Fisking Ergas’s ‘Even true libertarians can support vax passports’

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.

37 thoughts on “Fisking Ergas’s ‘Even true libertarians can support vax passports’”

  1. Don’t get a VX’nation
    Have a positive PCR test
    The Health will send you home to isolate.
    There will not be any medication or treatment
    If you get really really sick
    They’ll leave you to die
    Justice will make sure you stay home and die

    Do get a VX’nation
    Have a positive PCR test
    The Health will send you home to isolate.
    There will not be any medication or treatment
    If you get really really sick
    They’ll take you to hospital and then they’ll leave you to die
    Justice will make sure you stay in hospital and die

    What? You don’t consent?
    We are Borg
    You will consent


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  2. Henry’s contorted position turns on whether the virus is disproportionately dangerous to the population, the ‘vaccines’ being genuinely safe and effective for all, and absence of better alternatives ie: effective treatments.

    At best, we can’t be sure, but it’s increasingly obvious – at least to me – that the actual answer is d) none of the above.

    Henry has been a stand up guy in the past, but he’s essentially arguing for coercing parents to throw our kids under a health bus, nay, that parents should just shut up and accept our kids being deemed by the State to be ‘mature minors’ to protect the aged and at risk, like, er, him.


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  3. The Quisling is strong in Ergas.
    Masks are bullshit.
    Social distancing. If you want to social distance I don’t want to talk to you anyway.
    Compulsory vaccination or coercion to vaccinate? Isn’t there some convention about this after our forefathers beat the Nazis?
    I never realised Australia would become fertile soil for fascists.
    We have been betrayed.


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  4. it’s pretty obvious why they are so against ivermectin and other early intervention strategies, they need a verifiable chain of control to run their social credit system. If people can just buy an over the counter medicine or get a simple prescription or order it on the internet the entire social credit system falls apart.

    they have no choice but to make ivermectin illegal to pre-scribe off label.
    they have no choice but to muzzle doctors saying anything that may slow herding people into digital fascism 1.0

    it was never about health and always about digital fascism 1.0

    we have been taken over by fascists masquerading as socialists


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  5. It is undoubtedly true that preventing j*ws who choose to stay in the Reich from engaging in ­activities that are open to Germans 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.


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

    So much wrongology here I don’t know where to start – but you’ve nailed it, dover.


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  7. Sadly, those who see what is happening and have seen it slowly coming for many years, are an absolute minority here in Australia. Not so in other places. (Great post, Dover.)

    “In Romania, 70% of the people remember communism and authoritarian rule. They have REFUSED to take the vaccine and the government has been forced to back down. … Romania has shut down 117 vaccination centers. The Romanians are showing the world when you understand what Marxism did before, you see it coming again. We have a lot of readers in Romania, and thank you for all the emails. You are a beacon of light in a world of darkness.”

    (From ArmstrongEconomics.com)


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  8. Great post, DB.

    However, one thing that was good in his column was that Ergas reminded his audience that there is a political strand of thought called libertarianism. In fact he made special mention of libertarians by proffering them a way forward, though vacuous, to support the coercive power of the state over the lives of citizens in the name of Keeping the Community Safe™. This, of course, begs the obvious question: where are libertarians on these measures?

    What is the position of the many human rights and civil liberties organisations in this country and what of some of the most well known libertarians? Like most isms, under state coercion and (perhaps some cushy stipends – Tim Wilson, where are you?) libertarians seem to have been neutered.


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  9. I never realised Australia would become fertile soil for fascists.

    Miss Anthropist, if love of freedom isn’t specifically cited in our founding Constitution, the national socialism we fought against in World War II always had a foothold in Australia.

    Adjusted historically, the federal government is now around 20 times its size at the end of WWII. To put it another way – and without allowing for the explosive growth of state and local government – the government is now 20 times more intrusive and expensive than it was the last time we fought for our freedom.

    And one thing about government you can literally take to the bank is that it will be bigger next year. That’s the only rule of government that can never be broken: it must grow.

    Whatever else it has done, the main legacy of Kung Flu it that it has made government bigger, with an explosion in spending and borrowing to pay for it.

    More and more of our resources are being diverted to pay for our least productive sector, the government monopoly, which creates no wealth, just divides up the taxes on wealth creation that it imposes.

    And the federal government sees itself increasingly as the director of the national economy, intervening in energy, banking, agriculture and many other sectors with increasing regulation– which makes ours more and more a national socialist economy.

    That is, by its technical definition, a fascist economy.

    Which millions of Australians died fighting in WWII.


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  10. Did Henry address any of the other classes of people who might be ‘free riding’ on the rest of us?

    (This would also be a hell of a justification for euthanasia – even over the wishes of the ‘rider’ and their family if they were relying in any way on public resources.)

    I am surprised he is so parochial though – only Australia is so panicked by case numbers. Everywhere else it is hospitalisations and deaths. Case numbers are a rubbery metric that reflect…what? Sickness and death are human conditions that we can compare to normal times. They are unambiguous. There are no false positives.

    A machine beeps that a person is dead even though they are breathing we know the machine is at fault. Another says someone has a temperature of 39 degrees and tachycardia and they indeed look just the way one would expect we consider the machine is working.

    The test on the other hand just gives results that have no obvious correlation in the real world. A test returns a positive which corresponds to…what? Itself? What if the person says they feel fine? Either the test is flawed or it measures something that is not important.

    All those positive tests and all those asymptomatic people is more the rule of Covid than anything else.

    This is like a gambler playing craps and always betting on two because the combination of two ‘ones’ exists.


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  11. Ergas was ripped apart in the comments section under his article in the on-line version, for the reasons given, as well as many others, including the breaching of the Nuremberg Code.
    What intrigues me, though, is the ongoing belief, implied by Ergas with statements like “And with an infection that can spread explosively,” that covid is massively infectious and incredibly dangerous.
    Delta is supposed to be much more infectious than Alpha – “a beast”, according to Sutton – yet is said to be only 50% more infectious. I suspect many people are so mathematically illiterate that they think 50% more really means 50 times more. In addition, the official data for the UK states that the latest figures put the mortality rate at 0.096% – lower than most ‘flu’s.
    Ergas shows he is as uneducated as the rest of the media. I expected better of him.
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  12. Surely Henry saw/heard what WA Premier Mark McGowan barely a week ago?

    “Mr McGowan has not budged on his hard border stance, today explaining vaccinated people could still spread Covid-19.

    “Even though you might be vaccinated, you can still transmit the virus,” he said.”

    WA’s border to remain closed to NSW for Christmas regardless of vaccination status

    https://www.9news.com.au/national/wa-premier-mark-mcgowan-gollum-gst-budget-western-australia-perth-news/85dbaf05-d40e-4a68-acff-e357d6f7fd03

    Anyone with half a clue like Henry must surely see the flaw in logic?


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  13. we have been taken over by fascists masquerading as socialists

    There is no need for masquerade-there is nothing to stop you being both a socialist and a fascist…other than a moral/ethical upbringing, of course..


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  14. I love it when people say “Just get the jab!”

    Why? Because they have decided someone else should? Then aren’t they equally bound by that someone else’s judgement that should mind their own business?

    So if they have decided to tell me what to do they should, in keeping with what they think rights are, ask me if I want to hear their opinion. And I, answering their question purely in a generous and polite spirit, can tell them to fuck off.


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  15. Well done dover.

    One question to those who understand things better than me.
    Ergas says: “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.”

    Has he used the phrase “catching covid” to elide merely having the virus (and thus being at risk of passing on) with being ill with covid? My understanding was that unvaxxed are more likely to get ill (perhaps five times so) but vaccinated and unvaccinated are equally likely to contract the virus – that accords with the next words in Ergas’ article that “the unvaccinated and the vaccinated transmit the disease at exactly the same rate” ( noting that he doesn’t expressly assert that covid-positive vaxxed and unvaxxed pass it on at the same rate). I suspect that Ergas has unwittingly fallen for the vaxx-worshippers’ propaganda on this. But I’m willing to stand corrected.


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  16. Which millions of Australians died fighting in WWII.

    Sacré bleu, Tom, hyperbowl is not necessary. There were just shy of 40,000 Australian military deaths in WW2.


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  17. 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.

    This was the paragraph in Ergas’ incredibly sloppy piece that irritated me the most. You could write a lengthy fisking of that paragraph alone, should you be so inclined.


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  18. 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 injecting another person with a potentially serious substance breaches their right to live safely and securely, undermining a fundamental freedom that govern­ments have a duty to protect.

    FIFY


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  19. There are, on the contrary, arguments for restrictions of this kind that should appeal even to libertarians…no one has a right to impose a harm on others by negligently disregarding their rights and interests

    so if you give the normal flu to grandma and she dies, off to jail with you. libertarianism has lost the plot. laissez faire capitalism has failed to halt fascism, quite the contrary it’s an enabler and active censor.

    I used to call myself a libertarian, now I am without any -ism, now I’m just anti. anti-state over reach, anti-crony capitalism, anti-spineless conservatism and anti-fascism. I am the true antifa.


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  20. Cast your mind back to 1989 when R J L Hawke set the standard for this conflict management system when he managed to get the media, Ergas included, and all hands against less than 2000 of us, and that’s when we discovered that the only freedom we had was the supposed freedom of religion, not the right of free speech, the right of free association, where the Reeve arrived on the doorstep to serve trumped up summonses was accompanied by TNT goons armed with shotguns, where steps were taken to confiscate assets including the family home, where those who were almost destitute were refused the dole, where no union workplace would hire us even as labourers, where he informed governments of overseas countries where some of us fled for work, that we were political dissidents, where even our kids who aspired to be aviators were black balled by Ansett and Qantas, for the various powers that be are doing exactly that on a larger scale to all Australians right now. This has a long way to run yet so we had better get used to living in the new age edition of a Soviet Gulag on steroids or side with the CMFEU members working on the principle that any enemy of my enemy is a friend and all that entails down the track.
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  21. As I’ve said a million times before, people’s fear of contagious diseases reduces their IQ by half and their principles by 100 per cent.

    Torts aren’t libertarian per se, they can merely be used (sometimes) as a tool of the libertarian principle.

    Libertarianism applies the golden rule. That is the fundamental bedrock of it. If I don’t expect you to take steps to maintain a germ free existence (and I would be a lunatic if I did) then you have no right to demand that I take steps to maintain a germ free existence. This goes doubly so when those steps involve the risk of harm to me (or you).

    On the other hand, bodily autonomy is something I very much want for myself. And so too does everybody else. Therefore forced vaccines contravene the golden rule.

    Some torts are consistent with the golden rule (libertarianism). Some aren’t. My ability to sue a car maker whose engines were blowing up may well be valuable enough to me that I’m happy to allow other people to sue me for defective products that I make/sell. But forgoing bodily autonomy is something nobody would ever agree to.

    Forced vaccines are chemical rape and anybody who supports them should be viewed in that light.


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  22. If the overriding theme for libertarians is, “go for it, but don’t directly harm others”, then Henry is correct as far as first order principles go.

    JC, how do unvaccinated people without COVID ‘directly’ harm others? They can’t. And if you are going to apply the tort of negligence, the harm needs to be proximate and foreseeable, which could apply only to symptomatic carries, vaccinated or unvaccinated, who continue to engage in public activities without isolating themselves.

    I’m sorry, but Ergas’s argument is trash.


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  23. Why is it only ever our side that wants to find reasons for us to agree with their side?

    You would never find Bob Brown writing an article saying there are good reasons for Greens to support gun ownership.


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  24. “If the overriding theme for libertarians is, “go for it, but don’t directly harm others”, then Henry is correct as far as first order principles go.”
    ********
    Maybe, but he’s incorrect about his specific assertions if in fact being vaxxed or unvaxxed makes no difference to how likely someone is to transmit covid. That’s a product of (a) do the vaxxes reduce getting covid (as opposed to getting ill from covid) and (b) do vaxxes reduce an infected person from spreading covid.
    The answer to (b) seems to be no, according to Johns Hopkins University. As I understand it the answer to (a) seems to be no as well.
    So unless further data or research shows otherwise, Ergas might as well be proposing “lucky charm tattoo passports”, and coercive restrictions on people who won’t get a tattoo saying “I love Maximum Leader” on their butt.


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  25. Tim, even if you grant that it does reduce but not eliminate spread, given the fact that COVID is endemic, it is just a matter of time before X comes into contact with A. And if we accept his number, if it took a month to come into contact with A where all are unvacinnated, it would only be another 4 months if all were vaccinated. Given that many are already vaccinated, the number is somewhere in between 1-4 months for contacting someone with A.


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  26. Ergas is just another one of those old turds (as Rabz once correctly called them) on The Australian. Other old turds include Kelly and Sheridan. Tired old trash.


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  27. Libertarianism is a strange beast, it comes it all shapes, sizes and colours. It’s all a bit too confusing for me so I’ll just remain just a cankerous, obstinate old bloke.

    That’s a good take-down Dover, Dover’s Demolitions Inc., stupid arguments demolished while you wait.


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  28. The component missing from this conversation is this:
    When you have the power to compel people you lose the motivation to convince.
    Convince me I should vote. Don’t compel me.
    Convince me it’s a good idea to take this vax. Don’t compel me.
    Those who can compel don’t have to convince.
    Which even if they are RIGHT about this one, (they aren’t) is a powerfully stupid precedent to set.


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  29. given the fact that COVID is endemic, it is just a matter of time before X comes into contact with A

    … still not locked down

    … still not dead

    X * A == bullshit


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  30. …”we have been taken over by fascists masquerading as socialists”…
    Fascists ARE Socialists.
    Mussolini was a trade union leader before he became Il Duce.
    Nazis are the National Socialists.
    Antifa are fascists.
    etc


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