Against Lockdown – The Libertarian Case

By Duncan Whitmore

Although I have written on the topic 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 endeavour seems necessary now more than ever, for in spite of increased opposition compared to the first round of lockdowns earlier this year, the various nations of the UK are again heading into some from of lockdown mode as the winter draws near.

Most sceptics of lockdown and restrictive policies designed to “curb” the onset of COVID-19 approach the matter from a utilitarian or technocractic angle – i.e. whether the measures that states are pursuing are an effective and/or proportionate response to the spread of the virus. While this is an invaluable exercise, it does not challenge the principle that the state has the prerogative to obliterate rights and freedoms in the manner that it has. In other words, the notion that, ultimately, our rights could be infringed on a future occasion when someone deems that it is “effective” and “proportionate” to do so is left untouched. Equally intact, therefore, is the notion that our rights are not immovably tied to our status as individual human beings, but are little more than privileges enjoyed at the sufferance of the state. This is not to imply that the principle of liberty has been ignored – former Supreme Court Justice Lord Sumption has been a notable high profile critic of the government in this regard. But the general opposition to lockdowns and other restrictions seems to assume that their only problem is that COVID-19 is simply not a big enough crisis to justify the present level of state intrusion. Thus, there is still a need to emphasise the fact that our rights exist not only in fair weather but in storms and hurricanes also – in fact, it is precisely in exceptional circumstances when rights need the most protection for it is always on these occasions that the state exploits fear and anxiety of unknown dangers so as to achieve greater incursions upon our liberty.

The fundamental, ethical proposition assumed by lockdown enthusiasts (and accepted by most lockdown sceptics) is that the carrier of a virus who infects another individual with that virus is akin to a criminal or tortfeasor who harms a victim. From this assumption it follows that force can be applied to the carrier (or to his property) in the same way that punishment can be applied to a criminal.

Even if this assumption was to be true, it would not serve to justify the way in which lockdowns policies have been applied for the reason that such policies are tantamount to punishing “pre-crime”. In other words, people are being quarantined or restricted not because they have infected another person with a virus that has resulted in harm to latter – rather, it is because they might infect someone if they go out and socialise. The situation is similar to locking someone up because he might go out and knife someone to death, not because he has actually done so. Just under a year ago, any notion of “pre-crime” would have generally been considered an abomination because the law should respond only to the actual consequences of our real actions, not to actions or consequences that are merely hypothesised by the state.

The seriousness of ignoring this principle is magnified when you consider how widely the new laws and powers have been applied in this situation. Previous power grabs have relied upon a specific threat by “other” people such as Islamist terrorists so that, even though new laws passed to tackle such threats apply to everyone in principle, they are, in practice applied to only a small minority. With COVID-19, however, we are all the threat and we are all guilty. Thus, lockdown is the effective criminalisation of the whole population based upon an effect that their actions might have.¹ When put like that it is hard not to see the rank injustice of the policy.

Nevertheless, for the sake of clarity, let us ignore this complication and focus instead on whether treating an actual infection which has occurred is akin to a crime or tort warranting a forceful response.

A crime or tort requires at least three things to be identified: a perpetrator, a victim, and proof of causation between the actions of the former and the physical harm to the latter. In cases of viral infections an identifiable victim – a sick person in need of treatment – can be established. An identifiable perpetrator and proof of causation, on the other hand, are impossible to establish in all but the most exceptional of circumstances, at least with current technology. The “victim” could have come into contact with the “guilty” carrier of an infectious disease on any number of social occasions days, weeks, or possibly even months, before the onset of disease – may be before the existence of the specific virus was even discovered.

Moreover, a mere “infection” or transmission of the virus is, by itself, inconsequential. In order for there to be any liability an infection would have to result in actual sickness. So even if the current obsession with testing produced a reliable indication of viral transmission between specific individuals (which it does not), this is legally meaningless if the “victim” does not actually suffer any perceptible loss in the form of sickness. Indeed, such lack of sickness is the case for the vast majority of those who are infected; for them, transmission of the virus between people is as inconsequential as the transmission of pieces of dust.

However, even where actual sickness does result, it is also possible that multiple infections from multiple carriers were necessary in order to produce the critical “viral load” before symptoms appear. So even if, in one instance, it is possible to prove infection, it cannot be ruled out that other infections were necessary to make the patient sick. Even with sexually transmitted infections (STIs) which require the specific act of sexual contact with an identifiable partner, in practice those who succumb are likely to be sexually promiscuous, indulging in sexual behaviour with any number of transient and often anonymous partners. One or any number of these partners could have caused the resulting onset of symptoms in need of treatment.

This problem is exacerbated by the fact that all such possible perpetrators lack any kind of legal intent (i.e. they neither infected other people deliberately nor were they negligent in doing so). Most carriers won’t even know that they are infected and those whom they infect, likewise, will not realise they are socialising with an infected individual. Thus, infection is always an unwitting, incidental by-product of otherwise normal, social interaction. This is completely unlike the commission of any crime or tort where we hold an individual responsible because he knew (or should have known) that his actions are radically different from those that occur during the normal course of human relations.

If we lack an identifiable perpetrator then we can already see problems with proving causation of harm to the “victim” – you cannot establish a causal link to someone you cannot identify. But even if, for argument’s sake, we could identify a particular perpetrator another question is what we should regard as the relevant cause of any resulting sickness? Is it, on the one hand, the infectiousness of the carrier? Or is it, on the other, the susceptibility of the recipient that is the critical factor? This is not necessarily an easy question to understand as it requires an examination of all of the circumstances in which an infection typically takes place. But lockdown enthusiasts – and pretty much everybody else, for that matter – have simply assumed that the relevant cause of sickness is the transmission of the virus from one person to another.

To illustrate this problem more easily, consider the case of STIs resulting from sexual promiscuity. Here, the technical cause of infection is that the infected partner has sexual contact with an uninfected partner and thus “passes on” his infection. However, the risk of STIs is a well known by-product of a sex life involving multiple partners. Thus, while an infected partner may attract moral stigma (and occasional legal liability) if he has sex in a knowing state of infection, in most cases we regard the risk of infection as having been voluntarily assumed by the uninfected partner. Indeed, the widespread publication of “safe sex” practices such as condom use demonstrates that the primary burden is on you to protect yourself. Moreover, people who have to seek treatment for STIs by indulging in promiscuous sexual lifestyles will probably chalk it up to something that simply has to be dealt with if that lifestyle is to be continued. So in other words, the relevant cause of infection is not the infectiousness of the infected partner – it is the choice of the uninfected partner to proceed with sexual contact.

True enough, this view is helped by the fact that the two partners are often viewed as moral equivalents, each indulging in the same kind of behaviour. This isn’t always the case with non-sexual causes of transmission. However, the extent of the risk that most, if not all, types of infection will result in actual harm is heavily dependent upon the ability of each individual’s immune system to fight off the infection. With COVID-19 we have seen that, overwhelmingly, those who succumb to actual illness do so because of immunodeficiency resulting from either pre-existing health conditions and/or old age, while the vast majority of the population remains unaffected. Thus it is not clear at all that the relevant cause of illness is the transmission of infection from A to B rather than the particular susceptibility of B for that infection to become manifest as disease.

This is not imply that those who catch an infectious disease are at fault for doing so, even they may be so in cases where people have wilfully lived an unhealthy lifestyle that has weakened their immune systems. Rather, we are simply pointing out that if you have a susceptibility to a known danger then you cannot necessarily offload the burden of that danger onto other people, even if those others have some part to play in bringing that danger about. Which way the burden falls will depend on the customary, conventional and – as we shall see – the economic context.

To illustrate with a deliberately extreme example, let’s say that a minority of people experience a painful ringing sound in their ears every time another individual speaks – a sorry condition which may make their lives intolerable, even hellish. What should we regard as the relevant cause of this pain? Is it another person speaking (in which case we could regard that person as an aggressor) or is it the unusual susceptibility of the person who experiences the pain (in which case the latter would have to find their own protection or remedy)? Simple common sense tells us that the second option is the correct answer, and that we cannot forcibly stop the rest of the world from enjoying the benefits of speaking simply because a relative minority of people have an unusual sensitivity to the act of speaking, however painful this might be for them. Instead, the onus should be on them to find means of protecting themselves from (or otherwise remedying) this unfortunate situation. Indeed, this is also likely to be the most economical situation – more can be gained by the sufferers from the development of treatments or protective devices than the enormous time and expense of suing every person who speaks to them.²

Historically, this seems to have been our attitude towards infectious diseases. Indeed, the very fact that humans possess immune systems in the first place indicates that we evolved so as to continue the social interaction upon which the flourishing of our species depends in spite of the possibility of infections. In other words, it seems unlikely that at any point in our history was social interaction resulting in the transmission of infectious disease generally regarded as akin to an aggressive act. This has become self-reinforcing because, now we know that immune systems exist, the most economical method of preventing disease is for us to find ways of improving the immunity of the vulnerable minority (or producing remedial treatments if disease still occurs). At the same time, we know that the miracle of herd immunity – which, in spite of the denigration it has recently received in the mainstream press, is probably the method our species evolved so as to minimise the loss of life from infectious diseases – is gradually being accomplished amongst the population as a whole.

While, in all of these examples we have given, it may surprise some people to learn that economic considerations can determine the boundaries of rights, it becomes clear once you realise that the pursuit of justice is itself a costly affair which consumes resources. In other words, people will only attempt to enforce rights when the cost of doing so is lower than seeking an alternative method of protection. It should be quite obvious that devoting resources to preventative or remedial medicines and technology (and continuing the incalculable benefits from social co-operation) is far more economical than taking each other to court every time we catch a cold.

All of this points to the fact that treating the transmission of an infectious disease between one person and another as an event akin to a crime or tort is a false equivalence. Any typical case of infection cannot be regarded as an aggressive act of one individual against another. If there is no aggression it follows that there is no justification for the use of force against the person or property of any individual who is not otherwise violating anyone else’s rights.

Instead, it is more accurate to regard infectious diseases not as the product of the actions of individual persons but as a phenomenon of nature which happens to use general human interaction in order to proliferate. Thus, our attitude towards it should be exactly the same as any other problem posed by nature such as bad weather – we take our own precautions against it in accordance with our own preferences, and we seek our own remedies if we are affected. We should not hold other people responsible for any infectious disease any more than we should hold them responsible for the wind and the rain. From an ethical perspective, a consequence of general human activity is not the same as a consequence resulting from the specific act of a specific human being.

Somewhat ironically for lockdown enthusiasts, if an infectious disease becomes more obviously widespread and deadly then the case for treating the carriers of that disease in the manner of culprits actually weakens rather than strengthens. As we suggested earlier with regards to STIs, if you know of an obvious danger then the relevant cause of any resulting harm from that danger is your failure to protect yourself rather than the actions of the person who may have “created” that danger in the first place. Would this not be exactly the attitude we would take in a serious pandemic? Wouldn’t the risk of infection from any social interaction be obvious and palpable? If so, wouldn’t we regard a person who proceeds with social contact in such a milieu as having voluntarily assumed the risk of infection?

Conclusion

What all of this means is that any response to a serious infectious disease must take place through the ordinary mechanism of the enforcement of private property rights. Under such a regime, you would set the terms by which you are prepared to interact with other people on your property, not the state. We can envisage that the individuals most susceptible to a particular infection will restrict access to their home whereas less affected people will probably be less averse. Business premises and employers will set terms according to the preferences of their customers and employees. This may involve having to wear a face covering on the premises or provide some kind of evidence of non-infection, treatment or vaccination etc. Indeed, in a very serious pandemic, some of these responses may become so widespread that they are elevated to the level of a general social custom – in other words, wearing a face covering in the presence of other people could become as “normal” as wearing clothes. In the event that a large number of people feel that they have to self-isolate, this would create a demand for suppliers of food, medical and other goods to increase the provision of delivery services directly to people’s homes.

Clearly this is just a summary, but – in addition to defending rights as a matter of principle – we can see also how any state of emergency is best solved when those rights are allowed to flourish. At the end of the day, medical emergencies are subject to the same considerations as any other human need or desire. There is no way of treating separately the question of how many resources should be directed to tackling medical problems simply because the latter are deemed to be “urgent”, “serious” or matters of so-called “public health” – any resource awarded to solving a medical problem is necessarily denied to other needs and wants, and so the latter must be considered as well. The precise balance will be different for each individual person – a factor that has been completely blown out of the water by the government’s single-minded obsession with COVID-19 “cases”, leading to the destruction of businesses, livelihoods, culture, recreation, and social life. In contrast, ordinary people transmitting their differing preferences through the marketplace would divert resources in a way that most ably tackles a pandemic in accordance with those preferences. The overall picture would reveal the generally desired balance between tackling the disease on the one hand and carrying on with as much of normal life as possible on the other.

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Notes

¹Thus, the claim that libertarianism proscribes “threats” of aggression in addition to actual aggression would not suffice to defend the current lockdown measures. As we have stated before, threats are defined legally as the commencement of aggression, and so they too must be proven to have been initiated as much as actual aggression. It is not sufficient to simply assume that everyone is a threat and apply force against them accordingly, a view which, in any other context, would rightfully be viewed as wanton paranoia.

²Readers who wish to learn more about this kind of analysis can consult my previous series of essays on libertarian law.