Viruses and Property Rights
By Duncan Whitmore
In recent post on the LRC blog, Michael S Rozeff has attempted to demonstrate that pro-freedom arguments made in terms of self-ownership, private property, or the non-aggression principle are ill-equipped to handle a problem such as a contagious virus. It is not entirely clear whether Rozeff is arguing that “property rights solutions” are inherently unable to address such matters, and/or whether they are merely unpersuasive compared to other arguments that libertarians have at their disposal (such as utilitarian arguments). Either way, however, much of what Rozeff says is severely wanting.
Libertarians who attempt to apply 100% body ownership to every situation run into insoluble problems. They frequently try to solve them by deciding what is aggression and what is not, or equivalently who has rights or not, or equivalently whose 100% body property rights are being violated. Sometimes the suggested solutions involve odd behavior that looks immoral, and the confusing and arguable rejoinder is that body ownership theory is a theory of rights, not morality.
In the first place, it is misleading to characterise the libertarian position as one of “100% body ownership” for it conveys the impression that anyone should be able, quite literally, to do whatever they like with their bodies. The correct position is that you should be able to do what you want with your body provided that it does not physically interfere with the body or property of another person without that person’s consent. Rozeff, both here and later, seems to ignore this basic but important qualification.
Second, it is not entirely the case that “body ownership theory is a theory of rights [i.e. legality], not morality”, even though some libertarian theorists (such as Walter Block) often characterise it as such. It is more accurate to state that the ethical question addressed by “body ownership theory” is limited to the permissibility of the use of force and violence against others. Beyond that, libertarianism is silent on the moral content of one’s actions. Thus, it is important to realise that “suggested solutions” to problems by reference to self-ownership do not “involve” any “odd behavior that looks immoral” to the extent that such behaviour is promoted or encouraged – they say merely that an individual may choose to engage in that behaviour without the fear of physical interference from others. Whether that person should, in fact, go on to choose participation in such behaviour is another matter. For instance, stating that people may choose to indulge in sadomasochistic orgies doesn’t preclude any debate as to whether such a choice is odd, immoral, disgusting or whatever – the path is left open for people to choose other options. By failing to note this, Rozeff gives the misleading impression that libertarians equate permissibility with advocacy. Such a mistake is of the same ilk as the accusation that “capitalism promotes selfishness”, which it does not – it gives you the freedom to be either selfish, altruistic or a combination of the two, and the merits of any of those options can be debated. As Gerard Casey says:
Misunderstandings can arise from a failure to recognize the severely limited ethical scope of libertarianism. It is not intended to be, nor is it, a complete ethical system; it is rather an overarching constraint on any such system. Libertarianism does not imply that all modes of conduct are equally valuable or have equal merit. There may well be those who think of themselves as libertarians who think this, but such a view […] is not a necessary consequence of libertarianism as such.1
It is true that trying to resolve some esoteric problems by reference to self-ownership and private property cannot be done satisfactorily, particularly in matters where the behaviour in question lies close to the boundary between what is aggression and what is non-aggression. This lack of resolution, however, exists because such boundaries must be decided by reference to custom, convention and societal context. For instance, the precise volume of music that may be played late at night in a retirement community may be different from that on a street of student houses. Such contextual differences certainly mean that a specific problem cannot be resolved theoretically, but they do not mean that a property rights-based approach to resolving the problem is invalid in the first place.
Moreover, many of these problematic topics – abortion, the rights of children, and, yes, how to minimise the impact from viruses – present difficult questions for all social and political theories, not just libertarianism. In fact, it is precisely because libertarians cannot answer some of these problems purely as a matter of theory that those libertarians who equate liberty with decentralisation present the most realistic path for resolution, as they defer the matter to deliberation by local decision making forums, suitable for the precise circumstances. The results will not satisfy everyone, of course, but if we have to assume vehement disagreement on a particular issue as a given then such deferment is likely to be more preferable than any approach which attempts to impose, upon all and sundry, a uniform solution dreamed up by, say, an incompetent academic in an ivory tower (such as Neil Ferguson). That said, however, it is doubtful whether viruses present us with a problem that is overwhelmingly difficult to resolve theoretically.
Consider the smallpox case in the 19th century […] Person A owns her body, let us say. The virus attacks and she harbors it. She doesn’t actually own it or control it, and it can escape her body and infect someone else without her willing it. But she or those who control her if she is a child have some moral responsibility to prevent her from infecting others. If they do not, “society” or the state may possibly intervene and force isolation or treatment or whatever. There goes 100% property in one’s body.
The problem for the application of the NAP (or rights approach or 100% body ownership approach) is that there is a social interaction involved, between the carrier of the virus and everyone else. There is an externality. The problem here is caused by the fact that the unwelcome virus is linked to the carrier’s body.
It is difficult to see why any of this should present a problem to a property rights-based approach to freedom once one considers the problem more thoughtfully.
First, there is no place, in a free society, for any notion of ‘pre-crime’. Until Person A has actually initiated an action which has, or is in the process of causing, physical interference with the person or property of another person nobody has the right to subject her to force. No one has the right to force treatment upon her or confine her to some kind of quarantine pod simply because she is existing in a state of having been infected. Only once she is actually in the process of infecting someone else could a forceful response be considered.
Second (and in this regard), the transmission of viruses between specific individuals is, with our current technology, all but impossible to determine with certainty, at least not to the standards of proof required by a criminal trial. In other words, it is not possible to prove that someone infected you with a virus in the same way that you can prove that he stole from you or shot you, especially when you factor in nuances such as a cumulative viral load from multiple infections from different sources over a period of days or weeks. Thus, it it is difficult to argue that an individual has a legal responsibility to avoid infecting others and that the risk of infection should properly be regarded as a general risk of social interaction. Indeed, most people would probably agree that it would be a complete waste of time and resources trying to sue others for every case of infection.
Does this mean, therefore, that people are left without any protection whatsoever from contagious people? Not at all, for any “social interaction”, through which transmission occurs, must take place on a given piece of property. Libertarians believe that all property – including streets and roads – should be owned privately. The owner of the property in question has the right to welcome or exclude any person for any reason whatsoever, including people infected with viruses and/or those who have not received a specific vaccination or course of treatment. Such limitation does not imply any reduction of Person A’s rights in her body – merely the enforcement of other people’s rights. Rozeff can only say “there goes 100% property in one’s body” if he believes that any given person has the right to literally do what he wants with his own body regardless of its impact upon the bodies and property of others, which is not a position that libertarians hold. The transmission of viruses through “social interaction” only becomes an apparent problem when we presume the existence of public property on which private citizens do not have the right to include or exclude others on their own terms. But Rozeff himself, in another (and very good) essay, attempts to resolve this problem by reference to innate, natural rights (in this case, the right to work), enforced in the form of property rights:
To implement one’s right to work generally involves travel on public roads. Does the government’s presence in the system of roads render right to work an empty idea, stymied because of a property rights barrier? Not one whit. Highway departments maintain roads, governments get them built, but the funding comes from taxes at all levels. Taxpayers own the roads, not your City Manager or County Supervisor. They are your agents. The right to work includes rights to travel on the roads, over bridges, through tunnels, etc. Having paid for them, they are your property, jointly owned to be sure, but meant to be available so that you exercise your rights to life, liberty and the pursuit of happiness. They too are essential parts of the larger right to work. They are necessary means, and the use of them cannot coercively be prevented by governments without violating your right to work.
Turning to the issue of moral (as opposed to simply legal) responsibility, the reason why libertarians emphasise the division between rights and morality is because moral responsibility must presuppose moral agency – i.e. the ability to choose one’s actions from an array of possible options. The scope of that agency is dependent upon the extent of a person’s right to self-ownership and private property – the sphere within which he may lawfully act. Thus this sphere must be determined prior to delineating the scope of a person’s responsibilities. As the philosopher Antony Flew put it:
To be an action for which an agent can be ultimately responsible, that action must be – as all true actions necessarily are – a first cause not itself brought about by any physically necessitating causes.2
Thus, to dive head first into stating that Person A, in Rozeff’s example, should be morally responsible for choosing the ‘right’ path (i.e. of avoiding the transmission of an infection to others) without accepting her right to choose the ‘wrong’ path would be nonsensical. The very reason why we argue about morality is because we have to decide which, out of a number of possible paths, are right/good/beneficial/wise etc., and which are wrong/bad/detrimental/foolish. If a particular path was, instead, preordained and not contingent upon choice and volition then there would be no point in engaging in this debate because the outcome is bound to occur regardless of what we might want. So if we were to suggest, as Rozeff does, that the state may step in and force Person A to adhere to the ‘morally righteous’ path then we are no longer talking about Person A’s moral responsibility because Person A no longer has any choice – her destiny is now pre-determined by a “physically necessitating cause”. Instead, we are talking about what the state’s agents should choose to do (i.e. what their responsibilities are), using members of the citizenry such as Person A as mere pawns in producing the desired outcome. Understanding this difference is critical, because all moral theories that assert the right of the state to enforce their edicts are essentially of this character, allowing the state to expand its encroachments into people’s lives so as to create what the theorist happens to think is a ‘morally upstanding’ society.
In fact, in this regard, it is worth spending a moment to point out the depth to which moral disagreements can penetrate. Rozeff makes the casual assumption that an individual infected with a contagious disease has at least “some” moral responsibility to avoid infecting others. But is this necessarily the case? Delaying the spread of an infection creates a concomitant delay in achieving so-called ‘herd immunity’, which, regardless of the path taken to get there, is the ultimate state in which an infectious disease comes under control. One of the very questions that has been debated during the current COVID-19 pandemic is which, out of a ‘short, sharp’ epidemic with rapid spread on the one hand or a ‘flattening of the curve’ with a slower spread on the other, should be the preferred path. Only the latter implies a responsibility to avoid infecting others, whereas the former may actually require you to infect others.
More difficultly, neither legal nor moral responsibility is simply a matter of whose body (or property) some danger happens to be emanating from. If there is an obvious risk to harm which you can take reasonable steps to mitigate then a case can be made for saying that it is your responsibility to do so. For instance, if you were to leave your car unattended with the keys in the ignition, and the car was subsequently stolen, it is true that the thief has broken the law and is liable to return your car. But at the same time, you should not be too surprised if everyone else was to say that the theft “serves you right” for having failed to take the simple, preventative step of removing your keys. A similar argument is made, more controversially, in sexual assault cases. It is undeniably true that a woman has the legal right to dress in whichever style of outfit that she likes, and a man has no legal right whatsoever to sexually assault her – no reasonable person disputes this. But when it comes to the practical matter of taking steps to actually prevent sexual assaults from occurring, it can be argued that dressing in a sexually provocative manner may not be the wisest course of action. A relevant factor also is who bears the lightest burden in minimising the harmful effects. Let’s say that you suffer from an unusual and unfortunate condition that causes an unbearable pain in your ears when another individual talks. The proximate cause to your pain and distress is other people talking. But it would be woefully disproportionate to demand that the rest of the world stops speaking and bears the cost of foregoing oral communication just because you happen to have a peculiar sensitivity to what is, for everyone else, a feature of everyday life. Rather, the responsibility should be on you to find treatment for or protection from the effects of the condition.
Infectious diseases are not too dissimilar from this latter example. There is a strong case to be made for suggesting that the critical factor on which to focus so as to minimise the actual manifestation of disease – that is, infections that require hospitalisation and treatment – is the susceptibility of the recipient rather than the infectiousness of the carrier. Yet with COVID-19, we seem to have slept-walked into assuming that the responsibility of reducing infection should be placed on potential carriers, resulting in the enforcement of lockdown and so-called ‘social distancing’ rules. But we know that the infection affects primarily those who are elderly and/or with pre-existing health conditions. So it could just as easily be said that the responsibility should be for these latter people to minimise their contact with everyone else rather than for the latter to forego social interaction with each other – interaction which is pretty much the very raison d’être of human society. This is precisely what some commentators are suggesting would have been the proportionate and reasonable response. Such an argument is bolstered if you consider that some susceptibilities to infection are caused by freely chosen, unhealthy lifestyle choices (such as Boris Johnson’s waistline). Why should everyone else be expected to lock themselves in their own home or remain two metres apart in order to protect a wilfully unhealthy person from the consequences of his own actions?
In sum, it is not necessarily clear what the morally righteous path should be. Indeed, some of the gravest (albeit often predictable) problems caused by the state are not the product of conscious evil; rather they result from the state’s lackeys and minions wielding the blunt and heavy hand of blanket force when they are convinced that they have grasped the right answer. As has often been said, the road to hell is paved with good intentions. Instead, what we need is the ‘trial and error’ of millions of individuals, families, businesses etc. doing what they think is best for themselves, which – coupled with the freedom of speech and the debate of ideas – act as mechanisms for us to discover what is right and what is wrong. Thus, the rights of self-ownership and private property have also an epistemic value.
Back to Rozeff:
All the mind-numbing theoretical arguments in the world cannot resolve this problem. We do not know a priori what the rights of the carrier vs. the rights of other people (society) are in this situation. Valiant attempts to argue the case will all fail to resolve it to the satisfaction of everyone who purports to be applying libertarian theory or to the state-supporters.
In the case of contagious viruses we do know what the rights of the various parties are. The carrier of an infection, or anyone else for that matter, may not enter your property unless he is prepared to agree to terms decided by you, which may, during a pandemic, include furnishing proof of non-infection, vaccination or immunity. Mutatis mutandis you may not enter anyone else’s property unless you agree to terms set by them. As we stated earlier, there will be disagreements as to the precise boundaries of rights in other issues that present more difficulty. But it is precisely because of those disagreements that the matter should be deferred to the most decentralised and localised forums for resolution, tailoring their responses to the particular circumstances.
There are many libertarian actions, voluntary actions, that can be taken and they may work about as well as a state-imposed action or even better. Debates are useful for bringing up these alternatives that preserve freedom, but definitive resolution of this and many other similar issues will not be attainable. These debates all involve specific costs and benefits. That’s why definite answers are unattainable.
On much of this Rozeff is correct, but I would say that it bolsters the case for a private property solution rather than diminishes it. Any solution to a problem such as a pandemic – including one proposed by Rozeff that may not talk directly about rights – must, by necessity, result in some kind of assignment of rights. The result is always formulated as ‘person A may do action Y with resource Z whereas person B may not do action Y with resource Z’. But the very attempt to do this must necessarily embrace the fact that there is a lack of definitive, agreed answers as to what should be done with means available. The very purpose of rights is not to bring everyone to agreement but to grant the ability for one party to do what he wants with a resource while everyone else must yield. If everyone was in agreement about how a given resource should be utilised (or if they subsequently reached such a state of agreement) then any system of rights would become superfluous. Clearly, some systems of rights assignment are more justifiable (and are likely to be met with a greater degree of acceptability) than others – private ownership vs. state ownership, for instance. But any suggestion that a particular assignment fails on account of its inability to furnish “definite answers” not only begs the question but fails to grasp what a workable solution can hope to accomplish.
This is not the place for a full-blown justification of private property rights, but we can see from some of the kinds of disagreement that Rozeff has mentioned that the enforcement of private property rights is likely to be the least problematic solution. If, as Rozeff says, there is no “definitive resolution” arising from “specific costs and benefits” this is because costs and benefits are, by their nature, subjective. Thus, it is better to let people decide for themselves the costs and benefits of interacting with other people during a pandemic. Some people, who are more fearful or susceptible to infection, may choose a greater degree of isolation from others who are less fearful or susceptible. Businesses such as shops need to employ measures that impart a level of safety acceptable to their customers. Too lax or too harsh will see those businesses shed custom to competitors who have estimated their customers’ desires more accurately. Other businesses will see a profit opportunity in ramping up home delivery services to the most fearful. And so on.
Rozeff’s lack of appreciation of this is what leads him to conclude:
The NAP calls for a solution in which the benefits of 100% body ownership [sic] are assumed always to outweigh the costs of something less that involves a state’s imposition of force. Not everyone agrees with this a priori solution. The debate then shifts to costs and benefits, and there cannot be an objective answer.
For the less radical, for us who are minarchists, we can continually expose the feet of clay of our servants in the state in the hope of leading to a system that works better, which means lower and fewer costs, and higher and more abundant benefits. Look at how they’ve handled COVID-19, or at least many of them. But also look at how we ourselves who are not state employees have handled it.
For those with more radical leanings, the ancaps and total voluntaryists, those who question the state itself, who question its very existence as a means to resolving our basic problem of living with one another peacefully, there is the challenge of convincing our fellows that there is a way without a state that has lower costs and higher benefits.
These closing paragraphs of Rozeff’s betray an aspect of libertarianism that so many of its adherents, as well as free market fellow travellers, fail to grasp, even though they may write brilliantly on specific topics. Libertarianism should not be preoccupied with the question of what is “better”, what is “worse”, or with what produces the most “benefits” or reduces “costs” the most effectively. Instead, our concern is with who gets to decide what is “better” or what is “worse”, and what an acceptable level of “costs” and “benefits” are. The difference is critical, because anybody who talks about the “benefits” of self-ownership being weighed against the “costs” of “something less that involves the state’s imposition of force” is engaging in the completely different exercise of deciding for himself the costs and benefits that everyone else should be made to endure. Those people who “do not agree with [the libertarian] solution” do so because they want to impose their values upon everyone else, and to force everyone else to bear the cost of pursuing goals that they want, such as reduced contagion (or a defined manner of contagion such as ‘flattening the curve’). When Rozeff says “there are many libertarian actions, voluntary actions, that can be taken and they may work about as well as a state-imposed action or even better” he is talking about what he thinks “working well” means. This is one reason why neo-liberals, who generally favour free markets, always end up outing themselves as closet statists, often crumbling at the very point where the threat from state power is at its most dangerous, such as during an emergency. Instead of starting from the position of fundamental rights, they are happy to ‘allow’ everyone a certain degree of freedom because they think that the resulting increase of wealth and economic prosperity is a good thing; but as soon as they see something they happen not to like then they welcome the state with open arms, whether it’s to provide a compulsory ‘social safety net’ or to impose a lockdown to control what they think is an unacceptably spreading contagion. Their fundamental approach to society is no different from that of any socialist – they just differ in the precise values that they think everyone should be made to conform to.
In any case, it is not particularly clear to me why arguing against the state from the point of view of property rights should necessarily prove more ‘challenging’ than utilitarian arguments which Rozeff appears to favour. During the current pandemic, there has been quite a lot of discussion of the fact that a) we prospered through previous pandemics of similar, if not worse, severity without anything approaching the current level of state engorgement, and b) COVID-19 presents a different level of severity to different people in different circumstances, and that the existence of those different circumstances means that people should have the right to make choices suitable for them. Indeed, the extent of the power grab has been so sharp and sudden that the question of people’s rights is actively being raised by relatively high profile commentators such as Lord Sumption and Peter Hitchens, and is, moreover, the motivation behind anti-lockdown protests that are now erupting in various countries. We haven’t just been arguing about which, of either the state or the free market, is more ‘efficient’ at producing outcome X, Y or Z.
Nevertheless, none of this means that “ancaps” and “total voluntaryists” are precluded from making utilitarian arguments against the state if one judges the target audience to be more receptive to that line of thinking. Indeed, it is difficult, at present, to avoid making such arguments given the manifold economic destruction that is currently being wrought in the name of slowing the spread of the virus, saving the NHS, etc. – the cumulative effect of which is likely to cause more destitution, disease and death than COVID-19. It is also difficult not to lament the general culture of hysteria and risk-averse fear-mongering that seems to have demanded the state’s draconian responses. The manner of justifying one’s own approach to the state, and to people’s rights, is a separate endeavour from deciding which tools are likely to prove the most persuasive in reducing a particular case of state interference. Just because libertarians have a fundamental hatred for the state doesn’t mean we have to play all of our cards in one hand. Indeed, most specific instances of freedom, whether its free speech, sound money, reduced warfare, lower taxes, fewer regulations and so on, can all be justified on principled and pragmatic grounds in their own right. Moreover, people might be more easily persuaded to agree with the libertarian position on some of these issues but not on others, so it is probably best to dispose of particular problems with the simplest and most effective means available rather than reciting abstract philosophical principles.3 Thus, libertarians of any guise should be armed with a coterie of arguments specific to each problem, rather than simply chanting the non-aggression principle.
That said, however, the problem with most utilitarian and minarchist arguments in favour of liberty is that they tend to focus too much on the functions of the state rather than its size and structure. Whatever can be said in favour of lower taxes, less regulation, privatisation and so on, we are well passed the point when expecting the state to roll itself back voluntarily (while leaving its formal jurisdiction and the apparatus of compulsion and coercion intact) is likely to be effective, if, indeed, it ever had a chance of being so. As David Friedman has said:
One cannot simply build any imaginable characteristics into a government; governments have their own internal dynamic. And the internal dynamic of limited governments is something with which we, to our sorrow, have a good deal of practical experience […] the logic of limited government is to grow […] the idea of a limited government that stays limited is truly Utopian.4
We have gone too far down, and too many people are invested in, the path of rampant inflationism, welfare statism and social democratic redistributionism to the extent that these things now define the system itself. Regardless, therefore, of one’s philosophical foundations for liberty, it is likely that libertarians of all stripes will need to unite in finding more radical ways to nullify this insidious “internal dynamic” of the state towards perpetual growth. Unfortunately, it is now almost certain that people will have to endure a rude awakening before they are prepared to listen.
1I would add also that libertarians are under no compulsion to deny that certain forms of ostensibly non-aggressive behaviour or peaceful social organisation are likely to be inimical to the sustenance of liberty in the long run, at least in certain contexts where the behaviour may counter the prevailing customary and cultural environment. Thus, a strategy for promoting liberty may justifiably exclude accommodation for such behaviour.
2Antony Flew, The Philosophy of Freedom, Journal of Libertarian Studies, Vol. IX No.1 (Winter 1989), 69-80 at 79.
3As a case in point, it is sometimes enough to point out that the current lockdown and ‘social distancing’ measures were introduced so as to prevent hospital capacity from being overwhelmed by a surge of infected patients; they were not intended to provide a long term solution for managing the infection. Now that hospital capacity has been demonstrated as ample, the original purpose of the lockdown has been fulfilled, and so it should be lifted.
4David Friedman, The Machinery of Freedom: Guide to a Radical Capitalism, New York: Harper and Row (1973), 200-1.
Libertarianism isn’t libertinism. This is apparently hard to grasp for some people.
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[…] of how libertarian property rights can be applied to the situation of viruses in two, previous essays, it is useful to summarise this again for a clearer picture. Such an endeavor seems necessary now […]