Smoke Free? Public Health Policy, Coercive Paternalism, and the Ethics of Long‐Game Regulation
| Author | John Coggon |
| DOI | http://doi.org/10.1111/jols.12213 |
| Date | 01 March 2020 |
| Published date | 01 March 2020 |
JOURNAL OF LAW AND SOCIETY
VOLUME 47, NUMBER 1, MARCH 2020
ISSN: 0263-323X, pp. 121–48
Smoke Free? Public Health Policy, Coercive Paternalism,
and the Ethics of Long-Game Regulation
John Coggon∗
Contemporary public health advocacy promotes a ‘fifth wave of
public health’: a ‘cultural’ shift wherein the public’s health becomes
recognized as a common good, to be realized through concerted
developments in the institutional, social, and physical environments.
With reference to examples from anti-tobacco policy, in this article I
critically examine the fifth-wave agenda in England. I explore it as an
approach that, in the face of liberal individualism, works through a
‘long-game’ method of progressive social change. Given the political
context, and a predominant concern with narrow understandings of
legal coercion, I explain how efforts are made to apply what are
presented as less ethically contentious framings of regulatory methods,
such as are provided by ‘libertarian paternalism’ (‘nudge theory’). I
argue that these fail as measures of legitimacyfor long-game regulation:
the philosophical foundations of public health laws require a greater
– and more obviously contestable, but also more ambitious – critical
depth.
∗Centre for Health, Law, and Society, University of Bristol Law School, 8–10
Berkeley Square, Bristol, BS8 1HH, England
John.Coggon@bristol.ac.uk
Thanks to Richard Ashcroft, Sheelagh McGuinness, Elen Stokes, A.M. Viens, Karen
Yeung, and four anonymous reviewers for comments on earlier drafts of this article.
Thanks too to audiences at Edinburgh, McGill, Oxford, and Southampton Universities.
Some of the foundational work for this article was conducted as part of two projects
led at the University of British Columbia, and funded by the Canadian Institutes for
Health Research: Population Health Ethics: Investigating the Ethical Implications of
‘Targeting’Socially-Defined Population Subgroups (PI Jean Shoveller) and Establishing a
New Research Agenda Regarding Population Health Ethics and Young People’s Health (PI
Jean Shoveller). Thanks to Professor Shoveller and colleagues on these projects for their
comments and advice on the ideas that developed as part of these research agendas.
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© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
INTRODUCTION
Public health law has emerged as a field that is practically and conceptually
distinct from medical law.1It looks at but also far beyond the healthcare
system to ‘those aspects of law, policy, and regulation that advance or
place constraints upon the protection and promotion of health (howsoever
understood) within, between, and across populations.’2Public health law
spans government sectors, incorporating more obvious legal measures
such as those providing ministers’ and local authorities’ public health
powers and duties,3as well as wider health-affecting areas of policy,
such as environmental, road traffic, and education laws. Equally, public
health law scholarship looks to policies that are not enshrined legally but
nevertheless constitute ‘governance for health’,4such as NHS Smokefree.5
The field is founded in part on social epidemiology, which explains the
social determinants of health.6Social determinants theses demonstrate how
our health outcomes and opportunities are not reducible to individual
responsibility; rather, causal factors from across the socio-economic
environment are of fundamental significance. These scientific observations
have come to be combined with questions of normative ethical theory, and
form the basis of challenges to existing legal and political orders to reduce
health inequalities and achieve greater social justice.7
Robust legal reforms that could accommodate and respond to social
determinants theses have, however, met resistance in the legal academic
literature.8This is also true in the prevailing political climate of contemporary
English public health policy, which is well represented by the (albeit, since
1 A-M. Farrell et al., Health Law: Frameworks and Context (2017) ch. 1.
2 J. Coggon et al., Public Health Law: Ethics, Governance, and Regulation (2017) 72.
3 Health and Social Care Act 2012, ss. 11 and 12.
4Cf.L.O.Gostin,Global Health Law (2014) ch. 3.
5<http://www.nhs.uk/smokefree>.
6 See M. Marmot, Status Syndrome: How Your Place on the Social Gradient Directly
Affects YourHealth (2004).
7 For example, N. Daniels et al., ‘Why Justice Is Good for Our Health: The Social
Determinants of Health Inequalities’ (1999) 128 Daedalus 215; L. O. Gostin and G.
Bloche, ‘The Politics of Public Health: A Response to Epstein’ (2003) 46 Perspectives
in Biology and Medicine S160; L. O. Gostin and M. Powers, ‘What Does Social
Justice Require for the Public’s Health? Public Health Ethics and Policy Imperatives’
(2006) 25 Health Affairs 1053; S. Venkatapuram and M. Marmot, ‘Epidemiology
and Social Justice in Light of the Social Determinants of Health Research’ (2009) 23
Bioethics 79; S. Venkatpuram,‘Global Justice and the Social Determinants of Health’
(2010) 24 Ethics and International Affairs 119; L. Wiley, ‘Rethinking the New Public
Health’ (2012) 69 Washingtonand Lee Law Rev. 207.
8 R. Epstein, ‘In Defense of the “Old” Public Health’ (2004) 69 Brooklyn Law Rev.
1421; R. Epstein, ‘Let the Shoemaker Stick to His Last: A Defense of the “Old”
Public Health’ (2003) 46 Perspectives in Biology and Medicine S138.
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© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
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