While visiting my home country, the Czech Republic, for a few weeks, I have noticed a very interesting issue because of what I have been forced to attend a very sharp debate for a several times.
There is a new law being passed in these days, the act which prohibits smoking in all restaurants, bars and clubs. The bill was already approved by the Chamber of Deputies, now it is waiting for its consideration it the Senate and then for the President’s sign. Many discussions have been raised and strong arguments being given from both sides. The smokers and the catering services owners feel to be discriminated, the non-smokers are usually pleased by the fact that their health is finally taken seriously.
But I do not want to consider the appropriateness of this particular bill. The fact that really surprised me is how many people, smokers or non-smokers, generally perceive it negatively as they feel it as a too strong restriction of their freedom.
As a law student, I definitely believe in the benefit influence of the law to our lives. The idea of society without any rules where human beings naturally act honestly to each other, is nice but at least very naïve. I am also convinced that every law has its negative and positive side. Someone is restricted in behalf of the other one and we have to consider well whose interest prevails.
Why even in the case of the law whose essential purpose is positive inherently – the people’s health – is it still so difficult to achieve the affirmative perception by the people?
Is the main problem the lack of confidence in the governments as we do not believe that the average people’s welfare is really the major interest? I necessarily have to take into account the historical aspects as well: people of the Czech Republic had been restricted for the dozens of years by The Communist regime. Is it rooted in our thoughts that every law regulating our life is evil? Or is it just our human nature that makes us uncomfortable with any rules which tries to bound us?
Interestingly, in Hong Kong, smoking in public has been banned since 1 January 2007 as well under the government’s revised Smoking (Public Health) Ordinance (Cap. 371). Similarly, the amendment expands the smoking ban area to include indoor workplaces as well as most public places, such as restaurants, Internet cafés, public lavatories, beaches and most public parks.
Of course, similar to what you experienced in Czech, this ban was quite controversial and were discussed among people in the publics. Some feel discriminated and offended by such legislation while others are generally pleased by the fact that their health and safety is taken into consideration.
“Why even in the case of the law whose essential purpose is positive inherently – the people’s health – is it still so difficult to achieve the affirmative perception by the people?”
I guess you answered your own question here, as I agree that every law has its positive and negative effects. There will always be a duality in life and this is when moral and ethics play a role toward decision-making.
For example, seeing this in a utilitarianism perspective, according to the Department of Health, the proportion of smokers aged 15 or above in 2010 was 11% of the total population in Hong Kong. With this 89% to 11% ratio, only the small minority of 11% will be affected by such change. Obedience to this rule tends to promote the greatest happiness and so utilitarianism would definitely consider this as a good legislation.
Of course, there would always be argument for the minorities. As argued by Friedrich Hegel’s ‘Hegelian dialectic’, any ideas that you have also has an opposite, these two ideas come into conflict and out of that comes a new idea – the trinity of “thesis, antithesis and synthesis’. However, this new synthesis itself will face another opposite, and so the process goes on until there are no more opposites left.
While I was reading your post about restrictions, the EU policy notion ‘Area of Freedom, Security and Justice’ came to my mind. The fact that ‘freedom’, ‘security’ and ‘justice’ are so easily named in the same breath has always struck me as rather odd. There are so many tensions between these concepts!
I will take the Czech bill you mentioned as an example: When a law prohibits smoking in restaurants, bars and clubs, it restricts the owner’s freedom of running e.g. a shisha bar, and the smoker’s freedom of smoking inside – all this in the name of public health and protection of harm, therefore security. Thus, security seems to restrict freedom.
However, there is another way of considering the relation between security and freedom. A law providing security (by prohibiting smoking, for example) can also protect freedom, namely the non-smoker’s freedom of going out without being exposed to passive smoking. Accordingly, freedom can also be a consequence of security.
People’s perception of the law as ‘just’ or ‘unjust’ depends on which kind of freedom they value more. It also depends on whether they regard security as intrusive or protective, whether they define it as feeling safe or as being in control. Last but not least, even the notion of ‘justice’ is ambivalent: On the one hand, it can designate a fair, right outcome that protects rights and freedoms – on the other hand, ‘bringing someone to justice’ may restrict the freedom of that person. The controversial bill once again shows that there are many different angles on freedom, security and justice.
It is indeed a very provocative case, Anna, especially for the historico-ontological question that you noted to be raised by the ambivalent responses of the citizenry to the new smoking law. Regrettably, as I am not as versed in Czech history as I wish I were (with only faint Kunderan impressions), I will only approach it in a more diffused sense. I wonder if the polarising hostility and receptivity to the legal change could be traced to its operation as a technology of displacement. The proposed ‘restriction’ attempts to alter the unitary distribution of places in the legal imaginary by categorically excluding a group of persons from their familiar places – the citizen qua smoker is legally ousted from his/her corner. I would be quite outraged to be dispossessed of my smoking-spaces, and perhaps more so of my community’s power (my friends’; my restaurant’s) to author its own imaginary. For the law not only physically displaces me, but further substitutes my self-rule for the paternalism of the legislature.
Our engagement with the Mabo decision last week suggests that this inquiry could take a certain regressive turn. If the foreclosure to be effected by the new smoking law is secondary in the sense that our freedom to speak/act is conditioned upon a preceding self-dispossession, then the new law repeats the primordial violence that founded our self-identities. Our ‘nature’ is thus no less technologically constituted than the law. Our ‘self-rule’ is not qualitatively different from political paternalism. It is perhaps in its very reminder of this ontological condition of the legal subject that the new smoking law at once seduces and provokes. We love the law because it allows us to be. And we hate it because ‘to be’ is, in a more fundamental sense, ‘not to be.’
If we were to re-trace Douzinas’s tripartite classification of the Symbolic, the Imaginary, and the Real to its origins in Lacanian psychoanalysis, would the question then be how to return to the Real; to that which exceeds the (legal) Imaginary; to that ‘freedom from being bound’ that you intimated?
Introducing people’s resentment towards restrictions through the smoking regulation is, to me, very striking. It brings to mind a similar debate that took place in the Netherlands several years ago when comparable legislation was enacted. People critiqued the law as being too restrictive as well, even said it created a separation between ‘smokers’ and ‘non-smokers’, because the smokers would be forced to go outside whilst the non-smokers could remain inside. This was then drawn out further in saying that the party would now just happen outside because non-smokers would join their smoker friends so as to not divide the group. Or, to make matters worse, people would just stay home because at least then they could ‘do what they wanted’. For obvious reasons, owners of such establishments were not thrilled with that idea. As a type of counterproposal, the idea of ‘smoker’ and ‘non-smoker’ cafés and bars was uttered, because then bar owners could decide for themselves what kind of venue they wanted to run and customers could choose what kind of establishment they wanted to visit.
That last suggestion seems to coincide well with your notion that people want the freedom to choose, they do not want the government (or anyone else for that matter) to interfere with their lives and tell them what they should and should not tolerate. And although the historical aspect you mention does most probably play a role in the people’s perception of how they want to be governed, you can see that a historically capitalist country produced almost exactly the same response.
Maybe the inherent want for freedom from being bound, as you say, is in ‘human nature’, even if we are still not entirely sure what that means.