Why Lockdown Libertarians are Wrong

Libertarians have been divided over whether governments should have locked down entire populations to stop the spread of Covid-19. Perhaps that split is not surprising - the libertarian movement has always been a broad church with a range of views from a religious-conservative right to an anarchist left. Most libertarians agree that some government is desirable but that its role should be limited to protecting the genuine rights of individual citizens. They also agree that rights don't exist at the discretion of governments, but rather the opposite - that governments exist at the behest of individuals, each of whom has their own inherent rights that can't be taken away. As Thomas Jefferson wrote so eloquently in the US Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...

The last sentence is perhaps the most important - the only legitimate function of governments is to protect individual rights and governments should be limited to this function. In other words, we delegate to governments the powers to protect our rights and nothing more. This begs the question, what are the legitimate actions of government in protecting our rights? Almost everyone agrees that stopping the initiation of violence against us is a legitimate action of government, even if that requires the government to use violence in our defence. If someone is intent on murdering us, we accept that the government can use force to detain or, if necessary, even kill that person. But what about someone intent on infecting us with a deadly disease?

The case of Typhoid Mary in the United States was a classic legal case in the early 20th Century. Mary Mallon was an asymptomatic carrier of typhoid, then a very deadly disease. Public health authorities asked her to self-isolate and she refused, continuing her work as a cook, infecting hundreds and causing the deaths of at least five people. Ultimately, she was forcibly detained for the remainder of her life. Few people today would dispute that the authorities were right to detain her - she was a real danger to the lives of people she came in contact with and she refused to voluntarily remove the deadly threat she presented to others.

Covid-19, like typhoid, can be spread by asymptomatic carriers of the disease. However, Covid-19 is far less deadly than typhoid, with a global case fatality rate (CFR) of 1-2% (which drops exponentially with age and is decreasing rapidly across all ages as vaccination rates increase). This compares with an untreated typhoid CFR of 10-20% (and even when treated with modern antibiotics, typhoid still has a similar CFR to Covid-19). Typhoid Mary's case was exceptional precisely because they locked her up, and even in her case that was a controversial decision at the time. With Covid-19, governments are locking up entire populations (at least to the equivalent level of house arrest).

I agree that extraordinary times require extraordinary measures and that threats to life not only justify but require governments to act to safeguard us. The alternative is anarchy and I am not an anarchist. I agree that someone who is infected with a deadly disease should be detained if necessary to protect everyone else. However, I do not accept that governments have the right to lockdown entire populations in response to Covid-19 for the following reasons:

1. Covid-19 is not a sufficient threat to justify such an indiscriminate response
2. Lockdowns are an ineffective public health response and there are alternatives
3. Lockdowns are a slippery slope that will be very hard to reverse.

I will address each of these reasons below.

We live in a time when the precautionary principle seems to apply to many public policy questions, whether it is climate change, natural disasters or public health. The problem with this principle of almost complete avoidance of risk is that the costs of mitigation are never considered and the alternatives often dismissed. Thus in New Zealand we have spent billions of dollars earthquake proofing buildings since the Christchurch quakes, when that money would almost certainly save more lives if it was spent on improving cancer treatment or building safe roads. The optimal risk management involves weighing the threat against the cost of mitigation and the alternatives. There are a number of considerations that have not been adequately considered in decisions on Covid-19 policy, including:

• the vast majority of people being locked down are not infectious
• Covid-19 does not represent a deadly risk to all but the most vulnerable in the population
• the economic, social and health impacts of lockdowns are huge
• there are alternatives to the wholesale abrogation of individual rights.

A more reasonable response would be to protect by isolation only those most vulnerable - the elderly and those with co-morbidities - and let the rest of the population go about its business. This is the approach taken in Sweden, Israel and a few other countries, which, although they have experienced far more deaths than New Zealand, have a lower Covid mortality than many countries with the most draconian lockdowns. It is also the approach recommended in the Great Barrington Declaration, which has been signed by thousands of epidemiologists and public health experts worldwide. The authors of the Declaration have pointed out that the costs of the lockdowns, even on people's health, almost certainly exceed the benefits in saving lives.

Finally, there is the slippery slope issue. Already public health authorities concerned about influenza and climate change policy advocates are pushing for lockdowns to be adopted to mitigate those risks. You may think it is unlikely that the public would accept such responses to those issues, but eighteen months ago no one thought the citizens of Western countries would accept the Covid-19 lockdowns. It has always been much easier to give up freedoms than to reestablish them and we forget that the liberal, rights-based order is a rare phenomenon in human history that sits on a fragile foundations. We can and do regress, as the people of China and Russia are discovering to their cost today, and dictatorial governments always have sound reasons to justify their policies.

Rights-based freedoms should not be given up cheaply and in my view preventing Covid-19 amongst the general population does not justify the cost, particularly as the CFR trends towards zero. What is done is done but we need to ensure we are not captured by the sunk cost fallacy and continue the lockdowns for fear of losing the benefits. We need to evaluate our Covid policies objectively from this point on. Australia has shown the way in determinedly coming out of lockdown and I hope the Ardern Government has the courage to do the same.

In the meantime, libertarians need to rediscover their principles.

Equity vs Rights

There is a realignment of politics that has been occurring around the world for some time. The traditional battle lines between the left and the right are no longer relevant in an age where progressive leaders align with global corporations to suppress free speech and conservative parties are attracting support from low income, working people. The new battle lines are becoming clear. On one side is the globalist, corporatist, governing elites; on the other side is the demos, the hoi polloi, the hard-working common people who keep the world functioning. It is a fight between those who think they are uniquely qualified to run everyone else's lives and those who want to be left alone to run their own lives.

The first group consists of those who regard every issue as a justification for expanding the power of government, whether it is climate change, economic inequality or Covid-19. It doesn't matter what the problem is, the answer is always more steps down the road towards totalitarianism - banning behaviour and views they consider undesirable, intruding more on our privacy, seizing more money from the most productive in society, and restricting movement and freedom of association. These are the people with the power in our society - they are highly organised, very well funded, have almost exclusive control of the mainstream and new media, and are in lockstep on every issue. 

On the other side is a disorganised rabble that often doesn't even know it shares a common interest. Many don't have a strong political philosophy but they tend to be sceptical about the extent of the problems the powerful profess to be concerned about and the solutions promoted by the elites. They accept that humans do have some impact on the climate, that economic inequality is growing by some measures, and that Covid-19 is a real killer, but they are smart enough to realise that they are the ones expected to bear the greatest costs of the solutions while the elites reap the benefits.

The issues are similar across the world but vary in degree from country to country. In the United States, race is the key issue. In Europe, immigration is the main battleground, and national and religious identity are important factors. Here in New Zealand it is Maori tribal rule, rather than race per se, that is the principle cause that the elite has adopted.

Identity politics is at the root of all these fights. The key question is whether your value as a human being is related to some immutable characteristics such as your ancestry, sex or gender and sexuality, or whether it is related to factors that you have some control over, such as your moral character, your behaviour and your achievements. More than three thousand years of Western civilisation led to a social system that put the greatest value on the latter factors - it was the gradual recognition of the dignity and sovereignty of the individual that paved the road to modern, liberal society. This philosophical thread can be traced through Judaism, Athenian democracy, the Roman republic, Christianity, the Reformation, the Enlightenment, the American Revolution, the Industrial Revolution, the abolition of slavery and the establishment of universal suffrage. There was much backsliding along the way, but the direction was overwhelmingly towards judging people as equal in rights regardless of their inherited characteristics.

Equity - equality of outcome - is the professed goal of those on the authoritarian side, but equity is the opposite of equality as understood by Enlightenment thinkers. John Locke, who has as much claim to be called the father of the Enlightenment as anyone, defined equality as the "equal right...to...natural freedom" and said it was dependent upon "not being subject to the will or authority of any other man". In other words, Locke realised that rights are all about the absence of force. 

Equity is the opposite - it means subjecting everyone to the levelling power of some all-powerful authority that must "harm another in his life, health, liberty or possessions." Alexander Solzhenitsyn recognised this conflict when he said, "Human beings are born with different capacities. If they are free, they are not equal. And if they are equal, they are not free." 

Those who value equity above all else believe that the means justify the end. If you believe that the purpose of the individual is to serve the good of the collective, there is no limit to what can and should be done to individuals to achieve this. If you believe people are good or bad because of their immutable characteristics, there is no possibility of redemption for their original sins (viz. "white guilt"). And if you believe that the way to achieve equality is to bring those who are "privileged" down to size, sooner or later you are going to start chopping off feet.

Covid-19 has provided governments with the justification for repressing the rights-based freedoms we have taken for granted for decades - freedom of association, freedom of movement, freedom of speech, and freedom to operate a business or to go about your work. But governments have been selective in their application of these restrictions - certain businesses considered essential by some arbitrary criteria were allowed to remain open during lockdowns (e.g. in New Zealand supermarkets were open but not butchers), and protests and even violence by groups such as Black Lives Matter and Extinction Rebellion have been condoned, while small, peaceful gatherings of people that the authorities disapprove of have been treated as insurrections. In other words, Covid-19 has established the principle that rights are the property of the government to bestow on those they see fit, and a privilege to be denied to those who do not have the government's favour.

The former prime minister of New Zealand, John Key, said this very explicitly when talking recently about Covid-19 vaccinations: "If you want to get the young people who are not being vaccinated, to be vaccinated, take away some of their rights." This demonstrates his utter ignorance of the nature of rights. I don't intend to get into a detailed discussion here about the metaphysical and ethical basis of rights, as I have written many earlier posts on the subject, but while philosophers might disagree about the nature and source of rights, almost all agree that rights don't exist at the discretion of governments. The fact that the Nazi regime killed six million Jews in the Holocaust doesn't mean Jews didn't have the right to life. If John Key believes the government can take away rights of young people who aren't vaccinated, then, like many political leaders today, he shares some philosophical principles (or, at least, the lack of them) with the Nazis. Perhaps it is not surprising that his government was only too willing to violate New Zealanders' rights while in power. 

Philosophers also agree that rights are universal - that they must be capable of being enjoyed by every person - and that they are mutually exclusive - we must each be able to exercise our rights without impinging on others' enjoyment of their rights. The latter is illustrated by the axiom, "your right to swing your arm stops just short of my nose." It is also why there is no such thing as "the right to a roof over your head" (to quote a common shibboleth of the left in New Zealand) - if you have such a right, others must be forced to provide it. I am sure the plantation owners in antebellum America thought they had the right to the free labour of the slaves in their fields (and they certainly had the legal right) but today almost no one would agree that slave ownership is a legitimate right.

Those who promote the equity agenda say it is about the rights of the disadvantaged, but equity is the antithesis of rights precisely because it requires real rights to be sacrificed to grant these arbitrary rights to others. And it is not as if governments that promote equity really act to protect the rights of the disadvantaged. The Ardern Government here in New Zealand has made equity a central plank of all their policies and if we take housing as a prominent example, their policies have significantly worsened housing affordability with the greatest impact on those on the lowest incomes. They have responded by passing laws to further restrict the rights of property-owning New Zealanders in a classic example of how the creation of arbitrary rights by governments depends on the erosion of real rights. The right to a roof over one's head has ended up denying many more New Zealanders homes than if they had simply respected New Zealanders' property rights (i.e. the right to enjoy the product of one's life and liberty) and let the market respond to the need for more housing.

Equity is a threat to real rights precisely because it is so insidious. It sounds like it is about fairness and dignity, and the motives of many promoting it are essentially noble. But few who promote it think through the implications of trying to enforce equality of outcomes on a diverse population with different needs and aspirations, and creating an all-powerful state apparatus to allocate resources according to inherent characteristics such as race and sex. Solzhenitsyn, in The Gulag Archipelago, described how the relentless pursuit of equality of outcome inevitably leads to gulags and genocide. Let's hope the West wakes up to the implications of equity before we get there.

July 4th

The Declaration of Independence, sighed by the representatives of the 13 colonies in America on this day 241 years ago, was such a world-shattering statement of political reason and courage that it is worth dusting it off and re-examining it in the light of government in the so-called Free World today. The kernel of the declaration is contained the following words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

There are two important ideas contained in these words:

• That we have rights that are inherent to our nature as human beings, the most important being the rights to live, to be free, and to pursue our own interests
• That governments do not create our rights, but rather that we create governments and their only proper purpose is to protect our rights.

These ideas are at odds with the role and functions of governments as they exist in most countries today. Governments like to bestow all sorts of new rights on us - the rights to food and a roof over our heads, the rights to a job, education and healthcare, the rights not to be discriminated against or even to be offended, etc. But these rights aren't what the Founding Fathers meant when they talked about rights. For a start, if rights are granted by governments, they can be taken away - they aren't inherent to our nature. Secondly, they fail the 'equality' test that is contained in the first line above - the right to receive something, bestowed by the government, cannot be equally endowed because that which is given by a government must be taken from someone else. And finally, they are increasingly given as alternatives to real rights - they are baubles to distract us from the fact that governments are denying us our real rights.

The authors of the Declaration were smart enough to realise that real rights aren't a zero-sum game. I don't need you to die in order that I can live. I don't need you to be a slave in order that I can be free. And I don't need you to sacrifice your happiness in order that I can be happy. That is perhaps the greatest revelation of that great revolutionary document.

On Immigration, Sovereignty and the Modern Nation State

Donald Trump made immigration a central issue of his election campaign, claiming that immigrants take Americans jobs and commit a disproportionate number of crimes. I disagree with Trump that immigrants steal jobs or that they make a country less safe. The evidence from countries that have had high levels of immigration historically, such as the United States, is that immigrants create more jobs and commit less crimes than the 'native' populations. I believe that the benefits immigrants bring almost always outweigh any negative factors such as social disharmony and that anyone who comes to a country with peaceful intentions and who is self-supporting should be welcomed.

Trump's view of immigration is a typically collectivist one. Collectivists believe the rights of the group, i.e. the nation state, the race, the socio-economic segment or however they define it, should prevail over the rights of the individual. In the case of immigration, they believe the collective rights of those who are already in the country outweigh the individual rights of the immigrant and others such as family members, friends and employers who might have an interest in that person coming in.

I have written before about how modern nation states are, for the most part, entirely artificial and arbitrary entities. If you doubt it, consider that in the early 19th Century it was almost as likely that New Zealand would end up as a French colony or a state of Australia as the nation we became. The United States was cobbled together from territories that were settled, conquered, purchased and conceded over many centuries and through successive waves of immigration and it is still evolving as a political entity today (e.g. with the current initiative for Puerto Rico to become the 51st state). So when Trump talks about 'America First' or Winston Peters about New Zealand First, which America or New Zealand do they mean?

Political commentators and historians talk about sovereignty as if it is inherent to a political entity rather than to the individuals who inhabit that entity. If sovereignty is a right in the sense that John Locke or Thomas Paine defined the concept, then it cannot belong to a territory or a group, it must be inherent to individuals. The Magna Carta, the English Bill of Rights and the US Declaration of Independence were all based on the principle that state sovereignty derives from individual sovereignty and that individuals only cede a degree of their inherent sovereignty in return for collective protection - not the other way around.

Which brings us to New Zealand and the Maori. The Treaty of Waitangi was a deal in which Maori chiefs agreed to trade their tribal sovereignty for the protection of the British Crown. The Treaty bestowed on Maori 'all the Rights and Privileges of British Subjects', i.e. Maori individually became subjects of the Crown. This meant that they were no longer subjects of whichever violent and capricious chief happened to gain the upper hand in the endless wars that were fought between tribes up until 1840, and that they were emancipated from the slavery, indiscriminate tribal killings, infanticide and cannibalism that had prevailed in their highly collectivist society until that time.

Some tribal leaders and many political sympathisers today interpret the Treaty of Waitangi as giving residual sovereignty rights to present day tribal elites. I completely reject this view, not because of anything the Treaty of Waitangi may or may not say (although I think the words support my interpretation) but because I don't accept that tribes have any inherent rights whatsoever. Whether you think Maori chiefs ceded sovereignty or not is irrelevant - the Treaty extended the rights recognised under British law to Maori individually and those rights cannot be given up or abrogated today - at least not morally. It is the individuals who live in New Zealand today that have the sole right to determine who governs this nation state because it is their sovereignty that is being ceded - not that given up by a group of Maori chiefs 176 years ago.

Which brings me back to immigration. The main problem that collectivists have with unlimited immigration is their belief that a nation state is some sort of exclusive club, membership of which is determined by racial, ethnic or cultural criteria, and they don't want to share the nation's benefits with those who don't meet their selective membership criteria. This presupposes that a nation is a zero sum game, which is of course a typical left-wing view of economics. But if I am right and a nation is only a collection of individuals that delegate some of their rights for protection to the state, there are no collective benefits to be shared. It is up to individuals, families and businesses to decide whether they will be generous in accommodating newcomers and the state's role should be confined to ensuring those who enter the country do not endanger anyone else.