Martin van Staden is a legislative and policy consultant for Sakeliga and the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria.
Jonathan Katzenellenbogen in his piece, “Vaccine passports, please”, makes a liberal case for vaccine passports, being those pieces of documentary evidence of vaccination that will allow people to do the things they previously would have been able to do without them: travel, go to restaurants, go to work, etc.
Vaccine passports are a (nominally) lesser form of vaccine mandate: government will not hold you down and force a needle into your arm, but it will (and the South African government is already considering it) stop you from exercising your freedom if you do not “voluntarily” get jabbed.
I have nothing to say about the efficacy or not of vaccines. I am no medical or public health expert, and to misquote the great liberal economist Murray Rothbard “It is no crime to be ignorant of health matters, which is, after all, a specialised discipline. But it is totally irresponsible to have a loud and vociferous opinion on health subjects while remaining in this state of ignorance.” I therefore limit myself to questions of public policy. What I will say is that I am not against the vaccine or vaccines in general, and it is exceedingly likely that I will get the jab in the future once my natural reinfection protection wears off.
Whether vaccines are efficacious or not makes as little difference to the liberal answer to vaccine passports, as efficacious racist or expropriation policies would make to the liberal answer to those phenomena.
Stretching the harm principle
In supporting vaccine passports, Katzenellenbogen quotes John Stuart Mill’s famous harm principle: “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.” Being unvaccinated and in public poses a risk of harm to others by potentially infecting them with Covid-19. Vaccine passports are therefore justified to ensure that those who are potentially harmful are kept out of these spaces.
Mill, I bet, would have been horrified by the extent to which his harm principle has been stretched beyond what seems to be its natural limits. The harm principle has been doing a lot of heavy lifting that it was probably never meant to be able to do. Mill might bear some culpability for this, as his wording of the principle was far too generous to make it compatible with the pre-existing liberal conception of government. All manner of things today are increasingly regarded as “harmful” and have led to an explosion in government scope and power that Mill, as a liberal, would likely never have endorsed.
During Mill’s time, what was commonly understood by “harm”, and what I think he obviously meant, did not include indirect harms, and probably focused on intentional harms. The definition of harm had not changed, but the scope of that word’s application, at least in his use, was no doubt narrower than what is understood today. Mill recognised this by distinguishing harm from “offence” – something considered harmful today – and had Mill been alive today, in the era of government having a far wider net than it did in his days, I am sure he would have distinguished harm even further.
We must remember that Mill’s treatise, On Liberty, was a defence of freedom, not an argument for its limitation. This must make us question why On Liberty is so regularly quoted (not only by Katzenellenbogen but quite generally) to provide a justification for the limitation of freedom rather than respect for it. In legal circles the same alarm bells go off when people talk more about section 36 of the Constitution, the limitations provision, than about the rights entrenched in the Bill of Rights. The very nature and purpose of the Constitution is subverted by constant efforts to force all manifestations of freedom through the strict confines of the exception – the limitations provision.
Ironically, the French Declaration of the Rights of Man and of the Citizen, not a liberal text, has a better formulation (in part) of the harm principle than Mill’s own. It says that “the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights.”
No person has a right not to be infected with a virus. Acts of God or nature can never qualify as deprivations of liberty. The law has long recognised this reality. People do have the right not to be purposefully infected with a virus. Uncontroversially, intentionally infecting people with some ailment is a criminal offence. Unless Covid-19 is a weaponised virus that was unleashed upon the world by the Chinese government – in which case that government would be liable – it is nothing more or less than a natural tragedy we dare not use to justify the further tragedy of illiberal authoritarianism.
Being unintentionally infected cannot give rise to any legal claim. Every year billions contract the common cold from their fellow citizens. Even people who know they have the cold go out and unintentionally infect others. Do we want all these people to be labelled as rights-violators, because they have harmed us according to Mill’s harm principle? The common cold is not as deadly as Covid-19, but there have, no doubt, been cases where people would not have died but for having contracted a cold. Was their death a terrible, natural occurrence, as I think it was, or was it instead, if we apply the contemporary version of Mill’s harm principle, homicide?
Mill explained his harm principle by elaborating that “the individual is not accountable to society for his actions, in so far as these concern the interests of no person but himself. Advice, instruction, persuasion, and avoidance by other people if thought necessary by them for their own good, are the only measures by which society can justifiably express its dislike or disapprobation of his conduct.” (my emphasis)
Where one’s actions do, in fact, deprive others of their rights, Mill explained, legal consequences might be necessary but not when avoidance is an option available to society. In other words, those who are concerned that unvaccinated people will deprive them of their rights, should avoid that risky conduct. They should frequent establishments that guarantee only vaccinated people are patrons, or they can simply remain home.
It is also worth considering that Mill does not have the final word on liberty.
John Locke himself, the father of liberalism, mis-stepped at some junctures, including his “proviso” on land ownership. Friedrich von Hayek, the great liberal of the twentieth century, misapplied his own liberal principles by attempting, and failing, to justify welfare policies. Murray Rothbard, in his later years, adopted less than ideal views about how police should act toward homeless persons. Liberal thinkers do make mistakes, especially when it comes to trying to argue for the potential exceptions to our principles. That is why this kind of discourse – between liberals justifying the exception in Katzenellenbogen’s case, and liberals rejecting the exception in my case – is vitally necessary.
The liberal case for vaccine passports
Other than Mill’s harm principle as a broad basis justifying vaccine passports, what appears to be the main liberal argument is that these passports would allow society to return to normal, after the draconian and authoritarian lockdowns that governments around the world have imposed.
But there is a problem with this argument. It uses government’s own illiberal prior conduct to justify further illiberal government conduct. Liberals tend to be very good at spotting this type of self-reinforcing statism and advocating against it, but the Covid-19 pandemic appears to represent a blind spot.
Justifying more authoritarian government conduct based on past authoritarian government conduct
Other areas in which this is done, for example, are drug prohibition, alcohol and tobacco restrictions, and excessive immigration restrictions. Liberals usually correctly spot these tricks.
Government decided at some point in the last two centuries that it was going to become a provider of healthcare services. Liberals opposed this move and continue to reject it as a part of government’s mandate. Unsurprisingly, South African liberals during the time of the adoption of the Constitution were quite uneasy about the inclusion of a so-called right to healthcare in the Bill of Rights. For better or worse, however, the fact that government is involved in healthcare is the reality with which we are stuck.
Flowing from this reality, government decided to impose draconian prohibitions on drug use, and authoritarian restrictions on alcohol and tobacco. In the past, restrictions were of a moral character – think of Prohibition in the United States in the 1920s – but nowadays it has become an appeal to practicalities.
In South Africa in particular, lifestyle restrictions are often motivated by the argument that the public healthcare system, and by implication the taxpayer, cannot be expected to fork out for reckless lifestyle choices. These sinful products must be restricted, otherwise our emergency rooms will be flooded with overdoses, victims of drunk driving, and long-term lung cancer patients. In other words, government is using its own illiberal prior conduct in deciding to become a provider of healthcare and taking the taxpayer with it, to justify further illiberal legislation prohibiting or restricting lifestyle choices to protect the public healthcare system. As it happens, this argument was also used to justify lockdowns in light of Covid-19 and government’s healthcare facilities potentially being “overrun.”
This is also done in the realm of immigration.
Although immigration between modern states has never been entirely free, there was a time when it was much easier and liberal, involving little more than boarding a ship, going through a few checks, and settling down. It was nothing compared to the maze of bureaucracy and arbitrariness that is the status quo today. Immigration officers have perhaps the most personal power of any state official in any Western government today. In the span of seconds they can decide whether they are “convinced” about some or other aspect of an immigration application and if not, the victim of their decision rarely has recourse to the courts, because the judiciary has tended to shy away from the “quintessentially executive” function of immigration control.
The reason advanced for this manifestly illiberal system, besides the tired arguments in favour of “protecting” domestic demographics, is the overuse of public resources. Immigrants, particularly from poorer countries, will become welfare recipients, will make use of state healthcare and, in general, will take more out of the public fiscus than they put back in. (This is untrue – immigrants tend to outperform and outproduce locals for very obvious reasons – but this is the argument being advanced.) Again, prior illiberal government conduct, being the coercive redistribution of resources and the provision of services that are best left to the market, is used to justify further illiberal government conduct, being to keep peaceful and productive foreigners out of the country in the fear that they will somehow “abuse” the very services government should not be providing in the first place.
Ordinary passports have never been a liberal phenomenon, and the case against vaccine passports is in many ways the same as the case against ordinary passports. Liberalism is durable, dynamic, and applicable across all the spheres of policy and governance in this way. It is one of its most appealing characteristics. But it is being undermined by a developing radical pragmatism.
Radical pragmatism
The radical pragmatism of much of contemporary liberalism is deeply problematic. No longer do principles mean as much to liberals as they once did. Many liberals are obsessive about facts and circumstance, jumping from situation to situation, aimlessly just applying a liberal sentiment rather than a liberal insistence on adherence to timeless principles of liberal governance.
This radical pragmatism has a terribly reactionary flare to it. Many liberals wish to adapt to authoritarian government and whatever it decides to do in the moment, rather than reject it for the tyranny that it is. It used to be that liberals rose up in rebellion against governments for nominal taxes on whisky. We should be thankful that that violent era is over, but not so much that the sentiment is also evaporating. It is normal nowadays for good liberals to shrug their shoulders at a municipal rate increase and to say the municipality needs the money to provide services, for example.
This pragmatism is radical because it is almost entirely ungrounded in the philosophy to which it is apparently dedicated. It is often unhinged, to the point where self-described liberals would criticise principled liberals for being “dogmatic” or “out of touch.” Yet, it is precisely our principles that are meant to set us apart from the social democrats, socialists, and authoritarian collectivists who happily throw government at every problem.
The liberal case against vaccine passports
As liberals – or simply constitutionally-inclined South Africans – we should not be asking for vaccine passports in order to get back the freedom that was taken from us in the name of public health in March 2020. It is incumbent on us to insist upon an unconditional return of that freedom without delay.
It cannot be that the answer to every serious social issue is coercion – the preferred method of the social democrats, socialists, and authoritarian collectivists. Unemployment? Coerce taxpayers into funding a basic income grant. Covid-19? Coerce people into getting vaccinated. Climate change? Coerce consumers out of travelling and producers out of producing cheaper products. Moral degeneracy? Coerce individuals into assimilating their lifestyles into whatever is perceived as proper.
Coercion – rape, murder, assault, fraud, intentional destruction of property – must be met with coercion, but for other apparent harms, coercion need not and certainly ought not to be our go-to solution. The quintessentially liberal contribution to solving social issues that sets us apart is voluntarism.
Much to its credit, one of the most (“classically”) liberal aspects of our Constitution is section 12(2)(b), which, as if taken directly from Locke, Frederic Bastiat, Hayek, or Rothbard, provides in unequivocal terms that, “Everyone has the right to bodily and psychological integrity, which includes the right to security and control over their body.”
This right can only be limited in terms of section 36(1) of the Constitution if no less restrictive means are available to government to achieve the same ends. There are many less restrictive means available to government, the most prominent one being the fact that the great majority of South Africans – around 72% – are eager to be vaccinated. It has never happened in human history that 100% of the global population has been vaccinated against something, and it will also not be the case this time. Whether for medical reasons, political reasons, or personal reasons, some people will always opt-out if given the choice, and humanity has lived comfortably with this reality since the advent of modern medicine.
Mill argues that harm can only be legally problematic if it is non-consensual, meaning if one consents to the harm being done, the freedom of the doer cannot be infringed upon. Knowing that not everyone is going to be vaccinated surely means at least acknowledging and accepting the risk that you might be exposed to Covid-19, just as any other time we take the risk of being infected with a common cold.
Being assaulted or defrauded is different, because it is intentional – it is an enterprise specifically aimed at depriving us of our rights, and something we individually cannot be assumed to accept or expect. Getting the cold or Covid-19 is not necessarily a deprivation of our rights, it is an act of God that cannot be blamed on others simply exercising their legally and liberally recognised freedom not to be vaccinated.
Another lesser means available to government is to incentivise vaccination ̶ and, no, promising to give South Africans their freedom back is no valid incentive – for instance, by tax breaks or tax exemptions to those who get vaccinated. This might not serve the ANC’s ideology or the fiscus, but it is an available alternative that does not involve the deprivation of constitutional rights, and as such it is one of many alternatives that must be tried long before government can even consider vaccine passports.
But perhaps the most obvious available lesser alternative is for government to encourage those who want a guarantee that they will not be exposed to unvaccinated persons to stay home. The power to remain Covid-19-free is entirely in their own hands. But their fear should never give rise to a government that imposes its will on dissenting, free individuals.
It might be replied, as is often done, that yellow fever vaccination certificates have been required for many years and liberals have not made a stink about that. This is true and perhaps liberals should have made a stink.
What is obvious is that simply because something has been done, does not mean its principle must be endlessly reproduced in other contexts, or that it must continue to be done in its original context. This is what distinguishes the liberal sentiment from the conservative sentiment.
Those things that deprive the individual of his or her liberty, without the individual having first shown aggression to another, are precisely what liberalism stands against. If the owners of private property truly want those who come onto their property to show some documentary evidence of vaccination, they must obviously be allowed to do so. But government must not overtly pressure them into doing so, as is currently undoubtedly the case, or even lightly nudge them to do so. This is simply not what government is for. If we concede the point we are, as Katzenellenbogen correctly notes as being a common liberal criticism, setting ourselves up on a slippery slope.
When in doubt
An unspoken liberal maxim that underlies much of our philosophy is when in doubt, err on the side of freedom. And there is much doubt, not necessarily about the efficacy of the vaccine, but about the role government has to play in the health and medical affairs of the population.
I would like to believe that good liberals are agreed that government has no role to play – there is no coercion involved, and government is a coercive institution established precisely to use coercion to stop coercion – but I know this would be hopelessly idealistic.
What I hope we can agree on is that it is at least unclear what must be done, and if we can agree on that, we have to agree that respecting the freedom and agency of the individual in the meantime is the best course of action.
https://dailyfriend.co.za/2021/09/11/the-liberal-case-against-vaccine-passports-2/
