Libertarian Pandemic Policy
So, I just had my last in-person classes of the semester. Thanks to Covid-19, my courses have been converted to online courses (at least they're not completely canceled!). Anyway, this seems like a good time to reflect on what the libertarian response to the threat of disease epidemics might be. I saw a Facebook post from someone else suggesting, I guess, that libertarians have no way of dealing with this kind of problem. (?)
I don't think many libertarians will have a hard time with this. But if you're not one, maybe you don't know the answer. Maybe you think something like this:
"Since libertarians are against government intervention, they'd be against taking any measures to stop deadly diseases, right? Travel restrictions, quarantines, mandatory testing -- these all violate our liberties! And that's always bad, according to libertarians, right?"
Response: Most libertarians are not against all government intervention. Most are minimal statists, who allow a (minimal) role for the state. Others, the libertarian anarchists, ultimately hope for government to be eliminated. These latter libertarians, however, do not oppose all the things that the government does; they would still allow for the crucial minimal functions of the state to be performed by someone (by a non-state actor).
Minimal State Libertarianism
The minimal state view: the government's central function is to protect individuals against fraud and aggression. But what counts as aggression?
Physically damaging someone's body without their consent is the paradigm case. Now, two important observations about this:
(1) One does not have to inflict the damage directly; e.g., you don't have to touch the other person's body with your body. It can be indirect -- you can send a harmful object on a trajectory where it will predictably interact with the other person's body in a physically damaging way. E.g., throwing a projectile. Or, more to the present point, what if you knowingly sent a virus toward another person, knowing that it would infect the person and then physically damage his body? Surely that would count as aggression.
(2) The damage need not be certain. Inflicting an unreasonable risk of physical harm can count as aggression -- or at least, as something relevantly like aggression for purposes of assessing the morally legitimate response. (Maybe it's not literally aggression, but it's sufficiently aggression-like.) For instance, playing Russian Roulette with unwilling victims counts as aggression, and calls for a coercive response. That's true even if you imagine a gun with a million chambers, so that the probability of shooting someone is only 1/1,000,000. No libertarian has trouble with this. Similarly, driving while drunk poses an unreasonable risk to pedestrians and normal motorists and can thus be prohibited.
Of course, what counts as unreasonable risk is open to debate. It's going to have to do with the probability of harm, the total magnitude of the threatened harm, and how good one's reasons are for imposing it (see previous post on meat & disease risk).
That's the core of the libertarian justification for disease-prevention measures. Any individual who is at risk of carrying a communicable disease, such as Covid-19, is posing a risk of physical harm to others when he interacts with them. If the risk is 'unreasonable' (in light of the probability, magnitude, and reasons for imposing), then those under this threat would be justified in using coercion to protect themselves from the potential physical harm. Since individuals could justly do that, they can also delegate it to the state to do that (if you accept the state as legitimate in general).
So that would be the justification for quarantining, restricting movement, requiring testing, etc. (The state can't impose an unconditional requirement of testing, but they can insist that people get tested in order to be allowed to interact with others in a way that would be dangerous to those others if one had the disease.)
Limits
Obviously, this doesn't mean that the state could, morally, impose just any restrictions that might reduce disease risk. E.g., they could not declare that all gay people have to be quarantined in concentration camps to protect the population against AIDS. Again, restrictions have to be related to preventing unreasonable risk-imposition.
Yes, this makes it open to debate exactly what is permissible for the government to do, since there will be a wide area of borderline cases. But also, there are some clear cases.
Libertarian Anarchism
The above account is pretty straightforward. But some crazy, extremist libertarians actually advocate for complete abolition of government! How could an anarcho-capitalist society deal with disease outbreaks?
Note: If, like most people, you have never read anything about anarcho-capitalism, then you have no idea what I'm talking about. In that case, you should read part 2 of my book, The Problem of Political Authority, before continuing. I am not going to write up an(other) explanation and defense of an-cap here for people who have no idea what the theory is. By the way, if you think you know what the theory is, but you haven't actually read any published work by an anarcho-capitalist, then you are mistaken: you do not know what the theory is.
This would have to be done by private agents. Private businesses, associations of businesses in the same geographic area, and associations of homeowners, would need to decide what measures they wanted to take to protect against disease spread. E.g., your HOA could say that no one can enter the neighborhood unless they have a test from a reputable hospital indicating they are negative for the Covid.
Based on the preceding reasoning, they would also be justified in coercively enforcing this rule, and they could direct their protection agency to do so.
You might worry that this doesn't provide a coordinated, society-wide response -- different private groups will adopt different policies -- and therefore that it would be better to have a central government. Note, however, that even if you have governments, that doesn't provide a coordinated international response -- different governments will adopt different responses. Yet few people think that this shows that we need to have a world government. The response based on associations of property owners is just like a government-based response, except with very small governments.
Criminal Justice vs. Disease Prevention: Why the Double Standard?
That all seemed like a fairly easy explanation. Is there any serious problem for libertarians in this neighborhood?
Here is the most interesting philosophical problem that I have thought of: libertarians (along with most other people!) think that, in the criminal justice context, a person should be presumed innocent until proven guilty. This implies that in various cases where it is very uncertain whether a person is a criminal, we should let that person go. The probability that they are a criminal could be pretty high (e.g., 50%!), and we would still let them go.
But letting such a person go clearly poses a large risk to the rest of society, since most people who have committed crimes in the past will commit more crimes in the future. How is this consistent with what I said above about how the government can use coercion to protect us from risks of harm? Quarantining people is a lot like imprisoning them. So why is it okay to quarantine a person who only has a 1% chance of being infected, but not okay to imprison a person who has a 50% chance of being a criminal?
By the way, I'd like to point out that this is not just a problem for libertarians, but a problem for anyone with normal, mainstream views. Almost everyone agrees that you can quarantine a person with a 1% chance of having a deadly disease, but that you cannot imprison a criminal defendant who has a 50% chance of being guilty.
As best I can figure, the relevant differences are these:
a. Imprisoning alleged criminals is a punishment measure (it aims at harming them because they deserve it), while quarantine is not. There are higher standards of evidence for punishment.
b. Of course, criminal punishments are usually a lot more harmful than quarantining.
c. A person who has (or might have) a communicable disease poses a danger to others when they interact with other people, even without any further bad choices by them. But an (alleged) criminal does not pose a danger to others in the future unless he takes further wrongful choices.
d. A person with a communicable disease poses a threat to many more people, because if he transmits the disease to others, these others could transmit it to still others, and so on. Ordinary crime doesn't exponentially spread in this way. As a result, a much lower probability is needed in the disease case to count as "unreasonable risk".
e. In the criminal justice case, there is a greater threat of government abuse of power resulting from lowering the standard of evidence.
f. Also, in the case of crimes, it is more realistic to expect very high evidential probabilities of guilt to be attainable if the person is in fact guilty, as contrasted with the case of a new disease, where there might not be reliable tests (and it might not be reasonable to expect there to be such).