I have thought that the predominance in the minds of moralistsof a desire to edify has impeded the real progress of ethicalscience: and that this would be benefited by an application toit of the same disinterested curiosity to which we chiefly owethe great discoveries of physics.Henry Sidgwick, The Methods of Ethics
The topic of blackmail brings up central topics in novel ways:
the permissibility of threats and offers, the relations between
morality and the law, the role of concern for consequences and
for non-consequentialist ethical considerations, and the limits
of freedom. The paradoxicality of blackmail has been recognized
for a long time, and unlike the other essays this one does not offer
a new paradox. It aims to offer a solution. “With a solution like
this, who needs problems?” it might be thought, as the solution
is itself paradoxical. But first we need to understand what blackmail
is, and what its paradoxes are.
The notion of blackmail is sometimes applied loosely, its users
merely relying rhetorically on its strong pejorative implication.
I shall here consider it in a narrower and more exact sense which
includes the following features: (a) a declaration of intention to
act (or to refrain from acting) in a way concerning which one
has no obligations, that is otherwise legally permissible, and that
the blackmailer believes his or her target would find unwelcome;
and (b) an accompanying offer not to carry out the intention on
condition of the blackmailer’s receiving compensation that is
otherwise legally permissible. Let us call this “ordinary blackmail.”
The paradigmatic example is Q’s threatening to tell Z’s wife
about Z’s involvement with another woman, unless Z pays him
a large sum of money. It is legal to ask for money, and likewise
it is legal to tell (or even to threaten to tell) another person’s wife
about her husband’s infidelity. The ethical issues here are less clear.
Note only that none of the separate components of “ordinary
blackmail” is normally thought to be morally odious in a way
that can account for the common attitude towards blackmail.
Something strange is going on here.
Blackmail differs from “extortion,” a coercive request accompanied
by a threat to perform an illegal action (for example, to
use violence against someone). Blackmail is also distinct from
the threat to spread damaging false information, which might
involve the idea of “defamation.” “Ordinary blackmail” excludes
cases in which the blackmailer’s advantage comes about illicitly
(say, through wire-tapping). Requests by blackmailers to be paid
in unacceptable “currency” (for example, that the person being
blackmailed perform an immoral or illegal act) also lie outside of
blackmail in the sense that concerns us. These different cases bring
up various other issues that would hamper our effort to consider
the difficulties inherent in “ordinary blackmail.” We want
to think about the pure case.
Finally, the narrow notion of blackmail that we are considering
is not limited to threatening with information (as in Q’s
blackmailing Z). If, for example, you asked all shops of a certain
kind to pay you a monthly sum for not carrying out the credible
threat of opening a competing shop nearby, thereby running
them out of business, problems may arise that fall within our
area of concern (see Smilansky 1995a). In fact, there is reason
for thinking that this may in fact be worse, in one respect, than
ordinary blackmail, since here the victim is entirely innocent,
whereas in ordinary blackmail the victim has often done something
wrong or at least shameful, so that he has a weaker claim
to immunity. But we shall focus on the ordinary cases.
The idea of “ordinary blackmail” gives rise to two apparent
paradoxes, one of which is conceptual, the other substantive.
The Conceptual Paradox of Blackmail
If each of the components of the common sort of blackmail (the
asking for payment, the threat to do what one is otherwise
permitted to do, and the carrying out – or not – of the threat)
is in itself permissible, what is the source of our powerful objection
to blackmail? Why do these innocuous things become so
bad when brought together? Understanding common attitudes
towards extortion presents no similar difficulties for, if one is
not allowed to inflict violence on others, then one is not allowed
to threaten to do so, let alone to demand payment for desisting.
The contrast between blackmail and extortion thus also helps
to highlight the question that surrounds the negative attitude
towards blackmail.
Michael Clark (1994) has countered that the request for money
in “ordinary blackmail” is backed up by a threat, that this combination
brings forth something new, and that that new thing
is what’s problematic about blackmail. Thus there is nothing
paradoxical about the fact that, in themselves, the elements that
make up the practice of blackmail are permissible. And indeed
there are other similar practices (bigamy or prostitution come to
mind) that are morally problematic although their components
are not. The ethical significance of combined acts may hence
transcend the significance of their individual elements. If, then,
the first paradox is taken as formal, we can dismiss it. By pointing
this out, Clark might be said to have solved the conceptual
paradox.
However, the way in which the “alchemy” of the novel emergence
of badness or wrongness operates in “ordinary blackmail”
remains mysterious, and separately noting the innocuous nature
of each of the elements of “ordinary blackmail” helps to bring this
out. If one may threaten to do what one is (otherwise) allowed to
do, offering not to so act in return for monetary compensation
does not seem capable of bringing forth the sense of radical and
novel heinousness that blackmail arouses. Our dissatisfaction
with any quick dismissal of the paradoxicality of blackmail increases
when we reflect on other factors. The person being blackmailed,
Z, would in fact often prefer to be offered the option
of paying the blackmailer, and would often take up the option if
it was offered. In and of itself, Z would not welcome allowing
the would-be blackmailer to sell news of the affair to the press.
But since selling news is permissible, Z would wish to allow the
blackmailer to sell his or her silence to Z as well. Such concerns
are substantive, and they point us in the direction of the second
paradox.
The Substantive Paradox
The main philosophical difficulty with blackmail follows from
the apparent similarity between typical cases of “ordinary blackmail”
such as Q’s blackmailing Z, and common practices in social
and economic life that morality does not take to be extremely
reprehensible and that the law does not prohibit. In what
follows I will call them the “Other Social Practices.” In many
labor disputes, for example, workers legally threaten to cease
work in order to gain higher salaries. Employers similarly threaten
to close down operations or to hire other workers if their demands
are not accepted. In divorce cases each partner can threaten
to prolong the proceedings if the settlement does not go his or
her way. Boycotts of goods or services may be threatened in
order to back up various sorts of demands. Victims of inadequately
tested products may threaten to sue companies under
tort law, thereby bringing adverse publicity to the producers,
unless compensation is forthcoming. Politicians indirectly threaten
to cut funds for groups who do not support them. Many instances
of raising prices of scarce goods or services are in effect
monetary demands backed up by threats. All of these common
practices contain the same two features I distinguished for
“ordinary blackmail.” Why, then, do we consider them to be
fundamentally different from blackmail when we take up a moral
point of view?
One way of approaching the philosophical difficulty of blackmail
is to assume that common intuitions are correct. Under
this interpretation the puzzle becomes merely one of how to
justify the status quo. Even then we still have our philosophical
work cut out. A true philosophical attitude, however, will question
more deeply whether common intuitions are justified at all.
One of the effects of thinking about the Substantive Paradox
is that we call into question basic assumptions about rights and
about moral limits. The consequences of the Substantive Paradox
threaten to spread in both directions. We may come to feel
that we need to take a more tolerant moral stance towards
“ordinary blackmail,” perhaps by decriminalizing it (see Mack
1982). Alternatively, we may see the common practices that
resemble blackmail as being morally equivalent to blackmail,
and therefore less tolerable morally and legally. In either case,
the prospect is disconcerting.
Several attempts to solve the Substantive Paradox have
appeared in the literature. First, we can explain common attitudes
cynically. One such explanation is that being blackmailed in the
ordinary ways is frightening only to the rich and powerful, while
threats from employers or politicians would rarely concern them.
That people with money and power take “ordinary blackmail”
but not the Other Social Practices seriously is therefore hardly
surprising. But the cynical sort of explanation does not seem to
explain the strength of the common attitude toward “ordinary
blackmail,” let alone justify it. If you learned that your brother
or sister was seriously dating a person who had been engaged
in “ordinary blackmail,” you would be upset. This doesn’t seem
to be explained as a result of your being in the grip of “false
consciousness” induced by the manipulations of the rich.
Second, we may concede that, in moral terms, the similarity
between “ordinary blackmail” and the social practices is great,
but we may still believe that the distinction commonly made
between them is legally justified. This tack would explain away
the paradox. For example, difficulties with enforcement may
justify why legal attitudes towards the Other Social Practices and
“ordinary blackmail” should be different, although there may
be no deep moral differences between them (see, e.g., Feinberg
1988; Gorr 1992).
This approach is problematic. Although the issue of blackmail
involves both moral and legal matters, we can confine the case
for the existence of a paradox to the moral side. Even if society
didn’t legally sanction blackmail, it would be hard to deny that
we hold blackmailers to be morally despicable. We don’t usually
express such a severe negative attitude toward those who engage
in sharp economic bargaining. Even our strictly ethical intuitions
tolerate practices that, on closer inspection, may seem difficult
to distinguish from “ordinary blackmail.” So the moral/legal
divide is not a solution to the moral paradox. Moreover, we would
pay a high price if we argued for a firm distinction between the
moral and the legal issues. A huge gap between the two, in a
context such as this, would in itself be a surprising and disturbing
result. Finally, the moral and the legal seem particularly
intertwined in the matter of blackmail: ethical disapproval is a
central reason that our laws circumscribe blackmail.
A third way in which philosophers and jurists have tried
to deal with the Substantive Paradox is by seeking to identify a
feature of “ordinary blackmail” that distinguishes it ethically from
those acceptable social practices that seem so similar. This route
is the most alluring, because it would defuse the Substantive Paradox:
once we look closely, “ordinary blackmail” and the Other
Social Practices turn out to be substantially different. However,
such a litmus test has not proved easy to formulate. Among
other candidates philosophers and legal thinkers have considered
coerced versus uncoerced choices, the invasion of privacy,
the rights of third parties, the exploitation of an opponent’s
weaknesses, and the distinction between harming and not benefiting
(see, e.g., Murphy 1980; Lindgren 1984; Fletcher 1993).
The specific discussions are complex and intriguing, but they
have not been manifestly successful. The suggestions offered seem
to succeed only in limited types of cases, or to beg the question
by making crucial moral assumptions as to what is morally
disallowed – assumptions that the issue of blackmail shows to
be contentious. For example, the “gutter press” may invade a
person’s privacy and exploit her weaknesses in order to make
money just as a blackmailer does. A neighbor may threaten to
put up that second story he has permission to build, thereby
blocking one’s view, unless one gives way on some land dispute.
This would seem to be an instance of coerced choice and of the
threat of outright harm. Yet few of us view such practices in the
same way as we view “ordinary blackmail.”
None of the above ways seem to succeed in resolving the
Substantive Paradox. We have a strong intuition that blackmail
is no ordinary matter, but a particularly loathsome pursuit, morally
odious to a high degree and deserving of severe criminal and
social sanction. Yet no one has so far been able to point out
anything special about blackmail that justifies these intuitions.
Something else seems to be going on here that provides
a “solution.” But this solution itself is paradoxical. We don’t
single out “ordinary blackmail” because its bad features are unique
but because there is nothing good about it to overcome the badness.
My conclusion is that at the end of the day, “ordinary blackmail”
and the practices I have discussed may not inherently be
very different ethically. There may merely be further reasons for
allowing the other practices to continue. Our intuitive sense –
that something unique must be present in blackmail, to make it
so manifestly vile – is a mistake. Unless we find a different
explanation of the status of blackmail, we need to live with this
“deflationary” conclusion, namely, that there is nothing especially
negative about blackmail.
Approaches from the standpoint of rights-oriented, contractual,
and virtue-based ethics may all be able to contribute here,
but utilitarianism (or more broadly consequentialism, a concern
for consequences not necessarily related to utility) seems to
acquire a particular authority in justifying the common practices.
The nastiness of using information might actually be increased
when such information appears in the gutter press, but
other good reasons for maintaining a free press outweigh this.
Using “quasi-blackmail” to threaten and to offer advantages in
economic bargaining may likewise be justified because of its
economic efficiency or by virtue of the importance of the right
both to offer and to withhold one’s labor or employment to
others. But “ordinary blackmail” offers no equivalent saving
graces.
Decriminalizing “ordinary blackmail” would cause widespread
social harm. Some good might emerge (certain people may refrain
from wrongdoing because of the additional risk of being blackmailed),
but this would be negligible as compared to the damage.
The opening up of this new business opportunity, with the
disappearance or decline of the major current disincentives for
blackmail (the legal and moral sanctions), would mean that,
overall, people would be likely to face much more blackmail.
Although one may prefer to be able to buy off one’s blackmailer
if such a blackmailer were to exist, overall it would be better to
have as few blackmailers as possible. As invasion into one’s private
sphere becomes commercially viable, fear for individual
privacy would intensify. This would not be limited to public
figures, but potentially threaten everyone. And it would typically
be repetitive (that is, one would need to buy silence again and
again, perhaps from more than one source, and with no guarantee
that the matter would be favorably concluded). An atmosphere
would prevail in which each person, no matter how intimate or
how foreign, could constitute a potential enemy: Hobbes’s “war
of all against all.” And all to what purpose?
“Ordinary blackmail” is coercive, hurtful, demeaning, exploitative,
parasitical, and invasive, as are many other social practices.
There is nothing especially bad about it. Paradoxically, what
singles it out is that little or no good derives from it.
by
Saul Smilansky -
10 Moral Paradoxes
