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Published online by Cambridge University Press: 01 July 2015
The best way to cope with what is known as “the paradox of blackmail” – a threat to act permissibly – is to deny its premise, namely the permissibility of the threatened act. This view holds that upon reflection all cases of wrongful blackmail actually involve a threat to act impermissibly. Therefore, blackmail is coercive, and should be criminalized as a regular case of extortion. This conclusion may rely on a subjectivist notion of permissibility, which sees intentions as relevant to permissibility, given that the blackmailer intends to harm the victim via the threatened act. Yet the view that intentions are relevant to permissibility evaluations is strongly criticized in contemporary moral theory. Nevertheless, this paper attempts to show that under a full understanding of the functions of coercion claims and the wrong in extortion, harmful intentions can be relevant to criminalization even if they are not directly relevant to permissibility.
1. Berman, Mitchell N, “Blackmail” in Deigh, John & David, Dolinko, eds, The Oxford Handbook of Philosophy of Criminal Law (Oxford: Oxford University Press, 2011) 37 at 51-52 [Berman, “Blackmail”].Google ScholarSee also Pallikkathayil, Japa, “The Possibility of Choice: Three Accounts of the Problem with Coercion” (2011) 11 Philosopher’s Imprint 16Google Scholar; Westen, Peter, “Why the Paradox of Blackmail is so Hard to Resolve” (2012) 9 Ohio St J Crim L 585 [Westen, “Paradox”]Google Scholar; Feinberg, Joel, Harmless Wrongdoing (New York: Oxford University Press, 1988) at 240–76Google Scholar; and most clearly Shaw, James R, “The Morality of Blackmail” (2012) 40 Phil & Pub Affairs 165.CrossRefGoogle Scholar Cf also Levy, Ken, “The Solution to the Real Blackmail Paradox: The Common Link Between Blackmail and Other Criminal Threats” (2007) 39 Conn L Rev 1051 at 1072 n 45.Google Scholar
2. See Berman, “Blackmail”, supra note 1, which builds and expands on his own “Evidentiary Theory” of blackmail. See especially Mitchell N Berman, “The Evidentiary Theory of Blackmail: Taking Motives Seriously” (1998) 65 U Chicago L Rev 795 [Berman, “Evidentiary”] and Shaw, supra note 1. I discuss their views in detail below.
3. No less than 73 items were listed at the opening of recent writing on the matter, more than a decade ago. See Walter Block & Gary M Anderson. “Blackmail, Extortion, and Exchange” (2001) 44 NYL Sch L Rev 541 at 543 n 1–4.Google ScholarA comprehensive survey of this literature and its limits was offered by Berman, “Blackmail”, supra note 1, as well as by Christopher, Russell L, “Meta-Blackmail” (2006) 94 Geo LJ 739 [Christopher, “Meta-blackmail”]Google Scholar; and Ken Levy, supra note 1, making it redundant to do so again here. Meanwhile, the list has swelled even more. The most recent writing includes also: Shaw, supra note 1; Robinson, Paul H, Cahill, Michael T & Bartels, Daniel M, “Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory” (2010) 89 Tex L Rev 29Google Scholar; Rosenberg, Benjamin E, “Another Reason for Criminalizing Blackmail” 16 (2008) J Pol Philosophy 356CrossRefGoogle Scholar; Christopher, Russell L, “A Political Theory of Blackmail: A Reply to Professor Dripps” (2009) 3 Crim L & Philosophy 261; Westen, “Paradox”, supra note 1.CrossRefGoogle Scholar
4. Katz, Cf Leo, “Blackmail and Other Forms of Arm-Twisting” (1993) 141 U Pa L Rev 1567 (“Nearly everyone seems to agree that blackmail is an indispensable part of a well-developed criminal code, but no one is sure what for.”)CrossRefGoogle Scholar; Murphy, Jeffrie G, “Blackmail: a Preliminary Inquiry” (1980) 63 The Monist 156CrossRefGoogle Scholar; Owens, David, “Should Blackmail Be Banned?” (1988) 63 Philosophy 501.CrossRefGoogle Scholar
5. See Fletcher, George P, “Blackmail: The Paradigmatic Crime” (1993) 141 U Pa L Rev 1617. For a detailed survey of examples, see Westen, “Paradox”, supra note1 at 587–88.Google Scholar
6. For other attempts to cope with this challenge, see, e.g., Christopher, “Meta-blackmail”, supra note 3; Levy, supra note 1. My proposed taxonomy and, to a larger extent, my analysis differ somewhat from these accounts.
7. Cf Block, Walter & Gordon, David, “Extortion and the Exercise of Free Speech Rights: A Reply to Professors Posner, Epstein, Nozick and Lindgren” (1985) 19 Loy LA L Rev 37 at 38.Google Scholar
8. See, for example, Katz, Leo, Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law (Chicago: University of Chicago Press, 1996) at 133Google Scholar; Berman, , “Evidentiary”, supra note 2 at 796Google Scholar; Block, Walter, “The Crime of Blackmail: A Libertarian Critique” (1999) 18 Crim Justice Ethics 3CrossRefGoogle Scholar; Lindgren, James, “Unraveling the Paradox of Blackmail” (1984) 84 Colum L Rev 670 at 680 [Lindgren, “Unraveling”]. As far as I know, Glanville Williams was the first to state the problem in these terms, in his “Blackmail” (1954) 79 Crim L Rev 162 at 240.Google Scholar
9. For this example and a parallel argument, see Clark, Michael, “There Is No Paradox of Blackmail” (1994) 54 Analysis 54 at 55CrossRefGoogle Scholar. See also Lamond, Grant, “Coercion, Threats, and the Puzzle of Blackmail” in Simester, AP & Smith, ATH, eds, Harm and Culpability (Oxford: Clarendon, 1996) 215 at 216CrossRefGoogle Scholar; Smilansky, Saul, “May We Stop Worrying About Blackmail” (1995) 55 Analysis 116.CrossRefGoogle Scholar
10. See, e.g., DeLong, Sidney W, “Blackmailers, Bribe Takers, and the Second Paradox” (1993) 141 U Pa L Rev 1663CrossRefGoogle Scholar; Kathryn Hope Christopher, “Toward a Resolution of Blackmail’s Second Paradox” (2005) 37 Ariz. St LJ 1127. As will be shown below, there are a few candidates claiming the title “the second paradox.”
11. Cf DeLong, supra note 10; Smith, Henry E, “The Harm in Blackmail” (1998) 92 Nw U L Rev 861 at 907Google Scholar; Lindgren, James, “The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act” (1988) 35 UCLA L Rev 815.Google Scholar
12. For this kind of definition of the problem, see, for example: Smilansky, supra note 9 at 116-20; Douglas, Ginsburg H & Shechtman, Paul, “Blackmail: An Economic Analysis of the Law” (1993) 141 U Pa L Rev 1849CrossRefGoogle Scholar; Lindgren, , “Unraveling”, supra note 8 at 701-02Google Scholar; Scott, Altman, “A Patchwork Theory of Blackmail” (1993)141 U Pa L Rev 1639 at 1658-59 [Altman, “Patchwork”]CrossRefGoogle Scholar; Epstein, Richard, “Blackmail, Inc.” (1983) 50 U Chi L Rev 553 at 557–58.CrossRefGoogle Scholar
13. Epstein, supra note 12 at 557; Ginsburg & Shechtman, supra note 12 at 1849; Mack, Eric, “In Defense of Blackmail” (1982) 41 Phil Stud 274 at 282 (consumers’ boycott). For more references, see Levy, supra note 1 at 1075.Google Scholar
14. See, for example, Levy, ibid; Scalise, Ronald Joseph Jr“Blackmail, Legality, and Liberalism” (2000) 74 Tul L Rev 1483 at 1502; Smith, supra note 11 at 864. This line is occasionally presented by distinguishing between “advice,” “proposal,” “offer” and “threat.” See Lamond, supra note 9 at 219–30Google Scholar; Greenawalt, Kent, “Criminal Coercion and Freedom of Speech” (1983) 78 Nw U L Rev 1081 at 1095–102.Google Scholar
15. For an argument of this kind, see, e.g., Epstein, supra note 12 at 558; Hardin, Russell“Blackmailing for Mutual Good” (1993) 141 U Pa L Rev 1787 at 1806CrossRefGoogle Scholar; Wertheimer, Alan, Coercion (Princeton, NJ: Princeton University Press, 1987) at 93. Much of this discussion emerged from the claim that what is wrong about blackmail is its being wasteful and inefficient. See Ronald Coase “The 1987 McCorkle Lecture: Blackmail” (1988) 74 Va L Rev 655 at 673–74.Google Scholar
16. This line of argument is prevalent in libertarian discussions of blackmail. See, for example, Block, Walter, “The Crime of Blackmail: A Libertarian Critique” (1999) 18 Crim Just Ethics 3 at 5, 8CrossRefGoogle Scholar; Block, Walter, “Trading Money for Silence” (1986) 8 U Haw L Rev 57 at 73. For a broader discussion and references, see Levy, supra note 1 at 1070–74.Google Scholar See also Lindgren, James, “Blackmail: On Waste, Morals, and Ronald Coase” (1989) 36 UCLA L Rev 597 at 599 (“precisely what makes blackmail paradoxical … [is that] the victim does not own or control the information”).Google Scholar
17. This is the source of the Nozickean discussions of whether or not the victim would prefer that the blackmailer’s proposal not exist. See Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974) at 85. For a discussion about the proper baseline, see Levy, supra note 1 at 1075.
18. Cf Thomas, Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Cambridge: Harvard University Press, 2008) at 76–81Google Scholar; Carr, Craig L, “Coercion and Freedom” (1988) 25 Am Phil Q 59; Pallikkathayil, supra note 1, esp. at 13Google Scholar; Berman, , “Blackmail”, supra note 1 at 52 (citing Katz). See also the way extortion is regarded by the Model Penal Code as a sort of theft, at subsection 4 of §223, and the sources at infra note 58. But cf James Lindgren, “Unraveling”, supra note 8 at 676 n 31.Google Scholar
19. See Nozick, Robert, “Coercion” in Sidney Morgenbesser, Suppes, Patrick & White, Morton, eds, Philosophy, Science, and Method: Essays in Honor of Ernest Nagel (New York: St. Martin’s Press, 1969) 440Google Scholar; Anderson, Scott, “Coercion” in Edward N, Zalta, ed, The Stanford Encyclopedia of Philosophy (2006 edition), online: http://plato.stanford.edu/archives/spr2006/entries/coercion. Full coercion takes place when V finds C’s claim credible, and Φ’s in order to reduce the probability of C’s bringing about that outcome.Google Scholar
20. For a detailed discussion, see, for instance, Anderson, supra note 19 at 2.2. With a given baseline and the two optional courses of action proposed by C, the way to distinguish between coercive threat and non-coercive offer will be to compare the option V prefers less to the baseline. See Gorr, Michael, “Toward a Theory of Coercion” (1986) 16 Can J of Phil 383 at 391–97.CrossRefGoogle Scholar
21. See, e.g., Anderson, supra note 19 at 2.3 and the references there; Wertheimer, supra note 15 at 217 (“[m]oral baseline does most of the important work…”). Whether the moralized account is sufficient or only necessary for coercion, is beyond what is necessary here. Cf also Darwall, Stephen, The Second-Person Standpoint: Morality, Respect, and Accountability (Cambridge: Harvard University Press, 2006) at 51–52 (a threat is not coercive if the threatening party is authorized [in a Darwallian, moralized sense] to apply the threatened sanction)Google Scholar; Berman, , “Blackmail”, supra note 1 at 65.Google ScholarBut see Hill, John Lawrence“Moralized Theories of Coercion: A Critical Analysis” (1997) 74 Denv U L Rev 907. Fully defending this view from critiques is not part of this project.Google Scholar
22. Admittedly, impermissibility is not sufficient for coercion. The threat should be severe enough to give V a compelling reason to comply with the demand. Hence, for example, snubbing a friend might be morally impermissible, but a threat to do so is not likely to be coercive, at least in normal circumstances. Moreover, this way of presentation bypasses, for reasons of simplicity, more complicated cases, such as where the recipient may be better off due to what other people (other than the agent) do.
23. See, e.g., Model Penal Code §223.4(1) (obtaining property by a threat to commit a criminal offence); Bigwood, Rick, “Coercion in Contract: the Theoretical Constructs of Duress” (1996) 46 U of Toronto LJ 201 at 214.CrossRefGoogle Scholar
24. Shaw, supra note 1, overlooks this last point, hence he underestimates his contribution to the legal problem of blackmail. Berman, “Blackmail”, supra note 1, focuses on the wrongfulness of the coercion rather than on the wrongfulness of acquiring something without consent. The importance of this divergence will be clearer later on.
25. See supra note 1 and 21.
26. For example, does any kind of moral impermissibility have this function in creating coercion, or should it be constrained to (moral) right-infringing behavior, or to such that is amenable, at least pro tanto, to state intervention? Here one should interject one’s general theory about law and morals and the limits of the state. My use of the term “moral” hereinafter is meant to include this reservation.
27. See Berman, “Blackmail”, supra note 1 (distinguishing between Legal Blackmail and Moral Blackmail); Westen, “Paradox”, supra note 1 at 612 (the 5th category: paradoxical blackmail); Shaw, supra note 1 at 180.
28. Note that to the extent that the threatened act is morally required, the agent might act wrongfully also in abstaining from action in accordance to her duty, making her deeds close to bribery in their structure. Yet that does not make it a theft by extortion from the blackmailee. For a related point, see Shaw, supra note 1 at 185.
29. Gordon, Wendy J, “Truth and Consequences: The Force of Blackmail’s Central Case” (1993) 141 U Pa L Rev 1741 at 1758-59. Gordon claims (though within a different framework of understanding blackmail, and—in my opinion—conflating the moral status of the threat with that of the threatened act) that by presenting the threat, the agent acts with intention to harm the threatened party, seeing the possible good consequences of her act as a mere side-effect. Thus, similar to the doctrine of double effect, which I get to later in the text, the act should be evaluated according to its intended consequence, not according to those possibly redeeming consequences which are merely foreseen. Ibid at 1765–66.Google Scholar
30. Levy, supra note 1 at 1082-83.
31. Lamond, supra note 9.
32. Berman, , “Evidentiary”, supra note 2 at 845–48. The integration within a coercion-based revisionist theory was made clear in Berman, “Blackmail”, supra note 1 at 59.Google Scholar
33. In the latest version of his theory, the focus is on beliefs, rather than motives. See Berman, , “Blackmail”, supra note 1 at n 119. See also infra note 39.Google Scholar
34. Berman, , “Blackmail”, supra note 1 at 68. In Berman’s view, there are complicated relations between the wrongfulness of the act and the blameworthiness of the actor. My suggested version avoids that.Google Scholar
35. This could be put in terms of focusing on the act rather than the action, namely determining permissibility based only on the value that the act produces, with no attention to the agent. See Ross, William D, The Right and the Good (Indianapolis: Hackett, 1988) at7.Google Scholar
36. For some more details, see infra note 50.
37. Berman himself might not go along with the last move, since he denies the relation between coercion in the “offensive” sense (as a wrongdoing) and in the defensive sense (i.e., as mitigating one’s voluntariness or responsibility). See Berman, Mitchell N, “The Normative Functions of Coercion Claims” (2002) 8 Legal Theory 45 [Berman, “Functions”]. I get back to this point below.CrossRefGoogle Scholar
38. Berman, , “Blackmail”¸ supra note 1 at 68 and at n 119. This view, which is presented “only to a first approximation,” does not vary substantially from the original motive-centered version according to Berman. He refers to it, saying that “a sharp distinction between [the] versions is probably overly stylized.” See also his explanation at 101 n 119 (“the latter encompasses the former”).Google Scholar
39. See Westen, Peter, “A Critique of Belief-based Theory of Blackmail” (2012) 9 Ohio St J Crim L (Online Appendix), online: http://moritzlaw.osu.edu/students/groups/osjcl/issues-and-articles/volume-92/ [Westen, “Critique”]. See also Shaw, supra note 1 at 171.Google Scholar
40. See Robinson et al, supra note 3.
41. I borrow the term from Husak, Douglas, “The Costs to Criminal Theory of Supposing that Intentions are Irrelevant to Permissibility” (2009) 3 Crim L & Phil 51.CrossRefGoogle Scholar
42. See McMahan, Jeff, “Intention, Permissibility, Terrorism, and War” (2009) 23 Phil Persp 345 at 349–51.Google Scholar
43. For the claim that without the distinction between intending and foreseeing, or something close to it, there can be no distinction between deontology and consequentialism, see Enoch, David, “Intending, Foreseeing, and the State” (2007) 13 Legal Theory 69 at 71 and at 97–99.CrossRefGoogle Scholar
44. Some even fully identify DDE with the intending-foreseeing distinction. Note, however, that rejecting DDE while accepting the distinction is possible. See, e.g., McIntyre, Alison, “Doing Away with Double Effect” (2001) 111 Ethics 219.CrossRefGoogle Scholar
45. For a non-mental reading of DDE, see the text for note 69 below.
46. For the exact sort of relevancy cf Lillehammer, Hallvard, “Scanlon on Intention and Permissibility” (2010) 70 Analysis 578.CrossRefGoogle Scholar
47. Cf Quinn, Warren, “Actions, Intentions, and Consequences: The Doctrine of Double Effect” (1989) 18Phil and Pub Aff 334.Google Scholar
48. The marginality can be roughly portrayed as a case in which the balance of reasons for and against the act is close enough for the question of the agent’s intention to be pivotal. Where the balance is not marginal, the agent’s intent does not suffice to render the action impermissible. Surely, the required scope of marginality depends on the strength of the intent-based consideration. As long as its pivotal role is secured, the exact details are not of much importance to the current argument. For some more details, see the text for infra note 57.
49. Berman, Cf, “Blackmail”, supra note 1 at 69–70. Berman uses it to infer that the agent has no belief in the justifiability of the action. I am less sure about the validity of this inference.Google Scholar
50. Berman avoids discussing the counterfactual and time-dependent nature of his analysis. As a coercion-based theory, the normative features of the threatened act should be evaluated at the time of performance of the threat (or offer). An agent A threatens at t0 to commit Φ unless her demand is accepted. The threatened act Φ is supposed to be performed only should the threat be ignored at t1. At this stage, the actor’s reasons for executing Φ might be different (actually, putting aside considerations of reputation or revenge, usually the actor no longer has any reason at all to perform the threatened act). Moreover, the question of coercion is of greatest interest in cases where the demand was indeed accepted, and hence the threat was never carried out, meaning that at t1 A was not engaged in Φing at all. A better formulation of this view needs to rely on A’s reasons for (Φing at t1) as those are conceived at t0, not as they are (factually or counterfactually) at t1.
51. Berman, , “Evidentiary”, supra note 2 at 845.Google Scholar
52. Ibid at n 176.
53. For such a view see, e.g., Levy, supra note 1 at 1055, 1066. Whether or not free speech can justify the speech rather than only the abstention from silencing it, is beyond the scope of my discussion here.
54. Westen, Cf, “Critique”, supra note 39 at 6. The same line of reasoning may apply against Shaw’s inference of what he terms “impermissible disregard.” See Shaw, supra note 1 at 170. After all, if the blackmailer might gain from selling her silence, why shouldn’t it count as value to be offset against the harm to the victim? Note, however, that according to my taxonomy, Shaw’s version is not subjectivist in the strict sense, since the subjectivity is needed only for the sake of the evidentiary phase, while what makes the threatened act impermissible are the justifying reasons behind the action, rather than the motivating ones. His view is thus not vulnerable to the critique of the relevance view, which I discuss below, yet it is vulnerable to my current critique, regarding the possibility of inferring the lack of good reasons for the act.Google Scholar
55. For the need to evaluate B’s intent at the time of the threat, see the discussion at supra note 50. While the harm is not necessarily among the means to the end of the secret-telling, it serves the end the counterfactual secret-telling is supposed to serve. Thus, the harmful component of the hypothetical act as presented by B (telling the secret) serves B’s actual aim. Put differently, where the act under discussion is hypothetical, it is affected (also) by the mental state which accompanies its utterance.
Another example might help here: Suppose that B threatens to drive recklessly near V’s children, unless paid by V. If B eventually hits V’s child with his car, it seems to me appropriate to regard his behavior as purposeful. I believe that something similar lies at the root of the actio libera causa principle. For a recent related view, see Larry Alexander, “Causing the Conditions of One’s Defense: A Theoretical Non-Problem” (2013) 7 Crim Law & Phil 623. Cf also Finkelstein, Claire and Katz, Leo, “Contrived Defenses and Deterrent Threats: Two Facets of One Problem” (2008) 5 Ohio St J Crim L 479.Google Scholar
56. Another way to appreciate the same point is through the legitimacy of utilizing one’s options for personal gain. As James Shaw’s version of the subjectivist theory stresses, the wrong in blackmail stems from threatening to act in a way that involves the moral wrong of “impermissible disregard” of the victim’s interests (Shaw, supra note 1 at 169-71). Yet this disregard disappears once B—the threatening party—has independent ends for acting as threatened, since those ends “offset” the harm to V—the victim. Shaw then faces the question why we shouldn’t count B’s ability to extract money from V among the financial reasons which B is entitled to consider. Cf Shaw, ibid at 171 n 11.
57. The inference of illicit intentions, as explained earlier, faces a challenge. Suppose that Al, in the framework of his work as a journalist, plans to (permissibly) expose a secret about Ben. He then realizes that Ben will be harmed by this exposure, so he proposes to abstain from publishing the secret, if Ben compensates him (for the loss of time, let’s say). Under these circumstances, it sounds reasonable to say that the harm to Ben is not intended by Al. After all, he might prefer publishing to concealing the information, or at least be indifferent between the alternatives. The financial demand stems from Al’s foresight of the damage, which leads him to offer a pareto superior solution (I’m indebted to Mitchell Berman for this point).
This example demands another look. Al faces three courses of action: he may publish the information, refrain from publishing, or refrain from publishing for compensation. He surely prefers the third alternative to the second one. He then presents the following bi-conditional: “if you compensate me, I will not publish the information; if you do not compensate me, I will.” The final clause is designed to give Ben a reason to pay, and so the damage from the exposure has a role in advancing Al to his second-best goal. I therefore find it legitimate to say that the act as threatened (see supra note 50)—within the communication with Ben—intends this harm.
None of this means that the example is not in some ways unique. The independent reasons behind the initial plan of publishing, and the value of the invested time, can both count in favor of the exposure, making it less marginal at the outset, thus making the intention not pivotal. The fact that the harm is intended only as a second-best outcome might affect the normative picture too. The case, like other cases which involve market-price blackmail, should be decided contextually, based on careful evaluation of the facts that affect the permissibility of the threatened act. Some of these cases are coercive blackmail, while others are legitimate bargains. I take it to be an advantage of my proposed theory, since it better tracks the intuitive judgment regarding market-price blackmail. Indeed, in these cases it is much less clear that blackmail is wrongful. See, e.g.,Berman, , “Blackmail”, supra note 1 at 75. Some cases of market-price blackmail are coercive under the basic revisionist view, since sometimes there is a market-price for morally impermissible actions (paparazzi might be an example). Other cases should be decided, in my opinion, based on the question of marginality.Google Scholar
Be that as it may, I see no reason to insist on this point here. If, under the depicted circumstances, referring to Ben’s harm as intended by Al seems unwarranted, then it follows that special further circumstances might mitigate or even rebut the inference regarding the blackmailer’s intentions. In this case, the contextualized analysis of the act’s permissibility should be supplemented with an evaluation of the blackmailer’s mental state. The inference is thus still less expansive in its evidential presuppositions, but it is not necessarily conclusive.
58. Cf Stuart, P Green, “Theft by Coercion: Extortion, Blackmail, and Hard Bargaining” (2005) 44 Washburn L J 553.Google ScholarFor a list of statutes which cover blackmail under the offences of extortion or coercion, see Westen, , “Paradox”, supra note 1 at 587–88.Google Scholar
59. In bribery cases, the bribed party wishes to perform an act prior to the financial offer. Hence, it is plausible that this party has an independent reason to perform the act, and has no prior plan that involves the harm to the other party.
60. See Nozick, supra note 17 at 84-87 and the (indeed persuasive) interpretation suggested for his view by Berman, , “Blackmail”, supra note 1 at 45–49Google Scholar; Altman, , “Patchwork”, supra note 12 at 1642.Google Scholar
61. Robinson et al, supra note 3 at 347.
62. McMahan, supra note 42.
63. Ibid at 345. See also Husak, supra note 41 at 53.
64. For the classical discussions of this thought experiment, see, for example, Foot, Philippa, “The Problem of Abortion and the Doctrine of the Double Effect” in Virtues and Vices and Other Essays in Moral Philosophy (Berkeley: University of California, 1978) 19 at 21–22CrossRefGoogle Scholar; Thomson, Judith Jarvis, “The Trolley Problem” (1985) 94 Yale LJ 1395.CrossRefGoogle Scholar
65. For another view on those questions, see, recently, Tadros, Victor, The Ends of Harm—The Moral Foundations of Criminal Law (New York: Oxford University Press, 2011) at 162.CrossRefGoogle Scholar
66. See Scanlon, supra note 18 at 22. Scanlon distinguishes between assessing permissibility (as a guide to deliberation) and assessing the agent’s particular decision-making (as a standard of criticism). Thomson distinguishes between assessing the act and assessing the agent’s character: Thomson, Judith J, “Physician Assisted Suicides: Two Moral Arguments” (1999) 109 Ethics 497 at 514–16.CrossRefGoogle Scholar Cf also Bennett’s version of distinguishing “first order morality” and “second order morality” in Jonathan Bennett, The Act Itself (New York: Oxford University Press, 1998) at 221-24.
67. For a discussion, see, e.g., Hills, Alison, “Intentions, Foreseen Consequences and the Doctrine of Double Effect” (2007) 133 Phil Stud 257.CrossRefGoogle Scholar
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69. I rely here on Enoch, supra note 43 at 71. See alsoWesten, , “Paradox”, supra note 1 at 623.Google Scholar
70. The distinction between the two versions of DDE echoes the formulation of deontological constraints as a whole, as either agent-centered constraints, focusing on the agent’s special involvement in the harm brought about or as patient-centered constraints, focusing on the victim’s right not to be involved in something harmful in order to further the purposes of another. For the distinction between agent-centered and patient-centered deontology, and a similar view, see Alexander, Larry & Moore, Michael, “Deontological Ethics” in Edward N, Zalta, ed, The Stanford Encyclopedia of Philosophy (Fall 2008 edition) at 2.2.1., online: http://plato.stanford.edu/archives/fall2008/entries/ethics-deontological/.Google Scholar
71. Kamm, Cf Frances M, Intricate Ethics: Rights, Responsibilities, and Permissible Harm (Oxford: Oxford University Press, 2007) at 13 (where an act Φ is justified because of its good consequences, although it entails some foreseen harm to a few people, an agent will act permissibly even if she performs Φ only in order to harm those people).CrossRefGoogle Scholar
72. Masek, Cf Lawrence, “Intentions, Motives and the Doctrine of Double Effect” (2010) 60 The Phil Q 567. The causal structure towards this end, or the agent’s belief regarding it, might be part of the definition of her intention.CrossRefGoogle Scholar
73. Of course, as long as the action is not justified as a matter of consequential considerations (as, e.g., in a case of killing an innocent person without saving other lives), the deontological constraint is not required in order to rule it out. For reasons of simplicity, I do not deal here with deontological permissions or prerogatives.
74. Berman seems to overlook this fact. See Berman, , “Blackmail”, supra note 1 at 102 n 122.Google Scholar
75. The debate is not over yet. See, for example, Wedgwood, Ralph, “Scanlon on Double Effect” (2011) 83 Phil & Phen Research 464; McMahan, supra note 42; Husak, supra note 41 (mentioning Anthony Duff and Michael Moore as supporters of DDE)CrossRefGoogle Scholar; Sverdlik, Steven, Motive and Rightness (Oxford: Oxford University Press, 2011); Tadros, supra note 65CrossRefGoogle Scholar; Liao, S Matthew, “Intentions and Moral Permissibility: The Case of Acting Permissibly with Bad Intentions” (2012) 31 Law & Phil 703.CrossRefGoogle Scholar
76. Since “one person’s modus tollens is another person’s modus ponens,” if the relevance-of-intent view is better equipped to solve the puzzle of blackmail, this may earn this view some plausibility points within the debate. Yet from this point of view also, there is room to inquire whether the puzzle could be nevertheless solved without being committed to the relevance view.
77. Such a step is hinted at in Westen, “Paradox”, supra note 1 at 634.
78. See, e.g., Enoch, supra note 43. Steven Sverdlik argues for the same conclusion, see supra note 75.
79. See Scanlon, supra note 18 at 13, 62-63.
80. Indeed, “even a dog distinguishes between being stumbled over and being kicked” (Oliver Wendell Holmes, Jr, The Common Law (Cambridge, MA: Belknap of Harvard University Press, 1963) at 3. As Thomas Nagel puts it, “The victim feels outrage when he is deliberately harmed… not simply because of the quantity of the harm but because of the assault on his value of having my actions guided by his evil” (see his The View From Nowhere (New York: Oxford University Press, 1986) at 184).
81. One possible strategy for holders of such a view is indeed to ‘bite the bullet’ and deny the wrongfulness of blackmail in cases of this last sort, while ascribing the opposite intuition to the common case. According to that view, the double-evidentiary theory is actually a debunking move that should serve as an argument for the decriminalization of blackmail. An alternative is to deny the unity of the wrongfulness of blackmail. Cf Altman, “Patchwork”, supra note 12.
82. In my use of “culpability” here I do not wish to engage in the debate whether or not one might be blameworthy for a permissible act (cf Justin A Capes, “Blameworthiness Without Wrongdoing” (2012) 93 Pacific Phil Quart 417). I use it to mean something like “worthiness of moral condemnation or critique vis-à-vis that action” and will use it interchangeably with being “condemnable” or “deplorable.”
83. What I need here is culpability with no impermissibility, namely that the culpability of the proposer is sufficient for coercion, even if the proposed act is permissible. So impermissibility is not necessary. Whether or not it is sufficient is beyond my needs here.
84. Berman himself talks occasionally about blame, rather than impermissibility, although not systematically. In this fashion, he says that “normative concerns are not limited to whether a proposal is inherently wrongful in either an objective or conventional sense; they extend as well to considerations of the moral character of an actor’s motives for advancing a proposal that is itself morally ambiguous” (Berman, “Evidentiary”, supra note 2 at 851). Similarly, in his recent writings he sometimes refers to whether or not “[a]n actor behaves in morally blameworthy fashion” (Berman, “Blackmail”, supra note 1 at 68; 101 n 119). See also the way his view is presented by Rosenberg, supra note 3 at 357 (“Blackmail is wrong because the blackmailer threatens an act that, were he to engage in it, would be blameworthy…”).
85. See Shaw, supra note 1 at 167; Berman, , “Functions”, supra note 37 at 52.Google Scholar
86. Cf the sources cited supra note 18. Of course, when the blackmailer demands sex rather than property, the nature of the offence should change to rape, and so forth.
87. See Berman, , “Functions”, supra note 37.Google Scholar
88. On three different notions of coercion, seeEdmundson, William A, Three Anarchical Fallacies: An Essay on Political Authority (Cambridge: Cambridge University Press, 1998) at 74. Grant Lamond also discusses three different notions in his “The Coerciveness of Law” (2000) 20 Oxford J of Legal Studies 39 at 47-48, yet they are less relevant to my discussion here. See also infra note 91.Google Scholar
89. See, e.g., Pallikkathayil, supra note 1 at 7; Alexander, Larry, “The Ontology of Consent” (2014) 55 Analytic Phil 102.CrossRefGoogle Scholar
90. In some cases she might even be justified in doing so. However, there is still a need to “offset” a wrongdoing. Analyzing the exact nature of the duress defense is beyond my needs here. For such an attempt, see Finkelstein, Claire, “Duress—A Philosophical Account of the Defense in Law” (1995) 37 Ariz L Rev 251.Google Scholar
91. Berman suggests arguing that in such cases one has to be excused for making a promise one did not intend to honor from the beginning (see Berman, “Functions”, supra note 37 at 66). I think that focusing on giving consent clearly shows why this move is not attractive. This is exactly what Edmundson termed the “justification defeating” (rather than the “justification supplying”) context of coercion claim, in a short yet valuable remark in Edmundson, supra note 88 at 74.
92. Alexander, Cf Larry, “The Moral Magic of Consent (II)” (1996) 2 Legal Theory 165 at 171 (“Threats by the boundary crosser, then, do not vitiate consent; rather, they render the boundary crosser himself morally powerless to take advantage of the consent he has induced” [emphasis added]).CrossRefGoogle Scholar See also Franklin, Miller G & Wertheimer, Alan, eds, The Ethics of Consent: Theory and Practice (Oxford: Oxford University Press, 2010) 79 at 94.Google Scholar
93. Berman discusses a similar line of thought in Berman, , “Functions”, supra note 37 at 68, yet argues that it has no essential connection to coercion. I follow Edmundson, supra note 88, in contending that it does.Google Scholar
94. As to the interesting question of third-party coercion, I leave it for another occasion. Cf, e.g., Millum, Joseph, “Consent under Pressure: The Puzzle of Third Party Coercion” (2014) 17 Ethical Theory & Moral Practice 113.CrossRefGoogle Scholar
95. Similarly, if what C is asking for is sexual behavior, the relevant crime might be rape or other sorts of sexual assault. Whether the character of consent is unified between property and sex is a different question, which I cannot address here.
96. Thomson, supra note 66 at 516.
97. What if the doctor, out of her vengeful motives, wishes not only to kill the patient but also to exploit the situation in order to impoverish the patient? That brings the case closer to the exploitation angle, which requires a separate discussion, yet still falls short of causing the patient’s distress.
98. One might say that the blackmailer is equally not responsible for the fact that her victim has an embarrassing secret. However, absent the blackmailer the secret would cause no serious distress, while absent the donut seller the consumer’s distress still stands.
