Where There's Smoke, You Don't Have to Be
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
Comments (147)
Excellent article. I live in NYC, and the good news is first, many bars are beginning to just ignore the smoking ban. Second, Bloomberg's no smoking laws created some terrific underground bars - not too hard to find - where you can smoke cigarettes; we call them "cig-easies".
The hypocrisy of the non-smoking laws are evident in the fact that the upper class cigar bars - those frequented by Bloomberg and other political parasites - are allowed to smoke all they please. It's only the working masses who, seemingly, can't handle smoke. Massa’ Bloomberg and all his parasite cronies can breathe it in just fine.
This is just one example where disobedience to the political elite is not only morally correct, but beneficial. Laws like these make me, when I watch JFK, root for Lee Harvey Oswald.
Published: April 21, 2006 9:09 AM
A potential flaw in your argument is that your restaurant is likely a sole proprietorship or partnership. The casinos and most restaurant chains etc are limited liability corporations. These are a government created entity that were lobbied for by business people that didn't want to be personally liable for their own business decisions.
Funny that a sole proprietor doesn't have this same luxury.
So you allow the state into business to protect you from your own decisions then complain when they take over.
Legend may be correct. Blood sucking vampires can't come in unless you invite them.
Published: April 21, 2006 9:18 AM
and yet.. another example of the superior culture of the french... the best part was at the end..
But Attrazic, the restaurant association leader and bar owner, said that in addition to threatening the livelihoods of the owners of small rural bars and cafes, a smoking ban would strip the French of an important part of their culture.
"Is it shameful to smoke?" Attrazic asked. "I think that smoking a good cigar with a tasty Armagnac is part of our lifestyle."
http://www.washingtonpost.com/wp-dyn/content/article/2006/04/20/AR2006042001918_pf.html
Published: April 21, 2006 9:51 AM
Mr Weilacher makes a good point regarding corporations.
Incentives being powerful and undeniable, I've often argued that better business decisions would be made if there were no government protection of personal assets. After all, how could it be otherwise?
None of this, of course, justifies property rights violations by the state, in this instance smoking bans.
Published: April 21, 2006 10:12 AM
Excellent article Ninos.
In Alberta, many local governments are banning smoking in all "public" places. I have pointed out to elected officials, using similar arguments to yours, how their act of agression reduces the use of one's private property and ultimatly leads not to prosperty, but to poverty. While politicians sometimes begrudgingly acknowledge this argument, to them it is a side issue -- smoking must be banned because it is dangerous, dirty and costly and most people are in favour of the bans.
With regard to smoking, politics is currently trumping economics. However, citizens in Alberta will eventually pay a high price as the roots of this sort of central planning of the German variety spread further and constrict individual freedoms.
Published: April 21, 2006 10:18 AM
Great article. You should set up track-backs for us other bloggers!
Published: April 21, 2006 10:24 AM
Pray there will be more and more graduate students (or any other kind thereof) like Ninos P. Malek. I am a reformed cigarette smoker, with a quaint needlepointed admonition centered on the mantle in my living room. It reads: "If you are smoking in here, you had better be on fire." By this means, I have handled my property rights to my satisfaction.
Malek's writing is brilliant, the way he can so clearly reason and succinctly handle the language: ". . . when people learn the difference between the words 'public' and 'private,' then maybe the incredible waste of time and taxpayer dollars that go toward smoking legislation will stop. Maybe then the government will stop interfering with property rights and start protecting them."
I repeat it because it is beautiful!!!!!!
Published: April 21, 2006 10:25 AM
Nice piece and reasonably well-argued, but the "property rights" argument won't go anywhere because of the ongoing legal notion of "public accomodation" and the denial by the courts of equal legal status to claims based upon "property rights" as opposed to "fundamental rights".
If property rights were treated the same as personal rights by the courts, the property right would still be "regulated", but the regulation could only be constitutional if it were narrowly tailored to protect an important state interest.
Assuming "public health" would be the operative state interest, the extent of constitutional constitutional regulation would be the requirement that the bar owner or restaurant owner post a conspicuous sign warning potential patrons and employees of the alleged health hazards related to exposure to ambient, second-hand smoke.
Unfortunately, courts usually do not protect bar owners and others with ownership interests in places of "public accomodation" from all forms of regulation affecting their property rights.
I haven't yet the argument that the smoking ban represents a form of compensable, regulatory taking, and I think that argument may be more availing these days . . .
Published: April 21, 2006 11:06 AM
If smokers have the freedom to spoil others enjoyment of public places then I should have freedom to spray mace in their faces and spoil their enjoyment. There is absolutely no difference.
Published: April 21, 2006 11:19 AM
I propose a law against farting in public. It smells worse than ciggybutt smoke and produces greenhouse gasses. Chronic farters should be required to wear fart collection devises and recycle their output.
Published: April 21, 2006 11:27 AM
Mr. Sieber:
Perhaps you haven't read the articel carefully. I do not speak for the author in this regard, but I think it fair to assume that he'd agree . . . he is saying that bars and restaurants are not "public" places, but rather "private" places . . . the law mistreats/mischaracterizes them as "public".
As to the rest of your comment: if I am standing in a public place where and when I am otherwise permitted to be and otherwise minding my own business, and you consider my presence as "spoiling your enjoyment" of that public place, should you be able to spray mace in my face and be protected by the law? If "yes" what law or moral theory of law can you cite to support your position?
Published: April 21, 2006 11:29 AM
Your article reflects the attitutde of the founder of your school. Your self interest lies in wanting to smoke your cigar regardless of to whom you might cause a health problem. The argument about the right to smoke or not to smoke is ludicrous. The real problem is reckless endangerment. If your selfish need to appease your addiction comes ahead of the welfare of others, you not only deserve not the right to smoke, but the right to exist. The LAW says, "Do unto others as you would have others do unto you." By smoking where it harms others, you have proven that you have no respect for others. By smoking at all proves that you have no respect for yourself. So, smoke if you must, but obey the real LAW, not the codes, rules, and regulations of corrupt man.
Published: April 21, 2006 11:46 AM
The smoking ban is a simple thing of the right to CHOOSE. Staff and non-smokers cannot choose to stop breathing, but smokers CAN CHOOSE where to smoke.
At the moment staff is at highest risk, and non-smoking guests are discriminated, so a smoking ban is simple, fair and liberal.
Of course a bar or pub are "private", but my own car is also private but that does not mean i have the right to drive with 200miles/h through every red light.
Opening a business, doesn't allow me to hurt my staff. The argument, staff could leave is ridiculous. If you use this argument, we don't need any laws because you could say that snipers can shoot at others, and the people could simply stay home, so no one will be hurt!
In a free and democratic society everybody should DECIDE BY HIS OWN, without smokers tellimg them what to do, to leave or to quit a job. Thats the fact.
So if smokers want to smoke at workplaces of others, non-smokers should also be able to kick smokers in the face at their workplace; if smokers don't like that, they can simply quit their job or leave if somebody want to have fun with kicking! Great solution!
Its no question that toxic smoke at workplaces is against human rights, and the freedom of choice not to smoke. Smokers are free to smoke everywhere, except workplaces of others, so whats all the fuss about? A bit tolerance is the keyword, so simply accept the CHOICE of adults not to smoke. Smokers can smoke, and non-smokers are not forced to, so a smoking ban takes no rights away.
Published: April 21, 2006 11:57 AM
I am beginning to think that people are not bothering to actually read the materials presented before commenting on them.
I don't speak for the author, but I believe he would make no argument that anyone has a discrete "right to smoke". If people get together and voluntarily decide they want to smoke or be in the presence of those who smoke, how is that "reckless endangerment" any more than a boxing match is "reckless endangerment" to the voluntary participants?
No one is claiming that exposure to second-hand smoke may or may not be hazardous; rather, the author is claiming that he has the right to allow people to enter his own private property and engage in risky behavior provided that they know of the risk and choose to stay notwithstanding. This is no different than the risk that legal cigar bar owners are allowed to offer, but not "cigarette bar" owners.
So far as we can tell, the reason that cigar bar owners are allowed to continue allowing smoking is because a rule prohibiting smoking would surely have a deleterious effect on his business . . . given that the bottom line for cigar bars is based upon sale and consumption of cigars . . .
But this is beside the point if the issue is "health" and not property, right?
Published: April 21, 2006 12:01 PM
Straw men are lightweights.
To the best of my knowledge, there are no places where liquor or food is served where the owner claims that she will kick customers or employees in the face whenever she pleases, and that the employees and customers will have to assume the risk of injury.
There is a good reason for that: no one would either work in such a place or patronize such a place.
However, there are people who are apparently willing to accept the relatively smaller risk of being exposed to second-hand smoke in exchange for salary or going to any particular bar or restaurant to eat or drink. That such people don't have to do so is just fine by all accounts. Those that are risk averse or who are simply annoyed by smoke can go to restaurants and bars that do not permit smoking.
Published: April 21, 2006 12:14 PM
Martin:
You're confused, unfortunately.
The smoking ban is a simple thing of the right to CHOOSE. Staff and non-smokers cannot choose to stop breathing, but smokers CAN CHOOSE where to smoke.
The can CHOOSE to not work there or eat there. Nothing forces them to CHOOSE to do either. If you see smoke and don't like it, run, don't stay.
At the moment staff is at highest risk, and non-smoking guests are discriminated, so a smoking ban is simple, fair and liberal.
There is no discrimination here except against the person who invested their time and money in opening a restaurant to serve people of his choice. If it is my restaurant, I should be able to welcome and deny whoever I want. You are free to open a restaurant next door catering to those I don't.
Of course a bar or pub are "private", but my own car is also private but that does not mean i have the right to drive with 200miles/h through every red light.
Driving your car at 200 MPH has nothing to do with private property -- the roads are public. If you want to sit in your car and smoke a cigarette, sleep or whistle Dixie, you're not hurting anyone. If I put my cigarette out on your arm, I'm hurting you directly. If you walk into my cigarette that is lit on purpose, you are hurting yourself. If you see me smoking and you stick around to inhale my smoke, you're hurting yourself. Make the right choice yourself.
So if smokers want to smoke at workplaces of others, non-smokers should also be able to kick smokers in the face at their workplace; if smokers don't like that, they can simply quit their job or leave if somebody want to have fun with kicking!
If I kick you, I make the first move. If you inhale my smoke, you made the decision instead of leaving the premises. Different perspectives.
Smokers are free to smoke everywhere, except workplaces of others, so whats all the fuss about?
Above the workplace of others is something called the privately owned business of others. The owner of the property has the first and last call as long as they don't give someone the option to walk out before an action is taken against them. The laws don't make life easier for employees, they make things more expensive for customers and property owners who have to fight ridiculous lawsuits.
Published: April 21, 2006 12:14 PM
AB Dada wrote:
"If I kick you, I make the first move. If you inhale my smoke, you made the decision instead of leaving the premises. Different perspectives."
BillG responds:
doesn't that really depend on who was there first and whether or not inhaling your smoke is an infringement on my right to breath and whether or not breathing second hand smoke is infact harmful?
Published: April 21, 2006 12:41 PM
The common law treated an intentional tort like a battery or an assault (intentional kick) completely differently from the way it treated hazardous conditions on property.
A kick would be considered an unconsented, uninvited touching or a bodily trespass from one to another that required a showing/proof of injury by the injured plaintiff caused by the kicking defendant.
The existence of tobacco smoke on one's real property would be considered a hazardous condition on the owner/defendant's property and that imposed certain obligations upon the property owner to warn of the condition, depending upon the the legal status of the person on the property.
The common law recognized the right of the property owner to maintain a hazardous condition on his property; after all, it was his property and no one had the right to go on that property without the owner's permission. However, if the owner invited people onto his property for business purposes (a business invitee), the property owner was required to warn the invitee of the hazardous condition. The old law imposed no duty upon the owner to warn a trespasser of a hazardous condition.
In the current instance, that of maintaining an alleged hazardous condition on the property, the highest duty the owner would owe to business invitees (customers) would be to warn them of the condition. The law imposed no duty to correct the condition. In the alternative, the owner could post a notice indicating that anyone coming upon his property who did not assume the risk of the hazardous condition would be treated as a trespasser, not as a business invitee . . . in this way, the owner was withdrawing his consent to anyone coming upon his property unless they agreed to be "smoked" as it were.
Published: April 21, 2006 1:24 PM
I did neglect to mention in my last comment that the property owner's duty to warn, in addition to being a function of the legal status of those coming upon the property, was also directly related to the latent or patent nature of the hazardous condition itself.
For example, if the condition was completely patent (a room full of cigarette smoke) and nothing more, the duty of the owner would be limited to a warning that ambient tobacco smoke was on the property, and that such tobacco smoke constituted a potential health hazard, and then list the known risks. The decision of whether to enter and remain upon the owner's property was then contingent upon the acceptance of the property visitor of whatever risks were attendant thereto.
Published: April 21, 2006 1:47 PM
An excellent piece, but the real problem with smoking bans, which we just had delivered unto us here in CO, isn't just the bans themself, which Mr. Malek expounded on quite intelligently. These bans are just the proverbial camels nose under the tent. A new avalanche of personal regulatory restraints, property rights violations and enhancment of the nanny-police state is in the offing. There may be a dawn after this darkness, but we're only at about nine PM. Ten hours of rape and abuse by government to come...
Published: April 21, 2006 2:01 PM
Recognition and protection of property rights to the nth degree by the government (where government exists) is a critical precondition for a reasonably free and prosperous society.
People and the society they live in are far better off when individuals order their own affairs and define their voluntary relationships with others absent initiating force or the threat of physical force or fraud with others.
The common law was still imposed by the monopoly courts and by a monopoly government funded by taxes, so the system it maintained was not purely libertarian in every respect.
However, the old common law system recognized the right of property owners to arrange relationships with others coming upon their property within a voluntarist framework and allowed for the maximal amount of personal liberty for both the property owner and the visitor.
And it was virtually costless, since both parties knew what their respective rights and liabilities were, and the law imposed almost zero affirmative obligations on the parties. And there were no ongoing enforcement costs, either.
On the whole, a far better system than the current regime of positive law.
Published: April 21, 2006 2:30 PM
"Is it shameful to smoke?" Attrazic asked. "I think that smoking a good cigar with a tasty Armagnac is part of our lifestyle."
If you want to smoke a good cigar in your own home and drink a tasty Armagnac, then I think that is fine but he minute you light up in a room full of people, smokers or nonsmokers you are guilty of assault on each and everyone in that room and THAT is why we have laws against your doing it.
Whether you like it or not, every animal born to breathe fresh air has a right to have clean fresh air to breath, Smokers have no such intrinsic right, it is a personal choice to degrade their body, pollute the air we all have to breathe and to assault everyone in the area that inhales their pollutants when they breathe.
I am a militant non-smoker, a lifelong addict of clean fresh air, and I maintain that every human being has the right and the inherant obligation to defend himself against assault of ANY kind be it noise, smoke, chemicals, bodily harm etc. I personally know smokers who cannot stand cigar smoke and leave the bar/restaurant/premises if someone lights one up.
Pursuant to the fact that one can never find a cop when one needs one, I maintain that I have as much right to be in any public place and to defend myself from your filthy and despicable personal habit that YOU have CHOSEN to share with me and to throw-up all over your nice new Brooks Brothers' Suit or to knock the stem-winding shit out of you if you don't cease and desist immediately after I voice my objection to your smoking. And that includes in your own home if I am an invited and, therefore, esteemed guest.
The onus is upon you, Sir, not upon me or anyone else who objects to the smoking habit and, for once, our society is beginning to put the horse where it properly belongs, in front of the cart, and is making laws to assuage the discomfort of the vast majority of non-smokers who outnumber you smokers by a margin of 60% to your +/- 30%.
You, Sir, are in the ever decreasing minority and the pain and discomfort you have inflicted on the societal whole for well over 100 years has, up until now, been largely unregulated as have been the manners of smokers who ignored the pleas and obvious discomfort caused by their insidious habit. YOU brought this upon yourselves, Smokers, by your persistently rude and discourteous behavior of smoking when and where you pleased.
That has ended now. Get over it ...
Published: April 21, 2006 2:30 PM
Mr. Milek and his supporters are NOT correct about the distinction between 'public' and 'private'. Public places are those which are generally open to nearly anyone (some age prohibitions are often appropriate) and private places are those into which you may enter ONLY at the request of the owner. To say that "ownership" is the criterion for defining 'public' vs. 'private' is ridiculous.
It is also the fact that it is a way for "smoker" and those who support smoking in public to "illogically" support their contention that government hasn't the right to control certain activities in certain instances. Gov't not only has the right, it has the responsibility to protect its citizens from the unhealthy acts of others. That's why gov't regulates businesses that discharge toxic chemicals into the environment, why lead was taken out of gasoline and paint, why children who haven't received the appropriate inoculations and vaccinations are not allowed to enter schools where they could infect, injure and even kill other children. It's why government attempts (tho' ineffectually at times) to control the carrying and discharge of firearms and the use of other weapons - to protect the general public. It's why we have speed limits on our highways - to make them safer for everyone there - even though your typical NASCAR driver could probably drive safely in excess of the speed limit, most people cannot and most roads are not constructed for such speed.
As free speech is limited (you can't yell "FIRE" in a crowded theater, to use the most hackneyed example) so are other behaviors, when they endanger the lives of those around them. And there is no doubt, based on today's science and research, that secondhand smoke is dangerous - one of the few 'Class A Carcinogens" identified by the EPA - and deserves to be restricted in those areas where others are present. Don't forget that the active smoker inhales less than 1/2 of the smoke produced by their cigarette (even less with cigars and pipes) and then they breathe back out more than 1/2 of that. That means the about 85% of the tobacco smoke, with its 4,000+ chemicals, and more than 69 proven carcinogens, is in the surrounding air. When it contacts another person's nose - that's when it becomes a public health issue. And that's true no matter how people choose to define words or twist their logic.
Published: April 21, 2006 2:44 PM
My sense of this is that some folks in here still think (and I use that term advisedly) is about "smoking rights" and not "property rights".
Unless I missed something, no one attacking the ban has claimed a right to smoke. The law (ban does not address the claimed existence of such a right) Clearly, there is no independent "right to smoke".
There is, however, a right to maintain your own property as you see fit or not. It is the violation of the right of property (the right to maintain an alleged hazardous condition on one's property) that is violated by the smoking ban. For sure, the common law at least would require that a business invitee be warned of the condition, permitting the invitee to decise whether to come upon the property with the hazardous condition or not. Having been warned, the invitee could still decide to take the risk. All parties' property and personal rights are protected thereby.
A contrary claim would mean that somehow a trepasser (a non-invitee) would have the right to dictate to the owner the condition of the property owners' property that he had no right to be on in the first place. A bizarre idea, at best.
Published: April 21, 2006 2:44 PM
"These are a government created entity that were lobbied for by business people that didn't want to be personally liable for their own business decisions."--
Managers in a corporation don't own it (unless he/she is one of shareholders). Only shareholders, who don't operate it do. And shareholders can sometimes number from a few thousand to millions. Exactly how or why would you make that many people legally liable for business decisions made by managers?
Crimes are committed by people, not corporations. People go to jail, there is no point for making investors who own corporation legally liable for criminal decisions made by manager. The only reason why corporations were invented were to protect investors from losing more money than they put in. Any one who enters into a transaction with a corporate entity knows that they can not pursue the assets of the owners in case of default. There is no fraud. Again, this has nothing to do with criminal actions that may be committed by the managers, who actually run the company.
Published: April 21, 2006 3:07 PM
I sed the same argument of private property in the early 1960's when legislatures were passing anti-discrimination laws. I was rebuffed with restaurants and stores were public. Does an employer have a right based on private property to discriminate based on race, sex, etc.?
Published: April 21, 2006 3:16 PM
I used the same argument of private property in the early 1960's when legislatures were passing anti-discrimination laws. I was rebuffed with the reasoning that restaurants and stores were public. Does an employer have a right based on private property to discriminate based on race, sex, etc.?
Published: April 21, 2006 3:17 PM
I don't which question you are asking, but . . .
If you are asking the traditional legal question of whether one aspect (or one stick in the bundle)of the traditional rights to property is the right to exclude anyone from your private property for any reason whatsoever, the answer is "yes", of course, unconditionally.
If you are asking whether the law currently recognizes that aspect of proeprty rights in the US, the answer is "no" as the "public accomodation" laws from the 1960's clearly evicerated that traditional right.
The smoking bans are not really related at all to the issue of health, or the so-called power of government to protect people's health. Ever since the public accomodation laws evicerated property rights, the government really needed no such justification to invade one's property to comport with its policy . . . but it does provide a nice cover for such fascist policies.
One thing you should note: the ban on yelling "fire" in a crowded theater is not a limitation on free speech. You have no right to yell "fire" in a crowded theater because such action violates the conditions of the limited license you bought when you purchased a ticket. You agree to pay a fee to come on the premises to watch a movie, not to cause a stampede. That's what your ticket buys . . . if you yell "fire" in a crowded theater, you are not only breaching a contract, but you have trepassed as well under applicable property laws.
Published: April 21, 2006 3:36 PM
To Larry Didier:
I am not your commrade. You have no responsibility for me and I detest the mere thought. Like hell my property is not my property because you stepped on it. The same goes for all the imaginative ways you wish to impose your will on me by de facto stealing my property.
Published: April 21, 2006 4:16 PM
When a river flows through your property, you only "own it" when it is on your property. If you introduce pollutants into the river, you are trespassing on the property of those downstream. The same with air. If you introduce pollutants into the air you are violating everyone's property rights. The right to clean air goes together with property rights. Therefore smokers are in violation since they trespass ofv others' property. Otherwise you could argue that a property owner has a right to blow White Phosphorous into the air and everyone who doesn't like it can move away. What about the right to life?
Published: April 21, 2006 6:19 PM
"The right to clean air goes together with property rights. Therefore smokers are in violation since they trespass ofv others' property. "--OM
I think it is safe to say once someone smokes a cigarette that only a few grams of tobaco are diluted into the atmosphere of several million cubic kilometers of air. I would hardly call that tresspassing, else one could not smoke anywhere on the planet, even inside of a house.
Published: April 21, 2006 6:34 PM
we only have the individual equal access right to use the sky as a source and sink for sustenance as long as our use does not infringe on the equal rights of others.
the appearance of negative externalities determines the extent to which that infringement occurs because beyond the sustainable yield they become a tax on our labor.
Published: April 21, 2006 7:13 PM
Many in this comment section seem to think that this discussion is about a right to smoke or a right to not smoke.
Might I suggest reading the article next time before contributing? The author very clearly says:
"The bottom line is that if you are a smoker, you do not have a right to smoke in my house nor in my place of business. If you want to smoke at a restaurant, bar, strip club, or casino, open your own. If you can't, stay home.
And if you are a nonsmoker, you do not have a right to a smoke-free environment in my house or in my place of business. If you want a smoke-free restaurant, bar, strip club, or casino, then open up your own darn place. If you can't, then stay home."
This isn't about the communal sharing of the air, this isn't your rights within a workplace. This is about property rights.
Published: April 21, 2006 7:37 PM
"negative externalities"- kindly define this in a non-arbitrary way (ie more than one person can come to the exact same conclusion when asked what that is)
"sustainable yield"- either come up with an exact number or quit putting this in your posts.
Published: April 21, 2006 8:03 PM
If this were a "health issue" and the government really was interested in protecting people from their own folly for their own good, government would simply ban the use of tobacco products, whether smoking or chewing or dipping or whatever. The smoking ban would extend to private homes as well (particularly where more than one person lived) . . . and the casinos in New Jersey would have been included in the ban as well.
But this is not a smoking rights issue, per se. This is about property rights . . . government extends its tentacles into areas designated as "public accomodations" . . . of which reatil establishments are a part.
The more interesting issue is the one posed by the new and "improved" enforcement of the ban on "public drunkenness". Pursuant to local ordinances in Texas prohibiting "public drunkenness", policemen are now arresting people in bars who had more than two drinks while they were watching and the patrons were still seated in the bar and bothering no one. . . under the premise that bars are "public accomodations" and that people having more than two drinks in a short period of time would exhibit a blood alcohol level in excess of the legal limit (therefore, they are legally drunk in public).
Now this is ironic because some bar owners and employees objected when the police showed up in their place of businesses with their testing equipment and sat around watching the owner's invitees imbibe. When the police went to arrest some of the patrons, the bar owner intervened, indicating that the patron(s) was his guest nad should not be disturbed. The police arrested the bartender for obstruction of justice and interfering with lawful arrest. Some bar owners have even been arrested for being intoxicated in their own bars!
The same police cannot come into your house and arrest for public drunkenness, but they can arrest you for being intoxicated in your best friend's bar even if your best friend wants you there on his property and you are otherwise bothering no one.
Published: April 21, 2006 8:06 PM
negative externalities - costs not being able to be include in the purchase price of goods which defines the extent to which the economic system is inefficient.
sustainable yield - the amount of a common resource that can be used without degrading the asset itself inorder to continue further optimum use.
Published: April 21, 2006 8:23 PM
I'm beginning to despair that some of the commentators in here are not reading the other posts before they comment.
The law always allowed property owners to maintain hazardous conditions on their own property, including "bad air", whether carcinogenic or tear gas or anything like that. Business invitees had a cause of action against the property owner only if the owner failed to warn the business invitee (including employees) of the hazardous condition and any latent risks of exposure to the hazard.
The ONLY differences between the old law and the new law is that the new law no longer permits the owner to maintain his property in the condition he sees fit, nor does it let his business invitees decide for themselves if they want to visit to do business him and assume the risk of exposure to any hazardous condition that the owner would warn them of. The law actually prohibits capitalistic acts between/among consenting adults.
Since the nominal owner can no longer dictate the terms of his contractual relationship with his emplyees and customers, the government has effectively turned his business into a publicly-directed franchise. The owner is no longer the owner, but merely a serf in the service of the government.
Published: April 21, 2006 8:26 PM
Alfred get's it completely wrong. For the record, if a man lights up a cigar in a room full of people and it's his room, then each individual in the room has a choice. The choice is, stay or leave.
If the room belongs some other person, then the choice about whether smoking is allowed or not rests with that person, the owner of the room. If the smoker is informed he may not smoke in the room, then the choice for the smoker is stay or leave. And of course the same choice remains for every other indiviual; stay or leave.
How simple is that? Obviously too simple for the likes of Alfred, for it is he who wishes to commit assault. All he requires is a motive.
In his missive we can readily identify his hatred and barely supressed violence. He writes how he is ready and prepared to commit bodily assault upon any other individual, regardless of context, who does not obey his command. Alfred is someone to be very careful of. Be ready to defend yourself from him for the mode of behaviour he espouses is not necessarily restrained to the sole topic of smoking. This type of person can never be trusted.
Now as far as warning people about the "hazards" of side-stream smoking, we are getting a little precious. There is little evidence and no proof that such smoke is dangerous. Nevertheless it can be unpleasant and I do prefer to avoid it myself (unless I'm doing the smoking).
I'm sure we've each encountered smoke in a bar or pub or whatever. It is common. Very common. We know what it is and we know whether we find it acceptible or not. So make the choice, stay or leave. Surely this does not require a great big sign saying:
THE MANAGEMENT AND EQUITY HOLDERS OF THIS PREMISES ALLOW THE USE OF CIGARETTES, CIGARS, BONGS & PIPES BY VISITORS AND PATRONS TO THESE PREMISES BUT DO NOT ALLOW ROLL-YOUR-OWNS AS THEY ARE CONSIDERED COMMON AND QUITE LOW CLASS. THE USE OF ALTERNATIVES TO TOBACCO ARE ALSO ALLOWED, SO WATCH OUT FOR TOBACCO GUM UNDER THE TABLES AND PEOPLE TRYING TO SELL YOU FUNNY STUFF AND ALSO PEOPLE WITH BLOWN PUPILS AND GIRLS WHO DANCE AND DANCE AND DANCE ALL NIGHT LONG. SOME PEOPLE FIND SUCH THINGS UNPLEASANT AND SOME FIND SUCH THINGS OFFENSIVE (BUT IF YOU THINK THAT'S BAD WAIT UNTIL YOU HEAR WHAT THE OTHER PATRONS ARE DISCUSSING; THEY MIGHT EVEN START TALKING ABOUT YOU AS YOU ENTER). BE WARNED THAT NOT ONLY ARE SOME OF THE ACTIVITIES AND PRODUCTS BEING USED ON THESE PREMISES POTENTIALLY UNPLEASANT OR DANGEROUS OR OBNOXIOUS OR CONSIDERED EVIL BY SOME, BUT ALSO SOME OF THE PATRONS COULD ALSO BE CONSIDERED BAD NEWS AS WELL. YOU ASSOCIATE WITH THEM AT YOUR OWN RISK. AS WITH ALL ELSE YOU HAVE A CHOICE OF ALTERNATIVES. IN THIS CASE YOU KNOW THE SCORE, STAY OR LEAVE. BEST OF LUCK. HAVE AN ENJOYABLE EVENING.
You can work it all out for yourselves within minutes of entering a place. Good or bad. Stay or leave.
Now a warning for Alfred. Alfred, should you ever come into my tavern and try your nonsense be prepared to be rapidly ejected by four or five large Polynesian boys. I do not want you here. Stay away. Stay out.
Sione
Published: April 21, 2006 8:30 PM
When a river flows through your property, you only "own it" when it is on your property. If you introduce pollutants into the river, you are trespassing on the property of those downstream.
This is, of course, false. Rights to the river are homesteaded in exactly the same way as rights to pieces of land. E.g., if you introduce pollutants that affect the already-homesteaded rights of those downriver, you're "trespassing"; but if there's no-one downriver when you move in, for example, you can dump whatever you like in the river (always assuming it doesn't affect already-homesteaded rights of others further out, etc.) and people who later move in downriver have no right complain.
Published: April 21, 2006 8:47 PM
Sione:
My comments and prescriptions assumed for the sake of argument that the science had proved beyond a doubt that any kind of exposure to second-hand smoke in a closed space (like a bar or restaurant) posed some degree of health risk.
Traditionally, the MOST the law would require of the property owner would be a sign warning of the hazard and nothing more. Then no liability could attach to any bar owner for any damages that any patron alleged emanated from second hand smoke in his bar.
One of the other reasons that the ban was institutes in New Jersey was to placate the demands of the health insurance industry.
The health insurance industry has a very powerful lobby in New Jersey, and the underwriters can't know how to spread whatever risk exists for exposure to second hand smoke.
Underwriters can sell insurance and estimate premiums for people who smoke or don't smoke, but have a very difficult time estimating the risk of claims from people who are exposed to second-hand smoke. The insurance companies want to use the power of the government to make their own business of writing health insurance less risky and easier to estimate, thereby increasing their profit margins.
That's why you now have the ban in places of public accomodation, except in the casinos, whose lobby is every bit as influenctial, corrupt and greedy as the health insurance lobby.
Published: April 21, 2006 8:48 PM
You know, I wish the anti-smoking Puritans in our society would go somewhere else, more in keeping with their overall philosophy--like, maybe, North Korea!!!
Published: April 21, 2006 9:00 PM
negative externalities - costs not being able to be include in the purchase price of goods which defines the extent to which the economic system is inefficient.
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"?
Published: April 21, 2006 9:52 PM
Again, this whole thing is not really about smoking at all or even Puritanism (well, maybe a little at the fringes); it's about property rights, risk pools and insurance premiums.
If the issue was really only about public health, the NJ Legislature would have simply banned the use of tobacco for everyone . . . at home, at work, in the bars, restuarants and casinos. But it's not about health at all, public or otherwise.
The government and GASPers are hoist on their own petard. Once the alleged "scientific" data they invented started to be foisted on the public showing that second-hand smoke could cause illnesses, people started to make insurance claims and workman's comp claims, etc. based upon this alleged cause and effect. Of course, insurance companies were in the middle of all this, and had not factored defending claims based upon alleged injuries and illnesses allegedly emanating from exposure to second-hand smoke into their risk assessments and pool determination.
Insurance companies, faced with the possibility of losses, did what they always do . . . just as they did in the case of mandatory "no-fault" automobile insurance. . . they go to the government and get an indirect subsidy via regulation/property rights infringement.
The losers in these cases are always owners of some property right (a right to sue or purchase their insurance or to invite smokers to buy and enjoy a product on the property owner's premises).
The public doesn't see the political machinations going on behind the scenes and it is in the interest of the parties at interest to mask their true interests, so the insurance companies present and the public buys into a purposeful mischaracterization of the issue invented by the insurance companies . . . the non-issue of "smokers' rights vs. non-smokers' rights" . . . which, of course is not the real issue at all.
The pols get away with this ledgerdemain all the time. They are good at it, as is clearly evidenced by the tone and tenor of some of the comments/debate on this thread.
Too bad. The public got fooled again. They thought the government was "protecting them from harm" when in fact all it was doing was protecting the pocket books of the vested interests . . .
Nice. Duh.
Published: April 21, 2006 10:07 PM
ME Hofer wrote:
"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"?"
BillG responds:
actually the cause was the neo-classical revolution where the state granted privileges allowing the natural opportunities afforded by nature to accrue to individuals which subsequently MUST shift costs onto society beyond a certain point (sustainable yield)
negative externalities are nothing but the shifting of costs where a third party not involved in a transaction is subject to a tax on their labor.
to address the problem within an equal liberty framework you have to revert back to classical liberalism that treated the natural commons as a seperate and distinct factor of production (not private capital) and limit it's use to the sustainable yield where the resulting economic rent (today this the negative externalities) must be returned directly and equally to the owners of the commons to protect their labor-based property rights.
Published: April 21, 2006 10:13 PM
WE Schetlick,
I have to say...in the little time that I have been posting here, you have given some of the most insightful commentaries of anyone I have had the pleasure of reading.
thanks!
Published: April 21, 2006 10:18 PM
Please, stop with the faux economics jargon. None of that applies in this case, anyway. Even Coase would have understood that this is not a case of transaction costs and the "efficient" assignment of economic rights in things.
The same information respecting the potential effect of exposure to second-hand smoke is available to both the customer and the owner, but only the individual customer or the employee knows how much risk each such indicvidual is willing to expose herself to and how much she is willing to pay to spread that risk through purchase of first-party insurance.
Published: April 21, 2006 10:30 PM
You're welcome. I have been involved as a taxpayer lobbyist in Trenton and have a strong background in Law and Economics (I have an LLM in U.S. Constitutional Law as well) and spend alot of time studying these issues.
Things and issues are rarely what they seem to be at first glance, and legislation of this kind always disfavors the politically/socially unpopular and less-effective lobbying group.
Legislation is never done in the "public interest", that term understood as an agglomoration of all unquantified and unquantifiable private interests. The sooner the average ranting, raging statist realizes this, the better we'll all be.
Published: April 21, 2006 10:39 PM
What is missing in this debate is whether smoking bans actually improve public health.
Despite an 8-year-old smoking ban in California and a 3-year-old smoking ban in New York, there has been no improvement in public health, reduction in diseases, said to be smoking related, or a reduction in healthcare expenses. In New York, per capita healthcare costs have actually risen by more than 20% since the smoking ban was implemented.
This brings into serious question whether the statistical theories anti smoking crusaders use to foist smoking bans on an unwilling business community are accurate.
Having heard the propagandist’s statements "all studies show that second hand smoke is dangerous" I decided to read through many of the studies on second hand smoke. Please visit www.aboutsecondhandsmoke.com/ets_study_tables.html, you will likely be surprised by what you read.
During the movement towards the prohibition of alcohol during the early 1900's, moral extremists were often quoted as saying "there is no constitutional right to drink", many politicians agreed. Ironically, it took an amendment to the constitution to ban alcohol. Of course the amendment was repealed because as soon as alcohol was banned everyone wanted to drink. It is a shame that anti smoking extremists are so blind to the lessons of the past. Regardless of its merit, the forbidden fruit is often the one most desired.
Jonathan Pinard, Executive Director
New York Coalition of Social Smokers
www.socialsmokers.org
Published: April 21, 2006 10:42 PM
Suppose everyone voluntarily stopped smoking tobacco products tomorrow, but bar and restaurant owners kept lit cigarettes burning all the time the establishemnts were open. What result, assuming only that people are occasionally subject to second-hand smoke?
But really, the ban is not really about smoking or health, and the irrelvant "battle of statistics" was actually waged in Trenton prior to the passing of the ban. Some experts swore that the government-bought-and-paid-for studies (peer reviewed by other folks connected to the government) were accurate and showed the alleged nexus; tobacco industry studies cast substantial doubt on the "science" of the government studies.
Lawmakers have no idea what is true and what is not in this respect. They don't have to know. All they have to do is to vote the way the money and the votes flow.
This case was no different than any of the others.
Published: April 21, 2006 11:04 PM
"negative externalities"- kindly define this in a non-arbitrary way (ie more than one person can come to the exact same conclusion when asked what that is)
"sustainable yield"- either come up with an exact number or quit putting this in your posts."
-- What I asked.
negative externalities - costs not being able to be include in the purchase price of goods which defines the extent to which the economic system is inefficient.
sustainable yield - the amount of a common resource that can be used without degrading the asset itself inorder to continue further optimum use.
-- What BillG wrote
Exactly what I expected, total, utter nonsense. What is the sustainable yield of coal? Oil? Know one even knows how much oil exists. How much is too much pollution in the air? How many trees can be cut down? You have no definite answer or have yet to provide one. How EXACTLY do you find the cost of a negative externatility? Use an example, please! REAL numbers, an actual example!
Published: April 21, 2006 11:10 PM
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.
Published: April 22, 2006 5:55 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.
Published: April 22, 2006 8:07 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.
Published: April 22, 2006 8:53 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.
Published: April 22, 2006 8:56 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".
Published: April 22, 2006 9:27 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.
Published: April 22, 2006 9:43 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.
Published: April 22, 2006 9:46 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.
Published: April 22, 2006 10:27 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
Published: April 22, 2006 10:34 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
Published: April 22, 2006 10:47 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?
Published: April 22, 2006 10:51 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
Published: April 22, 2006 10:52 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?
Published: April 22, 2006 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
Published: April 22, 2006 10:59 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?
Published: April 22, 2006 11:05 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).
Published: April 22, 2006 11:16 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.
Published: April 22, 2006 11:43 AM
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.
Published: April 22, 2006 12:05 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
Published: April 22, 2006 12:08 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
Published: April 22, 2006 12:20 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
Published: April 22, 2006 12:26 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.
Published: April 22, 2006 12:41 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.
Published: April 22, 2006 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.
Published: April 22, 2006 12:52 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.
Published: April 22, 2006 1:18 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.
Published: April 22, 2006 1:26 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?
Published: April 22, 2006 2:06 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.
Published: April 22, 2006 4:03 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.
Published: April 22, 2006 4:30 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...
Published: April 22, 2006 4:33 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
Published: April 22, 2006 5:18 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).
Published: April 22, 2006 5:26 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.
Published: April 22, 2006 7:02 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.
Published: April 22, 2006 8:01 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?
Published: April 22, 2006 9:19 PM
no competition - no economic rent - no violation of property rights to labor - no problems
Published: April 22, 2006 9:31 PM
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.
Published: April 23, 2006 5:28 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.
Published: April 23, 2006 8:03 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?
Published: April 23, 2006 8:44 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.
Published: April 23, 2006 9:17 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.
Published: April 23, 2006 9:41 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.
Published: April 23, 2006 9:49 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.
Published: April 23, 2006 9:55 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.
Published: April 23, 2006 11:26 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...
Published: April 23, 2006 11:35 AM
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.
Published: April 23, 2006 6:22 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.
Published: April 23, 2006 6:35 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