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Liberty and the case against mandatory masks

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COMPULSORY masks in shops and public transport are an unjustifiable restriction on our liberty. The risk of coronavirus, including the new variant, is no longer a sufficient warrant to violate individual rights, if indeed it ever was. Yet despite a steady decline in hospitalisations  and deaths, Johnson and Whitty still justify compulsory masks on the basis that they stop individuals from harming others (or the risk of harming).

There is nothing inherently wrong in harming others. At first glance this may appear to be a false statement, but the slightest thought given to the topic proves its truth. Boxing, paintballing, rugby and puffing on a cigar in a smoking area all harm others, yet no one is suggesting any of those activities are wrongful. The reason why harming others is not inherently wrongful is consent.

From this reasoning it follows individuals may form voluntary groups to harm each other. From this broad principle can also be derived a narrower one, that individuals may form groups to pursue a purpose where a by-product of the activity is harm (or risk of harm). Rugby is a fine example: having your head cut open is not the purpose of the activity, but an accepted risk or by-product of it.

In a free society none of the mentioned activities may be prohibited. To ban them would be an unjustifiable restriction on individual rights, freedom of association and private property in particular. This is something I believe every reasonable person accepts. Some may not like rugby, boxing or paintballing, but no one is seriously proposing their abolition.

Thus, by analogy, it follows that no reasonable person may take issue with shops and buses which allow their customers to go mask-less. Each individual may be exposing others to the risk of harm, accepting this as a by-product of their shopping/travelling, but since everyone has consented to such risk there is no wrongful behaviour. In many cases this consent is implicit; in many others it is explicit.

Waitrose, for example, says the decision whether to wear a mask in their shops ‘will be for each individual to take, based on their own judgement’. Here the consent to undergo a risk of harm is explicit whether customers like it or not. Entering Waitrose’s private property means their terms are accepted, i.e. consented to.

The preceding has established that mask-less shopping is directly analogous to paintballing or playing rugby. In both instances all the participants consent to the risk of harm, either being shot/tackled or catching Covid-19. Just as we may conclude it would be wrong to ban paintballing, rugby or boxing, so must it be wrong to ban mask-less shopping or travelling.

From this conclusion we can therefore reject compulsory masks in shops and on public transport. Such compulsion is an unjustifiable restriction on liberty.

Nonetheless, let us address the inevitable objection to this liberal argument, that an individual shopping without a mask is exposing others who haven’t gone shopping to undue risk due to the increased possibility that they are infected and will pass on the virus, and this is impermissible. Let us consider two rebuttals to this externalities argument.

First, it is questionable, at best, that the slightly increased risk imposition is wrongful or unjust at all. Such reasoning gets us very close to saying it is wrongful to not wear a warm coat in the winter because you are more likely to catch the flu and pass it on to others, which would be an obvious absurdity. My strong intuition is that such slightly increased risk exposure is not wrongful, and hence not impermissible. We may have a right against others imposing high risks on us, but I doubt that it covers being exposed to the mask-less.  

The issue of what is permissible risk imposition has perplexed many political philosophers, and I don’t intend to get into the question of where to draw lines (although I am convinced the slightly increased risk imposition on others of going mask-free shopping doesn’t cross the line into impermissibility). Nor, for the purposes of opposing compulsory masks, do I need to answer this question.

Second, given that we live in a county predominantly of private property, it is almost always possible to acquire the explicit consent of customers to risk. Most individuals who work will move from their private home to a private company to a private shop and back to their private home. At each point the property owner can obtain the consent of his employee/customer to the risk of the virus. Thus tricky questions on permissible risk impositions and potential rights infringements are entirely avoided: consent legitimises all harm or risk of harm.   

The risk-averse may object to most property owners not being as risk-averse as them but this distaste does not warrant restricting their freedom via regulation. Similarly, it would be wrong to stop risk-averse businessman requiring vaccine passports for their private establishments. Public streets present a problem – who owns them and may set the terms? – but since no one is yet calling for compulsory masks on the streets, I leave this difficult issue aside.

The preceding has rebutted any remaining concerns those who originally opposed my argument may have. It remains true to say compulsory masks are an unjustifiable restriction on liberty, on freedom of association and private property in particular. The State has violated our individual rights for too long. It must now be opposed with the utmost zeal; liberty must be saved.

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Charles Amos
Charles Amos is a former deputy chairman of the East Grinstead Conservatives, a town councillor, and Sussex coordinator for the TaxPayers' Alliance.

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