Blackmail - the wrongful conditional threat to do what would be permissible - presents one of the great puzzles of the criminal law, and perhaps all of law, for it forces us to explain how it can be impermissible to threaten what it would be permissible to do. This essay, a contribution to forthcoming collection of papers on the philosophy of the criminal law, seeks to resolve the puzzle by building on, and refining, an account of blackmail that I first proposed over a decade ago, what I termed the "evidentiary theory of blackmail." In doing so, it also critically reviews other attempts to solve the blackmail puzzle proposed by legal theorists, moral philosophers, and economists, and draws possible lessons for other puzzles in the criminal law and beyond. Among the essay's most important and original contributions is the distinction between legal blackmail - the unlawful conditional threat to do that which is lawful - and moral blackmail - the morally wrongful conditional threat to do that which is morally permissible. I argue that many existing theories of blackmail are deficient precisely for failing to attend to this critical distinction.
The Oxford Handbook of Philosophy of Criminal Law
Berman, Mitchell N., "Blackmail" (2011). All Faculty Scholarship. 2343.