Masks Optional

     Good news from the Pinal Cy BOS---wearing of masks in public is to be voluntary, according to news dated June 24 concerning a vote on whether masks should be mandatory or not.

     Of course, the vote was symbolic, since state orders mandating the wearing of masks supersede those of Pinal County. But let's see if there's anything interesting to be learned here.

     One dissenting vote on the Board was Pete Rios, who said "we have a lot of individual folk out there who don't give a hootenanny. They may have COVID-19, they're asymptomatic, and they're out there spreading this . . . And if they're not doing their due diligence to protect the rest of society, that is my concern. . ." 

     Rios seems to be claiming that people have a moral duty (and should have a legal duty) to adopt measures that are claimed to protect people from catching the virus ("due diligence to protect the rest of society"). Under what circumstances should a person have a legal duty to take measures to prevent another person from contracting a contagious disease? To justify the answer to such a question, one must resort to justice theory.

I---Self-ownership

     If one accepts that self-ownership is the most logical alternative to different possibilities for the ownership of human bodies, then there are some implications with regards to infectious diseases.

     There are three possible scenarios for the spread of contagious diseases from one human body to another:

1. An infected person knowingly spreads the disease to others.
2. An infected person unknowingly spreads the disease to others (the "asymptomatic" spreader of Rios's complaint).
3. A person, infected or not, doesn't spread the disease.

     In scenarios 1) and 2) the distinction is made between knowing and unknowing spread. This is important because, as in scenario 1), if a person hasn't consented to the risk of being infected, then intentional (or negligent) infection can constitute a violation of that person's rights.

     With regards to unintentional infection, the Anglo-Saxon legal tradition of the "Act of God (Nature)" seems to be a good precedent, as it seems unfair to be held responsible for something over which one has no control. On the other hand, there might not necessarily be a hard and fast line between being excused from responsibility because of an Act of Nature and negligence.

     Negligence is the idea that a person can be held responsible for failing to perform an act, even if it was not their intention to do so. For example, if a person were to get drunk and run over someone in his car, that would be considered negligent, as it is assumed that reasonable (cf. the "Reasonable Man" doctrine)  people would not drive while drunk.

     Whether or not a person can be considered negligent for not wearing a mask, however, depends on  the following assumptions: 1) An asymptomatic COVID-19 spreader is reasonably expected to take precautions to prevent spreading a disease, even though they're not aware of being infected, and 2) wearing masks actually does prevent spread of COVID-19. In particular, 2) might be difficult to prove in court.

     In scenario 3), there is no justice problem, because nothing that could be considered a violation of rights has occurred. On the contrary, any violently coercive measures applied to such a person, as Rios seems to want to recommend, would in themselves constitute a violation of that person's rights.

II---Real Property

     Something more can be said about mask-wearing if we expand our analysis from the principle of self-ownership to the ownership of real property. If it can be justified that people can own real property, then among ownership rights is the right to determine who can or can't access the property.

     Furthermore, property owners have the right to set conditions for the accessing of their property: they can require entrants to wear masks (or not) or whatever else (as long as it doesn't constitute a violation of their self-ownership rights). People thinking of accessing a property would have the right to decide if they wanted to do so according to the owner's requirements (or lack of such). In this way, the wearing or not of masks would be left up to the individual judgement of property owners and self-owners.

III---Public Property

     Unfortunately, this theory doesn't tell us what to do in the case of public property. Who has the right to set the rules for access? Do the rule-setters not then become the de facto owners of public property? If the "public" owns the property, then shouldn't the "public" have a say in rule-making? Perhaps in an ideal democracy, the rules would be voted on. But what about the minority whose rules were not adopted? Wouldn't they thereby be effectively divested of their share of the ownership of the "public" property? When it comes to public property, questions of ownership, and therefore of justice, can't be resolved by logical justification, and are therefore typically resolved by violent coercion or the threat thereof.