18 pm

BillG

So where do your cryptic references get us? Not very far unfortunately.

So far you’ve asserted the existence of “externalities.” These seem to occur when a “decision made between two parties subjects a third party to an economic obligation (force).”

You appear to consider this unjustifiable. I do not necessarily agree. In the examples I wrote about a justification is possible.

You assert economic obligation is force.

Subsequently you assert an economic obligation is “backed by force” or is an “externality” which is imposed without your choice. This is a somewhat different idea.

Context changes. Entities alter. Definitions remain vague.

This is getting to be circular discussion unfortunately. I suspect the “rights” discussion is headed down the same path.

It is difficult to come to a conclusion in the absence of your definitions and validations. Please do a small favour and explain your argument.

Sione

BillG (not Gates) April 22, 2006 at 5:26 pm

Sione wrote:

“Please do a small favour and explain your argument.”

BillG responds:

beyond Locke’s proviso, you can’t logically claim to have an absolute property right to ownership of land and simultaneously have an absolute property right to ownership of your labor as the natural extension of self-ownership.

they are mutually exclusive.

you either have to accept this or deny that there is a right to self-ownership that does not need to be purchased or otherwise acquired (gifted).

banker April 22, 2006 at 7:02 pm

“you either have to accept this or deny that there is a right to self-ownership that does not need to be purchased or otherwise acquired (gifted).”–B

“right to self ownership”, this does not exist. Two people cannot occupy the same spot at the same time. Both exercise their right to self ownership, yet it is physically impossible for two people to occupy the same space at the same time.

BillG (not Gates) April 22, 2006 at 8:01 pm

correct – one will literally have to force the other one off the spot or be required to pay a tribute to them backed by force…

there is a way to do it though…require the economic rent be shared equally and directly between neighbors in a community so no matter where anyone else locates – no one is economically harmed.

this is the closest ystem humanly possible to be born into a “state of nature” or in other words – simple justice via equal liberty.

banker April 22, 2006 at 9:19 pm

Economic rent? This is a subjective valuation by the two individuals in question. What if they both say they would rather die than not be able to occupy this specific spot? One person has to die. How is economic rent calculated then?

BillG (not Gates) April 22, 2006 at 9:31 pm

no competition – no economic rent – no violation of property rights to labor – no problems

W.E. Schetlick April 23, 2006 at 5:28 am

As you all have so clearly illustrated, the idea of rights to property can be obfuscated and trivialized by “going metaphysical”. “Rights in things” is deontological, not metaphysical.

The proper thrust and purview of the law is not based wholly upon pure logic, but rather experience and tradition.

Without the construct of mutually recognized and enforceable just entitlements, organized society as we know it would be impossible for any number of reasons. And a perfect system for defining just entitlements, to the best of my knowledge, has never been discovered and implemented.

Currently, we enjoy a theoretically satisfying (not perfect!) system of defining entitlements. A “first in time, first in right” rule is arbitrary, to be sure, but there is no valid reason (more logical, less arbitrary or utile) for using any other rule that I have seen thus far. (See Rothbard) This rule certainly easily resolves the problem of two people claiming the right to occupy the same space at the same time, for example. (BTW: That two people cannot occupy the same space is a metaphysical truth which has no bearing whatsoever upon deontological rights, including the right to self-ownership, which itself is not metaphysical derived and defined, but deontological.)

Reality imposes scarcity upon us. We must define property rules in order to sort out claims to the use of scarce resources accoording to some formula.

The argument set forth by those advocating the application of traditional property rules to the instant issue is simple: the conflicts related to second hand smoke (irrespective of whether it is deemed/considered per se invasive or de minimis)can and should be resolved by the simple application of traditional property rules.

Clearly, there is no special reason to depart from these rules or to make any kind of exception to the rule.

The only reason there is any debate over this question is because governments have passed inconsistent arbitrary rules that have abrogated traditional property rules by making “public” or quasi-public that which was always considered private. Governments have blurred whatever clear lines of right have been recognized by and through the application of property rules; thus, the issue of whether smoking is “permitted” in closed rooms has become one of warring political factions in a public arena.

Hobbes trumps Locke. Very bad. No holds barred, and the transient majority with the most political clout wins (for now). Whoever can wrest control of the political majority tomorrow can make another rule, this time ordering the death of anyone thinking about smoking, even in their own home.

W.E. Schetlick April 23, 2006 at 8:03 am

I am going to assume (without more) that most of those commenting in here were not “of age” in or around the time when the original “public accomodation” laws were passed. (If I am assuming incorrectly, ignore the rest of this.)

The original “public accomodation” laws were promulgated and sold on the basis that they were a limited exception to established property rules in order to remedy past and prevent future racial discrimination against a persecuted minority.

Those who argued for these exceptions (not changes!) in the established property rules promised that the exceptions set forth in the law would be LIMITED to preventing racial discrimination.

Skeptics and experienced public policy analysts aregued that future generations of interventionists and statists would use this “exception” to eat up the rule, and that even if you could justify the exception (which you can’t), the law would have set its feet on a completely new and slippery slope which would lead to an ever-shinking area of private ownership and the ever-decreasing application of traditional property rules.

The smoking ban represents the realization of the simple predictions of the skeptics and anti-statists. Exceptions upon exceptions were offered to the property rules until the rules were no longer the rules but the exception. The exceptions have, in fact, eaten up the traditional rules.

What is interesting is that some people in Texas who have been arrested for “public drunkenness” while sitting in a bar (not driving or threatening anyone) have interposed the defense that the bar was “private property”; therefore, the law against “public drunkenness” could not be enforced there. The police and law enforcement officials, of course, understand the bar to be a place of “public accomodation” FOR ALL PURPOSES now.

Of course, what none of the parties in that controversy understand is that the law against “public drunkenness” is very old and was passed when the idea of “public property” was limited in scope to very few places, and certainly not to bars and liquor establishments which were clearly identified as “private” when the prohibition was passed.

So the exception has become the rule. How do we know this? Well, town legislative bodies in Texas which have laws prohibiting “public drunkenness” and that have been enforcing same in bars are now suggesting EXCEPTIONS TO THE RULE OF PUBLIC ACCOMODATION so that people can be drunk in bars!!!!!!!!!!

So there we have it. The original property rule has changed, having been eaten up the numerous exceptions. No where is there any such thing as private property anymore. The “public” owns all property and permits some private exceptions . . . at least for now.

BillG (not Gates) April 23, 2006 at 8:44 am

WE Schetlick wrote:

“The “public” owns all property and permits some private exceptions . . . ”

BillG responds:

the word “public” has more than a few different meanings…

for instance some people use it to mean collective property while others use it to mean property owned in common.

yet these two meanings are actually quite different as one constitutes a group right and the other an individual right.

how are you using the term?

W.E. Schetlick April 23, 2006 at 9:17 am

Private property has several forms or tenancy and you will have to take a law course in property to understand them all. You are simply confounded and confused.

I will simply and always use the “property” to mean exclusive dominion, use, control of anything, any piece of real property, inchoate claim, chose in action, etc.

W.W. Schetlick April 23, 2006 at 9:41 am

Group ownership tenancies of property are still “private” ownership. “Public ownership” is anything that the government exercises sole dominion, use and control over.

Thus, in the case of the air in the bar, government’s banning smoking in a bar is the government claiming the air as its property, able to exclude the bar owner from the use and control of it. By passing laws regulating the non invasive use of anything previously privately owned . . . like the act of selling or trading that which one owns (a property right), the government or “public” basically is “taking” that “property” for itself.

BillG (not Gates) April 23, 2006 at 9:49 am

the questions was: how are you using the term “public” not “property”

in NH I have an individual equal access opportunity right to use all bodies of water over 20 acres so long as my access/use does not infringe on any other individual’s right to the same.

all surface bodies of water over 20 acres and all ground water is therefore owned in common with the state as the trustee charged with a fiduciary duty to protect it as an integrated common asset for today’s use/access and future generations and to insure individual rights are upheld.

if instead it were owned collectively by the state as the delegated authority my rights would be very different.

BillG (not Gates) April 23, 2006 at 9:55 am

WE Schetlick wrote:

“Thus, in the case of the air in the bar, government’s banning smoking in a bar is the government claiming the air as its property, able to exclude the bar owner from the use and control of it.”

BillG responds:

no, maybe it is excercising it’s rightful role of protecting the equal access opportunity rights of other individuals to use the air as a sink up until the sustainable yield (Locke’s proviso) which is being infringed upon by the smokers resulting in them being subject to negative externalities.

Banker April 23, 2006 at 11:26 am

Economic rent? This is a subjective valuation by the two individuals in question. What if they both say they would rather die than not be able to occupy this specific spot? One person has to die. How is economic rent calculated then?
Posted by: banker at April 22, 2006 09:19 PM

no competition – no economic rent – no violation of property rights to labor – no problems
Posted by: BillG (not Gates) at April 22, 2006 09:31 PM

If your idea of “social justice” is two people trying to kill each other for the right to occupy a single space, then there is no further reason for me to post on this matter.

BillG (not Gates) April 23, 2006 at 11:35 am

Banker wrote:

“If your idea of “social justice” is two people trying to kill each other for the right to occupy a single space, then there is no further reason for me to post on this matter.”

BillG responds:

my idea of social justice based on equal liberty is for the economic rent that attaches to all locations as people compete for access to be returned directly in equal amounts to all those within the community who are being excluded.

in essence, no matter where any one else chooses to locate no one is economically harmed.

then people will naturally refrain from killing each other over any specific location…

W.E. Schetlick April 23, 2006 at 6:22 pm

Like I said, you need to read a book on property law. You’re way, way off. Whatever you think the government SHOULD DO has absolutely nothing to do with traditional property rules, which by the way, are supposed to constrain government as well (which is why you have the 5th Amendment and every state has a state constitution corelative).

I suppose you can misconstrue this issue any which way you want to arrive at any particular interpretation of “social justice”. But . . .

Ownership is the right to exercise sole dominion and control over any scarce resource. Public ownership of a resource is where the government exercises sole dominion and control over a scarce resource.

Ultimately this means that government can dictate the use of the resource; whatever it ultimately does with it (no matter the ends for which it is used), the resource is publicly owned. In so doing, and unless the resource is severable and sold by the owner to the government, the exercise by the government of dominion and control (meaning the right/power to exclude all others) is a “taking” which is otherwise prosecutable/actionable at law behavior if done by private individuals for theft and/conversion or trespass.

In the case of the air inside the bar, the government has taken the power of sole dominion and control away from the previous rightful owner. Given that air is not really severable as a separate resource, one should argue that the government has effectively taken the entire property through regulation.

Taking is legal, especially regulatory taking (but of course immoral and wholly unjustifiable under traditional proeprty rules), and the law generally provides that the bar air made “public” through inverse condemnation/regulation has to be taken for a “public use” and for which “just compensation” must be paid. Naturally, and in order to make room for the Regulatory State, the courts have simply ruled that the “taking” is not a taking. [Poof] There goes your property. Was that good for you?

So you can purchase a fee simple absolute in a bar or other place of “public accomodation” and the state can literally and legally take complete dominion and control of your premises via various regulation without paying you a penny, leaving you with a mere naked title (a deed to nothing) with no rights to use, sell or dispose of the actual corpus of the property at all. But of course, you still get the property tax bill . . .

This is what now passes for “social justice”. Yep. Sure does sound like justice to me.

As far as I’m concerned, there’s little more that can be said of any substance on this particular issue. The smoking bans in bars are unjustified and unjustifiable under any understanding of traditional property rules. Whatever other rules anyone else thinks SHOULD apply based upon some other fanciful idea is interesting, but not dispositive.

W.E. Schetlick April 23, 2006 at 6:35 pm

You can seach any reporter anywhere on the palnet and you will not find one citation to the “Locke Proviso” as a basis for deciding any property las dispute. The Locke Proviso is a theoretical constuct, not a part of traditional property law.

Traditional property law provides that a person who either claims previously unowned property or purchases previosly owned property has sole dominion and control of the space, air etc. within the confines of that property. (For open property, the “ad coelum” doctrine is the old law. Thus, with your deed of purchase and the interest conveyed, you had sole dominion over the air inside the confines of the property and any structures erected thereon. There is no proviso in the deed of purchase or exceptions for government regulation.

BillG (not Gates) April 23, 2006 at 7:10 pm

W.E. Schetlick wrote:

“Ownership is the right to exercise sole dominion and control over any scarce resource. Public ownership of a resource is where the government exercises sole dominion and control over a scarce resource.”

BillG responds:

and I understand why someone posting on an Austrian blog would completely miss the fact that common ownership is a synthesis between individual and collective ownership because it was the neo-classical paradigm that the Austrian school is thoroughly entrenched in that purposely conflated the natural commons for private capital.

by treating the natural commons as an individual equal access right so long as one does not infringe on the equal access rights of any other individual we can address social justice (the opposite of government granted privilege allowing enclosure of the commons) from a logically consistent philosophical basis (self-ownership) where the inevitable negative externalities from private enclosure beyond the sustinable yield (Locke’s proviso) forces a cost onto individuals excluded from the enclosure that violate their absolute rights to their labor.

W.E. Schetlick wrote:

“Whatever you think the government SHOULD DO has absolutely nothing to do with traditional property rules”

BillG responds:

and I am once again telling you that constitutionally in the state of NH all the ground water and all surface water over 20 acres is owned in common with the state acting as the public trustee.

I have the individual right backed by the state to access/use any of the lakes here or the groundwater so long as my access/use does not infringe on any other…it is a just use of state force to insure my right of access is protected.

why couldn’t the air within the bar be treated the exact same way as the water – owned in common??

Bob S April 24, 2006 at 12:31 am

I agree with property rights of the owner but the problem with not restricting where smoking can occur is that smokers are drug addicts and will smoke whenever their urges compell them. Tobacco smoke is a hazardouse substance and should be avoided if you want to maintain good health. If laws restricting smoking are not established smokers will smoke everywhere. This would restrict people who choose not to breath second hand smoke from visiting any public or privately owned establishment.

Bruno Bondarovsky April 24, 2006 at 1:25 am

Hi everyone.
What an interesting (and big) discussion.

I understand this is a really asymetrical issue and I also understand this is a very unique situation: not like a kick, spray or any other agression.

In Brazil, we have a law that obligate us to have our sitten belt fasten while driving, although the only person risked to be harmed is the infractor himself. It was considered that warning was not enought. Do you have something like that in USA?

Also, our constitution has many articles concerning racism issues and no one is allowed to ban or prohibit any person from entering or being at his business. The motivation for the creations of these laws were the existance of old laws in slavery time that prohibits black people from entering in some places. There’s also some influence from what happened to the jews in Germany before World War II. I understand in the States you can prohibit anyone from entering in your own bar for any reason you may have (eg: You may not like latins), right? In Brazil, you would be arrested for crime of racism.

About the second-hand smoke issues, my town Rio de Janeiro has a law that every restaurant must have non-smoking area or be a non-smoking restaurant. Since it is very bad for business to deny smokers, the only non-smokers restaurant I ever knew just change its politics and his central air conditionair system (he had to have two separate units). Actually, most restaurants have a small smoking area. About ten years ago, politicians made a law that used to prohibit smoking in any closed crowded place like clubs and bars. The police tried to work on that but it was just impossible since nobody respected the law. Maybe the law still exists but nobody cares (this hapens a lot around here): clubs and bars are definitely smoking places. And, as I pointed, restaurants happened to be more democratic places.

Best Regards,
Bruno.
Rio de Janeiro
Brazil

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