I have various Libertarian friends on one of the shaving forums, and we fell to discussing smoking bans. They, of course, thought that smoking bans were uncalled-for government intrusion and that the free market would take care of it: people who wanted smoke-free restaurants and bars could simply refuse to patronize places that allowed smoking and they would find smoke-free establishments springing up to serve that market.

Since this in fact does not happen, it made me wonder about the putative efficacy of the free market. Moreover, the logic of the situation regarding tobacco seemed to push toward one of two extremes: either tobacco is legal and okay and you should be able to smoke where you want (barring obvious fire hazards, such as ammunition factories, fireworks stores, and the like), or tobacco is harmful and it should be illegal. The compromise position of tobacco being legal while at the same time enclosed public locations and workplaces are off-limits for smoking seemed hypocritical and illogical. As one person said:

I’m with the “free market or complete ban” crowd though. I don’t see much argument for in-between approaches. There really isn’t much room for compromise.

And I think he’s right: approaching the thing logically, either it’s legal and thus okay and smoke ‘em if you got ‘em, or else it’s bad for people and simply ban it. (This is following the logic—prohibition simply doesn’t work in practice, as we’ve repeatedly observed.)

But I now realize what Oliver Wendell Holmes, Jr., meant when he wrote, “The life of the law has not been logic; it has been experience.” I have long kept that quotation on a shelf in my mind and have taken it out to examine it from time to time, and now, in this context, I think I see what he’s saying. The complete passage:

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.