Illegality of Blackmail (a test)

I’ve finished Leo Katz’s book. The basic question of the book is “Why is blackmail illegal?” It seems odd that it is illegal — so odd that lawyers have coined the term “The Paradox of Blackmail.” Consider the standard case: I ask you to give me $20,000, and say that if you refuse, I will reveal your infidelities to your wife. It is odd that this is illegal because, each of the things I’ve done, in isolation, is legal: I am allowed to ask you for $20,000, and I am allowed to reveal your infidelities to your wife. Shouldn’t you, as the victim, prefer that I give you the option to prevent me from revealing your infidelities (for a cost), rather than just doing so without your permission? How can you be more wronged by act A (blackmail) which is identical to act B (revealing infidelities) except that act A gives you additional optionality?

I won’t tell you exactly what Katz’s explanation was. I’ll make it more fun by telling you the hypothetical situation which he thinks can be used to show why blackmail is wrong, and then you can try to determine on your own how the situation can be used to explain away the Paradox of Blackmail. The situation is: a burglar enters a person’s house, and finds a safe. He awakens the homeowner and demands the combination to the safe. The homeowner says he won’t give it; the safe has jewelry which, although cheap, has great sentimental value. The burglar says “Tell me the combination, or I’ll make you regret it.” The homeowner replies “Much as I fear physical violence, I’d rather you give me the savage beating than give up what’s inside that safe.” The burglar says “As you wish,” and severely beats up the homeowner. Katz also asks us to a version of this hypothetical where the burglar, in the course of interacting with the homeowner, actually finds a piece of paper with the safe combination, and ignores the homeowners wish to be beaten up rather than burglarized, instead taking the contents of the safe.

Katz thinks that the Paradox of Blackmail can be resolved by considering these 2 hypotheticals, and in particular by considering how the courts would treat the perpetrator of the first crime (who assaulted the homeowner) vs. the perpetrator of the 2nd crime (who followed through with the burglary).

Do you see why Katz thinks that? Do you agree?

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4 Responses to Illegality of Blackmail (a test)

  1. G Haeckel says:

    I think that argument misses the point. Blackmail inherently involves an unenforceable contract. If I come to you and demand payment to keep a secret, and then later tell you I’ve decided your payment wasn’t enough, you’ve got no recourse to enforce the original contract. If you sue for breach, you must necessarily divulge your secret. One side has all the cards. Ultimately, though, I think the legal prohibition of blackmail may simply lie in a recognition that we all have secrets we’d rather not have exposed. Call it a nod to human nature.

  2. Jonathan says:

    Interesting point. But in other contexts, we do not forbid people from proposing unenforceable contracts. E.g. it is not illegal for me to propose a contract with me which stipulates that if you sneeze on a Sunday, you have to follow up the sneeze by immediately singing “99 bottles of beer on the wall” from start to finish, although such a contract would not be honored in court.

    On the motivation you suggest – if that’s true, why don’t we have laws forbidding the revelation of secrets outright? (maybe too blatantly in conflict with the 1st amendment)

  3. G Haeckel says:

    As I understand it, a legal contract requires both parties to give something of value. I can’t at the moment think of any scenario in which a valid contract would be unenforceable, though obviously verbal contracts, especially over trivial matters, are difficult to enforce. I still stand by my argument. On the second point, you’re right; looking back over it, I undermined my own main point with that one.

  4. Jonathan says:

    I agree that an unenforceable contract would not be valid, but I am saying that even so, we do not forbid people from proposing them. We simply allow people to create, with each other, all the unenforceable (and invalid) contracts they like, and then ignore these contracts if they are used in court.

    Blackmail is a special case where we actually punish people for simply proposing an unenforceable contract.

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