Libertarians and Blackmail

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Joe Carter and Josh Claybourn are discussing whether a political libertarian should seek to remove laws against blackmail. The arguments are fairly straightforward, but I think both are fallacious.

First is what you might call the combinatorial argument. If it's not illegal to release the information the blackmailer threatens to release, and it's not illegal to agree to do something for someone in exchange for a favor, then why should it be illegal for them to do it at the same time? In general, if A and B are both legal, why would it be illegal for A and B to occur together?

Second is the argument that it's a victimless crime, at least in the most strict sense of victimhood. People might be harmed by blackmail, and the harm is indeed sometimes worth making illegal, but blackmail in principle need not violate anyone's rights. Are my rights violated if someone tells an embarassing story about me? Are my rights violated if someone reveals some embarassing information about me? So I'm not a victim in that sense, and that's the sense that's required for making something illegal.

Chris Lutz, one of Joe's commenters, pointed out one problem with the more general combinatorial argument. There are plenty of counterexamples to the claim that if A and B are legal A and B together should be legal. Chris mentioned drunk driving, but it's extremely easy to come up with some where A and B are not independent actions by one person but involve more complex relations between people, which is what happens with the blackmail case. It's perfectly legal for me to sign a contract with someone that says they'll provide some service. It's also legal for them not to provide that service. It's not legal for them not to provide that service if I've signed a contract with them.

Another example would be consent and sex. It's perfectly legal for someone to deny consent to have sex. It's also perfectly legal for someone to have sex with that person. What shouldn't be legal is forced sex, i.e. sex with that person given that there's no consent. The blackmail case is just like this. The combination of the two factors is exactly what's wrong. It's not that either action is intrinsically wrong, but an action that's no intrinsically wrong can easily be wrong in the presence of certain factors that are not themselves intrinsically wrong.

Josh's response to the second argument seems right to me, but I'm not sure he goes far enough. He says that such crimes aren't really victimless, because these situations do violate rights. If I blackmail someone to get them to do something they wouldn't otherwise do, it's coercion. It's forced labor, something libertarians should be against. It's true that the force isn't physical force, but does that make a difference?

I don't think either of those responses goes far enough, though. The most obvious thing to me about this issue is what's long seemed to me to be the biggest problem in libertarianism to begin with. The idea is supposed to be that people should be free to do what they want to do as long as it doesn't harm anyone, but I can't figure out what that's supposed to mean. What does it mean to be free? It's not some metaphysical kind of freedom, because you're not free if you're held at gunpoint, and technically speaking you are metaphysically free at gunpoint. You do have the ability not to do what you're being told to do. You're just taking an incredibly huge risk of being killed. The same is true of blackmail, except that the risk may not be as physically harmful. In both cases, you have metaphysical freedom.

What you don't have is freedom from factors that might influence you. Of course, we never have that. All sorts of things influence us. I'm influenced to do certain things because people in my life expect things of me, sometimes justifiably so and sometimes not. If we can distinguish between legitimate and illegitimate expectations that may influence what we do, maybe that will help with figuring out what we should restrict legally. It doesn't take much further thinking to realize that even this won't do. There shouldn't be anything illegal about someone's having unfair expactations of me. Maybe it's immoral, but it shouldn't be illegal on any political theory, never mind on a libertarian one.

So what kinds of factors are supposed to be the bad kinds, the ones that we'll call coercive of some sort of use of force (whether physical or not) and which ones are just influences that are bad or good but shouldn't be restricted? That's what I'm not sure about. Socialists argue that we should restrict economic factors that we could help reduce by having a more equal society. I don't go that far, but in principle those factors seem to me to reduce freedom in exactly the way libertarians think we should be free. If my circumstances are such that I can't advance in terms of income, prestige, and opportunities for worldly success, then am I free to do what libertarians place the highest value on? The very height of libertarian success seems by its very nature to limit those who have started off at a lower point and haven't been as able to get the same opportunities as others. True libertarians think it violates the freedom of those who have opportunities to restrict them to provide those opportunities for others. Yet doing so is automatically restricting those others.

This is a real conflict in libertarian political thought, because it seems that anyone's freedom will almost certainly end up restricting someone else's. So when you try to figure out which freedoms you're going to restrict, you have to decide it based on some factor other than the pure value of freedom, because freedom is what's creating the conflict. We need a choice between freedoms, in particular between the freedom of one person and the freedom of another. Libertarians argue against slavery on the grounds that it's an uncontroversial case of one person's freedom restricting another's, but isn't the same sort of thing going on in all kinds of other social relationships?

Absolute ownership of a person is contrary to the central libertarian ideal, but so is a lesser degree of ownership over a person, e.g. ownership of whatever a person might produce but not of a person's body. Using influence over someone's freedom as a social superior to coerce sex out of a threat of job loss restricts someone's freedom, but so do the tricks many wives play with their husbands to coerce good behavior with sex as a reward. I think the latter is immoral, but should it be illegal in the way coerced sex under threat of being fired should be illegal? What's the basis if it's just freedom and lack of freedom that makes the difference? There isn't an easy answer to this kind of question, and I think that's the reason why it's harder for libertarians to deal with questions involving lesser degrees of coercion. Freedom admits of degrees, and one person's freedom can easily conflict with another's. It's hard to make an absolute of something that can admit of degrees, and when you add in the factor that almost any increase in someone's freedom will lead to decreasing someone else's, and it's the decreasing of someone else's freedom that libertarians are so opposed to. So the thing libertarians value most frequently decreases what libertarians value most.

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15 Comments

...whether a political libertarian should seek to remove laws against blackmail.

Christians discussing politics reminds me of that great line from "Crocodile Dundee" that refers to two fleas arguing over which of them owns the dog. It has been a long time since I read "Screwtape Letters" but to the extent that he had a hand in it, I think Wormwood would be praised for setting a great plot in motion.

The notion that morality and legality must somehow be congruent is a pitfall which has trapped many a jurist, lawyer and innocent Christian. It is an irresistable ploy. When he discovers some widespread evil, the eager Christian warrior, having failed to overcome it by any other means (like salvation), rushes to the legislature to mandate more virtue. Failing that, he runs off to find a political party that will assist in that goal, fortetting that the way to salvation will always remain a choice, not fait accompli.

This issue is not over whether Christians should use political means to serve the gospel or to cause people to behave in Christian ways when they're not Christians. This issue is entirely different. It's over what laws would be morally right for whoever is in a position to make laws to make. There are certainly moral truths about what laws are right or wrong to institute.

It particular, this discussion is over what one political view, most of whose proponents are not Christians, would say about one particular moral issue (i.e. whether it would be morally right to prohibit that action).

With so-called "victimless" crimes, I think the problem is largely in our perception of what is the 'wrong' being done.

If an action is detrimental in effect so that it becomes the vehicle of injustice, then the long-run effect is that it is not truly victimless.

Is immediate damage the only criteria for wrong and victimization? Or can we say that graft and blackmail and other crimes are actually creating such imbalance of justice so that we have a moral problem that must be rectified with legislation?

I think sometimes "yes" is the answer to that question and blackmail qualifies.

It's important to remember that we're not always responsible for the effects of our actions, though, even effects we can foresee. It's wrong to have the bad effect as your goal or as a means to your goal, but it might not be wrong if it's a side-effect you can't stop, depending on how important the moral justification of the action is. War would always be wrong if all foreseen bad effects could make an action wrong, but some wars are not just not wrong but even morally required. The same is sometimes true on a smaller scale.

I see what you mean. When I think of blackmail, I can't come up with any motivation for it that seems right, excusable ...but maybe I am thinking of it in the restricted sense that is in the criminal lawbooks.

Some laws even out the odds between unequal power, which helps produce justice and balance; I see rationalizations for war in that context: producing a barrier to a greater evil.

Sometimes when I look at the Libertarian view it seems to be naive about human nature- ala Rousseau. As if man will revert to his benign state once all the extraneous restrictions are removed.

But back to the subject of blackmail: there are proper venues for releasing information, if blackmail becomes legitimate practice with no legal restrictions it does not remove the surrounding (though unforeseen) kindling for destructive results. We're prohibited from using scams and con games for the same reason: the way you separate a man from his money is of importance to the order of society. A 'just scale' I think the Bible terms it.

Just to be clear, the issue here isn't about whether blackmail is wrong but whether a wrong like blackmail should be prohibited by law.

LOL! I have to laugh because we are talking about an environment in our society where we outlaw cigarrette smoking!

I myself am grateful..but that is beside the point. We often legislate ( outlaw) certain forms of activities that we deem corrupting of society, that would produce a problem, although itself might not be as clear as something like murder. Which has, itself, degrees in the law.

Blackmail produces an unstable environment due to the degree of its wrong. There are lawful outlets, as in ways to release information. Blackmail is simply a designation of the type of commerce(?) which leads to unjust exploitation.
That is why I compared it to scams in the earlier comment. Usually in a scam someone volitionally parts with their money, but the manner is manipulative and the exploitation results in real harm.

I feel blackmail is on the same level.

That's an interesting argument that goes beyond what any of the rest of us had said.

Cigarrette smoking is outlawed only in certain contexts (particular kinds of public places) where it can harm others or with minors who are not deemed morally developed enough to consent. Libertarians aren't in principle opposed to either of those. We don't ban it outright.

"outlawed only in certain contexts " is the same situation as the release of information. We control information, although usually making sure one has access to it,etc.

In a Libertarian philosophy gov. should be as non-restrictive as possible. At least that is how I understand it. But on the scale of what is more disruptive to the larger society it seems blackmail would hold more power for harm than cigarette smoke does. It just doesn't seem that it would be as widely accepted.

Perhaps it is society's present repugnance which makes it appear that blackmail is victimless. It simply doesn't affect as many people as something like the seat-belt, DUI laws, or cigarette smoke bans- all of which control behavior for an expected benefit to society.

I sort of want to turn around the question and ask: what good comes from decriminalizing blackmail? What benefit may we see in making such actions legally acceptable?

I wish I could verbalize the incongruency of saying that cigarette smoke in the office is somuch worse than office blackmail... That unjust gain is OK, but blowing some smoke into the air is not. It is incongruent in effect of corrupting influence.

I am wondering about how the definitions of undue influence and similar concepts stack up against this question. All these concepts (including outlaw of blackmail) seem to address inequity in the means to influence and fairplay in society.

I sort of want to turn around the question and ask: what good comes from decriminalizing blackmail? What benefit may we see in making such actions legally acceptable?

It's important to remember that allowing any free action is intrinsically valuable to a libertarian. The mere fact that it's allowed, no matter how bad it is, is intrinsically good. Maybe the instrumentally bad effects of an action would make it not worth the intrinsic good, which is why libertarians allow laws at all, but the question you're asking doesn't seem to me to be one the libertarian would accept. You don't need to have a benefit to argue for decriminalizing anything. Libertarians might argue for benefits for the sake of those who aren't libertarians, but a libertarian view assumes something should be legally allowed and thus requires the burden of proof to be on those who want to restrict something.

Also, the libertarian might think some cases of blackmail should be restricted. Right now all cases are illegal, though. All the libertarian would need to show to remove those laws (and perhaps replace them with more specific ones) is to show one case of blackmail that we're better off allowing. It doesn't have to be that every case of blackmail is less bad than the worst cases of other things like cigarrette smoking.

Your explanations point up to me why I don't favor Libertarian thinking, even though I agree with them on some ideas.

So is the question actually the validity of Libertarian philosophy and what a society governed by it would look like?

The question is what libertarians would support. That's all this post was trying to get at. I wasn't evaluating the view one way or the other, just thinking through what they should say about this issue given their general viewpoint. Joe Carter and Josh Claybourn had been discussing whether libertarians had a reason to oppose laws against blackmail, because a libertarian had been arguing that they should oppose such laws, and I was responding to just that question.

just an afterthought- since blackmail legislation is an attempt to balance power toward a more just situation between individuals (the unfair balance being in the openended and unregulated inflationary cost of shame- do you ever pay enough or have assurance that you have "bought" back your information?)...are Libertarians against fair playing field in the pursuit of happiness? I would think not, but the pursuit of happiness is one basis of the Declaration of Independence along with liberty.

Maybe this blackmail question digs deeper into our political premises and ideals than first appears.

Is our primary impetus to simply be free? I don't believe so- and from reading you I know you do not. We usually balance freedom with responsibility in our system.

How does dismissing blackmail affect our responsibility to have a just system?

I wish I understood this better. I don't know enough about Libertarianism,obviously. But in light of what you have here, and the question you are posing... I would have my questions of how well Christian philosophy and Libertarian philosophy mesh.

Sorry to impose upon you- I just have never come across the discussion in these terms before.

You've been very patient, thanks.

That last problem is the same one I've already been mentioning. There's a tension within libertarianism between seeking individual freedom and the fact that people are less free because of other people's freedom. So freedom requires restricting freedom. I think the biggest differences among libertarians depend on how they deal with that issue.

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