This article was first published by City Press on 31 August 2025
All crimes are vices, yet not all vices are crimes. This concept is most clearly illustrated by the new Tobacco Products and Electronic Delivery Systems Bill. In its effort to curb the vice of smoking – or more precisely, its harmful effects – this bill has effectively criminalised smoking even within the home.
Crimes should be understood as actions that harm others. In legal terms, these are actions that infringe upon the rights of another person. The state rightfully sanctions those who commit such actions to promote a just society where wrongs are corrected.
In the absence of harm to others, is there any justification for an action to be considered a crime? A prevailing perspective in society today holds that state violence – manifested through criminalisation and its associated measures – is justified against certain actions that do not cause harm to others.
Actions that attract criminal sanctions without directly harming others are considered vices. Vices are actions, habits, or practices regarded as sinful (subject to sin taxes), harmful, or socially unacceptable. Drug criminalisation – from producers to sellers – is the clearest example of how a vice is criminalized.
Within the context of rights, the consumption of substances that harm the consumer does not violate the rights of others. No justice is served to anyone else when a person is found in possession of a certain amount of a banned substance and prosecuted.
The presumption of criminalising vices assumes that the state has the right to act in the best interests of its citizens, even if those actions contradict the citizens’ own wishes as expressed through their behaviour. This presumption views the state as a moral guide and enforcer for its people.
This presumption is both dangerous and unjust. It is not because drug consumption, for example, is harmless – the evidence of the detrimental effects of drug abuse is clear. Rather, it is dangerously unjust because it is based on subjective criteria. The subjectivity lies in the fact that what constitutes a vice for person A is often not considered a vice for person B.
In the absence of a violation of rights by the said vice, there is no objective basis for the state to classify certain actions as criminal. Beyond the moral inclinations of legislators or voters, there is no objective – and therefore just – basis for such criminalisation.
This unjust presumption, which has been accepted as part of the justice system, has led to proposed legislative provisions such as Section 2(1)(f) of the Tobacco Bill. This section criminalises smoking inside your private dwelling, including your home, if you also use that dwelling as a workplace.
Section 21 (1)(f) effectively criminalises smoking on private property for anyone who works from home in any capacity. In its attempt to curb the vice of smoking, the state has intruded into your home and is dictating what you can do within it. As blunt as it may sound, that is precisely the case.
This section is unjust because smoking in one’s own home – which serves as an office during work hours – harms no one except the smoker’s lungs and possibly their linens. The state has no objective basis to sanction this behaviour, aside from the near impossibility of enforcing such a law.
This raises the question: if the law is difficult to enforce and unjust, why maintain it on the statute books? Legislation such as the Tobacco Bill is based on the idea of eliminating vices by criminalizing them, as described above.
Therefore, beyond this specific section, the Bill – or rather its underlying logic – is unjust because a just society is not one in which everyone follows the same moral prescripts or code. Instead, it is a society that allows individuals to follow as many different moral codes as they wish, provided they do not infringe on the rights of others to do the same.
When vices are policed broadly or criminalised even within the privacy of one’s home, as the Tobacco Bill does, the ideal of a just society is compromised – regardless of the legislators’ intent. Therefore, let us strive for a just society where, although we punish criminal vices, we do not criminalise every vice.
