Pandemic Policies, Public Domain, and Libertarianism: Response to Slenzok

Universal antipandemic restrictions (UAPR), such as mask mandates and lockdowns, during the spread of COVID-19 have sparked a debate among libertarians about the proper role of governments in situations like these. There are even some anarchist libertarians who have found reasons why UAPR were justified or at least can be justified under certain circumstances. Others have vehemently argued against them. One particular argument holds that the public domain is rightfully owned by no one. It is a no-man's-land, and therefore nobody can rightfully dictate the conditions under which the public domain can be entered or used, and UAPR are thus unjustified. We take up the question of the juridical status of the public domain from the perspective of an ideal libertarian theory of justice. We show that it is not a no-man's-land by applying the accession principle derived from Rothbard's The Ethics of Liberty . We then argue that under current real-world conditions we need a nonideal theory of how to manage public property. We argue that the model of common property management, which would exist in a purely libertarian order, gives a suitable benchmark for assessing what the government could justifiably do in emergencies like pandemics. We apply our analysis to UAPR and argue that they are not generally unjustified but would take a very different form if our nonideal libertarian theory of common property management were followed.