The reciprocal nature of the pandemic problem

Note: This is my fourth and last blog post (for now) in my series on “Lockean takings.”

I want to conclude this series by noting the “Hohfeldian” structure (see image below) of the self-ownership principle.[1] In brief, if each person owns the legal right to his labor, if each person is a self-owner, so to speak, then–regardless of whether this right originates in natural law (Locke), social utility (Hume), or positive law–this right generates a correlative duty on the part of others.[2]

This Hohfeldian analysis also highlights the reciprocal nature of the pandemic problem.[3] On the one hand, not shutting down the economy makes it easier for the pandemic to spread, but on the other, the decision to order an economic shutdown also imposes significant costs on “non-essential” workers. If the government is going to order “non-essential” workers to stay at home for the greater good, then the government is also required under the Constitution to pay “just compensation” in exchange for one’s cooperation. This property rights approach to the pandemic not only respects the federal structure of our constitutional system of government, it also represents a fair compromise between our need to make significant sacrifices for the common good by staying at home for a reasonable period of time and our bedrock self-ownership right as well as our moral right to receive some of form of meaningful or just compensation in exchange for the deprivation of liberty.

One more thing. My Lockean or labor-as-property approach also follows from the reasoning in Robert Nozick’s Anarchy, State, and Utopia.[4] Nozick begins with the premise that every person has rights, including the right to liberty and property. Specifically, in Nozick’s words, “Individuals have rights, and there are things no person or group may do to them (without violating their rights).”[5] These rights are pre-political and must be respected by all, but at the same time, these rights are limited by the existence of other rights-holders and the existence of correlative duties.[6] As a result, you must respect the rights of others; you do not have the right to cross any moral boundaries while you are exercising your rights. Specifically, you do not have the right to impose unjustified harms or unjustified risks on others.

This Nozickian or classical liberal approach may appear unworkable in the context of a pandemic because one person’s refusal to engage in social distancing by itself creates significant risks for innocent third parties, including the risk of death for persons with underlying medical conditions. In other words, every human activity–no matter how benign its motivation or useful its consequences–carries some positive and nontrivial risk of injury to self and to others.[7] Or as Nozick (1974, p. 75) himself points out, “it is difficult to imagine a principled way in which the natural rights tradition can draw the line to fix which probabilities impose unacceptably great risks upon others.” Here is where the Hohfeldian logic of the self-ownership principle comes into play. If an economic shutdown is indeed the most effective method of saving lives during a pandemic–by requiring workers to stay at home and businesses to shut down–, then everyone who is inconvenienced by the shutdown (rich or poor) must be compensated for this inconvenience as soon as possible by the governmental entities that ordered the shutdown. (Footnotes are below the fold.)

Image credit: Azar Lalmohamed

[1] See generally Hohfeld (1913). In brief, Professor Wesley Newcomb Hohfeld had noticed the ubiquity of “rights” talk in law. Among other things, he noticed that the word “right” can have several different meanings, and he created a comprehensive taxonomy of “jural opposites” and “jural correlatives” to explain the structure and logic of these different types of legal rights. Hohfeld’s influential analysis of the structure and logic of legal rights was further elaborated by Arthur L. Corbin (1919, 1921), and continues to be taught today. See, e.g., Nyquist (2002). Cf. Schlag (2015) p. 187: “One of the most striking aspects of Hohfeld’s work is how much its architecture and arguments remain relevant–even bitingly so.”

[2] See, e.g., Steiner (2009), pp. 1-2.

[3] My argument here is based on Coase (1960) and on Guerra-Pujol (2020a).

[4] Nozick (1974).

[5] See Nozick (1974), p. ix.

[6] Again, see Hohfeld (1913).

[7] Or following the logic of Coase (1960, p. 1), the problem here is of a “reciprocal nature.”

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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