The Evidentiary Theory of Blackmail: Taking Motives Seriously

In the University of Chicago Law Review, Vol. 65, No. 3, 1998.

Posted: 16 Oct 1998

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Carey Law School

Date Written: December 1997


This article proposes a radically new solution to the so-called paradox of blackmail -- i.e., the puzzle that it should ever be criminal to threaten what it would be lawful to do.

After reviewing and criticizing theories grounded on the competing notions that society may legitimately criminalize conduct if, respectively, it produces adverse consequences in the aggregate, or it is wrongful in itself, the article suggests that explaining and justifying blackmail's criminalization requires recourse to a novel criterion of criminalization. The article then proposes -- consistent with both retributivist and consequentialist versions of the general justifying aim of the criminal law -- that society may criminalize conduct that both causes cognizable harm and is likely to be undertaken with morally bad motives (regardless of whether the act is wrongful in itself). Focusing on the paradigmatic case of a threat to reveal an adulterer's infidelities unless paid off, the article demonstrates that the conditional offer of silence provides strong circumstantial evidence that the actor would have morally bad motives were he to disclose the information he threatens. Accordingly, there would be nothing problematic about criminalizing performance of the act, in which event criminalization of the threat would no longer be puzzling. In short, and contrary to common wisdom, the blackmailer's threat is not necessarily morally worse than the act threatened; it is only evidence that the act threatened would be morally blameworthy on this particular occasion, because badly motivated (in which case so is the threat).

After explaining criminalization of blackmail in its paradigmatic form, the article proceeds to explore the proper contours of the crime by examining several variations upon the central case, including "market-price" blackmail, and conditional threats to expose criminal wrongdoing. The article concludes by offering some exploratory thoughts regarding possible broader implications of the evidentiary theory.

Suggested Citation

Berman, Mitchell N., The Evidentiary Theory of Blackmail: Taking Motives Seriously (December 1997). In the University of Chicago Law Review, Vol. 65, No. 3, 1998., Available at SSRN:

Mitchell N. Berman (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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