Blackmail, Subjectivity and Culpability

Abstract

Here is a puzzle: It is sometimes permissible for an agent to perform an action but impermissible for that agent to demand something in exchange for not performing it. How can it be? This notoriously perplexing question, often presented as "the paradox of blackmail," has prompted numerous scholarly attempts to explain why a blackmailer's threat to act permissibly is wrongful. A special subgroup of suggested solutions consists of revisionist, coercion-based theories, which advocate unraveling the puzzle by denying its very own presuppositions. They hold, in other words, that upon reflection all cases of wrongful blackmail actually involve a threat to act in an impermissible way. Thus, blackmail is not more puzzling than regular cases of extortion: it is, in fact, a threat to act impermissibly. What is puzzling about blackmail is only the fact that the threatened act seems to be permissible at first glance.A revisionist approach thus eliminates the paradox, rather than resolving it. It aims at uncovering the feature that makes the threatened act seem permissible, though it is actually impermissible. One major strategy of these theories is to claim that the threatened act, while being legally permissible, is morally impermissible. Thus, for example, a case where A threatens to expose B's sexual orientation unless he is paid hush money is wrongful, since exposing this secret is morally impermissible. A conditional threat to act impermissibly (morally speaking) is wrong for the same reasons that general cases of extortion are wrongful. 1 Yet there are cases in which this approach does not seem to fit. There are, in other words, cases of threats to do things which seem to be perfectly permissible, even from a moral point of view. For example, revealing one's adulterous behavior to one's spouse might be permissible. Why would a conditioned threat to do so be wrongful? This kind of case pulls in the direction of a special kind of coercion-based theories, which build on a subjective notion of right and wrong. They hold that while blackmail involves a threat to do something which is objectively permissible, some special character regarding the agent who performs the act (or threatens to do so) renders this act impermissible. Such theories, which constitute a subset of coercion-based theories, are "subjectivist theories of blackmail," For extremely helpful conversations and comments on earlier versions of this paper, I am indebted to David Enoch, Ofer Malcai, Re'em Segev,