Lifting the veil: A philosophical investigation of the tobacco ban
Opposition to the tobacco ban stems from two distinct camps. The first is a libertarian opposition I call the ‘My Lungs, My Choice Movement’, and the second, the ‘Black Market Brigade’, whose concerns rest on corruption and criminality in the black market. As I outline below, a moral approach to public policy in South Africa should give short shrift to both sets of complaints.
With the arrival of South Africa’s Patient Zero, the coronavirus set the government down a path of value judgments, culminating in a National State of Disaster. This, in turn, has ushered in some of the most intrusive policies witnessed in democratic South Africa. Lives from across all divides have been severely disrupted in the hopes of limiting Covid-19 deaths. The pandemic has forced South Africa, through its policy choices, to confront its moral values.
While it may seem like a relatively contained philosophical dilemma, the cigarette ban illustrates the need to qualify any notions of justice and morality with South Africa’s unique socioeconomic context. Such qualification supports the cigarette ban. Opposition on the grounds that the ban breaches liberties, or raises the spectre of black-market corruption, implicitly assumes moral positions of social cohesion and equity. In reality, South Africa is the world’s most unequal society and therefore, any moral framework must foster access, inclusion and redistribution.
With more than 34,000 cases of coronavirus and fatalities above 1,000, South Africa resumed most economic activity and further relaxed restrictions of freedom and choices. Restrictions on the purchase of alcohol and cigarettes have become de facto indicators of South Africans’ lockdown civil liberties. Along with Botswana and India, South Africa is one of a few countries whose response included banning the sale of these goods.
Since the relaxations, the sale of alcohol for off-site consumption has resumed, but cigarettes remain banned. This has sparked outrage from South Africa’s 10 million smokers and legal action from British American Tobacco and an industry association representing 80% of the country’s licensed manufacturers. In fairness, conflicting government pronouncements on the sale of tobacco products have only worsened the situation.
Regardless, science and evidence must drive policy. With this in mind, it’s worth noting that on 11 May, the World Health Organisation stated that studies “found that smokers are more likely to develop severe disease with Covid-19, compared to non-smokers… [because]… smoking impairs lung function making it harder for the body to fight off coronaviruses”. Still, here we are, with many contesting the ban.
For his part, the president explained his government’s vacillations by invoking its moral obligations. He stated that his administration’s pandemic response aims to “advance the right to life and dignity for all”. By calling on morals and justice, the cigarette ban becomes one of South Africa’s newest moral dilemmas: is the government morally justified in banning the sale of cigarettes?
Recalcitrance to the ban stems from two distinct camps. The first is a libertarian opposition I call the “My Lungs, My Choice Movement”, and the second, the “Black Market Brigade”, whose concerns rest on corruption and criminality in the black market. As I outline below, a moral approach to public policy in South Africa should give short shrift to both sets of complaints.
‘My Lungs, My Choice Movement’
The “My Lungs, My Choice Movement” finds its roots in libertarianism – focused on the individual and the protection of property and civil rights. Philosophers such as John Locke, Adam Smith and more recently, Robert Nozick, who see the individual as the primary unit of moral analysis, would certainly champion the movement’s “right to choose” to smoke.
A libertarian construction of freedom rests on the idea that the individual is both owner and property for and of themselves (self-ownership). This “master and puppet” relationship with oneself yields a feedback loop of unfettered agency and self-determination. With full and exclusive control of their own individual choices and actions, libertarians rally behind an unbridled freedom limited only insofar as this freedom does not infringe on another’s.
Governments too, the libertarian argues, must not limit individual freedoms. In fact, extreme libertarians question the very validity of the government’s existence. Others, like Nozick, see the only morally justifiable role for governments as limited solely to the protection of the rights and freedoms of individuals.
For the libertarian, infringements on liberty (however minor) are morally impermissible. So, in the case of “My Lungs, My Choice”, even if the offsetting benefits of flattening the curve and saving lives are acknowledged, the minor infraction on free will caused by the cigarette ban is too high a moral price to pay.
Considering the country’s racialised income inequality, and the fact that according to StatsSA, only 16.4% of the population are insured in some way, for most black South Africans, the last line of defence against Covid-19 will be an under-resourced and over-stretched public health system. Perhaps then, union leader Joseph Mathunjwa was understated when in 2012 he said, “the life of a black man is very cheap in South Africa”.
St John’s College Fellow (Oxford) and philosophy tutor, Alison Hills wrote that, for extreme libertarians “freedom is so important that losing it is worse than death (other people’s death, at any rate)” [emphasis my own]. Most of us, and, gladly, the government too, can see the absurdity of reducing the value of life to the price of a cigarette.
‘Black Market Brigade’
The gripe held by the “Black Market Brigade” rests on two closely related issues. Firstly, that a ban (like with Prohibition in the US) leads to a surge in crime, “giving power to an already out-of-control illegal market”. The second is based on the theory that corrupt politicians, through shady business relations, are profiting off of the black market’s exorbitant prices.
Of the two, the strongest argument against banning cigarettes is built on the US experience of Prohibition. The outlawing of alcohol saw a dramatic rise in organised crime which, together with the 1929 stock market crash and the government’s desire to recoup lost tax revenue, led to a Federal reversal of this stance. While South Africa has a well-established illicit cigarette trade and certainly its own economic woes, the situation is hardly comparable when looking at the costs against their respective time scales.
Prohibition in the US lasted for 13 years. The cigarette ban, on the other hand, is an emergency measure that will last, at the extreme, around 18-24 months – the estimated vaccine development period. Unlike Prohibition, the ban is not implemented as an indefinite regulation to manage “immoral” behaviour; it is, rather, a short-term measure to reduce the number of people requiring hospitalisation and stretching capacity. According to Stellenbosch University pulmonology expert, Elvis Irusen, “a smoker has a greater than 10x chance of getting Covid-19 pneumonia, being hospitalised, deteriorating to the point of needing intensive care and death”. The ban seeks to lower these odds.
Of course, the effectiveness of the ban makes all the difference. According to a UCT survey, 90% of those looking to purchase cigarettes were able to get them at inflated prices on the black market. With nine out of 10 smokers having access to cigarettes, what is unclear is the impact of the ban on the number of cigarettes smoked per person.
Cigarette prices are notoriously inelastic, but in a situation of unprecedented threats to income, restrictions on movement and the risks that come with contravening the law by dabbling in illicit trade, smokers may lean towards consumption smoothing – smoking less than normal, to stretch each pack of cigarettes to last longer.
On corruption, while the Brigade has yet to prove their assertions of corruption, for the benefit of this piece, let us for a moment assume that it is in fact true. In this situation, is the presence of corruption a moral justification to lift the ban?
It goes without saying that corruption is legally indefensible and corrupt officials must face the legal ramifications their acts deserve. But, to state that legal parameters reflect moral boundaries is to either believe that justice and morality are fluid, changing with time and place or; to ignore history’s innumerable examples of justice systems upholding unjust social, political and economic systems (we need not look back more than 26 years for an obvious example).
Immanuel Kant and other deontological philosophers could reasonably argue that the mere act of corruption is morally impermissible. Deontology, a rule-based body of philosophical approaches, see morality as confined between a set of agreed-upon rules. Any act that “colours outside of those lines” discounts any offsetting moral benefits.
The Brigade is arguably closest to “contractarian deontology”, which defines its moral rules by a “reasonably defined” social contract agreed upon by willing parties. From their perspective, moral acts are those that uphold the social contract between elected officials and the electorate (think “ethical leadership”). In the instance of corruption in the execution of the cigarette ban, the Brigade argues that this breach of contract is so insidious to a moral society that it outweighs the moral justification for the regulation stemming from lives saved.
This view, in effect, submits one’s moral agency to a set of “reasonably defined”’ rules presumably agreed upon by society. The qualification of “reasonable definition” introduces subjectivity while ignoring power structures and their influence on defining the rules. In South Africa, because of inequality (across race, income and gender) the vast majority have not had true input into defining the “social contract”. Given this, it seems facile to use a likely biased “contract” as the lens to assess all morality.
Another issue with the Brigade’s short-sighted view is that it breeds inconsistencies. While more than 20% of the world has been under some form of lockdown; in “peacetime” most shelter-in-place orders would run counter to many state-society contracts. Woven into most of these “reasonably defined” contracts is the state’s obligation to ensure freedom from unfair persecution (which includes unfair imprisonment). In the time of Covid-19, one in five people worldwide willingly accepted months of detention. Faced with irrefutable science, many deontologists welcomed a “reneging” on their contracts.
South Africa joins other governments in throwing out the deontological social contract. Just as government has a moral duty to protect the lives of those it governs, it has an equally compelling duty to ensure that all its children are adequately educated. The coronavirus saw governments (here and elsewhere) close education institutions in the name of saving lives. Making such a decision runs counter to deontology. Government, forced into a consequentialist “ends justify the means” corner, would have made a very fatal error had deontology won the day.
To note, consequentialism would not permit corruption as a standalone act unless it contributes to raising the overall well-being of wider society. For example, corruption in food parcel distribution to the poor (as seen in parts of the country) that raises health risks and obviously worsens overall wellbeing is morally unacceptable.
The ‘Common Good’
This notion of “raising overall well-being” exposes a shared fatal flaw in both the “My Lungs, My Choice” Movement and the “Black Market Brigade” which is especially important during a global pandemic. Neither libertarianism nor deontology conceive of a “common good” that is aside from the individual and her place in it.
Perhaps the most notable strand of consequentialism to approach the notion of the “common good” is utilitarianism. Championed by Jeremy Bentham and John Stuart Mill, at its simplest the theory rests on the idea that for an act to be morally just, the outcome of this act must maximise the well-being of the greatest number of people. Maximising well-being is calculated at the aggregate societal level. The emphasis on the aggregate and the neoclassical corruption of “value” to mean “cost of labour”, distinguishes it from the individual-based utility maximising approach of popular economics.
To note, a flaw of pure utilitarianism is its brutal indifference to individuals in its pursuit to maximise aggregate “goods”, risking the marginalisation of minorities. An example of this folly is Britain’s fumbling of the crisis in the early weeks. Following the advice of UCL professors, the Boris Johnson administration forged ahead with a policy of “herd immunity”. This policy, at its most basic, proposed that the country should continue with “business as usual” and allow the virus to spread unhindered. In turn, infected people would build antibodies and overall, the country would have immunity.
A pure utilitarian could argue that, while this “means some pensioners die” as Dominic Cummings (adviser to Johnson) phrased it, if this is offset by an equal or greater amount of well-being from maintaining everyday freedoms and avoiding economic collapse, it is the morally just approach. Of course, for most people, including Johnson after a second thought (and before his own bout with the virus), such indifference is a step too far.
Rights-based utilitarianism offers us a work-around the “brutal indifference” flaw. This strand of utilitarianism provides for the use of moral rights as a “trump card” against tyrannical actions (even if they raise overall well-being). Simply put, this approach views all actions that improve society’s overall well-being as just insofar as they do not infringe on the moral rights of individuals (the rights to life and dignity, for example). In the case of the cigarette ban, it is impossible to argue that the access to cigarettes is a morally preordained inalienable right on the level of the rights to life and dignity.
Of course, all utilitarianism places moral justification on an undefined notion of “maximising well-being”, leaving it open to political interpretation. Often, well-being is understood as a country’s GDP which, given South Africa’s Gini coefficient, could never truly be reflective. In 2019, New Zealand unveiled a “well-being” budget, moving away from GDP as the sole indicator of prosperity, in favour of a basket of “domains” that contribute to well-being. Ranging from intangibles like cultural identity and mental health to income and security, this approach provides a holistic assessment of well-being as it relates specifically to New Zealand.
Should a similar approach be adopted for South Africa, given the persistent inequality, well-being would more closely favour the protection of the poor and the fostering of access, inclusion and redistribution. Extending this to the pandemic, maximising well-being means flattening the curve in whatever way best maximises the likelihood that the poorest among us will have access to adequate healthcare. At times, like redistributive tax, this may mean making policies that force compromises on the more affluent, so long as their moral rights are respected.
These principles can be superimposed onto the now popular “flatten the curve” graph (see the graph below). The graph is a visual representation of public health strategy that aims to slow the spread of infectious diseases over time in order to ensure healthcare capacity always exceeds need. Slowing the spread requires interventions such as social distancing. In ideal situations, along with “flattening the curve”, governments also “raise the bar” over time by increasing healthcare capacity.
In this graph, the yellow “choice line” represents a set of policy interventions (or choices) at a government’s disposal. All interventions that (respect the inalienable rights of individuals and) act towards flattening the curve are “just choices”, as these ultimately improve overall well-being. All interventions (or lack thereof) that do the opposite are “unjust”. For example, Brazil’s president, Jair Bolsonaro, has repeatedly acted unjustly by dismissing the coronavirus as a “little flu” and ultimately, resulting in an outbreak worse than it should have been. Policies that do not keep the crisis within the capacity of the health system are inherently unjust, because they condemn the poor to bearing a disproportionate health burden. As a result, society fails to maximise overall well-being, as defined in the South African context.
When looking at the pandemic and the set of policy options available to government through a “South African” rights-based utilitarian framework, the decision to ban cigarettes becomes easy to justify. While case numbers rise, the country is still in “positive well-being” territory. To remain there, choices ranging from restricted movement, mandatory wearing of masks, to banning cigarettes have been implemented.
Justifying the government’s stance
So, on 4 May, when explaining the government’s U-turn on the unbanning of cigarettes, President Cyril Ramaphosa, in essence, described the government’s consequentialist approach and its pursuit to uphold a rights based utilitarian conception of the “common good”. Referencing a 1995 Constitutional Court judgment outlawing capital punishment, Ramaphosa wrote: “the right to life and dignity are the most important of all human rights and the source of all other personal rights…[therefore] we are required to value these two rights above all else”. In so doing, he was articulating the hierarchy of rights recognised by rights-based utilitarian theorists.
Where, perhaps this was lost on the public was the “right to life” he was referring to was for society at large (the bulk of whom are poor), and not the smoker. It’s tempting to misconclude that the pro-choice position on smoking is similar to pro-choice with regards to feminist movements. What such a mistake ignores is the critical distinction that a woman’s pro-choice stance affects her alone, whereas the decision to smoke increases health risks and has significant negative externalities on society.
The cigarette ban is not an attempt at legislating body and behaviour (in the way pro-life policies do). It is simply a preventative decision made to ensure adequate healthcare capacity in a time of excess competition for scarce, lifesaving resources. Scarce resources which, when the Covid-19 peak arrives, the poorest (also the most populous) among us, will be left fighting the hardest for. It is thus morally right that the government act to ensure the greatest chance for healthcare access for the poorest.
Justice as fairness
Through his notion of “justice as fairness”, philosopher John Rawls offers us a simple, yet effective tool to best understand government’s stance: “the veil of ignorance”. In short, this hypothetical scenario takes an “original position”, where members of a “pending” society select the values that govern the moral code of this society without knowing the privileges (or lack thereof) they will be endowed with upon entry. With the possibility of emerging in society as the “worst off”, the tool effectively turns our own self-interest on us, nudging us towards a value system designed to protect the vulnerable.
As we continue to endure this lockdown period, it will be helpful to remember this notion of “justice as fairness”. This way, when policy choices are made at our expense, in lieu of maximising the common good, they become palatable. These minor sacrifices we make as individuals, which raise the common good, are possibly the truest forms of redistribution – not of wealth, but of well-being.
Originally appeared in the Daily Maverick