– July 19, 2020

As everyone who has been conscious for the last few months knows, the world is in the middle or early stages of a pandemic. Whatever you think of the responses to it, this is a major public health challenge. It is though far from being the first, nor will it be the last. What it has done, for various reasons, is highlight the continuing uneasy relationship between individualism and both the idea and practice of public health. Public health is both an idea and an institutionalised practice. It is a central feature of the modern state (and of some earlier ones) and it raises all kinds of challenges for individualist liberals.

The activities that we collectively term public health have been provided by governments at several points in history, particularly when those governments ruled over large towns and cities, because the challenges that public health addresses are much more severe in urban environments. The usual activities include things like provision of potable water, supply of drains and sanitation, paving of streets, all of which count as infrastructure. However, there are others that require activity and inspection or supervision on the part of state servants, such as controlling pollution and noise, limiting fire risks, and taking steps to prevent or mitigate epidemics – the last of course being centre stage right now. 

Most people see these as core functions of government, on a par with things such as defence or the provision of law. The case for governments doing these things is actually stronger than that for them providing either law or defence but despite that there have been many cases where they were not provided at all or on a very limited basis. In the Ancient world large imperial states such as Han China or Rome did provide them, extensively, but for much of the Middle Ages in many parts of the world they were not.

The big shift in thinking about public health in Europe happened during the Baroque era, from the mid-seventeenth century to the early nineteenth. At this point states began to try to provide public health services and to emulate both the Romans and their Chinese contemporaries. What also appeared was a worked-out theory of public health as a function of a well-ordered government, produced by theorists of Baroque absolutism such as the German Kameralists. This made public health a central part of the so-called police power of government, which was concerned with policies and activities that promoted the general welfare of society – notice the collective nature of the good described by this term. This thinking was an influence on the American Founders as can be seen by the explicit use of the concept of the police power in the Constitution and in the political discussions and policy at State level at the time.

The concept and practice of public health has been problematic for individualist liberals from that time onwards. The idea itself causes at least uneasiness, the practice even more so. For many small state radicals of the eighteenth century such as Jefferson, this was yet another reason to favour agrarianism and to be sceptical of large commercial cities (large cities made public health measures a necessity but these were seen as dubious, so this was another strike against the big city). 

The first source of uneasiness is the very idea of public health. The concept has an inherently collectivist quality, because it is more than the aggregation of the health of individuals. It is something that affects individuals and is influenced and produced by individual action but it derives from the network aspect of those actions, the relations between people that are not determined by particular people and for which no particular person or persons are responsible. For a social conception of individualism this is not a difficulty but it does raise the question of how responsibility is to be assigned and exercised. 

The second challenge is more serious. This is that public health as an activity has a necessary coercive aspect, that cannot be avoided, even if it can be minimised. There are two reasons for this. The first is the need for very high levels of compliance with and observation of rules and norms, if they are going to be effective. This is a case where unless an overwhelming majority comply with a rule, it will not be effective. The second reason is the existence of collective action problems and what we may call ‘litter effects.’ Let us take the case of refuse collection and disposal. If this is not done effectively then there will be a serious health problem, for various reasons. If it was left entirely to the responsibility of individuals, the temptation is for each person acting on their own to think that if everyone else is going to observe the rules, he can get away with flouting them. 

The problem of course is that even if only a minority do this, if the number is large enough the effects will be severe. Moreover, some people, seeing the rubbish left by others, will start to think “Why should I bother?” and also stop doing it, so the problem will have a tendency to escalate – it is not self-limiting. The solution is to make the activity or measure compulsory, with penalties for noncompliance, so coercion is an inevitable part of the phenomenon of public health (regardless of how it is financed, so that does not come into it).

A classic historical example of this, which has considerable contemporary resonance, was compulsory smallpox vaccination in England and Wales, and the campaign it provoked in response. Smallpox was a truly terrifying illness, combining a high infection fatality rate with a very high level of infectiousness so that it both killed large numbers and spread rapidly and extensively (a rare combination). Those who developed a case and survived would often be blinded and almost always scarred. It was the very first illness where the technique of vaccination was developed as a prophylactic, by Edward Jenner in 1777. The challenge was that because the disease was so infectious vaccination had to reach a very high percentage of the population (over 85%) for there to be ‘herd immunity’ (meaning that because there were so few susceptible people in any given place an individual case would not give rise to more than one new case). 

For a long time vaccination was encouraged but not compulsory, but many were suspicious and sceptical of the technique or preferred the older (and both less reliable and more risky) procedure of variolation. The problem was that not enough people freely chose to do it. 

Faced with this, Parliament made smallpox vaccination compulsory in 1853 and tightened the rules and penalties in 1867. Parents who did not get their children vaccinated faced severe fines, and imprisonment if they failed to pay the fine or immediately comply once fined. This provoked an enormous backlash and opposition to compulsory vaccination became one of the major libertarian campaigns of Victorian Britain, particularly among the working classes. The response of the authorities was to double down on their policy and to develop new ways of dealing with recalcitrants, such as the use of repeated imprisonment for a single conviction (the ‘cat and mouse’ procedure later employed against suffragettes). 

The opposition became focussed on the town of Leicester, whose MP, the radical Liberal Peter Taylor, was an outspoken opponent of the measures, and took the form of a mass civil disobedience campaign. Eventually, after several reports, a compromise was reached in 1907 of making compulsory vaccination the default but allowing a conscientious objection procedure for opting out and also doing away with the cumulative and summary penalties. 

This shows clearly what the challenge for individualists is. Smallpox was a serious public health problem. Failure to have one’s children vaccinated made the chances of a lethal outbreak higher. The response was to employ the element of compulsion and criminal sanctions to ensure compliance, with serious impacts on civil liberties. The alternative however was epidemics. Therefore, the tension is obvious and inescapable. One response might be that on principled grounds one should still oppose compulsion and rely upon social pressure and exhortation. 

The problem is the third factor that makes public health a difficult question for strict libertarians (along with its collectivist quality and collective action problems): the existence of major spillover effects. If I refused to have my child vaccinated against smallpox the costs were not born only by myself but by bystanders who were made more vulnerable to an outbreak. (There is also the issue of how far the parent could expose the child to risk, the same issue that arose with parents who had a religious objection to medical procedures such as transfusions).

It hardly needs saying how these issues are very much with us right now. In both the US and UK there are strong objections to making the wearing of face masks compulsory in public places. The problem with that is the one noted, the existence of spillover effects. The question is that of how the shared good of public health can be provided with the minimum amount of coercion. One way is to rely upon social norms and pressures. This can be more effective than some suppose but there is a very strong ‘tipping point’ effect, where the norms and expectations are observed by almost everyone as long as a critical number does so but even a slight drop below that level leads to a sudden collapse. This makes it a powerful but fragile way of doing it – the case of vaccination against illnesses such as measles in the contemporary US is an illustration of this. 

The other way of achieving this is to rely upon private action and property rights. In the present context this would mean businesses such as malls and bars insisting upon certain rules being observed as a condition for entrance or service. This could be very effective, depending upon the balance of strong feelings on the two sides of the issue among customers. The problem again is that of the need for near universality – it defeats the public health objective if 20% of businesses do not apply such a rule while 80% do. Public health in the case of things such as epidemics, sanitation, and refuse is a limiting issue for the principle of individual self-governance. The element of compulsion may be minimised but can never be fully escaped.

How much of a limiting case is it though? That is the really serious question. If public health is a collective phenomenon, the production of which will require an element of coercion however small, how far does the concept reach? This is the third reason for the long-standing tension between the practice of public health and the principle of individual liberty. It is the question of how extensive public health is. The problem is that since its formulation in the eighteenth century and instantiation in the nineteenth, the concept has been pushed and expanded, often with disastrous results. 

One example is Prohibition, partly justified on public health grounds. Even more serious is the case of eugenics and ‘social hygiene.’ The idea here was that the collective public health required controls upon the reproductive freedom of individuals because ‘unregulated breeding’ would lead to a deterioration in the quality of the ‘national stock.’ This found expression in laws and policies in a large majority of US states as well as many European states, that provided for the incarceration and compulsory sterilisation of the ‘unfit’ or ‘feeble minded.’ 

In the UK this nearly led to one of the most oppressive laws ever finding its way onto the Statute Book in 1919 before it was derailed by the libertarian MP Josiah Wedgwood. We can observe the same logic at work in the advocacy of legal controls on lifestyle choices such as diet and drinking.

The answer of course is to develop and articulate arguments and methods of determining which kinds of actions do count as genuine matters of public health, because of the severity of spillover effects, and which do not. The aim should be to strictly fence off and limit the scope of coercive public health as both an ideal and a practice. We should think of it as something like a nuclear reactor core – useful, even essential but something that needs to be tightly contained. This is the kind of project and activity that individualists and classical liberals should be engaged in.

Stephen Davies

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Dr Steve Davies, a Senior Fellow at AIER,  is the Head of Education at the IEA. Previously he was program officer at the Institute for Humane Studies (IHS) at George Mason University in Virginia. He joined IHS from the UK where he was Senior Lecturer in the Department of History and Economic History at Manchester Metropolitan University. He has also been a Visiting Scholar at the Social Philosophy and Policy Center at Bowling Green State University, Ohio. A historian, he graduated from St Andrews University in Scotland in 1976 and gained his PhD from the same institution in 1984. He has authored several books, including Empiricism and History (Palgrave Macmillan, 2003) and was co-editor with Nigel Ashford of The Dictionary of Conservative and Libertarian Thought (Routledge, 1991).

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