In March, an employee of a Melbourne bank was sacked after the bank concluded they had falsely claimed to be infected with coronavirus, triggering alarm for everyone working in the same building. The hands-off response of the local police chief: “It’s not against the law to be a dickhead”.
For weeks, much of the world has been locked down in an attempt to suppress the spread of the virus. The severity of the rules, and the relentlessness with which they have been enforced, has varied from place to place, but the broad theme has been the same: the rules are wide, restrictive and legally binding. Flout them and you will be punished: so it is “against the law to be a dickhead”.
It is easy to lose sight of an alternative approach: a libertarian lockdown. If you want to open a nightclub, rub shoulders in a choir, or offer to shake hands with everyone you meet in a hospital: “It’s not against the law to be a dickhead”. The sanctions will be social or commercial, not legal.
Before considering the objections to this idea — and there are plenty — take a moment to consider its appeal. First, freedom is valuable. To make something punishable by the power of the state is not a step to be taken lightly.
Second, most people try to do the right thing. We are social animals: we look out for each other, especially in a crisis, and we also fear being ostracised. In the UK, the vast majority of people complied with the lockdown, and not because they expected the police to come knocking.
Still, we do not rely on peer pressure as a substitute for making murder illegal. When life and death are on the line, laws and punishments are reasonable.
So the third argument is, I think, the most persuasive: the next stage in the fight against Covid-19 requires a subtlety that the law cannot provide. With coronavirus spreading rapidly, there was a strong case for a blunt, one-size-fits-all message: “stay at home, save lives”. But now the task is different. We are not trying to suppress a spreading epidemic; we are trying reopen our countries where possible while preventing a second wave. That means seeking out the most effective ways to prevent infections while still allowing both the economic activity that supports our livelihoods and the social activity that makes life worth living.
Last week, I discussed ways in which the government might try to discriminate — between young and old, or between different regions. But there is an alternative, which is to let people decide for themselves.
To use Friedrich Hayek’s phrase, making the right judgments from now on requires “knowledge of the particular circumstances of time and place”. Every workplace, every social setting, every classroom, is different. There is no law that can accommodate all the different ways in which people might try to protect themselves and each other while still maintaining some semblance of normal social and economic activity. And while firm guidelines and standards can be useful, no law can reflect my own intimate judgment about how much risk I am willing to take.
The case for a libertarian lockdown, one that relies on voluntary action and social pressure, is strong. But there is also a powerful case against.
First, and most crucially, this is an infectious disease. Each case of infection risks sparking many others. As I weigh the balance of benefits and risks I may downplay the risks to others, and endanger them. If I am not thoughtful and altruistic enough, people may die.
Second, while we should normally give each other the benefit of the doubt in judging our own best interests, this virus is a novel and invisible killer. We are figuring things out in a stew of misinformation, quack remedies and questionable advice. Can we expect mere common sense to be sufficient?
Third, people may lack either the power or the information to make a real choice. If a restaurant reopens, I am free to decide whether it’s safe to show up. The restaurant staff may feel they have no such freedom. And if the restaurant looks conscientious at the front of house but is taking risks in the kitchen, would market forces really punish that hidden offence?
A middle way is, of course, possible. Governments can outlaw the riskiest activities, while allowing free choice to prevail elsewhere, bolstered by firm guidance. The more clarity, trust and social solidarity there is, the more likely voluntarism is to work. It is a shame that the UK government has done so much to corrode that clarity, trust and social solidarity this week in the row over the lockdown odyssey of the prime minister’s chief adviser Dominic Cummings.
Yet the idea is hardly doomed. We will have to start figuring out how to stay safe, making difficult judgments in ambiguous situations. And it is striking that Denmark, which has lifted many restrictions, has not yet seen a second wave of infections. Perhaps “don’t be a dickhead” is enough after all.
Written for and first published in the Financial Times on 29 May 2020.
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