Morality and Strategy in Politicising Tobacco Use PDF

5 Morality and strategy in politicising tobacco use: criminal law, public health and philosophy John Coggon Introduction Tobacco, a substance that is known to be hig...

5 Morality and strategy in politicising tobacco use: criminal law, public health and philosophy John Coggon Introduction Tobacco, a substance that is known to be highly toxic and to provide (in most regards) only relatively modest pleasure, yet which is lawfully sold and used, seems in many ways to be a peculiar product to be per- mitted for consumption. It has thus assumed a special place in debates about public health and regulation.1 In many countries, tobacco can be seen to produce a unique combination of regulatory challenges.2 These challenges are both practical and theoretical. If we were free to fall into a philosopher’s thought experiment and see how we would design things if starting from i rst principles, these challenges would perhaps be straightforward.3 Many would probably reason that tobacco is a product that morally robust political institutions would simply never allow on to the market in the i rst place, at least given an approach that would permit legal controls over health-affecting substances. This sort of perspective is well expressed by Emily Jackson, who says: It is undoubtedly true that if an alien from another planet was to sit down with a blank sheet of paper and a pile of evidence-based research on the harmfulness Many thanks are due to A. M. Viens for comments on an earlier draft. This chapter is informed by collaborations with the population health ethics group led by Jean Shoveller, University of British Columbia, Vancouver, Canada, and particularly by ongoing col- laborations with Sarah Cunningham-Burley, Kate Frohlich, and Sarah Viehbeck. 1 See Kirill Danishevskiy and Martin McKee, ‘Tobacco: A Product like Any Other?’, (2011) 6 Health Economics, Policy and Law 265. Note, although my language may sug- gest otherwise, my focus in this chapter is on tobacco that is smoked (whether in a cigarette or by other means), as opposed to products such as snuff. 2 In this chapter, the discussion focuses on questions pertinent to wealthy ‘Western’ nations. The World Health Organization statistics show that over 80% of the world’s smokers live in low- and middle-income countries: www.who.int/tobacco/mpower/tobacco_facts/en/ index.html: last accessed 4 January 2013. See also Action on Smoking and Health, ‘Fact Sheet on Tobacco and the Developing World’, (August 2009), available at www.ash.org. uk/iles/documents/ASH_126.pdf: last accessed 4 January 2013. 3 E.g., by designing our institutions behind a ‘veil of ignorance’, as per the argument in John Rawls, A Theory of Justice – Revised edn (Oxford University Press, 1999). 79 https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  80 John Coggon of a range of substances, from heroin to alcohol, and crack cocaine to tobacco, it is very unlikely that they would designate substances as either legal or illegal in the same way as we currently do, if that judgement turned only on the harm the substance causes to its users.4 But, as Jackson emphasises in the same paper, we cannot usefully start from unbridled i rst principles. Our entry point to debating tobacco regulation is a social system where a complex and inconsistent mix of norms, expectations, values, and political and regulatory possibilities are already embedded. We have to account for what Elen Stokes desig- nates the ‘regulatory heritage’ that is bequeathed to governments and lawmakers.5 Furthermore, whilst it is common to make a philosophical evaluation of criminal laws by reference to harm – and often within a Millian para- digm of preventing harm to others rather than oneself – it is far from clear that such a theoretical framework relects in practice, or indeed should relect, the basis of (criminal) law making.6 Our approach to ana- lysing how tobacco should be regulated must be able to accommodate concerns for philosophically robust ideals, but needs to be applicable in ‘real world’ situations: understanding the social and political contexts is as important as establishing powerful evaluative postulations.7 In order to explore tobacco regulation, and what criminal law theory and public health ethics might bring, this chapter comprises three main sections. The i rst considers the philosophy and authority of criminal law and public health. I argue that theorists cannot usefully begin with criminal regulation or a ‘public health perspective’. Rather, a prior pol- itical theory is necessary. Nevertheless, the argument demonstrates the sorts of matters that must be considered when proposing criminal regu- lation. It also suggests different means of engaging in public health eth- ics, and their effects on policy debates. The following section moves the focus to tobacco, looking at strategy in arguments about how smoking 4 Emily Jackson, ‘Commentary 2: Criminalising the Supply of Tobacco’, (2011) 6 Health Economics, Policy and Law 279 –81, at 279. 5 This is a general regulatory theory developed by Stokes. See, e.g., Elen Stokes, ‘ Nanotechnology and the Products of Inherited Regulation’, (2012) 39 Journal of Law and Society 93. 6 Consider, for example, the excellent and wide-ranging analysis in Pamela R. Ferguson, ‘“Smoke gets in your eyes … ”: The Criminalisation of Smoking in Enclosed Public Places, The Harm Principle and the Limits of the Criminal Sanction’, (2010) 31 Legal Studies 259. 7 For an expansive argument for how this proposition is substantiated and how it would work, see John Coggon, What Makes Health Public? A Critical Evaluation of Moral, Legal, and Political Claims in Public Health (Cambridge University Press, 2012). See also Jonathan Wolff, ‘Harm and Hypocrisy: Have We Got it Wrong on Drugs?’, (2007) 14 Public Policy Research 126. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  Morality and strategy in politicising tobacco use 81 might be regulated. It becomes clear that criminal law has a role, but not a particularly central one, in the wider project of ‘de-normalisation’. It is also shown that even those who do draw from a ‘philosophy of public health’ must be able to relate their arguments to a wider polit- ical agenda. The i nal section, therefore, presents an overview of the groundwork that must be made in the political argument (using a very widely conceived understanding of liberalism that houses a wide spec- trum of theories). By looking at how theorists argue about the public or private nature of smoking, the argument suggests the means by which (apparently) philosophically defensible policy developments will occur. The points are related to criminal regulation, but must be taken within a wider context of regulatory developments that involve a programme that largely does not rely on or resort to criminalisation. Towards an understanding of the ‘jurisdictions’ of criminal law and of public health Whilst it would not be possible in this chapter to give more than the most supericial overview of philosophy and criminal law or philosophy and public health, there is some value in making a few general observa- tions about the intersections of philosophy with crime and with public health. By understanding some of the ideas implicated in a conceptual framing of criminal law and of public health, and the theoretical con- straints, overlaps, and limitations of each, we can begin to i nd our way to a useful analysis. In this section, I therefore present some founda- tional and substantive questions in normative theorising about criminal law and public health, situating these within analyses of the normative underpinnings of law and policy more widely. The general points made in relation to politics and philosophy provide the necessary theoretical basis for our assessment of tobacco regulation, to which the chapter moves in the third section. Criminal law and philosophy In a paper entitled ‘Towards a Theory of Criminal Law?’, Antony Duff presents a valuable outline of matters that are pertinent in any ex ante project of theorising about criminal law, as well as giving some detail on substantive and procedural issues within the frame of a liberal, repub- lican system.8 Duff’s enumeration of various questions for criminal law 8 R. A. Duff, ‘Towards a Theory of Criminal Law?’, (2010) LXXXIV Proceedings of the Aristotelian Society Supplementary Volume 1. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  82 John Coggon theory is fascinating. He does not pretend to explore or answer them all, and nor do I in this chapter. I do, however, offer in list form a dis- tillation of Duff’s points, with a view to exposing the types of issues that must fall under the spotlight in philosophical analysis of criminal law, philosophy, and public health (including as they would relate to tobacco regulation).9 Important matters in constructing, substantiat- ing, and seeking to apply a theory of criminal law include: Recognising that account must be given ‘not merely [to] the scope, content and structure of the substantive criminal law, and the legisla- tive processes through which crimes are created or dei ned, but also the activities of those who enforce the criminal law; the criminal pro- cess of investigation and trial; and the punishments to which those whom that process convicts become liable’;10 Responding to the need not to beg the question whether criminal law is something that has any rightful place in human society: should we have criminal law at all?;11 Acknowledging the fact of clashing and incommensurable values that will inhibit debates on how acceptably and satisfactorily criminal (and other) law can rationally resolve social conl icts;12 Asking whether the theory of criminal law under development is uni- versal or limited to a particular jurisdiction in a particular place and time (with due account given too to supranational and international legal systems);13 Representing criminal law as just ‘one of the organs of the state’, and thus accounting for the ‘proper aims and duties of the state, and explain[ing] how this institution [i.e., criminal law] can serve those aims or assist in the discharge of those duties’;14 Providing and substantiating the reasons for criminalising conduct (in Duff’s argument, this entails establishing that a matter is a public wrong, as opposed for example to a simple moral wrong, or a harm that would simply be most eficiently prevented through criminal regulation);15 Providing a procedure to call those suspected of committing crimes to account;16 Accounting for concerns, particularly in the United Kingdom and United States, about over-criminalisation, by recognising that ‘a 9 I acknowledge that this sort of list is necessarily crude and simplistic, and robs nuance from Duff’s rich presentation. I present the ideas as I do for concision and as much breadth as possible. 10 Duff, ‘Towards a Theory of Criminal Law?’, p. 1. 11 Ibid. pp. 1–2. 12 Ibid. 13 Ibid. pp. 2–7. 14 Ibid. p. 3. 15 Ibid. pp. 7–10. 16 Ibid. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  Morality and strategy in politicising tobacco use 83 normative theory of criminal law must say something about its proper scope – if not directly about what kinds of conduct should or should not be criminalized, at least about the considerations that should bear on questions of criminalization, and about the procedures through which such questions should be settled’.17 My aim in the current chapter is not to defend a particular theory of criminal law (such as Duff’s republicanism), or to take a single such the- ory and apply it to tobacco regulation (for example to ask ‘how would we regulate tobacco if we were committed to a particular understanding of liberal republicanism?’).18 Rather, by presenting these general points from Duff’s paper, I aim to offer a more wide-reaching analysis that allows us to consider common problems and challenges in philosophical analyses of criminal law and public health. My summary here of key things that must be done if a satisfactory theory of criminal law is to be developed and applied demonstrates clearly the breadth of thought that is required before we can recommend the employment of criminal law as a philosophically defensible regulatory strategy. Duff’s points also give us the clear theoretical context for our theorising: we do not start with criminal law; the norms that tell us about the validity of using criminal regulation must be derived from a more foundational political theory. To emphasise, accepting the importance of the points listed above does not require that we commit ourselves to any speciic political theory. We may differ on substance and reasons, whilst agreeing on the neces- sary theoretical ground that must be covered. For example, the points are as pertinent to an advocate for a narrow libertarianism founded on widely laissez-faire economic and moral theory as they would be to a defender of something rather more constraining.19 The important point is that to say something intelligent about how criminal law might serve the ends of a particular regulatory and legal system, it is i rst necessary to conceive of the wholesale normativity that would support that pol- itical system. Although criminal law is sometimes characterised as an area of law that, if not uniquely than particularly, raises questions about morality, it cannot be usefully studied in a vacuum. The same is true of public health. So, before moving to debates on tobacco regulation, it is important also to look at public health and philosophy, and briely to 17 Ibid. p. 17 (and see pp. 17–24). 18 In Part III of Coggon, What Makes Health Public? I present and defend the theory of political liberalism that I would defend and apply to questions of law and regulation. For an analysis that applies a particular theory of justice to tobacco regulation, see Kristin Voigt, ‘Smoking and Social Justice’, (2010) 3 Public Health Ethics 91. 19 For an overview of a spectrum of political philosophies and their bearings on debates in public health ethics, see Coggon, What Makes Health Public?, ch. 8. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  84 John Coggon consider the relationship between political theories and their practical application. Public health and philosophy This book serves in part as testament to the wide and growing fascin- ation with the idea of ‘public health ethics’. Scholars and practitioners from many ields, as well as many people engaged in policy, have found a great deal to think about under the rubric of public health. Within this surge in interest is a move to explore in detail ideas both about public health’s having an immanent and guiding moral philosophy (in contemporary analyses within the United Kingdom, this is often seen to be a utilitarian ethic), and questions of whether alternative moral theories would be more itting and desirable as guides for public health policies and practices.20 The idea, however, that public health is something that can have an immanent and guiding moral philosophy is something that repays relection. Reference to the ethics ‘of’ public health presents two dis- tinct issues that it well under the considerations of ‘jurisdiction’ here. First, by assigning one ethic to public health, we necessarily exclude others and there must be a discussion of the reasons for assigning an ethic to it, whether it be a form of utilitarianism, social justice, or something else. Second, within the wider social, political, and legal framing, we need to understand how pervasive might be the author- ity of public health even given its intrinsic ethic: what ‘jurisdiction’ does public health have over our lives and political institutions? I will present some thoughts about how public health itself might be dei ned, before exploring these points and relating them to public health law. Public health famously carries many meanings. As such, it is some- times unclear what an author means when discussing ‘public health’ or ‘public health measures’, or writing prescriptions about what ‘pub- lic health should do’. It is thus common in many leading theoretical works on public health to i nd an overview of distinct dei nitions, often followed by a defence of the author’s own preferred understanding – which is sometimes one of the different potential dei nitions,21 or some- times a dei nition that seeks to capture commonalities from across 20 See Anthony Kessel, Air, the Environment and Public Health (Cambridge University Press, 2006). 21 E.g., Mark Rothstein, ‘Rethinking the Meaning of Public Health’, (2002) 40 Journal of Law, Medicine and Ethics 144. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  Morality and strategy in politicising tobacco use 85 dei nitions.22 Furthermore, the reasons that theorists cite for limiting their dei nition of public health can differ quite radically. Some suggest pragmatic limitations.23 Others argue in favour of limits to public health practices based on principle.24 Others still, in contrast, argue that prin- ciple demands a very broad understanding be given to public health.25 In my own work, I have suggested that working to a singular dei nition is often counterproductive, and that those using the term public health should rather aim to be clear in a given instance about quite what they mean. Whilst conceptual clarity is important in argument, I see little ultimate reward in establishing the ‘true’ meaning of public health as if that would, once found, settle everything. The important questions ultimately relate to establishing defensible practical imperatives rather than delimiting the scope of any individual concept.26 In that vein, I would stress that of particular note for the purposes of this chapter are the following two senses, which are often given to public health:27 Sometimes public health denotes a profession or collection of profes- sions, where expertise and practice relate to understanding and/or promoting population health; Sometimes public health denotes the work of government. This can be taken to refer to the narrow function of an explicitly designated public health department, or it can imply work across government aimed at the protection and promotion of people’s health. Such work can be undertaken by public bodies, but also by or in collaboration with ‘partners’, for example from industry. An attempt to i nd an internal ethic that might be attributed to either of these senses may draw us in various directions, and look to various sources. Bruce Jennings makes a useful presentation of how distinct ethical theories and different political theories may correspond with one another and relate to public health programmes. He then distin- guishes four different ‘discourses’ of public health ethics.28 In so doing, 22 E.g., Wendy Parmet, Populations, Public Health, and the Law ( Washington DC , Georgetown University Press, 2009). 23 E.g., Rothstein, ‘Rethinking the Meaning of Public Health’; Jonny Anomaly, ‘Public Health and Public Goods’, (2011) 4 Public Health Ethics 251. 24 E.g., Richard Epstein, ‘In Defense of The “Old” Public Health’, (2004) 69 Brooklyn Law Review 1421. 25 E.g., Lawrence O. Gostin and Gregg M. Bloche, ‘The Politics of Public Health: A Response to Epstein’, (2003) 46 Perspectives in Biology and Medicine S160. 26 Coggon, What Makes Health Public?, ch. 3. 27 In ibid. I present seven categories of meaning or use given to the term public health, from which these two are drawn. 28 Bruce Jennings, ‘Frameworks for Ethics in Public Health’, (2003) IX Acta Bioethica 165. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  86 John Coggon he allows us to see the different things that might be ‘done’ with public health ethics, and also the different ends of people who might try to construct a morality of public health. It is instructive therefore to con- sider Jennings’ categorisations. Of themselves they separate important points, and they also permit us to recognise the theoretical strengths and limitations to arguments based on apparent public health imperatives. First, Jennings describes ‘professional ethics’. In his characterisation, this entails ‘the values and standards that have been developed by the practitioners and leaders of a given profession over a long period of time, and to identify those values most salient and inherent in the pro- fession itself’.29 Related to public health, this will include looking at the principles that guide the profession, and the ‘mission’ of those working in public health. Jennings notes that one dificulty with this approach is that it is hard to conceive of ‘public health as a single, uniied profes- sion today’.30 Jennings’ second characterisation is of ‘advocacy ethics’. His framing here is born of the observation that a characteristic of contemporary public health is ‘less theoretical or academic than practical and adver- sarial’.31 In this sense, Jennings sees public health ethics as a practical agenda directed towards improving health across a population in order to achieve greater equality and social justice. He is clear that this ethical approach is geared more to achieving particular political ends than to the art of rational persuasion. Given this, he cautions that public health ethics as advocacy ‘has little to calm and reassure those outside the ield who may question the legitimacy of public health’s use of its govern- mental or social power’.32 To push past this agenda-driven model, Jennings goes on to describe a more detached public health ethics, which he labels an ‘applied’ or ‘practical ethics’ approach. This approach comes from outside the pro- fession and its history and draws from abstract principle. A weakness that Jennings perceives here, however, is a tendency for applied ethics only to relate to individualistic concerns. It thus suffers an inadequacy in dealing with collective concepts such as ‘the public’, ‘society’, and ‘the community’, or collective values such as ‘the common good’ or ‘the pub- lic interest’, which are all pertinent in the discussion of public health.33 Jennings therefore proposes a further, i nal perspective that he argues can combine the best of the other three. He labels this ‘critical ethics’. Critical public health ethics would be informed by the his- tory and practice of public health as a profession. But it would also, 29 30 Ibid. p. 172. Ibid. 31 Ibid. p. 173. 32 33 Ibid. Ibid. pp. 173– 4. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  Morality and strategy in politicising tobacco use 87 given a concern for applied ethics, draw from wider social values to inform understandings of the nature of moral problems that might be addressed through public health programmes. And in relation to advo- cacy ethics, Jennings’ critical ethics would require ‘the discussion of ethics and public health policy to be genuinely public or civic endeav- ors’.34 For him this means: Not the advocacy of a well-intentioned elite on behalf of needy clients, but the search for forums and programs of meaningful participation, open deliber- ation, and civic problem-solving and capacity building.35 These ideas relate usefully as we develop an understanding of the phil- osophy of public health and its implications for tobacco policy. The hint to a political agenda, and Jennings’ cautions about its legitimacy or authority, must be a central theme: just as Duff reminds us that we can- not evaluate a criminal law theory without knowing and evaluating the wider political framework within which it would operate, so the same goes for potential public health measures. This point perhaps bears greater emphasis in relation to public health than criminal law. A survey of the literature shows that the more inluential dei nitions of public health and public health law contain the agenda of public health as advocacy ethics. As such, they carry an implicit political philosophy and agenda that must be exam- ined before it can be accepted as the all-things-considered basis of policy.36 This is apparent when we consider a claim made by Larry Gostin and Lesley Stone about public health professionals, and then take Larry Gostin’s dei nition of public health law. Gostin and Stone tell us that: [The] public health community takes it as an act of faith that health must be society’s overarching value.37 And Gostin dei nes public health law as: [T]he study of the legal powers and duties of the state, in collaboration with its partners … to ensure the conditions for people to be healthy …, and of the 34 35 Ibid. p. 174. Ibid. 36 See, e.g., the highly inluential dei nition of public health in C-E.A. Winslow, ‘The Untilled Fields of Public Health’, (1920) 51 Science 22. See also Marcel Verweij and Angus Dawson, ‘The meaning of “public” in “public health”’, in Angus Dawson and Marcel Verweij (eds.), Ethics, Prevention, and Public Health (Oxford University Press, 2007), pp. 13–29. 37 Lawrence O. Gostin and Lesley Stone, ‘Health of the people: the highest law?’ in Angus Dawson and Marcel Verweij (eds.), Ethics, Prevention, and Public Health (Oxford University Press, 2007), pp. 59–77, at p. 60. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  88 John Coggon limitations on the power of the state to constrain for the common good the autonomy, privacy, liberty, proprietary, and other legally protected interests of individuals. The prime objective of public health law is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice.38 The constraints referred to in Gostin’s dei nition of public health law must temper any argument made on the basis of a ‘pure public health’ analysis. In other words, even if ‘public health’ tells us that tobacco should be outlawed, and even if analysis based in legal sociology tells us that criminalisation could achieve this successfully, we cannot take for granted that prohibition is the right and proper thing. Before exploring such questions in speciic relation to tobacco, I will briely explain my view of the relationship between moral and real world constraints on regulatory progress. Ideal goals and real world problems In the introduction to this chapter I endorsed Jackson’s view that when devising regulatory strategy on tobacco (and her point is of course a more general one) we need to account for the practical, social, political, and legal realities that we face in this society at this time. I have gone on to argue that we cannot, in an assessment of criminal law, public health, and tobacco, start either from an isolated criminal law theory or a ‘public health perspective’ on the value of permitting or prohibiting smoking. My position is that we need a foundational political theory, and using that we can assess imperatives relating to the institution and enforcement of criminal measures, and the health problems that war- rant political remediation. However, leaving my position unqualiied suggests my own slip into a form of ideal-type theorising that fails to account for ‘real world’ concerns. For ethics to be applied (i.e., actually to guide action), as opposed to purely evaluative (i.e., simply to allow us to assess a meas- ure according to some moral standard), the understanding and accom- modation of practical limitations must be possible. It is important to emphasise, therefore, that before an analysis is useful, it must be able to account for relevant considerations drawn from social and other sciences. It must also be able to accommodate the practical fact that we currently live in a society that cannot be said to be committed to 38 Lawrence O. Gostin, Public Health Law – Power, Duty, Restraint , 2nd edn ( Berkeley, University of California Press, 2008), p. 4, emphasis added. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  Morality and strategy in politicising tobacco use 89 a single system of morality; moral pluralism is a practical fact of our shared lives. Nor do people and political institutions act only accord- ing to moral imperatives, even as they see them. In other work on these matters, I have drawn extensively from the approaches of John Gray and Raymond Geuss, stressing the relevance in political philosophy of lessons drawn from disciplines such as history, sociology, anthropol- ogy, psychology, and political science.39 Context is key, and as such it makes public health ethics as naturally multidisciplinary as the science of public health.40 I would thus conclude this section by emphasising my i rm agreement with the ideas I have attributed here to Jackson, and being clear that considerable account must be made, even in a norma- tive argument, for the practical possibilities in the political and social system under analysis. Jonathan Wolff articulates well the wisdom of this position, saying that: It would be absurd to argue that there is no place for speculation about ideals – of course this is necessary, otherwise there would be nothing to inspire or dir- ect change. However, speculation about ideals is the start, not the i nish, and if philosophers want to have an inluence on the direction policy takes, then there is no alternative to accepting that the status quo does have a privileged position in the debate.41 With that and the further points made above in mind, let us move now to consider arguments bearing on tobacco regulation. Criminal law and tobacco control The i rst half of this chapter has explained why, in basic deliberations on tobacco regulation, our normative start point in analysis needs to be a comprehensive political theory; we cannot begin either with crim- inality or public health and just ‘work from there’. It is only given the foundational political theory that we can move towards understanding and assessing imperatives concerning law and policy, thinking about the weight that should be given to scientiically demonstrable harms amongst other things. Our political theory, informed by an understand- ing of practical possibility, is what will determine what can legitimately 39 See Coggon, What Makes Health Public? The primary works of Gray and Geuss that I draw from are, respectively, John Gray, Two Faces of Liberalism (Cambridge, Polity Press, 2000), and Raymond Geuss, Philosophy and Real Politics ( Princeton University Press, 2008). 40 See also Kessel, Air, the Environment and Public Health, Introduction. 41 Wolff, ‘Harm and Hypocrisy’, p. 133. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  90 John Coggon be done to ameliorate health, what side-constraints there are against actions, and what means are and are not viably permissible. Ultimately it will depend on the speciic nature of the theory that would guide each of our respective evaluations, but as a general claim it is quite arguable that whatever a protagonist’s view about political phil- osophy, some policies will be advisable given concerns for health, and at times criminal regulation will be the proper means to achieve the end.42 In this sense, imperatives can be derived from concerns for health, and the door is open (in the i rst instance, albeit that it may have to be closed following analysis) to achieving these through the criminal law. We must, furthermore, be careful not to exceptionalise the idea of criminal law mechanisms when considering their viability in relation to tobacco control. This is due to a point that cuts in two directions: whilst some criminal law measures that support the protection of health give rise to very meaningful objections based on moral stigmatisation (think, for example, of criminal law’s application to the transmission of HIV), other measures are generally seen as quite mundane as regards such stigmatisation (think, for example, of some road trafic offences); and on the other side of things, that a measure is not founded in crim- inal law does not automatically mean either that it fails to give rise to completely equivalent moral concern about matters such as unjustii- able stigmatisation (think, for example, of anti-social behaviour orders) or that the State cannot have profound impact through institutional coercion on the life choices of identiiable groups of its citizens (think, for example, of blanket bans on smoking in secure psychiatric units).43 It bears stressing too that the apparently more benign, non-coercive, non-criminal approaches to regulation encapsulated, for example, in ‘nudge theory’ or ‘libertarian paternalism’44 give rise to their own quite profound moral concern, regardless of questions such as social or moral 42 There is a band of thinkers who might not be reached by this general claim: see e.g. Petr Skrabanek, The Death of Humane Medicine and the Rise of Coercive Healthism ( Bury St Edmunds, St Edmundsbury Press, 1994). Other sorts of libertarian theo- rists, such as Richard Epstein, whose work was noted above, would not resist the use of criminal law measures in the containment of disease in a public health emergency, even whilst they would generally resist any State-instituted measure aimed at ameli- orating health. 43 See further John Coggon, ‘All to the good? Criminality, politics, and public health’, in Amel Alghrani, Rebecca Bennett, and Suzanne Ost (eds.), Bioethics, Medicine and the Criminal Law Volume I. The Criminal Law and Bioethical Conlict: Walking the Tightrope (Cambridge University Press, 2013), pp. 251–64. 44 Cass Sunstein and Richard Thaler, ‘Libertarian Paternalism is not an Oxymoron’, (2003) 70 The University of Chicago Law Review 1159; Richard Thaler and Cass Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness ( London, Penguin Books, 2009). https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  Morality and strategy in politicising tobacco use 91 stigmatisation.45 So, when assessing the appropriateness of instituting criminal law measures we need to think of their viability and legitim- acy given other regulatory possibilities, but also to recognise that non- coercive, non-criminal alternatives may give rise to equal, or potentially even greater, controversy. Given these points, let us move to tobacco policy. I am not aware that anyone has seriously proposed criminalisation as a singular response to calls to reduce – and even eventually elimin- ate – smoking. I have seen no serious proposal that simply says: ‘Ban smoking, and lock up those who lout the ban.’ Whilst coercive meas- ures emerge, outright criminalisation of smoking is not recommended as a means to bring an end to tobacco use. Commenting on the World Health Organization’s Framework Convention on Tobacco Control,46 Jackson, for example, highlights that a range of measures is required, such as advertising bans and provision of nicotine cessation services.47 In what is a brief but convincing argument, she suggests that as a mat- ter of strategy, beginning with criminalisation would be unlikely to work on various levels. Effective strategy requires the change of social norms: the de-normalisation of smoking. From a practical perspective, Jackson, in harmony with many others, is clear that such a change of norms would not be reached through blunt criminalisation. The best method on Jackson’s view is to crush demand through a process that requires both immediate and progressively instituted measures: The best long-term solution would clearly be to eliminate the desire to smoke, and to make smoking socially unacceptable, as has happened fairly effectively with drink driving. If demand continues to exist, people will i nd ways to access cigarettes, even if that has to be done on the black market, rather than in their local corner shop … The widespread prohibition on smoking in public spaces has the long-term health goal of making smoking so socially awkward and inconvenient that people will be deterred from starting in the i rst place.48 And, she concludes: Past experience with illegal drugs suggests that criminalisation does not stop consumption; it simply makes it more dangerous, both to the users themselves and to society as a whole.49 45 See Karen Yeung, ‘ Nudge as Fudge’, (2012) 75 Modern Law Review 122. See also the chapters in this volume by Roger Brownsword, and Robert G. Lee and Mark Stallworthy. 46 See www.who.int/fctc/en/: last accessed 20 December 2012. 47 Jackson, ‘Commentary 2’, p. 281. 48 Ibid. 49 Ibid. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  92 John Coggon Jackson’s argument is presented in a short comment that responds to a proposal advanced by Kirill Danishevskiy and Martin McKee. Danishevskiy and McKee argue that it is wrong that tobacco should be treated as different to other dangerous products. They recognise, however, that pushing for an outright prohibition would not work. So they advance a strategy that would, through criminal regulation, push towards the goal of eliminating tobacco use. Given Jennings’ framing above, we might categorise theirs as an argument founded on public health ethics advocacy. We thus might also accept the pinch of salt that Jennings recommends in relation to such an approach, when we read their claim that: From a public health perspective, the arguments for eliminating [tobacco] are compelling, as were the arguments for eliminating smallpox or polio. Yet for reasons that remain unclear to us, the public health community has displayed a marked lack of ambition, seeking merely to control it. We are suficiently real- istic to recognise that we may not live to see the consignment of tobacco to the dustbin of history but that should not prevent us from starting the process.50 As explained above, it is not unusual of Danishevskiy and McKee to imply that there is a political imperative derivable from ‘public health’, or for them to view a strong advocacy (or even activist) role for those who work in public health.51 But such a view presents a problem: what is ‘public health’ that it can claim to know the way policy should be framed, not just ‘from a public health perspective’, but all things considered? In other words, what authority does public health have that its perspective should be accepted as speaking the proper direction of policy at all?52 Unless we are to advocate living in a ‘health theocracy’,53 it is not obvious that we should be persuaded about what constitutes sound policy on the back of arguments made given a ‘public health perspective’, or indeed that it is desirable that public health practitioners should be lobbying to control tobacco. There is not space in this chapter further to explore these questions, but it is crucial to raise them. Whilst ‘the public health community’ may be seen to present a benign, perhaps sage, voice in policy debates, 50 Kirill Danishevskiy and Martin McKee ‘Response’, (2011) 6 Health Economics, Policy and Law 283 –85, at 284. 51 Cf. Gostin and Stone, ‘Health of the people’; Tony Delamothe, ‘Let us Now Praise Famous Men and Women’, (2012) 345 British Medical Journal e7605. 52 Cf. John Coggon, ‘Does Public Health have a Personality (and if so, Does it Matter if You Don’t Like it)?’, (2010) 19 Cambridge Quarterly of Healthcare Ethics 235. 53 This term is used by Jennings: see Bruce Jennings, ‘Community in public health ethics’, in Richard Ashcroft, Angus Dawson, Heather Draper, and John McMillan (eds.), Principles of Health Care Ethics, 2nd edn (Chichester, Wiley, 2007), pp. 543–48, at p. 545. See also Coggon, What Makes Health Public?, pp. 194–200. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  Morality and strategy in politicising tobacco use 93 considerations that will offend a ‘public health perspective’ will also have a legitimate place. Advocacy ethics in this debate must be able to account for that.54 The point that I wish to explore further in the remainder of this chap- ter relates to policy strategy and legitimacy. Regardless of the public health community’s acceptance of the need to eliminate tobacco use, Danishevskiy and McKee’s proposal is clearly designed to overcome a political situation wherein outright prohibition in the immediate, and even medium, term is impossible. We cannot stop all smokers from smok- ing, but by placing carefully regulated restrictions on sales we can ‘grand- father’ smoking, permitting existing smokers to smoke whilst making it hard, perhaps impossible, for new smokers to emerge. So Danishevskiy and McKee’s practical suggestion is for a law that would see criminal sanctions attached not to smoking, but to the unlicensed distribution of products that contain nicotine.55 They see their programme as working over decades towards a gradual but complete ban. Tobacco addiction would be treated like addiction to narcotics: ‘Those unable to quit would be given a license to obtain nicotine for personal use only, drawing on the experience of drug substitution programs operating in many countries.’56 Danishevskiy and McKee contend that such an approach could be developed on the basis of existing laws. (The speciic jurisdictional focus of their paper is Russia, but, as they argue, their point would have wider application.) Notwithstanding received wisdoms on the law- fulness of selling tobacco products, their argument is that consumer- protection laws ought to be interpreted as proscribing the lawfulness of selling tobacco. In the following section, I will work from this as an example of a strategy for making some aspects of tobacco use a ‘public’ matter. I will take it too that this serves as a good example of a criminal law measure that would be unrolled alongside other, non-criminal, ‘de- normalising’ measures. The regulatory gradualism that is advocated by Danishevskiy and McKee and others, I will suggest, works within a liberal paradigm that distinguishes what is private and what is public, with the latter being made ‘fair game’ for regulators. By increasing the public nature of smoking over time – by politicising what was previously a private choice – jurisdiction over tobacco moves in a steady direction towards prohibition. Thinking about Danishevskiy and McKee’s pro- posal, alongside other potential measures for curbing tobacco use, I aim to invite discussion on the tactics involved in making smoking a public 54 See also Ronald Bayer, ‘Stigma and the Ethics of Public Health: Not Can We but Should We’, (2008) 67 Social Sciences and Medicine 463. 55 Danishevskiy and McKee, ‘Tobacco: A Product like Any Other?’, pp. 269–70. 56 Ibid., p. 270. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  94 John Coggon issue, the legitimacy of different claims about smoking’s public nature, and the desirability and coherence of progressions in making smoking public. The discussion will be presented against philosophical argu- ment regarding political liberalism and the ethics of smoking. Morality, governance, and tobacco: making the private public Other-regarding arguments and smoking Published in 1989, Robert E. Goodin’s essay ‘The Ethics of Smoking’ sets arguments beside a now dated social and political background. Nevertheless, both in regard to philosophical argument and potential legal and regulatory options, the importance of his analysis endures.57 Goodin’s thesis is based on an intricate and detailed inquiry that con- siders empirical understandings of the harms and effects of smoking, commercial and social practices, law and regulation (including self-reg- ulation, of citizens and of industry), and normative arguments based on various philosophical theories. Whilst a reader of his paper may be immediately struck by the radical changes in social values and mores since 1989, and their consequences for realisable tobacco policy, that reader may also be taken by what Goodin presents as a failure of philo- sophical understanding that many will see as still persisting to some considerable extent almost a quarter of a century later; the idea that smoking is best conceived as a private matter. This idea, from which many analyses of the morality of smoking derive, and upon which argu- ments about the political morality of State control of tobacco consump- tion are built, is lawed, Goodin argues. His essay is thus a response to the following: Philosophically, smoking has long been regarded as a paradigmatically private- regarding vice, best treated as such [: … ] a private vice harming only smokers themselves; and it is therefore best left to their personal discretion and mod- eration. Smoking has thus long been regarded as something best controlled through codes of etiquette and social pressure, and completely unsuited to any very much more serious social sanctions.58 I do not propose here to go through Goodin’s analysis, or to respond to or update his individual arguments. He is right that the philosophical debates have tended to be presented in the way that he suggests, and 57 Robert E. Goodin, ‘The Ethics of Smoking ’, (1989) 99 Ethics 574. 58 Ibid. p. 574. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  Morality and strategy in politicising tobacco use 95 that the reasons he gives undermine a claim that smoking simply should be conceived as a purely self-regarding matter. However, the burden of my concern is to consider in what ways smoking can and cannot be considered a private matter. My interest is not simply with the ethics of smoking, but the political morality of smoking. Just as it is wrong to say that smoking is absolutely private, so it would be wrong (and to be clear this is not Goodin’s suggestion) to suppose that smoking is in no sense private. By assessing how smoking is private, we come to under- stand why and in what ways it is open to regulation, including criminal regulation. As a basic matter of liberal principle, that one person’s conduct affects another party, harmfully or otherwise, or that we can demonstrate an interaction between persons that might be described in terms of con- cepts such as obligations, interests, harms, beneits, and rights, does not automatically suggest any rise of political obligations, interests, and so on. That a person’s smoking may have effects on others – even morally relevant effects – does not of itself preclude tobacco consump- tion’s being a private matter. ‘Private’ is not a synonym for ‘exclusively self-regarding’. At least in relation to debates on policy that are cast within the frame of a liberal political system, ‘private’ is the counter to ‘public’. By designating something as ‘private’ we are putting it outside the bounds of regulation. By saying that something is ‘public’, we are saying that it is in some senses open to regulation. (Of course there can be public protections of the rights and powers necessary to protect priv- acy.) The important point is that if we say smoking is public or private in a given instance, we are expressing a conclusion rather than a start point. It is not good enough in philosophical argument to beg such a fundamental question.59 We should not start from the proposition that smoking is (or is not) private. Rather, we need to explore whether or not it is private. And to do so, we will work with theoretical positions on the meaning of privacy. It is therefore useful to consider different senses of privacy that take particular effect in law and regulation. This will allow us to distinguish different sorts of claims about tobacco regulation, and map more easily the potential directions of policy-strategy. 59 See Raymond Geuss, Public Goods, Private Goods ( Princeton, Princeton University Press, 2003). We might note in passing that Duff makes the same point in the devel- opment of his argument cited above. Given the weight of republican arguments in contemporary theories of public health ethics, Duff’s essay is particularly to be recommended to scholars interested in the intersections of public health ethics and criminal law theory. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  96 John Coggon Concepts of privacy, and smoking becoming a public matter To repeat, saying that something is private is to express a conclusion. And, in fact, it is often to express one of various possible conclusions. There are – quite coherently, if also sometimes confusingly – various senses of privacy, meaning that something can be ‘private’ in one sense whilst ‘public’ in another. This of course gives rise to overall tensions when we are then called to evaluate whether that thing should be open to regulation. The more public something is in one sense, the less nor- mative effect will have its ‘privateness’ in another sense. (For example, many heinous acts of violence happen ‘in private’, but this presents no morally sound bar to their being public offences.) Prior to being able to make a judgement about whether something is, all things considered, best considered public, it is important to be clear about the different senses in which the matter under question might be private. There are several methods by which this conceptual work has been done. I i nd it useful to draw from jurisprudence relating to Article 8 of the European Convention on Human Rights; the right to respect for private and family life.60 According to this approach, we may separate privacy claims into two broad categories. The i rst looks just to the individual, and may be labelled ‘decisional privacy’. The second places the individual within a political society, and looks to people’s effect on each other; here the concerns are with ‘physical’, or ‘zonal privacy’, and with ‘relational privacy’. I will consider each in turn, and its bearing on arguments relating to tobacco policy. Decisional privacy and smoking In its essence, decisional privacy may be thought of in terms of Isaiah Berlin’s concept of ‘positive liberty’.61 This is the freedom of agents to reason for themselves, and to take their own decisions. Rational agency is what permits us to be subject to things such as praise, blame, reward, deserts, and so on. Our moral freedom relies on such a concept, as do many legal rights and obligations (for example ‘private law’ obligations, 60 For a more detailed presentation of the following analysis, see Coggon, What Makes Health Public?, ch. 2. Much of the conceptual work here draws from a reading of the High Court judgment in the Rampton smokers’ case: R (G and B) v. Nottinghamshire Healthcare NHS Trust; R (N) v. Secretary of State for Health EWHC 1096 (Admin). See also John Coggon, ‘Public Health, Responsibility, and English Law’, (2009) 17 Medical Law Review 127; Neil Allen, ‘A Human Right to Smoke?’, (2008) 158 New Law Journal 886. 61 Isaiah Berlin, ‘Two Concepts of Liberty’, in Isaiah Berlin, Four Essays on Liberty (Oxford University Press, 1969). https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  Morality and strategy in politicising tobacco use 97 criminal liability, public duties). Baldly stated, decisional privacy is indi- vidual autonomy. And on liberal accounts, that is something that ought to be protected and respected, albeit that constraints may be placed on what people are free to choose to do.62 Matters are complicated, however, when we take these philosophical ideas and look at human agents, because there are limits to all people’s rational agency. People act irrationally and unthinkingly. And people suffer susceptibility to (I use the terms loosely) vices and weaknesses of the will; they may be motivated by ultimately destructive short-term gain, be slaves to an addiction, and so on. As such, there is clear scope for questioning whether any given decision is ‘really free’. If we profess a commitment to respecting persons because of their capacity for auton- omy, then we can also claim to be serving rather than disrespecting agents if we disregard, perhaps even overrule, their non-autonomous, albeit expressly made, choices. Broadly, theories of what constitutes an autonomous decision may be separated into three categories.63 We might just look to basic self-direc- tion, regardless of how thoughtful it is or according to what system of rationality a decision is made. Alternatively, we might look to decisions that an actor would endorse according to some ‘second-order’ stand- ard; a decision is judged to be autonomous when it accords with what the actor would, on relection, want to choose according to his or her own value system.64 Finally, autonomous decisions may only be those that accord with some particular system of reasoning; for example, a universally recognisable and acceptable system of moral law, or an objective system of values that would be recognised by any reasonable person.65 In debates on the politicising of smoking, all sides seem able to found claims on concepts related to decisional privacy. Let us i rst consider prohibitionist arguments. As we have seen, Danishevskiy and McKee seek to frame their practical regulation, and its normative justiications, within the frame of addiction. By using an approach that ‘medicalises’ 62 As this chapter does not defend a particular political philosophy, I do not here present ideas of the different sorts of reasons or theories that have been advanced to explain when and what side-constraints constitute legitimate interferences with people’s free- dom to act according to their autonomous choices. 63 See John Coggon, ‘ Varied and Principled Understandings of Autonomy in English Law: Justii able Inconsistency or Blinkered Moralism?’, (2007) 15 Health Care Analysis 235. 64 On the distinction between the i rst- and second-order desires discussed in these i rst two conceptions of autonomy, see Harry G. Frankfurt, ‘Freedom of the Will and the Concept of the Person’, (1971) 68 Journal of Philosophy 5. 65 On the former, think e.g. of Kantian autonomy; on the latter, think e.g. of natural law theories. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  98 John Coggon existing users (making them into patients and victims) and criminalises unlicensed sellers (making exploitative villains of them), Danishevskiy and McKee’s position removes the sting from concerns about unwar- ranted State meddling. Smoking is a public matter, because people’s decisional privacy is ultimately enhanced by protection from this ‘choice’: as the decision to smoke is non-autonomous, we help, rather than offend, the smoker by interfering with his or her apparent decision to smoke. Similarly, justiications presented as protecting children are seen as advancing their autonomy through State interference.66 The l ip side of this is found in the advocacy employed by protago- nists such as the Freedom Organisation for the Right to Enjoy Smoking Tobacco (Forest) – the self-dubbed ‘voice and friend of the smoker’.67 Forest’s activism attaches much to the idea that smoking simply is a free choice for adults, and the group’s website contains repeated references to the demands of respect and toleration in a democratic society. In this line of thinking, restrictive laws that would be advanced as based on decisional privacy infantilise and stigmatise smokers indefensibly. Protection of people’s autonomy requires a State that reins in much of its health promotion policy.68 Forest thus make an explicit call for the reversal of an agenda that would both de-normalise tobacco consump- tion and criminalise the sale of tobacco to adults. It is clear, then, that theoretical arguments can be made from either side about whether smoking is a public concern in relation to decisional questions. Whilst some may stick to the ‘old’ philosophy, holding that the choice to smoke is a personal, private matter, others argue that it is not a true matter of personal choice, and thus regulation is permissible. In measures such as Danishevskiy and McKee’s, furthermore, we see efforts to make the matter public without criminalising the smokers themselves. Physical and relational privacy and smoking As well as overcoming questions of decisional privacy, which take people as atomised, autonomous individuals, participants in debates on tobacco policy must also frame their arguments given people’s places within a structured, political society. This involves two important conceptual 66 See, e.g., British Medical Association, Behaviour Change, Public Health and the Role of the State – BMA Position Statement ( BMA Ethics Department, London, 2012). 67 See www.forestonline.org: last accessed 4 January 2013. 68 Contrast also the (unsuccessful) arguments in the Rampton Smokers’ case, rooted in part in autonomy rights found in the human right to respect for private and family life. See: R v. Nottinghamshire Healthcare NHS Trust , and R (on the application of G) v. Nottinghamshire Healthcare NHS Trust EWCA Civ 795. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  Morality and strategy in politicising tobacco use 99 ideas. The i rst concerns people’s physical freedom in a shared society; what allows us to say that something happens ‘in public’? The second is about people’s normative relationships with one another. A liberal society must be committed to ideals such as equality of rights and freedoms. This means that, in establishing whether a right or liberty should be protected legally, we need to know not simply that allowing some conduct would be justiiable given a particular individual’s per- sonal circumstances, but that it could justiiably be made the subject of a general right or liberty.69 Considering i rst of all physical privacy we i nd the most obvious route to making smoking a public matter. Across many jurisdictions we have seen a wave of laws prohibiting smoking in enclosed, and in some cases in open, public spaces, in places of work, and so on. Such rules, notwithstanding some doubts about claims concerning the harmful- ness of second-hand smoke, are relatively easy to defend philosophic- ally. If I choose to smoke whilst giving a lecture, I subject others to an unnecessary risk of harm. No doubt arguments can be made to defend my freedom to do this, but the weight of argument speaks against it. Greater complexity arises in regard to zonal privacy, however, when we look at cases closer to the fringes. There are places that can be easily argued to be public (lecture theatres, public libraries, court rooms, etc.). But there are also places where, for different reasons, the point may be arguable either way. For example, what about a law criminalising smok- ing in cars carrying children? On the one hand, cars are generally pri- vately owned. On the other, the road is a public space. Furthermore, the State has duties to protect children’s welfare, even when, at times, this means disregarding parents’ decisions. Or what about people whose ‘home’ is not privately owned, but is a State-run institution. Whilst, in England, prisoners are allowed to smoke, other groups, such as detained psychiatric patients, face a complete ban on smoking.70 Is it easier for the State to justify an intrusion on their decisional privacy because they live in a ‘more public’ place than most private citizens? Winning the arguments such as these, one way or the other, means achieving a grip on how public smoking is, and thus gaining access to regulatory means (including criminal law) to limit freedoms to smoke.71 And we come i nally to relational privacy and smoking. This is per- haps the least explored (though it has not gone unexplored) area of 69 See Coggon, What Makes Health Public?, pp. 142–48. 70 See the Health Act 2006, s. 3, and The Smoke-free (Exemptions and Vehicles) Regulations 2007. 71 Again, see the Rampton smokers’ case: R v. Nottinghamshire Healthcare NHS Trust , and R (on the application of G) v. Nottinghamshire Healthcare NHS Trust. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  100 John Coggon philosophical analysis of smoking regulation. A prohibitionist argu- ment based on these grounds would take something along the following lines: a person may convincingly claim decisional privacy on smoking, which is to say that he may be able convincingly to argue that smoking is his personal choice; that person may also be able to make a convin- cing claim that he will smoke only in places that should be considered private; nevertheless, the State cannot allow him the right to smoke without also affording that right to people who will be unjustiiably harmed by it. (There are direct analogies here with arguments that have been levelled against allowing, for example, a right to assisted sui- cide for adults who have decision-making capacity, are suffering from a progressive and ultimately terminal illness, who are unable to end their own lives, and who would be able to receive assistance from a willing third party. The prohibition that they face is not based on direct pater- nalistic concerns (moral or otherwise), but on concerns about harms to others who would be endangered by possession of the same right.72) To argue that rights to smoke cannot be satisfactorily narrowed may become an increasingly important method of argument in mak- ing smoking a public matter. Examples include attempts not to expose impressionable, non-smoking audiences such as teenagers to media that present smoking in a positive light. And in relation to Danishevskiy and McKee’s proposal, the point is clear: the ‘right’ to smoke is only afforded to those who are receiving treatment. There is no general pre- sumption in favour of smokers; no right that is generalisable to smokers and non-smokers alike that any and all should be free to buy cigarettes. Rather, the smokers stand in relation simply to other ‘addicts’, and the sellers of tobacco stand simply in relation to other authorised vendors. Conclusions Smoking, at least in the United Kingdom at the start of 2013, can be viewed as at once a personal, social, medical, political, and legal (including criminal) phenomenon. This range of adjectives speaks to the array of methods used in the debates on making smoking public. It is through the sort of creeping politicisation outlined in the second half of this chapter that lobbyists will be able to overcome ‘liberal objec- tions’ to regulations that would limit, and may ultimately outlaw, smok- ing.73 As a question of political strategy, such an approach appears to be 72 See e.g. Pretty v. UK (2002) 35 EHRR 1. 73 The British Medical Association’s comment piece, Behaviour Change, Public Health and the Role of the State, works essentially on these terms, and claims to aim at the target of 2035 for a complete ban on smoking in the UK. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press  Morality and strategy in politicising tobacco use 101 more productive than a blunt, overtly partisan attempt to overcome the prevailing political morality simply by noting that its norms clash with those ‘of’ public health. The regulatory methods considered in this chapter suggest that criminal law will only have a marginal role to play. The process of de- normalisation requires a multifarious strategy. To be – or at least to seem – philosophically defensible, part of that strategy requires victor- ies in claims about why a particular aspect of tobacco control or use is the business of the State; in establishing that it is a public, rather than a private, matter. In this chapter I have sought to demonstrate why that is the important philosophical battleground (as opposed, for example, to proving that the philosophy of public health tells us not to allow smoking). Examining in detail which potential regulatory methods and arguments are or are not permissible demands engagement with, and prior defence of, a particular political morality. Achieving consensus on the ground that must be covered is much easier than i nding agreement on what the dominant political morality will i nally be. It is no surprise that activists on all sides seem to be playing this as a long game. https://doi.org/10.1017/CBO9781139137065.005 Published online by Cambridge University Press