In Even true libertarians can support vax passports, (The Australian, 17 Sept), Henry Ergas made a very peculiar argument from a purportedly libertarian perspective in favour of vaccine passports. What follows is a traditional fisking of the entire article. Ergas begins:

It is undoubtedly true that preventing people who choose not to be vaccinated from engaging in ­activities that are open to the vaccinated involves a degree of coercion. But that hardly means any such restrictions ought to be opposed by those who place a high value on liberty.

So he admits that any measure that punishes the unvaccinated for their recalcitrance is coercive, but he leaves open the degree of coercion that anyone ‘who places a high value on liberty’ might think justified. Fine, but he muddies the waters by pretending that the activities the unvaccinated are to be excluded from were not already open to them. And he also confuses the coercion involved, excluding the unvaccinated from everyday activities is only half of the matter, the other half is the mandating a medical procedure.

There are, on the contrary, arguments for restrictions of this kind that should appeal even to libertarians.

After all, no one has a right to impose a harm on others by negligently disregarding their rights and interests. And it is surely clear that negligently infecting another person with a potentially serious disease breaches their right to live safely and securely, undermining a fundamental freedom that govern­ments have a duty to protect.

Indeed, for most accidental harms, the law of torts – which towering libertarians, such as Friedrich Hayek, have not only endorsed but eulogised – serves precisely that purpose, entitling the victim of a negligent act to rely on the coercive powers of the state to secure compensation from the act’s perpetrator.

Were tort law readily applicable to highly contagious diseases, it would not only help compensate victims; the threat of being sued would deter negligent transmission, inducing people to seek vaccination, or, knowing or suspecting that they have a communicable disease, to self-isolate.

This is where his argument goes over the cliff. He faces several problems immediately. Firstly, merely being unvaccinated does not entail being COVID positive. Secondly, being vaccinated does not entail being COVID negative. Thirdly, since both those unvaccinated and vaccinated are still able to contract COVID and thus pass it on, in order for either to be subject to a tort action, the person they have passed it on to would have to show that they were a symptomatic case, and that they ignored their symptoms and took no mitigating action (social distancing, wearing a mask, general hygiene) to lower the chances of transmission and thus negligently mixed in the community.

There are, however, obvious difficulties in relying on the remedies offered by the law of tort to control the spread of Covid.

In part, those difficulties relate to the complexities of making out a case: it would, for example, be virtually impossible to unambiguously identify the culprits in a lengthy chain of transmission.

Well, sure, but this is even more so the case because these ‘chains of transmission’ are as likely to involve the vaccinated as they are the unvaccinated. Moreover, who is actually being protected here? If the ‘victims’ here are themselves unvaccinated, are they not as culpable as the ‘perpetrator’ of the tort? Or is there a lack of confidence in the vaccines themselves, given their leakiness; that being vaccinated only lowers the chance of infection but does not remove it.

But even if those issues could be addressed, many of the costs of Covid do not fall on those who catch the disease; they are instead borne by society as a whole, through broader economic and social losses that tort law is neither designed to recover nor to effectively prevent.

And with an infection that can spread explosively, it is surely preferable to pre-emptively reduce the probability of outbreaks, rather than relying, almost certainly unsuccessfully, on private legal action to pursue those who helped trigger an outbreak once it had ­occurred.

Given those difficulties, other instruments – such as “vaccinal passports” – must fulfil the functions that tort law cannot serve, including preventing immediate harm and encouraging the taking of reasonable precautions.

Vaccine passports are not mere encouragements, they are threats. They are explicit frustrations of one’s ability to do A or B if one does not do X.  Moreover, even if one were inclined to consider that there may be a circumstance where such a measure was proportionate, no attempt has been made to spell out the conditions that would need to obtain for such an emergency power to be proportionate. Not that I expected that here, but unless this were forthcoming I’m inclined to conclude that all that has been made here is the opening gambit of a much longer argument that still needed to be made. 

Moreover, since those other instruments are merely regulatory substitutes for the (coercive) law of tort, it is scarcely sensible to criticise them for being coercive; rather, the only real issue is whether they are more coercive than they need to be.

Inevitably, the answer to that question depends on an assessment of the facts.

If one believes that Covid is not a serious disease, then any restriction on the unvaccinated is plainly unjustifiable. And much the same would hold were vaccination ineffective or unduly dangerous. But if one accepts the Doherty Institute report and the latest modelling by the US Centres for Disease Control, the picture is altogether different.

Those studies suggest that the unvaccinated are about five times more likely than the vaccinated to catch Covid. Even assuming that the unvaccinated and the vaccinated transmit the disease at exactly the same rate, that implies that adding just one unvaccinated person to a group of five people who are vaccinated doubles the risk of there being a person in the group who has Covid.

Let’s accept this last number for the sake of argument; who cares? Since COVID is now endemic, everyone will at some point come into contact with someone carrying COVID and contract it. All we can say is the being vaccinated will ‘slow the spread’ but not extinguish it. And given the CFR for COVID in most age groups, 

To that extent, the unvaccinated free-ride on a benefit they have done nothing to secure, other than by making a trivial contribution to the fiscal cost of the vaccines. It could be argued that their free riding on the risks and inconvenience borne by the vaccinated causes no harm, as the benefit remains intact, at least in the short term; but it is reasonable to suggest that a free society will struggle to survive if the principle of mutual obligation can be lightly disregarded, including when it comes to sharing the cost of vital public goods. Rather, just as refusing to be conscripted in times of war should not come cheaply, so the refusal to be vaccinated when one readily and safely could ought to come with hurdles and burdens attached.

Is this really a free-rider problem? Given that there are alternative means of ‘slowing the spread’, like social distancing, mask-wearing, isolating if you show signs of symptoms, how are people who have done that for 18 months free-riding? 

Of course, it may be that imposing any such penalties will prove unnecessary. Perhaps the intense fear of Covid that has gripped Australia will make very high levels of vaccination easy to achieve. But even if it did, there would still be a risk that when the vaccinations have to be renewed, the passage of time will have dulled the panic, causing herd immunity, and the benefits it brings, to be lost.

So vaccine passports are to be used not merely to punish the recalcitrant now, but also to make sure that those that waver in the future, once the current vaccine becomes worthless, can be spurred into action, again, and again, and again. One wonders, though, if COVID justified such heavy-handedness, would people really wane in fear with the passage of time?

Having lived in fear for the past two years, wouldn’t it be ironic if now all we had to fear was the waning of fear itself?

Leaving aside that I have not lived in fear, surely the waning of fear would only indicate that our initial reaction was overwrought.