Abstract
Criminal law theory concerns itself with the justification of punishment. Conflicting moral theories of punishment will be held in liberal democracies. The positive law therefore neither will nor should reflect exclusively a single moral theory of punishment. Like the institutions for making law, the institutions for enforcing it will cause punishments imposed to deviate from what pure moral theory might prescribe. These claims are illustrated by the debate over blackmail prohibition. The best rationale for prohibition is not the moral argument that blackmailers culpably cause harm, but the political argument that blackmailers threaten the state’s claimed monopoly on punishing crime.
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Notes
A Westlaw search in the jlr database on 30 September 2008 discovered 48 articles from 1988 on with “blackmail” in the title. A search for titles containing “drug” and “legalization” or “prohibition” found 30 articles during the same period.
Reported cases are very rare. As against the 48 articles found in the Westlaw search, Judge Posner found only eleven reported cases during that same twenty-year period (Posner, 1993 at 1844). (appendix listing reported blackmail cases).
Lindgren (1984) at 672:
To get what he wants, the blackmailer uses leverage that is less his than someone else’s. Selling the right to go to the police involves suppressing the state’s interests. Selling the right to tell a tort victim who committed the tort involves suppressing the tort victim’s interests. And selling the right to inform others of embarrassing (but legal) behavior involves suppressing the interests of those other people.
This is not to endorse the particular version of political liberalism espoused by Rawls. If I am offered a “mere” modus vivendi that secures peace, welfare, and freedom for an indefinite prospect of time, my short answer is: I accept.
I am not ready to concede that the victim-welcome case is nonpunitive. Defendants who plead guilty “welcome” the lesser charge, but we routinely speak of their sentences as punishment.
Hart (1968), at 5, defined “the standard or central case of punishment” to include the requirement that punishment “must be imposed and administered by an authority constituted by a legal system against which the offence is committed.” He immediately provided for “sub-standard or secondary cases” of punishment, the first being “Punishments for breaches of legal rules imposed or administered otherwise than by officials (decentralised sanctions).”.
Brown (1993), at 1972 points out that “[p]ublic enforcement of the criminal law also helps to insure that criminals receive the protection of constitutional limitations on law enforcement.” (footnote omitted). Professor Brown seems primarily concerned about blackmail preventing public prosecution, i.e., criminals bribing witnesses to remain silent. That is of course a legitimate concern, but it seems far less significant than blackmails’ opposing tendency to visit some negative consequences on those who violate vice laws.
McLaren (2002) at 21 (“On the one hand the law stated that the truth of the blackmailer’s accusation in no way mitigated the offence. On the other hand the courts did not want to be seen as defending immoralists.”).
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Dripps, D.A. The Priority of Politics and Procedure over Perfectionism in Penal Law, or, Blackmail in Perspective. Criminal Law, Philosophy 3, 247–260 (2009). https://doi.org/10.1007/s11572-009-9072-y
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DOI: https://doi.org/10.1007/s11572-009-9072-y