On 1 January 2025 Milan banned smoking outdoors: on pavements, in parks, at tram stops and at the tables outside bars, unless you are ten metres from everyone else. Presenting the measure, the city’s environment department explained that it is “first of all an awareness-raising action”, intended to begin “a real cultural change”.

That sentence is the most honest thing said on the subject, and it is worth taking seriously. It does not claim the air will get much better. It says the point is to teach you to behave.

This is the ethical state, and that is not an accusation. It is a description, supplied by the people who wrote the rule. The ethical state is not the state that stops you harming someone else, which is its job and which nobody disputes. It is the state that decides what is good for you and then puts it into law, because it does not trust you to get there on your own.

I do not smoke and I do not use cannabis, and I think habitual use costs you clarity of mind. That is not the point. The point is who decides, and on what authority.

Smoking, and a number I got wrong myself

The city justified the ban by saying cigarette smoke accounts for 7 per cent of fine particulate emissions, citing Arpa Lombardia, the regional environmental agency.

In the first version of this article, eighteen months ago, I used the same number to argue the opposite, and I called the contribution “extremely marginal”. I was wrong twice over. Seven per cent is not extremely marginal. And I had not checked the number.

Checked, it says something more useful than either claim. It comes from INEMAR, the Lombardy emissions inventory maintained by Arpa, 2021 edition, covering the territory of the municipality of Milan. An inventory does not measure the air. It estimates. It takes an activity indicator, multiplies it by an emission factor drawn from European and American methodologies, and arrives at how much is released inside a boundary. Monitoring stations, by contrast, measure what people actually breathe, and much of what Milan breathes comes from outside Milan. These are two different quantities and one does not stand in for the other. A 2023 edition has since appeared, so that 7 per cent is two editions out of date as well.

But the proof that clean air was not the aim is not in the numbers. It is in court. In 2021 the regulation was challenged, and the Lombardy administrative tribunal upheld it, in judgment 2631 of 29 November, not as an air-quality measure but as an exercise of the city’s powers over urban security and public decorum. The judge described the rule for what it is.

The rest is told by enforcement. In the first thirty-four days the municipal police issued nineteen fines, thirty in the first two months. In the four preceding years, when the ban covered only parks, stops, cemeteries and sports grounds, fourteen were issued in total. A rule you intend to enforce gets enforced. This one exists to say which side the city is on.

Anyone with tables on the pavement in Milan understood this at once, because the first person who has to explain the rule to a customer is not a police officer. It is whoever is carrying the plates.

Driving, where the ethical state enters the criminal law

Here it gets serious, because we are no longer talking about forty euros.

In December 2024, law 177 rewrote article 187 of the Italian highway code. Previously the offence was driving while impaired after taking drugs, and the impairment had to be proved. Now the taking is enough: the link is chronological, no longer causal. Test positive and you have committed the offence, whether or not you were clear-headed at the wheel.

Cannabis use leaves detectable traces for days and, in habitual users, beyond thirty, as Italy’s National Institute of Health puts it. Which means you can face a criminal charge over a choice made a fortnight earlier that endangered nobody on the night in question.

This is the precise point at which the state stops punishing harm and starts punishing a habit. And that the legislature overshot is confirmed by the administration itself: in April 2025 the interior and health ministries issued a circular ruling out urine tests and requiring blood or oral fluid, because those establish “a persistent activity of the substance”. In other words the circular puts back the impairment the statute had just removed. As the criminal lawyer Gian Luigi Gatta observed, a circular cannot make a law say what the legislature deliberately stopped saying.

Driving on drugs is dangerous and should be punished hard. But you punish the dangerous conduct, not the trace in a sample. Due process is not a matter of opinion here: the burden of proof belongs to the state, and a law that sheds it needs fixing.

The sugar tax, which does not exist

The third case is the most instructive, because here the ethical state did not even need to apply anything.

Italy’s sugar tax was voted in the 2020 budget law: ten euros per hectolitre on sweetened drinks, to fight obesity and diabetes. It was due to start in October 2020.

It has never come into force. Eight postponements in five years, counted by the Italian public accounts observatory. The latest came in the 2026 budget law, which moved it to 1 January 2027, as the customs agency notified traders in January. The 372 million euros it was supposed to raise in 2026 were written into the budget and then taken out again.

Here too, in the first version, I wrote something false: that the cost fell on consumers. There is no cost, because there is no tax. There is a tax announced six years ago, never applied and never repealed, which returns to parliament every December to be deferred another twelve months. Companies have carried it as a risk for six years. There are exactly as many obese people as before.

Six years of moral declaration at no cost. The state said which side it is on about sugar, and never had to do anything else.

Where the line runs

I am not saying the state should get out of the way, and not all the rules above are alike.

Banning smoking in children’s play areas and at tram stops protects somebody from a harm they did not choose, which is why that part has been in force since 2021 and makes sense. Penalties for genuinely impaired drivers protect everyone on the road. There the state is doing its job, and anyone who calls themselves a liberal has no objection.

The line runs where the person harmed is you. From there on the choice is yours, even when it is the wrong one, and the state may inform you, tax you if it says so to your face, try to persuade you. It may not decide in your place and call that public health.

And there is a practical reason on top of the principle: the ethical state does not work. Nineteen fines in thirty-four days, a tax deferred eight times, a law the administration has to patch by circular. They produce verbal obedience and no measurable result, while teaching everyone that a rule is an announcement rather than something that gets enforced. It is the surest way to drain authority from the rules that do matter.

What I am asking for is small and irritating, and could be done tomorrow morning: that every ban and every tax be written with a date inside it, the date on which we go and look at whether it worked, along with the number that measures it and the name of whoever publishes that number. If the smoking ban brought particulates down, say by how much and keep it. If it did not, keep it where it protects somebody and drop it where it only said which side we are on.

A state that has to account for a result goes back to making policy. A state that only has to declare what is good delivers sermons, and nobody asked for a sermon.