Good evening, ladies and gentlemen: this is your Captain speaking. We are about to land at […] Airport. Please ensure that your seatbelts are securely fastened and that your tray tables are returned to the upright position.Every pilot on approach to every landing, arguably assaulting the freedoms and liberties of everyone onboard while knowing full well that, even if multiple tray tables are not returned to the upright position, the plane’s landing gear will not be affected.
What do we want? Freedom! When do we want it? Now! Hackneyed rallying chant of marchers, some of whom have flown in for the march, unhappy with Government COVID-19 restrictions and pressures to get vaccinated; these being seen as assaults on their freedoms and liberties.
We as a Government should be protecting people’s individual rights and circumstances. Employees should not be forced into COVID-19 vaccination. This is an assault on an individual’s freedoms and liberties.
NSW State Liberal MP The Honourable Lynda Davies, seeking to introduce a Bill into Parliament opposing compulsory vaccination for construction workers, as quoted in the Sydney Morning Herald, 10 August 2021. (my emphases)
COVID-19 has changed the way we live. It has killed many, hospitalised many more, confined even more to various forms of quarantine and lockdown, and, among other things, it has widely divided communities regarding liberty, rights and freedom, especially in relation to lockdowns and vaccination. With regard to the last of the above-mentioned, it has brought out the zealots, the bigots, and unfortunately the terribly confused among whom, as the opening quotations show, includes our politicians. This is surely the time for philosophic clarity; and while urges from the past still tempt me to further bloat the literature analysing and/or seeking to identify relationships, commonalities and differences between ‘rights,’ ‘liberties’ and ‘freedoms,’ this may not be the appropriate time or place to undertake that sort of task. Philosophic clarity can cast light in other ways towards hopefully assisting in the production of far more practical, down to earth and immediate ends.
Such a ‘practical’ philosophical endeavour was attempted, on just the following day and in the very same newspaper, by famous and controversial ethics philosopher, Peter Singer, who provided a short defence of compulsory vaccination by invoking John Stuart Mill’s ‘one simple principle’ from On Liberty to argue, from an ethical standpoint, that vaccination was justified as it was an action upon the individual which prevented said individual from doing harm to others. Singer and Mill are fine philosophers, but there is more that needs to be said and greater justification that needs to be applied.
Mill’s ‘one simple principle’ would be well known to readers of this paper, but, since Singer relies so heavily on its wording, it might be well to reproduce it here:
That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That 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. (my italics)
It should be noted in passing that Singer sets out only the italicised sentence, and that Mill continues by indicating under what circumstances we might remonstrate or reason with somebody, and then closes his paragraph with the totally definitive statement: ‘Over himself, over his own body and mind, the individual is sovereign.’ There follows the somewhat cringing let-out that the principle does not apply to children, adolescents or barbarians, and there is a side glance to ‘society, as distinguished from the individual,’ but Mill then continues to elaborate his position on ‘liberty’ itself as if the principle, simply as stated, is more or less sufficient for him to do so.
It is only by Chapter 4, significantly titled ‘Of the Limits to the Authority of Society Over the Individual,’ that Mill faces up to what I believe is the greatest problem with his principle, and which is also largely the source of some current debates (including Singer’s contribution) and confusions surrounding compulsory vaccination. The issue centres on what philosophers, and others, refer to as ‘self-regarding’ and ‘other-regarding’ actions.
Mill recognises that there is a large problem here, and he goes straight to it. ‘Each,’ he states:
will receive its proper share if each has that which more particularly concerns it. To individuality should belong the part of life in which it is chiefly the individual that is interested: to society, the part which chiefly interests society.
Oh, if only such distinctions could be so easily made. But there is a way of saving those who seek or rely on this distinction, and that is to simply cut straight through the ‘Gordian Knot’ and recognise that there is no such thing as a purely self-regarding act, and thus there is, in fact, no distinction between that and an other-regarding act.
The simplest call on that is the often made one that, when a butterfly in the Amazon flaps its wings, the ‘ripple effect’ is universal: or, more to the point, a bit of ingenuity will easily show not only that there is no such thing as a self-regarding act, but also that it is impossible to accurately quantify acts in terms of their degree of ‘self-regardingness.’ I have frequently demonstrated this with post-graduate philosophy classes by expounding an example where a supposedly self-regarding act on my part has led to misfortune for over five hundred million other people. To save many pages of argument, please (if only for convenience) allow me that point (if you must have the details, please email me, and I will send it to you).
Mill, however, was never one for even passing frivolity; and, instead, he continues with pages of what I believe to be the most muddled in his entire output, as he flirts with and categorises ‘self-regarding’ but not quite ‘other-regarding’ actions. However, at the end of this, he does make a definitive and dramatic shift which leads to a most significant conclusion. Mill states:
Whenever, in short, there is a definite damage, or a definite risk of damage, either to the individual or to the public, the case is taken out of the province of liberty and placed in that of morality or law.
Well, is that a terrible cop-out that sets up either problematic distinctions and/or the most vicious of circles, or does it provide a positive lead for establishing justifiable solutions to the problem of infringement on people’s liberty? I suspect that has been the matter of many PhD theses, and as I have no desire to write my second one so late in life, I shall simply consider what Mill’s ‘shift’ to morality and law might open up for us. Singer, although he does not specifically refer to this passage, does use the ‘shift’ to make his case, which is based firmly on the ‘morality’ side. I will try my hand by looking to ‘law’ before coming full circle back to Mill.
To begin with, a few observations. First, just as nobody can be forced to fulfil a contract, so too can nobody be forced to suffer ‘like punishment’ for a misdeed. Steal a car, and you cannot be required to give an equivalent car back to the original owner or break a window, and you cannot be forced to fix it. The Mikado’s song might be jolly, but what like punishment could possibly fit the crime of arson? And the point here is really quite simple: if vaccination were legally compulsory and you refused to have it, they wouldn’t hold you down and stick a needle in your arm. Compulsory vaccination does not mean (please note, Lynda Davies) that you must, or will, be forced to get vaccinated. I will come back to that.
Now the second observation. Technically, a law in itself does not violate an individual’s freedom. Where I live, there are laws against murder, rape, theft, graffiti, J-walking, crossing against the lights and having electrical work done in your house by someone who is not a licensed electrician. Anyone is free to do any one or a number of those things, but exercising that freedom comes at a cost (if you are caught). ‘Freedom’ here is what has often been called, and all freedom is, ‘responsible freedom.’ Freedom does not come cheap, and we might expect rational citizens (Mill’s ‘one simple principle’ applied only to grown-up members of a civilised community’: I will come back to that too) to have a pretty good idea of the ‘cost’ of each of those noted. Commit those actions, and you will most likely be punished, not remonstrated with.
But it will surely be seen that I have chosen rather different sets of examples. The first four are acts that can only be committed against others, whether it be people or walls: and as they are unequivocally causes of ‘harm to others,’ Mill’s principle of, and the ‘right’ to liberty does not apply. The next two laws are skewed very largely (I dare not say entirely – see above) towards ‘harm to one’s self’: yes, the bus driver who mows you down might be traumatised, but you will be dead. And the last I noted is there to protect both the self and others from the potential of experiencing what electricity can do to the human body. So; three broad categories, but where is the outcry against any of them? And most importantly, for this paper, whenever have we heard an outcry or seen a march against pedestrian crossings or electrician’s licences (yet another point I shall come back to).
The third observation, which should more properly be called an issue, is that if we’re willing to go along with compulsory licences to drive a motor vehicle and passports to leave and enter countries, legal speed and alcohol limits at which we can drive (which require compulsory submission to roadside licence checks and breath tests), not carrying fruit into fruit-fly exclusion zones (which require compulsory submission to car and luggage searches), going to the theatre or opera (which require compulsory submission to handbag checks), and not leaning on the counter in a Bank, what’s so special about vaccination?
I’m a bit of a Biblical scholar with regard to the Judeo-Christian canon and find nothing there forbidding it, and my Muslim friends say the same applies to the Quran; and while I know even less about other religions, I also can’t, for all my searching, find any religion-based anti-vaccination position. Nor, given that vaccination is less than two hundred years old, could I expect to find any deep-seated long-held cultural and/or traditional objections.
Maybe it’s that vaccination is ‘special’ because it is a direct intrusion on the human body (which also might be why protests against vaccination so often link themselves – wrongly – with protests against anti-abortionists: ‘my body, my rights!’). But bodily intrusions are common and are becoming more and more common: tattooing; ear, nose and nipple piercing; getting a tooth filled; having a pain killer; having a wound stitched, a canola or a catheter inserted; getting a stent or pacemaker, and so on. It is passing strange to see heavily tattooed, ear- and nose-ringed people among those at an anti-vaccination rally.
It might be that many of the above are self-chosen intrusions (exercising one’s rights?), but not all of them are; and while we do have the right to refuse some medical procedures, exercising one’s freedom by insisting on the liberty to suffer pain or die prematurely does seem a bit self-defeating. No, I suspect the only thing that has real credence is that it could be about individuals having choice regarding a ‘foreign body’ being injected into them for the good of both themselves and the good of others. But that borders on the tautological. I suspect that the real issue, when all the hype and hysteria is boiled down, is really about a more general principle – namely whether the Government has the right to legislate/compel something so personal and radical – in the course of which ‘legislate’ and ‘compel’ have mistakenly been taken as interchangeable.
So; let’s separate ‘compel’ and ‘legislate.’ Now; if the question is: ‘Does the Government have the right to legislateregarding vaccination (and face masks and lockdowns)?,’ then the answer is an equivocal ‘Yes.’ The Government, as the protector of people’s circumstances (see Lynda Davies above) has this right
- in circumstances where a deadly pandemic rages among its citizens; and
- where such measures have been established as effective in protecting citizens from catching and/or spreading the cause of the pandemic while causing no greater harm and
- where providing that such measures are applied/offered equally and without cost to all citizens; and
- where education programs are put in place to inform the populace of the benefits of the measures being taken.
Thus, by considering the matter ‘in the province of law,’ we have reached much the same conclusion as Singer did with his interrogation in ‘the province of morality.’ Mill, if we accept that crucial ‘shift,’ appears to be holding up pretty well.
But we still have a practical problem – and a solution. As noted earlier, a Government might legislate, but it can’t force compliance. But why, with regard to vaccination, would it bother, when there is a much simpler way out: issue/promote ‘certificates of vaccination’ to those who have fully complied – as the Australian Government already does? Call them ‘certificates’ or ‘vaccination passports’ or whatever and take the ‘compliance’ issue out of the hands of the Government and place it back into the practical wheels of rational social living (I accept that that very idea seems to spark similar levels of outrage as ‘having [sic] to get vaccinated’ does, but rationally it shouldn’t, and I’m not going to repeat almost all of this paper in order to cover that issue).
Such ‘certificates’ (or ‘passports’) are part and parcel of everyday life. You need tickets to get on a train or bus; into the footy, the opera, a concert or a movie: and check the fine print on your tickets or the full terms and conditions on the relevant website (which we never do) and you’ll find that there are restrictions both on your potential to get on/in and your behaviour after you get on/in. Publicans must stop serving you if you are deemed to be intoxicated. Licensed clubs require production of a membership card before letting you into their premises or use their facilities, as do the legion of ‘members only’ organisations scattered through society. Even restaurants reserve the right to provide universal entry and service: my tiny local Chinese restaurant notes on its flyer – ‘We reserving all right to not offer service.’ These, in their own way, are passports. Meet the criteria, and you can have one: get one, and you can do things you could not otherwise do. It all seems to work pretty well in civilised societies and without public protest or marches. And, as would have been recognised, we are still retaining ‘liberty’ as we move a little bit further away from Mill.
So, ‘yes,’ the Government can, given the conditions noted above, mandate compulsory vaccination; but ‘no,’ it can’t force compliance; but ‘yes,’ compliance can be rewarded and non-compliance sanctioned in other legitimate ways in society. And, so, it comes to this. There is little point in engaging in (dangerous) public protest against compulsory vaccination because the Government can’t forcibly vaccinate you anyway, and it also won’t apply sanctions if you choose not to be vaccinated. But if you do so choose, then be prepared to go forth into society that embraces ‘vaccination passports’ in the manner in which a potential train passenger does without a ticket, or as a driver might who intends to get behind the wheel or an electrician who might seek to wire up my house without a licence does, or as a non-Member might seek entry to a club or a non-ticket-holder to a concert. You would, in all likelihood, find life more restrictive and yourself with fewer freedoms than if you took the self-and-other-protecting vaccine in the first place. Therein lies your choice, and you are perfectly free and at liberty as to how you make it.
Two things before concluding. First: the reader will have noticed that I have said very little about the other two of the main targets for proponents of freedom and rights in the COVID-19 world, namely compulsory ‘stay at home’ or ‘lockdown’ orders and ‘compulsory ‘wearing of masks in public’ decrees. I have said little firstly because this paper is focused on ‘vaccination,’ and secondly because those other issues are no-brainers. But, just in case it needs to be said, if you put Mill and Logic 101 together, it goes like this:
People are either infected with COVID-19 or not. If they are infected and remain isolated at home, they cannot do harm to others. If they are infected and leave their home, they could do harm to others. If they are not infected and remain isolated at home, others cannot do harm to them. If they are not infected and leave their home, others could do harm to them. QED.
Basically, given that these matters boil down to ‘doing harm to others,’ Mill’s principle of ‘liberty,’ if invoked, is not violated and thus cannot be called upon by the defence; and further, as the matters entail ‘definite risk of damage,’ they are also ‘taken out of the province of liberty and placed in that of morality or law.’
Second: some of the above has clearly been ‘argument by analogy.’ I plead guilty but am not repentant: such argument is not the terror or sin that some black-letter philosophers make of it.
Now to conclude. Vaccination is both a self- and other-regarding issue, and thus being denied choice in the matter does not infringe on one’s liberty (in Mill’s sense). Governments can rightly legislate for vaccination, but, as they cannot enforce the practice, they would be silly to legislate for it, and even if they did so legislate, given the caveats listed above, they would not be encroaching on individual liberties. Governments, however, can support the principle and practice of ‘Vaccination Passports,’ which will greatly assist in stopping the spread of a deadly disease. This would not be significantly different from the numerous ‘Passports’ we live with and happily produce on request or simply comply with many times each day, and against which we rarely, if ever, rail.
It’s all and already part of what makes up rational civilised society, in which we sensibly put aside bloody-minded demands for an unrealistic idealist (and potentially anarchist) notion of liberty and recognise that there are things that need to be done and directives that need to be followed, for the individual and the social good. It is in this way that we can best seek to defeat COVID-19 and move forward in a changed world, changed, but one in which the planes will begin to fly again. And when you and your plane are coming down to earth, do ensure that you retrieve your copy of Mill’s On Liberty from your seat pocket (it is worth hanging on to), and please return your tray table to the upright position.
August 22, 2021