The issue of global pandemics is among the most difficult to analyze. As we have seen with the recent global pandemic involving Covid-19, reasonable people disagree on countless factual issues such as the dangers and risks presented to others, communicability risks and by what mechanism the virus effectively spreads to others, and whether masks, social distancing, or vaccines are effective. As previously detailed, life is complex, and not all issues are easy to resolve. Indeed, a short chapter on pandemics can only highlight some of the fundamental questions involved rather than appropriately dive deeper into the countless nuances that arise with the complexity surrounding this issue. As with many other problems, determining whether we are analyzing private or public property resolves most aspects of this issue.

We always begin with whether anyone is violating the 3L Legal Principle. An infected person with a dangerous illness violates the 3L Legal Principle by infecting another person who has not consented to the risk of being infected. While we treat the infected person who intentionally or recklessly infects another differently from the infected person who negligently infects another, either violates the 3L Legal Principle.

Further, as we know, the 3L Legal Principle is also violated if the infected person merely presents a substantial risk of infecting with a dangerous illness, others who have not consented to the risk. Under appropriate circumstances, the 3L Legal Principle could be violated simply by an infected person breathing out dangerous viruses that put others at substantial risk. As with all risks, competent adults remain free to consent to whatever risks they deem appropriate. Analyzing the physical location of the infected person is crucial to the analysis.

Even amid a global pandemic, private property owners, including private business owners, remain free to invite others to enter their property under any circumstances they deem appropriate. As always, all people remain free to refuse such an invitation for any reason they deem appropriate. This observation results in a world where, even during a global pandemic, business owners can opt to close or remain open under any circumstances they choose, and their customers can opt to do business with them or not. Business owners always remain free to require masks, social distancing, proof of testing, vaccinations, or anything else they deem appropriate to enter their private property. The same is true for private homeowners. As with all other risks, competent adults living through a global pandemic remain free to assess risks as they deem appropriate and act accordingly. As such, imposing a one-size-fits-all “solution” by mandating that private businesses close during a pandemic improperly usurps the risk-related decisions of competent adults and violates the 3L Legal Principle by coercing others; here, business owners.

While strictly observing the usual private property rules resolves most issues related to dealing with a global pandemic, it does not resolve them all. We could imagine a circumstance where the substantial risk of infecting another person with a dangerous illness extends beyond the boundary of the infected person’s private property. Positing a deadly virus that can be effectively transmitted beyond a private property border with simply a sneeze, cough, or merely exhaling would be such a circumstance. This circumstance is akin to shooting arrows, throwing knives, or even using a firearm to discharge a round into a neighbor’s property without their permission. Any of these examples would violate the 3L Legal Principle. This scenario may be unlikely. However, given what we currently know about the transmission of such diseases, it is not impossible. If such a scenario were to occur, the neighbor suffering the trespass would have an absolute right, as the owner of their property, to immediately terminate the trespass utilizing the least intrusive and most narrowly tailored means possible.

Government or public property presents a different analysis. As was discussed in several other chapters throughout this book, government action is subject to special restraining rules. For example, while individuals are free to do anything they please with their property so long as they do not violate the 3L Legal principle, governments properly have additional restrictions such as affording due process and equal protection of the law, not censoring the content of speech, and not discriminating based on many different characteristics. As such, unlike private property owners, when governments control public property, they are appropriately constrained to act within certain limits. Therefore, when the government acts to restrict the use of public property, its actions must be justified by the appropriate constitutional restraints. As with so many other issues, substantially reducing or eliminating the concept of “public” or “government” property would render this issue mostly irrelevant. The countless ways governments could improperly or justifiably curtail the use of public property during a global pandemic is too broad a topic to consider in this chapter.

Some people point out the possibility that mass illness can and sometimes does strain our healthcare system. Given that healthcare, like all other resources, is limited, this can pose a risk that we overstrain our healthcare system with a flood of reckless people ignoring risks and then availing themselves of the healthcare system for service. This concern is legitimate. However, this concern arises directly from the government’s over-regulation and co-opting of the private healthcare system in the first place. Most private for-profit businesses would view a rush of new business as a positive development, at least financially, and expand or react accordingly. Indeed, during the recent Covid-19 global pandemic, we witnessed governments relax or abolish some unnecessary regulations in many areas that restrained the ability of healthcare providers to react to and deal with the influx of new patients. As a result, it is now easier for healthcare professionals to offer services online or via telephone and move more freely to jurisdictions with more significant needs to receive higher compensation. In an actual free market of healthcare, we should expect a much more responsive healthcare system better able to expand and adapt to changing demands for service.

Another serious and legitimate concern regarding the issue of global pandemics is the extent to which unvaccinated people, or people who recklessly expose themselves to viruses, enable the virus to more easily replicate into a different and sometimes more dangerous variant, thereby endangering others. As no person has a right to do anything that creates a substantial risk of harm to others, some people may conclude that, under the appropriate circumstances, merely being unvaccinated or recklessly undertaking risk of infection amounts to a violation of the 3L Legal Principle. Others may conclude that while taking steps to inhibit a virus’ ability to replicate is a worthy moral goal because the virus is simply part of the natural environment and acts on its own, this is merely a moral issue and not a legal issue. Said another way, because no action is required of any person for a virus to replicate, no person violates the 3L Legal Principle when a virus involuntarily replicates in a person’s body. As with these problematic issues, where reasonable minds equally committed to the 3LP can disagree in good faith, this issue may be best left for local communities to decide and is undoubtedly worthy of more discussion, analysis, and debate.

Finally, it is essential to note that life itself entails many risks. We cannot eliminate them all. We are each breeding grounds for different bacteria and viruses to some extent. Merely living in proximity to others subjects us to varying risks, including illness or death from a bacteria or virus unknowingly transmitted from another person. Life itself requires our implied consent to the ordinary risks that accompany daily life in the community in which we live. When analyzing whether a risk is “substantial” such that the 3L Legal Principle is violated, we should exempt ordinary daily life risks. What makes a risk “substantial” should always involve considerations about the level of danger involved, the likelihood that the harm will materialize, and how common that risk is in the context of daily life in the relevant community.

Pandemics are an unfortunate but natural part of life on Earth. Our best defense against pandemics is to foster an environment of freedom and peace where science can continue to progress so we can more effectively detect, contain, and mitigate them. In this area, as in all areas, we should proceed with reason, science, and clear-headed thinking.