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Meta-Blackmail and the Evidentiary Theory: Still Taking Motives Seriously

Mitchell N. Berman

University of Texas School of Law

Georgetown Law Journal, Vol. 94, p. 787, 2006
U of Texas Law, Public Law Research Paper No. 87

For generations, criminal law theorists, moral and political philosophers, and economists have struggled to resolve one of the law's great puzzles: whether, why, and under what circumstances the law should criminalize the conditional threat to do what is lawful. This is the so-called paradox of blackmail. Although libertarians have insisted that blackmail should be lawful, most commentators agree that at least some forms of blackmail are properly criminalized, disagreeing over the proper rationale. In his provocative article, Meta-blackmail, Russell Christopher presents a wholly novel argument in support of the libertarian conclusion.

Christopher's argument relies upon the imaginary device of a conditional threat to conditionally threaten what it is permissible to do. The challenge, he says, is to figure out how the law should treat such meta-blackmail proposals - as equivalent to their corresponding blackmail proposals, as more serious, or as less serious. According to Christopher, each possibility is supported by compelling intuitions, thus confronting defenders of blackmail's criminalization with a trilemma. The only way out, he concludes, is to decriminalize blackmail itself.

This Reply seeks to demonstrate that Christopher's analysis is flawed, and that conditional threats to advance a conditional threat yield no trilemma. Therefore, the meta-blackmail conceit does not support the conclusion that blackmail ought to be decriminalized. It also defends, against Christopher's criticisms, the explanation for blackmail's criminalization that I put forth nearly a decade ago. According to that account - what I dubbed the evidentiary theory - the conditional threat is evidence that the threatener would lack the sorts of reasons for doing as he threatens that are necessary to make the knowing causing of harm morally justifiable. It follows that even if the act-type threatened is not necessarily wrongful (because it could be engaged in by good reasons), the act-token that this particular actor threatens on this occasion may well be. And if the act-token threatened would be wrongful, the conditional threat itself would constitute the moral wrong of coercion. Because there is nothing puzzling about criminalizing attempts to extract property belonging to another by means of morally coercive threats, the evidentiary insight resolves the blackmail paradox.

Number of Pages in PDF File: 26

Keywords: blackmail

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Date posted: February 27, 2006  

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Berman, Mitchell N., Meta-Blackmail and the Evidentiary Theory: Still Taking Motives Seriously. Georgetown Law Journal, Vol. 94, p. 787, 2006; U of Texas Law, Public Law Research Paper No. 87. Available at SSRN: http://ssrn.com/abstract=882862

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Mitchell N. Berman (Contact Author)
University of Texas School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-3525 (Phone)
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