This is the third of a three-part series that makes the case for leaving key health choices to individuals rather than relying on protective measures imposed by the state. You can read part one here and part two here.

In parts One and Two we saw that pandemics are uncertain, we must make trade-offs, and that those are best made in a decentralized market of ideas where risks van be weighed up against each other.

But still: don’t we need government’s authority and co-ordination to address pandemics? Does government not have an ability, unique among institutions, to co-ordinate national and international campaigns?

A useful analogy may be traffic, both road and air traffic. 

Inherent risks

The argument is that these activities pose inherent risks, just like a pandemic. Just like all drivers are not equally responsible, just so all members of the public exposed to a viral pandemic are not. Therefore, it is necessary to regulate their actions. On the road, for example, they must be forced by law to drive on the left, not exceed the speed limit and wear seat belts. So likewise, the argument goes, citizens must be forced by government to vaccinate, to be locked down, to wear masks and to maintain social distance.

The analogy is useful, because we learn something from it. Firstly, in the case of traffic rules, each of those is very cost-effective. Whilst they impose costs, compared to the massive benefits of safety that they ensure, most cost-benefit analyses show that advantages outweigh costs hundredfold. Most fundamentally, traffic rules on the whole do not impede traffic, they aid its flow. The benefit of traffic as an economic and leisure activity is at least arguably made possible by traffic rules. But at worst traffic rules do not prevent traffic.  

Compare this to government lockdown rules, which have in many ways impeded, and in some ways completely prevented economic and other activity.

Traffic rules are a manifestation of the principle that regulation should optimally fulfil public interest, whilst at the same time not infringing liberty more than necessary. To use a further analogy: Government may arguably allocate radio frequencies to radio stations, but it should not prescribe what they may broadcast.

Reduce risks

Safety belts, for example, are similar to masks, in the sense that both purport to reduce risk at minimal cost. The point is that by now the data is in about seatbelts. Compulsory seatbelts save lives. And compared to the benefits they ensure, their costs are minimal. 

The same does not apply to masks. The best that can be said about masks, is that their benefits are unclear (see here and here). 

Their costs are totally unclear. At the very least, no normal society subjects its citizens to the humiliating and alienating obligation to wear face coverings without good reason. 

As for lockdowns, their costs include lost income from forced unemployment, lost business for service establishments, psychological damage due to loneliness and depression, and deaths and disease as the result of health procedures forfeited. The costs of vaccines may include cardio-vascular ailments such as blood clots, myocarditis, and strokes due to vaccines. There is also evidence of new pathogens emerging, and anti-body dependency. We simply don’t know their long-term costs. 

As matters stand, the long-term benefits of lockdowns and vaccine mandates are far from clear too, as suggested by the jarring contradiction of mainstream orthodoxy, that is Africa, and as suggested by the puzzling case growth in high-vax countries in Europe. 

And if we do not know what their costs are – and also the benefits that they are meant to buy – then we should invoke the medico-legal injunction ascribed to Hippocrates: First do no harm. At least, until we have the costs and benefits figured out.

Discipline of the market

There is a form of authority that is far more effective than the bludgeon of government power, and that is the discipline of the market. If there is a real demand for social distancing – as a market with the best available knowledge can determine – then private businesses can decide whether to impose it, under what circumstances, and to what degree. Should they fail to do so adequately, they will lose customers, who will not patronise a business that creates dangerous conditions that are prone to spreading infection. In this way businesses and customers can calibrate the complex set of measures required to balance the demand for the commodities offered by the business, and the demand of staying healthy. Some businesses may also differentiate themselves on the basis of their more lenient regulations, in the same way that insurance companies or banks market their low levels of paperwork, medical insurers their quick and easy claims procedures, or shops the variety of payment methods they accept. 

Government does not need to be the enforcer of all rules governing co-operation between people. Traffic rules may seem like an axiomatic case where the government must be the regulator of choice. But not even that holds up to scrutiny. The rule that drivers must keep left (or right, as long as it is consistent within a traffic jurisdiction), whilst self-evidently necessary, is by no means clearly a rule that needs to be imposed by government. In fact, our courts have now endorsed privately agreed traffic rules. There is no reason why traffic rules cannot be agreed by participants – again, as long as it is consistent. 

Keeping left is an example of a rule that can be described as a protocol or convention – similar to those governing the internet, video cassettes, and the QWERTY typewriter keyboard. All these protocols have been agreed by the market. 

A system of self-regulation by voluntary agreement should apply to restaurants, supermarkets, and hospitals, but also to clubs and individual households. It will encourage businesses and customers to design solutions to avoid the blunt instruments of curfews, blanket liquor sale bans, and similar ham-handed attempts at trading off risks. Human ingenuity, duly informed by local knowledge and driven by personal interest, will do so vastly more efficiently by means of multiple and diversified, agreed solutions.

Is there a risk that health resources will be subjected to undue burdens because people do not respect social distancing measures? Might they fall ill and thus prevent others from gaining access to hospital beds? If so, should they not be forced to comply with preventative measures imposed by the state? 

Fair point, but no cigar. Such an argument still begs the question, namely whether government-controlled pandemic rules and mandates are more effective than other systems to achieve the ideal trade-offs. And at best we just don’t know the answer to that question. Albert Einstein said: “Learning is experience. Everything else is just information.” Learning is what we experience on the ground through trial and error. If government is the only pandemic game in town, how will we learn about the alternatives?

The argument that risk-takers will unnecessarily occupy hospital beds, is a classic example of the broken-window fallacy in economics. It is the fallacy that only visible costs or benefits are considered, and invisible ones not.

Freedom trade off

Every person whose economic life is regulated by lockdowns, social distancing rules, curfews, business closures, or vaccine mandates, is forced to trade off his or her freedom to make a contribution to society in the form of entrepreneurship, employment, or entertainment, for notional safety from the virus. 

But risk-takers are essential. Entrepreneurs take risks. Firefighters take risks. Law enforcement officials take risks. Healthcare workers take risks. Anyone who travels by air, rail, or road takes risks. Restaurants, shops and clubs – and their customers – take risks. And all these activities hold untold benefits for humanity. Take those away, and disaster awaits. Insisting that government clampdowns are necessary, means that government imposes its blunt, normally one-size-fits-all measures to manage the trade-off of the risk of human activity against the risk of limiting that activity.

This applies also to medical treatments and vaccines. We simply don’t know whether in the long run vaccines are effective, and what the risks are. We simply don’t know whether alternative regimes of treatment, or even of no treatment at all, may not work better and more safely. Without trying them out, how will we know? 

In saying all this, one remains mindful of the great work done, for example, by governments in Africa in funding and propagating HIV/Aids and TB campaigns. But none of those amounted to limiting freedom in the name of public health. On the contrary, especially the SA government showed commendable restraint in respecting personal choice and privacy, and the right to work free from discrimination. No one was forced to wear a condom, not to have sex, to undergo tests, to carry a certificate proving his or her status, or not to work where he or she chose. Covid should be the same.

Finely calibrated personal, individual trade-offs of health, sanity, lives, income, pleasure, risks of death or disease, and income, have served us well for centuries. It is called living. Get used to it. 

[Photo: Dollar Gill for unsplash]

The views of the writer are not necessarily those of the Daily Friend or the IRR.

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contributor

Frans Rautenbach is a Cape Town advocate and labour lawyer with ample experience of general commercial law, labour law and employment litigation. He holds an LLB from the University of Stellenbosch, and is a former partner of Webber Wentzel Inc. He has more recently engaged in legal reform work, having consulted to the governments of Uganda and Tanzania on reform of labour legislation, licensing laws and business start-up procedures. He is a published author on legal reform, management systems and labour law. His published work includes South Africa Can Work (Penguin, 2017).