How to Blackmail a Contractarian

North American Philosophical Publications

How to Blackmail a ContractarianAuthor(s): Malcolm MurraySource: Public Affairs Quarterly, Vol. 13, No. 4 (Oct., 1999), pp. 347-361Published by: University of Illinois Press on behalf of North American Philosophical PublicationsStable URL: http://www.jstor.org/stable/40441239 .

Accessed: 16/06/2014 07:51

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

University of Illinois Press and North American Philosophical Publications are collaborating with JSTOR todigitize, preserve and extend access to Public Affairs Quarterly.

http://www.jstor.org

This content downloaded from 62.122.73.86 on Mon, 16 Jun 2014 07:51:09 AMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=illinois

http://www.jstor.org/action/showPublisher?publisherCode=napp

http://www.jstor.org/stable/40441239?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


Public Affairs Quarterly Volume 13, Number 4, October 1999

HOW TO BLACKMAIL A CONTRACTARIAN

Malcolm Murray

claim that any voluntary transaction between all concerned, suitably informed, rational parties is necessarily moral.

If blackmail is a voluntary negotiation between concerned parties who are rational and suitably informed, then blackmail is a moral transaction for contractarians. Typically, people assume that blackmail is not a moral negotiation: so if contractarians have the right moral theory, they better show that blackmail violates at least one of their conditions. This, however, is a daunting task.

Consider the following two cases:

Case 1: Jones claims he will let Smith's wife take a pearl necklace so long as Smith pays Jones $10,000.

Case 2: Jones claims he will not inform Smith's wife of Smith's infidelities, so long as Smith pays Jones $10,000.

Everything else being equal, case 1 is a straightforward moral transaction. Consider case 2. Jones is free to tell Smith's wife about Smith's infidelities. Likewise, Jones is free to tell Smith that he will tell Smith's wife about Smith's infidelity. For that matter, Jones is free not to tell Smith's wife about Smith's infidelities and he is also free to tell Smith that he will not tell Mrs. Smith about Smith's infidelities. By implication, then, Jones is free to tell Smith that he might tell or that he might not tell Mrs. Smith about Smith's affair. Typically, if we are free to do something, we are also free to ask for a fee for our doing that thing.1 Meanwhile, others are free to accept our offers or not, and if they accept our offers, we assume they do so because they believe they stand to benefit from it. If Smith pays the money in case 2, we assume he prefers paying the $10,000 to having his secret revealed to his wife. Likewise with case 1. We assume Smith prefers the necklace to $10,000 if he accepts Jones's offer. In both cases, then, Jones makes an offer that Smith is free to accept or decline. In both cases, the principal parties

347



348 PUBLIC AFFAIRS QUARTERLY

stand to benefit from the transaction. On what grounds, then, can we say case 2 is wrong while case 1 is morally permissible?

Contractarians have availed themselves of a variety of answers to show why blackmail is wrong; why they think there is a relevant disanalogy between case 1 and case 2.2 I shall examine seven such at- tempts and show why they all fail.

Answer 1: Involuntary Agreements

If Smith declines in case 2, bad things will happen to him. Not so in case 1. In essence, then, Smith's action is not voluntary in case 2 as it is in case 1. Contractarians call any act "voluntary" so long as at least one option is to remain at one's status quo baseline: the state of affairs one was in prior to the other's offer.3 In case 2, unlike in case 1, Smith's option to remain at his baseline is denied. If Jones refuses Smith's pro- posal in case 2, he is out of a marriage (or at least his marriage is in peril). Whereas if he refuses Jones's offer in case 1, he remains at his status quo. Hence only in case 1 is his action truly voluntary.

Reply: Insured Package Delivery Imagine in case 1 that Smith's wife has all along been demanding a

pearl necklace from Smith and will contemplate separation on the grounds of Smith's stinginess. Imagine, too, that Mrs. Smith is present when Jones makes his offer to Smith. The brute fact of Jones's offer would itself appear to remove the status quo option from Smith. Smith's refusal may be bad for Smith's marriage, thus adding equal pressure on Smith to accept Jones's offer in case 1 as in case 2. Pressure alone, however, does not make Smith's acceptance involuntary in case 1, and nor should it in case 2.

Moreover, it is questionable whether Smith's baseline is in jeopardy in case 2. It could easily be said that the status quo for Smith in case 2 is already a marriage at risk; after all, he's the one who had the affair! It is obvious that Jones knew about the affair and has already been contem- plating informing Mrs. Smith. It would be odd to count Smith's status quo baseline as simply what he believes it to be. Some beliefs might be erroneous, after all. Believing incorrectly that Jones has left Smith $1,000,000 in his will does not make it the case that Jones owes Smith $1,000,000. Despite Smith's belief, Smith's real baseline is not being assigned anything in Jones's will. Likewise, his real baseline is a marriage in jeopardy of Jones telling Mrs. Smith about Smith's affair. Jones allows this option in case 2: hence Smith's choice is voluntary.



HOW TO BLACKMAIL A CONTRACTARIAN 349

If you're not yet convinced, consider an alternative blackmail case (case 3) in which it is clearer that Jones allows Smith the choice of re- maining at Smith's status quo.

Case 3: Jones puts a vase into a box, and inside the vase he puts a note to Smith's wife with pictures and details informing her of her husband's indiscretions. Jones seals the parcel with the vase and the note, and takes it to a post office where he pays for courier delivery, to be signed on receipt only by Smith' s wife. Jones also takes up the post office's suggestion to insure his package for a small fee entitling Jones to collect $10,000 should it transpire that the vase is broken or undelivered. Afterward, he informs Smith what he has done and where the delivery truck is parked while the delivery man takes his habitual coffee and donut stop. Smith takes the information, steals the package out of the delivery truck, and Jones collects $10,000 from the insurance on the undelivered package.4

What Smith has done is wrong, since it involves theft - in essence theft of $10,000 from the insurance company - but has Jones done anything wrong?5 More to the point, has Jones denied Smith a voluntary action? The baseline in case 3 is the imminence of Smith's infidelity being revealed. Smith has an option of doing nothing, and doing nothing is precisely his status quo baseline. If blackmail is wrong, it cannot be so on the grounds that voluntary choice is curtailed.

Some may claim that Jones's act is wrong in both cases 2 and 3, and for identical reasons. In both cases, Jones's intent is to blackmail; to take advantage of Smith's situation for his own pecuniary interests.6 But such talk is not open to contractarians. The intent of any transaction is presumed to be pecuniary (or at least in one's interest). Successful transactions are predicated on mutual benefit.7 One-sided benefits will not be expected outcomes of any voluntary agreement; that is, unless there is coercion. We cannot define coercion on the basis of an uneven out- come, however. That you may benefit more than me does not by itself show that I don't benefit. The issue is strictly whether or not the transaction was voluntary - and that is defined according to whether the baseline is a viable option. The concept of "intent," therefore, is not among contractarians' moral vocabulary.

Another component relevant to the concept of voluntariness is information. We do not say we have acted voluntarily if certain key information was knowingly withheld from us. A company's not informing me of the dan- gers of radiation while I work undermines the voluntariness of my acceptance of the job. If I willingly withhold information from you that would affect




your agreement with me, contractarians can complain. But in our blackmail case, Jones provides all the relevant information to Smith. Smith is totally free to do with it as he wants; his action is voluntary.

Answer 2: Moral Informers

Another argument against blackmail concerns our moral duty to rat on immoral agents. Morality is to be socially upheld. Our moral duty extends beyond merely forbearing to do bad acts, but also includes social policing. There is little hope of blackmailing someone if they have nothing to hide.8 That is why moral people are not normally targets for blackmail, which shows that blackmailers are immoral for colluding with immoral agents. The blackmailer is asking for a fee to forbear doing something he morally ought to do. There is a moral obligation to report immorality.9

Reply: Theft, Infidelity, and False Accusations If Smith was a thief, then Jones's withholding this information (for a

fee or otherwise) would cost society at large.10 There would be unconsulted concerned parties in the transaction, namely those who become victims of Smith's continued thefts: hence, contractarians must condemn Jones's act of blackmail. In the case of infidelity, however, it is not at all clear that Jones has a moral obligation to rat on Smith. The problem of infidelity for contractarians involves a violation of the marriage contract. Whether explicitly stated or merely implied, most marriages begin with the idea that the parties involved will be faithful to each other. We are led to believe, however, that at some point infidelity is almost to be expected. Importantly, marriages do not necessarily crumble from these revelations; in fact, they can be strengthened by them. The problem of marriage is plainly that people change, and what is needed is a periodic reassessment of who the married people are - spouses are unlikely to be the same as they were when they first met. Nevertheless, marriages are more likely to blossom from revealed infidelities if it is the unfaithful who confesses; not a third party. Thus, if we are focusing on what Jones morally ought to do, it is not clear he ought to rat on Smith. If anything, Jones ought to encourage Smith to confess to Mrs. Smith on his own. Only in that way the trust and inti- macy upon which a good marriage is based can be rebuilt. One creative way of encouraging Smith to confess is to blackmail him.

Leaving the above aside, blackmail cannot be thought wrong on the basis that someone is asking for money to forbear doing something they morally ought. Consider the following case:



HOW TO BLACKMAIL A CONTRACTARIAN 35 1

Case 4: Smith is running for political office. Jones decides to falsely accuse Smith of having an affair - unless Smith pays Jones $10,000.

In case 4, notwithstanding that the accusation is false, Smith will be motivated to pay Jones, since the accusation alone would be sufficient to hamper Smith's chances at being elected. Since the accusation is false, there is certainly no moral obligation on Jones's part to tell the world about the affair.

Case 4 is clearly immoral for contractarians. Jones is asking for money to forbear doing something he ought not do anyway. But if blackmail was wrong because one ought to inform, we could not say that case 4 was wrong - an embarrassing result.

Answer 3: Concerned Parties

Smith and Jones are not the only concerned parties: Smith's wife is, as well as Smith's mistress(es). Thus, case 2 fails the conditions of contractarian morality concerning negative externalities.11

Reply: Merchant-Patron Relations

Smith's wife was a concerned party when Smith decided to have the affair, and to the extent that she was not consulted about it, the affair is immoral for contractarians. But it is not clear that Smith's wife is a concerned party in the transaction between Smith and Jones - at least no more than Smith's wife is a concerned party in his buying her a necklace in case 1. We do not typically say the transaction between Smith and Jones in case 1 is immoral because Smith's wife was not consulted (although we can imagine at that price some sort of row ensuing). It is not immoral for stores to sell merchandise to customers who are buying gifts for someone else. The fact that the purchase will affect someone else is a concern between the purchaser and that other person, not between the merchant and the consumer. This is so concerning the money spent, as well. If Smith buys an expensive toy for himself, he is using part of Mrs. Smith's money, and she is a concerned party to that extent, but we do not expect merchants to check patrons' financial arrangements with their spouses. That is a concern between spouses, not between merchants and customers. Likewise, blackmail case 2 concerns Smith and Jones only. Jones does nothing wrong to Mrs. Smith. If Smith pays Jones, Mrs. Smith remains at her status quo: the state of affairs of being igno- rant of her husband's infidelity.12 If Smith does not purchase Jones's service, then Jones tells something true to Smith's wife, and telling something true to someone is not forbidden on contractarian grounds.




Whatever Smith decides to do, Jones has not done anything wrong to Smith's wife.

It may seem a different matter concerning Smith's mistress. If Mrs. Smith finds out, this may adversely affect the relations between Smith and the mistress. In this sense, she may be thought of as an uninformed concerned party. Be forewarned, however, that not all people who are affected by third-party agreements count as a concerned party. Imagine Jones and Smith competing for a job. If it were up to Smith, he would not agree to give the job to Jones. Jones's getting the job adversely af- fects Smith, who remains unemployed as a result. Nevertheless, Jones's being hired is not up to Smith to decide, and thus, notwithstanding Smith's being an uninformed and adversely affected party, he does not count as a "concerned" party in the contractarian sense. Likewise, imagine that Jones does not agree with Smith's naturalistic gardening philosophy. The fact that Smith never mows the lawn is not something to which Jones would consent, if it were up to Jones. But it is not up to Jones, and so whether or not he is adversely affected by Smith's jungle lawn, Jones is not a "concerned" party. Who counts as a concerned party resides in theories of entitlement, which typically focus on property claims. If it is Smith's property, Smith can do whatever he wants with it without Jones's right to intercede - even if what Smith does with his property has the negative effect of lowering Jones's property value.13

Unlike Mrs. Smith, the mistress clearly has no entitlement to Smith's property, so she is not a concerned party in this way. Nor does she count as a concerned party in the potential transaction between Jones and Mrs. Smith. Her relation to that transaction is the same as that of Smith himself. The fact that she will be negatively affected is not sufficient to call her a concerned party who is being neglected.

The above notwithstanding, blackmail can occur when there is no third party to worry about. Imagine if Smith was single and gay and Jones threatened to publicize this, unless Smith paid him $10,000. It looks like a typical blackmail scenario, but without any unconsulted third parties. This is sufficient to show that whatever makes blackmail wrong, it cannot merely be the existence of unconsulted third parties.

Answer 4: Hypothetical Agreement

Observing the fact that most of us would rather not be blackmailed is another way of supporting the claim that blackmail is wrong. Contractarians argue that you ought not do anything to anyone without at least expecting their consent.14 Clearly we would not expect people to agree to be blackmailed. Hence, blackmail is wrong for contractarians.




Reply: The Towtruck Analogy

Imagine if Smith got stuck on the Coquihalla highway during a snow- storm and Jones came by in his towtruck. For $75 Jones pulled Smith to the top of the pass. Clearly Smith would rather not have paid the $75: hence, by the hypothetical agreement argument, it would be immoral for towtrucks to rescue stranded motorists for a fee. On the common assumption that nothing is wrong with towtrucks charging for their services, there would appear to be something wrong with the hypothetical agreement argument.

Alternatively, we might deem the towtruck driver's actions wrong; that it counts as extortion, since Jones exploits Smith's unfortunate pre- dicament. Although some do argue in such terms, contractarians will be unable to make such a claim. For contractarians, the towtruck is clearly offering Smith a service given Smith's situation, a service that costs Jones (costs for the towtruck and driving about in stormy conditions looking for sales). It is a risk on Jones's part and surely he has a right to try to recoup his loss. If he were forbidden to do that, he would not be out there and Smith would suffer more - perhaps die of hypothermia.

Contractarians would call the towtruck driver's actions morally permissible. After all, Jones did not cause it to snow and nor did he cause Smith to become stuck in the snow. That was due to Smith's poor driving or his being insufficiently prepared for mountain weather. The state of affairs Smith was in prior to his arrival was being stuck, and Jones left that option available to Smith. Smith's accepting Jones's exorbitant fee is therefore clearly voluntary. The transaction between the towtruck driver and Smith is morally permissible.

Blackmail takes the same pattern as the towtruck scenario. The blackmailer did not cause Smith to have an affair any more than the towtruck driver caused Smith to become stuck in the snow. Smith had the affair on his own cognizance. The blackmailer is not the cause of jeopardizing Smith's marriage. This is due to Smith's being insufficiently prepared for the consequences of his actions. In essence, the blackmailer is offering Smith a service - the service of keeping the affair a secret from Smith's wife. In any event, Smith's accepting Jones's terms is strictly voluntary on Smith's part because the state of affairs Smith was in prior to Jones's presenting Smith with the blackmail option was being at risk of someone's reporting his affair to his wife. The fact that the blackmailer is himself the one who would report the affair is unimportant. In essence it shows that someone was in the process of thinking about telling Smith's wife, and a service to prevent that from happening is either worth the fee or it isn't.




Answer 5: Omission-Commission

Another argument for the moral difference between case 1 and case 2 concerns the act-omission distinction. There is a world of difference between acts of omission and acts of commission. Take, for example, the distinction between positive and negative duties. Positive duties involve our doing something - like returning money owed. Negative duties involve our refraining from doing something - like not taking someone's money without their consent. Duties that involve our doing something are liberty-restricting, since we are not free to do anything else but our duty. Duties of forbearance, however, are not necessarily liberty-restricting: you are free to continue to do whatever it was you were doing, unless it was robbing someone of their money, etc. Our status quo baseline is affected (generally) only in positive duties, not (typically) negative ones. Likewise, with blackmail. In case 1, Jones is offering to do something, to sell a necklace. In case 2, however, Jones is offering io forbear doing something. Since the distinction is relevant in other moral domains, this is sufficient to show a relevant disanalogy between cases 1 and 2. Spe- cifically, Smith's refusal of the offer in case 1 allows Jones to do nothing (not sell the necklace), whereas Smith's refusal in case 2 "permits" Jones to do something. The status quo in case 1 is an act of omission; the status quo of case 2 is an act of commission. Therein lies the difference.

Reply: Unfinished Paintings and Homer Simpson Although there is sense to speak of the moral distinction between

acts of omission and acts of commission in certain situations, there are other times when such talk is idle. If we are speaking about business transactions, the relevance of this act-omission distinction is dubious. How much something costs is determined in large part by the buyer. If something is worth paying for, the buyer will pay for it. Typically, something somebody does will be worth more to buyers than something somebody doesn't do, but there is nothing necessary or intrinsic about this in the distinction. Imagine viewing an unfinished painting in an artist's studio. The way it is now may be worth more in the eyes of a buyer than if the painter continues working on it. Often paintings are ruined by doing too much to them. When I was a child, my parents used to distract me in order to pull away my crayon drawings. If they did not do that, I would keep on scribbling until the whole was a solid black mass. If a buyer wants to pay for the painter's not doing anything else to the painting, that is an offer he can legitimately make. ("I'll give you $500 for it." "No, it's not finished yet." "OK, I'll give you $700 for it if I can take it away right now!"). The act-omission distinction then is




utterly idle in terms of market value. Don't forget that blackmail works precisely because it has market value.

The act-omission distinction is often believed to make a moral difference in cases of euthanasia. Actively killing someone is thought to be murder, however nobly intended, whereas merely letting someone die is thought perfectly permissible, however agonizing and slow and torturous the dying is.15 The debate is complicated further when people are unclear whether to count "pulling the plug" as doing something or not. At that point, the distinction is clearly seen to be ludicrous. Imag- ine the following two scenarios. Scenario A: The concerned parties decide to have a life-support machine unplugged. Scenario B: A life-support machine accidentally becomes unplugged, and the family at that point refuse to have the machine plugged back in. To think that one is permissible while the other is not is to hold too strenuously to a nebulous distinction. Moreover, we can imagine where doing nothing is precisely what makes the act wrong. Imagine a nuclear power plant operator who refuses to push a button that would stop the meltdown of his sector. When half of Springfield dies, his excuse of not doing anything does not exonerate him; in fact, it is precisely his not doing anything that makes him culpable.

The act-omission distinction does not apply in all contexts, and even in those contexts where it is typically employed, the distinction is sus- pect. It should not surprise us, then, if the omission-commission distinction has no relevance to blackmail.

Answer 6: Ownership

If a thief asks you to buy a TV set cheap, you may be tempted to do so. You agree and he agrees, so what could be wrong? The contractarian answer is that there is a concerned party who has not been consulted in this agreement: the proper owner of the TV. Plainly, the TV is not the thief's to sell. The case of blackmail is only insignificantly different than this. Imagine the case where Jones steals Smith's TV, and then asks whether Smith wants to buy it back. This is a paradigm case of blackmail. The only difference in this case from the theft case is that Smith plays two roles here: the unconsulted concerned party, and the consulted concerned party. If someone is consulted, then of course, how could he also be unconsulted? This is what trips contractarians up. Here, Smith is being asked to buy back what is already rightfully his. Analogously, blackmail is wrong because the blackmailer is selling to the victim something that the victim already owns.16




Reply: Coincidence and Reverse Order The problem with fencing goods back to the original owners is only

coincidentally blackmail. Blackmail is comprised of individual acts none of which are by themselves immoral (telling Mrs. Smith a truth, telling Mr. Smith he might or might not tell Mrs. Smith this truth, asking for money, etc.). Not so with the fencing case. The problem above is the original theft. The act is wrong whether or not Jones offers Smith the chance to buy back the TV. For that matter, Jones may simply have been unlucky in selecting a potential customer. Although we do say it is worse that Jones intentionally targeted Smith to sell back Smith's TV than had he done so unintentionally, this is not because we think blackmail worse than theft, but for another reason. We do not like it when people intentionally cause harm to particular others. Targeting a victim is worse than having a victim as a by-product. First-degree murder is worse than man- slaughter. Nor do we like it when the harm is caused by someone we trust. Robbing a friend is worse than robbing a stranger. Sexual assault by a parent is more damaging than sexual assault by a date. Blackmail by a confidante is a violation of trust.

In any event, the infidelity case that we are discussing does not fall into this category, for surely we cannot say that Smith owns Jones's right to convey information to Mrs. Smith. Nor, as mentioned above, is it obviously wrong to tell Mrs. Smith about Smith's affairs, although it is clearly wrong to have stolen Smith's TV.17 And this remains so even if Jones merely threatens to steal Jones's TV unless Jones pays up, since the threatened action is itself clearly wrong - unlike the infidelity case. Telling someone a truth is not wrong.

If anything, the ownership argument should work in reverse. Imagine a third party, Taylor, who is aware of Smith's infidelities and is on his way to inform Mrs. Smith. Jones finds out and tells Smith that he can prevent Taylor from informing Mrs. Smith for $10,000. Now Jones can in no way guarantee success unless his methods are not sanctioned by contractarian ethics. Jones does not own Taylor. He cannot forbid Tay- lor to do what Taylor desires to do, and so Jones's service to Smith is not Jones's to offer. In the original case, however, the situation is different. Jones clearly owns Jones's actions. Jones is in a paradigmatically legitimate position to negotiate on Jones's behalf.

Answer 7: Invasion of Privacy

Smith has a right to privacy that Jones is abrogating. This is what makes blackmail wrong. Blackmail in essence is precisely like stealing the TV and then offering to sell it back, except it is not a material possession




that is stolen, but the prima facie fundamental right to privacy. How this right to privacy is manipulated is irrelevant, so long as it is the right to privacy that is being violated. This is why the insured delivery case 3 is really no better than case 2. They both are an invasion of privacy. Threat- ening to tell the world Smith is gay is also bad in exactly the same way, even though there are no other concerned parties. Conversely, the two- truck case is not a violation of privacy and that is why we believe it not to be a case of blackmail. Blackmail is wrong insofar as it violates an individual's right to privacy.

Reply: Playgirl, Nike, and Princess Diana We can blackmail people without invading their privacy. If a man

willingly poses nude in a magazine, we can hardly say that anyone who buys the magazine is invading that man's privacy. Nor can we say that anyone who discusses what is available in that magazine is invading that man's privacy. Nor do we suppose that this fact changes after a few months go by, or a few years, or even a few decades. To point out to the world the existence of this magazine is not an invasion of that man's privacy, since he willingly consented to its publication. Nevertheless, we can imagine an entrepreneur suggesting to a public figure that he be paid $10,000 or he will go public about this nude pose in a magazine long forgotten. He may regret his previous action, and may be motivated to keep the information from being more widely known, but that hardly makes it a private matter. We do not count as "private" merely that information we would not want to be public. Contractarians require merchants to provide sufficient information in their business transactions, information that they may otherwise wish to withhold; information about toxic chemicals, or about the likelihood of the product exploding, etc.

If you prefer, we can imagine a hunger strike. Someone refuses to eat until the government commits to a better welfare program, or better prison conditions. In such a case there is no invasion of privacy.18 Nev- ertheless, they are clear cases of blackmail. Invasion of privacy, therefore, cannot be the essence of blackmail.

For that matter, it is unclear what ought to count as an invasion of privacy. Is the getting of information without consent what is wrong, or is the wrong the conveying of the information after it is received? Illic- itly gathering private information, either through wiretaps, or telescopic lens, or sneaking onto one's property is a clear violation of contractarian ethics. This is the issue certain paparazzi ignored when they dauntlessly pursued Princess Diana. But what if Jones gathered the information innocently? Imagine Jones repeatedly saw Smith enter a motel room with a woman other than his wife. If Jones was the motel clerk, one could say




he has certain moral requirements concerning confidentiality; but if Jones was himself a patron of the motel, or happened to be passing at that time, the knowledge he has is public information - at least it is information any passerby could glean.19 The information is not in this sense "private" anymore.

For another illustration, consider the recent protests accusing Nike of violating international child labor laws in the production of their shoes in third-world countries. Broadcasting this is not thought to be a violation of Nike's rights to privacy. Whereas, if blackmail was wrong only so far as it was a violation of privacy, I could legitimately approach Nike with the following offer: "pay me $10,000 or I'll go to the press about your child labour practices."

Since we can blackmail someone without invading their privacy, the wrongness of blackmail cannot be predicated on an invasion of privacy.20 Contrary opinion results from confusing "privacy" with "information we would not want public."

Concluding Remarks: Bad Deals and Paternalism

We do condemn blackmail and one would think there must be something in that condemnation. There is, but it is not a moral issue. Our censuring blackmail is purely a paternalistic urge. We frown upon blackmail because it is a bad deal. No right-thinking person ought (prudentially) to accept the blackmailer's services for five reasons.21 (a) There is little guarantee that the payment will secure the intended service. The blackmailer's offer is to forbear doing something. If he forbears telling your wife this week, has he satisfied his obligation with you? Can he tell your wife next week? Do you have to pay him off again in a year's time? To calm yourself of these fears, you'll need a contract with the blackmailer, which, of course, would be useless. Any legally sanctioned contract is a public document - precisely the thing you are motivated to avoid if you were susceptible to being blackmailed. Going to the police about a breach of contract with a blackmailer is tantamount to just going to your wife about it. The prudent choice for any deal that cannot be sufficiently guaranteed is not to accept it. You risk having your wife know about the affair as well as paying $10,000. (b) The service is for one person to forbear doing x. The payment cannot thereby prevent others from doing x. How many others know about the affair? Will others come to you and charge for the same service? Clearly you cannot afford to pay off blackmailers indefinitely, and hence your wife will find out notwithstanding your previous payments. The odds of this are increased if the contract is publicly sanctioned, (c) Consider your




wife. It is likely that she would prefer to know about the affair than be out $10,000 on top of your having an affair. For that matter, once she realizes the bank account is down $10,000, and you have no ready answer for her queries, the marriage you wanted protected is at risk anyway, (d) Any behaviorist would say your actions indicate you are not concerned about protecting the marriage, so why would you choose to pay $10,000 for something you do not even want? What is the big deal about failed marriages, these days? (e) Lastly, if you call the blackmailer's bluff, what motivation has he to carry through with his threat? Failing to hand over a pearl necklace means he has the ability of selling the pearl necklace to someone else. But telling Mrs. Smith has no benefit to Jones, other than the perverse tuistic satisfaction of annoying Smith for failing to accept his offer. All in all, the prudent choice is to call the blackmailer's bluff.

Paternalistic interests try to prevent people from being suckered into bad deals. If our society wants to forbid all bad deals, blackmail would be one of those forbidden exchanges. Contractarians are against paternalism, however.22 There is nothing inherently wrong with bad business deals for contractarians - so long as all concerned parties have sufficient information, are minimally rational, and enter the agreement voluntarily. Since, as I have argued, this is what occurs with blackmail, there is nothing inherently wrong (morally) with blackmail.

Perhaps, however, this simply counts against contractarianism, and I make no protestations about that here.

NOTES

1. Saving someone from drowning is a case that may be raised as an exception. We are not free to charge money for Good Samaritan rescues. If this is so, it is because we believe rescuing someone from drowning is not a free act. We do not think we are free to rescue or not to rescue according to our whim. Some maintain we are morally obligated to rescue if capable, and thus rescue cases cannot be cited as

exceptions. Another exception might be prostitution. Sex is permissible in our

society until we start charging for it. Without making a case for it here, it should be noted that contractarians tolerate prostitution, so long as there is no coercion involved in the exchanges.

2. There are also non-contractarian answers - which also fail. For example, Richard Epstein gives a utilitarian account. There would be bad social consequences if we permit blackmail. Large organizations would emerge and trade in dirty information about people's private lives ("Blackmail, Inc.," University of Chicago Law Review 50 (1983): 553-563). Something cannot be shown to be wrong by pointing out that if we permit it, more of that thing will come about. That more violinists will emerge if we permit violin playing (as well as violin schools and




violinist associations) is hardly a justification to outlaw violin playing. Leo Katz offers a Kantian appraisal: the motives are wrong (Leo Katz, lll-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law [Chicago: The University of Chicago Press, 1996], pp. 160, 169). The motive in blackmail is self-gain - a common motive in business transactions - but so long as the interaction is deemed to be mutually beneficial, those underlying motives are inconsequential appendages.

3. Such a line of attack is essentially that of Robert Nozick (Anarchy State, and Utopia [New York: Basic Books, 197 1], pp. 84-86). It is also the language used by David Gauthier (Morals By Agreement [Oxford: Oxford University Press, 1986], p. 204).

4. 1 derived this idea from Katz (2). Katz's ingenious case involved two sisters competing for an actress audition. The one sister wishes to prevent the other sister from arriving at the audition, and does so by mailing a letter to the sister's husband informing him of his wife's affairs. She then tells her sister about her actions, including the information that the letter should arrive by the 10:00 post, coincidentally the time of the audition. (Katz attributes the suggestion to Günther Jakobs in "Noetigung durch Drohung als Freiheitsdelikt," Einheit und Vielfalt des Strafrechts: Festschrift fuer Karl Petters, vol. 69, ed. Juergen Baumann and Klaus Tiedemann, 1974.) Unlike Katz's case, my scenario suffers from the defect of likely failing. The insurance agents would certainly question Jones. I trust this does not hamper the philosophical point. We ought to call something right or wrong independent of its success. A poor bank robbery plan is to be frowned upon not merely because it would likely work. Conversely, if we have no grounds to frown upon it, that cannot merely be because it is destined to fail.

5. Some might argue that he has done wrong: he has incited a criminal act. Similarly, hate speech may be thought wrong for its intent is to incite immoral action. Defenders of hate speech claim that it is still up to the audience what to do about the speech, and thus the speaker is innocent of any action members of the audience take. In essence, as with the discussion that follows in the text, the debate focuses on whether the speech undermined the voluntary actions of the audience. It could easily be said of Jones that, given his knowledge of Smith's affairs, he could reasonably predict that Smith would act as he did if given the information that Jones provided. Since Jones could reasonably predict the immoral actions of Smith based on Jones's speech, he abetted the crime by informing him. Even if we convict Jones in case 3, albeit not for blackmail, the important point remains: Jones's knowledge of what Smith will likely do does not detract from Smith's freedom, as Newcomb's problem nicely illustrates.

6. This is Katz's position (see note 2 above). 7. e.g., Gauthier, pp. 10-19.

8. It is an interesting and unsettling social fact that we do not tend to blame the victim of blackmail, as we tend to blame the victim of rape.

9. Joel Feinberg distinguishes two sorts of blackmail: blackmail threats, and blackmail offers. In blackmail offers, the blackmailer is offering to forego what he morally ought to do, and thus becomes an accomplice to the original crime. In essence, then, this way of condemning blackmail is one of Feinberg' s two approaches (Joel Feinberg, The Moral Limits of the Criminal Law, Vol. 3: Harmless Wrongdoing [Oxford: Oxford University Press, 1990], pp. 238-274). For his objection to blackmail threats, see note 16 below.




10. 1 do not assume utilitarian calculations here.

11. Negative externalities exist whenever a concerned party is adversely affected without consent.

12. I would like to add, "and the state of not being consulted in large financial transactions," but it is conceivable that it is the blackmail itself that has put Smith into the position of doling out large sums of money without consulting his wife. Perhaps he always had consulted his wife on financial decisions before. One might argue, then, that her status quo is disrupted by Jones's blackmail. In any event, as I argue below in the text, blackmail can occur when there is no third party to worry about, so this fear is not what makes blackmail wrong.

13. Some may contest the unfairness of this: Jones suffers through no fault of his own. Life is like that. We cannot guard against such harms without causing other harms in the process: namely the harm of restricting individuals' liberty to do with their property as they deem fit.

14. Gauthier, 23, 29-38.

15. For example, see James Rachels, "Active and Passive Euthanasia," New England Journal of Medicine 29, no. 2 (1975): 79-80.

16. This is Feinberg's response to why blackmail threats are wrong (see note 9 above) - minus the discussion as to why it has fooled contractarians. It is also one of the arguments Leo Katz raises against blackmail (Katz, pp. 137-139, and

again pp. 160-163).

17. James Lindgren's objection to blackmail is fitting here. He notes that although it is not property that is being offered back for sale, the blackmailer is

wrongly using someone else's bargaining chips. The blackmailer imposes himself

parasitically in other people's disputes (James Lindgren, "Unravelling the Paradox of Blackmail," Columbia Law Review 84 (1984): 680-701). If this is wrong, then marriage counselors are in the wrong as well. Hardly a happy result. Besides, surely it is the blackmailer's bargaining chips the blackmailer uses. The bargaining chip is the information the blackmailer has. Granted, in blackmail offers it is society's bargaining chips the blackmailer is usurping: society, not vigilantes, ought to punish criminals. As discussed in answer #3, the infidelity case is not of this sort.

18. Katz discusses a case where someone with union influence suggests a

company pay him $10,000 or he would call his men to strike (p. 134). Although Katz used this example to show that blackmail has nothing intrinsically to do with information, it also is a case where no violation of privacy is at stake.

19. That is, any passerby who can recognize Smith and Smith's wife and realize the woman going into the motel room is not Smith's wife. This limits the amount of

people who could have this information, but that alone does not make the information private. Who Smith is and who Smith is married to is public information even if the couple lived alone on an deserted island.

20. ... so long as we assume the information derived was innocently gathered.

21. This assumes the information the blackmailer will impart is true. Intentionally false accusations are morally wrong - blackmail or otherwise.

22. ... unless a closed society unanimously and voluntarily agreed to be

paternalistic.



Date post:	20-Jan-2017
Category:	Documents
Upload:	malcolm-murray
View:	213 times
Download:	0 times

How to Blackmail a Contractarian

Documents