One of the terrifying things, for me at least, about the smoking ban has been the ease with which non-smokers have been prepared to use the law to enforce their personal preferences. They didn’t like smoking, and so were happy to see it banned.
This has always struck me as a remarkably casual attitude towards law. And perhaps it goes some way towards explaining why we have so many laws these days. For many people, the law is just a way to get what they want. Don’t like smoking? Ban it. Don’t like drinking? Ban it. Don’t like this or that? Ban it with the full force of the law.
I don’t share this casual attitude to law. I tend to think that the use of the law is a nuclear option. It should only be used as a last resort, as a matter of dire necessity. Accordingly, I tend to think that there should be as few laws as possible.
Most of my thinking about law grows out of Idle Theory. In that view of life, human time is divided into busy necessary work time and idle free time. It’s only in their idle time that people are free to do what they like. The ‘idleness’ of anyone, or of a society, is the fraction of their time which is idle time. Economic growth is essentially growth in idleness. This is mostly achieved by developing tools which increase idleness. It was easier to chop down trees with stone axes than it was without them, and so our stone age ancestors lived idler lives than their untooled precursors. It’s even easier using a power chainsaw, as I witnessed just a couple of days ago, watching a man using one to slice through foot-thick trees in seconds like they were made of warm butter. The same is true of other technologies. It’s quicker to go from A to B by horse than it is on foot. It’s quicker still in a Ferrari. It was quicker to communicate by mail with somebody, than by travelling to meet them. It’s quicker still with a mobile phone. And so on. The use of these and other tools increases human idleness. And in their idle time people can, if they want, make and sell each other luxuries of one sort or other. Like art, music, literature, fashion clothes, etc. These luxuries don’t save anyone any time. Instead they use it up. But in our relatively idle modern society, it’s why we have all these luxuries. If we didn’t have any idle time, there would be none of them.
Morality, as I conceived it within this scheme of things, was all about trying to increase people’s idleness, or at least trying not to reduce it. ‘Good’ was whatever increased idleness. ‘Evil’ was whatever reduced it. To kill someone was to deprive them of all the remaining idle time in their life. To injure them was to make life harder and more painful for them. So also was it to rob them or defraud them or lie to them.
And the law was all about making restitution for injuries caused (i.e. reductions in idleness). If someone blocked a road, forcing travellers to take a longer way round, then the malefactor owed them restitution for their lost idle time.
But as this notion of law developed, it began to diverge from actual law as we moderns know it. There would, in the first place, be only One Law, which would be, very roughly, Don’t Cost Anyone Else Their Idle Time – Because If You Do You’ll Have To Pay It Back. There would not be a labyrinthine profusion of laws. All individual law suits would be about particular cases of the application of The One Law. e.g. as it applied to blocking roads. If a body of ‘case law’ arose about blocked roads, it would be because this happened so frequently as to have become routine, and could be dealt with expediently (i.e. quickly). By reference to previous cases, the trial would be over in 10 minutes rather than 10 days.
This sort of law also meant that something didn’t have to be specifically made illegal. There didn’t need to be a specific law which said: “Don’t block roads” before this became illegal. All that ever needed to be shown was that somebody had been cost their idle time. The case law that dealt with the specific case of blocked roads was just something lawyers used to speed up the judicial process.
There were other differences. Idle Theory’s emerging notion of law was not punitive. It did not demand an eye for an eye. There were no executions or floggings or prison sentences, because such punishments themselves further reduced the idleness of society over and above the original misdeed, and were a further crime.
Also, the malefactor’s intentions were of no consequence. It did not matter whether you intended to block the road, or did so inadvertently. All that mattered was that you did so, and it had cost other people some amount of their idle time.
Trivial infractions of the law would not be punished. If you stop your car in a road to let somebody out, you will cost the drivers delayed behind you only a few seconds of their time. It is a waste of the courts’ time to deal with such trivial cases.
There were other differences. There would, for example, be no libel laws. Anyone could say anything about anyone, because mere words have no direct effects on anyone’s idleness.
And a further difference would be that there would be no laws restricting what people did in their idle time. They could do anything they liked, so long as it did not breach the One Law. For any restriction upon idle time activities was a restriction upon freedom, and amounted to a reduction in idle time.
I did think that, beneath the One Law, there could be any number of lesser “club rules” that govern idle time activities, like playing football. People who join a football club agree to obey the rules of football: one single football, eleven players each side, no handling of the ball permitted, etc, etc. But breach of club rules would never result in anyone being brought before a court of Law. The most that could happen would be that people who broke club rules would be expelled from the club.
Anyway, that’s an incomplete outline of my own theory of law. And in some measure it explains why I so utterly condemn the smoking ban. For the smoking ban, as it affects pubs, is clearly a restriction on the idle time activity of pub-going. People in pubs should be able to do whatever the hell they like. Or, they should only be constrained to obey the “club rules” that apply to particular pubs. It should be no business of The Law to meddle in such affairs. It is the purpose of The Law to give people as much freedom (in the form of idle time) as possible, and then leave them to do what they will with it.
And in the case of the supposed health risks of passive smoking, which can be (if proven) construed to be injurious, these would almost certainly be classed as trivial infractions of the law, and not worthy of its attention. Nor would any blanket ban be allowable, even if it were sufficiently injurious to merit the formal attention of the judiciary. At most, smokers in pubs would be required to fork out a few pennies to visiting non-smokers to compensate them for their future lost life.
Nor could it be said that the bartenders in pubs are ‘workers’ performing necessary work. They are not. A bartender, in Idle Theory, is not a worker doing any sort of necessary work. He is an idler employed by other idlers, much like the referee on a football field.
I can’t pretend that I have developed a full and comprehensive theory of law. My idea of law is one which is full of all sorts of unanswered questions. e.g. exactly how does a murderer provide compensation to those he has murdered? And there remain deeper questions, like “What Is Justice?” Is justice restitution?
But, for all these flaws, I think it is a rather better idea of law than one which simply makes laws out of personal preferences (e.g. for no smoking).