Crim Law and Philos (2009) 3:247–260

DOI 10.1007/s11572-009-9072-y

ORIGINAL PAPER

The Priority of Politics and Procedure

over Perfectionism in Penal Law,
or, Blackmail in Perspective

Donald A. Dripps

Received: 17 November 2008 / Accepted: 18 January 2009 / Published online: 12 February 2009
Ó Springer Science+Business Media B.V. 2009

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 punish-
ment. 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.

Keywords Criminal Law
Punishment
Blackmail
Moral theory of punishment

The debates in what we call criminal-law theory typically dispute the necessary and
sufficient conditions of justified punishment. I think this is a category mistake. Punishment
and penal law are different things. A thoroughly justified (i.e., justified all the way down to
basic principles of epistemology and moral philosophy) account of punishment makes at
most a modest contribution to a fully justified account of criminal law.
I focus this critique of criminal-law theory on what surely counts as one of its most
brilliant examples-the debate over criminal laws prohibiting blackmail. If there is a defect
in this literature, it has nothing to do with the intellectual horsepower of the participants,
who include some of the cleverest people on the planet (to count only the living). Yet this
literature meanders between reductionism and sentimentality, reaching no conclusion
because the partisans are debating things both more and less fundamental than criminal
law.
Both more and less fundamental? Yes, indeed. The debates over blackmail often reduce
to the perpetual conflict between duty-based and consequence-based moral theories, while

D. A. Dripps (&)
University of San Diego Law School, San Diego, USA
e-mail: dripps@sandiego.edu

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neglecting politics altogether. A fully justified theory of punishment across all cases would
have to settle moral philosophy as one among many preliminary tasks. Yet no politics any
criminal-law theorist writing in English would defend is likely to empower the state to
implement a unitary and stable moral theory via, of all things, the penal law.
Even if a single theory of punishment achieved a stable consensus in a pluralistic
political system, implementation of the theory depends on institutions and procedures that
no fully-justified theory of punishment across all cases can accommodate. A perfectly
instrumental system of procedure, such as a deeply-justified substantive penal law sup-
poses, is itself both extra-judicially punitive in some cases and obstructive of just
punishment in others. Yet many, perhaps most, fully-justified theories of punishment,
depending as they do on very deep moral premises, imply some anti-instrumental rights or
principles in criminal procedure. Until we think politically, about the quintessentially
political nature of the criminal justice system, rather than the moral character of the
criminal law, we will be asking the wrong question.
In presenting this critique, I shall exploit, somewhat ironically, given my utilitarian
sympathies, two insights drawn by Rawls, one before, the other after, the famed Theory of
Justice. The older of these is the distinction between the best outcomes in specific cases,
and the design of institutions to reach best results in specific cases (Rawls 1955). The more
recent is the proposition that free societies will be inhabited by individuals committed to
fundamentally different comprehensive religious-political-and-moral viewpoints (Rawls
1993).
Part I reviews the debate in criminal-law theory over blackmail. The debate has not
produced even partial agreement on either the positive causes of blackmail prohibition or
its justifiability as a normative matter. Only one proposition is common to all modern
academic writing on blackmail, and that is the proposition that all accounts other than that
proposed by the instant author have failed to persuade.
Part II moves back to generalities, and argues that criminal-law theory has been
indifferent to, or very imprecise about, the relationship between normative arguments
made by theorists and the criminal law itself. Fully-grounded moral arguments asserting
that conduct X with mental state Y meets (or fails to meet) the necessary and sufficient
conditions of justified punishment do not translate directly into prescriptions for the
positive law. This is not because popular politics is unenlightened (although it often is), but
rather because fully justified accounts of punishment will vary, profoundly and intensely,
in free societies.
Criminal law theorists have elided the state. Yet I doubt that many writers on criminal
justice believe that one’s theory of just punishment deserves priority over one’s political
theory. If, however, one agrees that political pluralism in some form, let alone some
species of what we call liberal democracy, is more valuable than perfection in the penal
code, one also agrees that the best penal code, all things considered, will be imperfect from
the standpoint of purely penal theory.
Part II also points out that criminal-law theorists accept, not just the priority of political
pluralism over principled penal law, but the priority of due process over the purposes of
punishment. That, after all, is why we have law to regulate punishment. A fully-theorized
account of just punishment, however, cannot survive contact with procedure. In a relent-
lessly instrumental procedural system, the innocent will be punished in the course of
investigation. For that reason most theories of punishment imply or adopt some counter-
instrumental procedural rights or principles. A theory of substantive criminal law therefore
does not even cash in its promise to deliver a theory of just punishment. Punishment
imposed by any conceivable system will vary from the theory, and it is by no means clear

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that the least deviation from ideal substance will, given the procedural machinery, come
closest to realizing the results criminal-law theory prescribes for concrete cases.
Part III returns to blackmail. If we think about blackmail politically, rather than morally,
we can see both the most plausible positive explanation for blackmail prohibition, and the
strongest normative defense of that prohibition. Blackmail is illegal because blackmailers
prey on the upper-class. Who wants to blackmail the poor? The history of blackmail in the
late nineteenth and early twentieth centuries makes the point clearly.
The best normative defense of prohibition rests on the adverse consequences of private
law-enforcement. Blackmailers do not observe due process, as we expect of the state
(Brown 1993). Nor do they exercise discretion in favor of the upper class, as we also
expect the state to do. The positive and normative considerations are connected, as they
illuminate both the benefits and the costs of a state monopoly on criminal-law enforcement.
The elite American law reviews have devoted more pages to the prohibition of
blackmail than they have to the prohibition of recreational drugs.1 In the last twenty years
there may very well be fewer reported blackmail prosecutions than articles on the subject.2
Despite dramatic declines in violent crime, the U.S. now has more citizens in prison, on a
per capita basis, than any nation in the world (Human Rights Watch 2007). Does criminal-
law theory have anything to do with criminal law? No philosopher would believe it.

The Debate over Blackmail Prohibition

Although the issue was raised in earlier work, the fountainhead of the modern blackmail
literature is James Lindgren’s (1984) article, Unraveling the Paradox of Blackmail
(Lindgren 1984). Lindgren was troubled by what he called the paradox of blackmail, which
he expounded as follows:
For example, if I threaten to expose a criminal act unless I am paid money, I have
committed blackmail. Or if I threaten to expose a sexual affair unless I am given a
job, once again I have committed blackmail. I have a legal right to expose or threaten
to expose the crime or affair, and I have a legal right to seek a job or money, but if I
combine these rights it is blackmail. If both a person’s ends-seeking a job or money-
and his means-threatening to expose-are otherwise legal, why is it illegal to combine
them? Therein lies what has been called the ‘‘paradox of blackmail.’’
Lindgren (1984, pp. 670–671) (footnotes omitted). Lindgren himself defends blackmail
prohibition by characterizing blackmail as a species of exploitation. The blackmailer
enriches himself by appropriating the interests of those whose interests are set back by
ignorance of the blackmail target’s true colors.3

1
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.
2
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).
3
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.

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There is nothing weird about punishing as a crime the conjunction of conduct elements
that standing alone are not crimes. It is not a crime to ask for money, and it is not a crime to
offer to have sex. Combine the two and you get solicitation of prostitution. It is not illegal
to drive and it is not illegal to become intoxicated, but combine the two and you get DUI. It
is not a crime to ask your legislator to vote against a bill you oppose, and it is not a crime to
give your legislator a gift, but if you offer to give him a gift if he votes against the bill, that
is bribery.
So the formal paradox is neither genuinely paradoxical nor interesting. The question
disputed in the blackmail literature is not whether innocent acts may ever be prohibited
when combined, but why the conjunction of the particular elements of the blackmail
offense amount to an offense under current law, and whether or not current law is justified.
Libertarians, for example, oppose the prohibition of prostitution, but not of driving while
intoxicated, because they view the latter but not the former as causing harm to uncon-
senting victims.
I discern, roughly speaking, four basic camps in the literature. First, there are those,
such as Lindgren, Mitch Berman (1998), and George Fletcher (1993) who defend the
prohibition of blackmail because blackmail is blameworthy, either because it appropriates
third-party interests (Lindgren), proves malicious motivation (Berman), or expresses an
attitude of domination (Fletcher). Second, there is a line of arguments by economic ana-
lysts of the law (the natural defenders of private voluntary exchange!) who for various
reasons believe that blackmail either wastes net resources for the sake of welfare-neutral
transfer payments, and/or leads to concrete third-party harms such as violence or theft by
the blackmail target (Epstein 1983; Coase 1988; Posner 1993). Third, there are those who
conclude that blackmail should be legal, either because the libertarians are right to endorse
the maxim volenti non fit injuria, or because blackmail increases the risk of wrongdoing, or
some combination of these reasons (Block 1998). Finally, miscellaneous scholars have
argued for more discrimination in the legal treatment of blackmail, by distinguishing, for
example, between payments demanded by the blackmailer and payments spontaneously
offered by the target (Christopher 2005).
The literature continues to swell because no author has convinced any other. Just as with
the debates about recreational drugs and gun regulations, the consequentialist arguments
are speculative. At least with drugs and guns, we have bodies to count from overdoses,
HIV transmission, homicides, and other concrete measures of harm. Blackmail is subter-
ranean, so we can only speculate about its consequences. Some of the economic arguments
about blackmail seem quite speculative, but are nonetheless insulated from falsification by
the opacity of the practice.
Moreover, when hardened economists retreat from willingness-to-pay as the measure of
value, we have grounds for skepticism. The economist sees a consumer’s purchase of an
encryption program (or the lease of an apartment or hotel room) for the purpose of keeping
guilty secrets (say, pornography of an off-the-beaten-track variety) as unequivocal welfare
gains. The consumer values the program, or the apartment, more than the seller, as mea-
sured by willingness to pay. Treating payments to humans for silence differently is
anomalous.
The deontological arguments, as they so often do, reduce to conflicting intuitions about
hypothetical cases. Fletcher sees the blackmailer as dominating the target, when the target
is wealthy enough to offer some gains, complicit by payment in the blackmail and by
hypothesis a wrongdoer and a deceiver. Berman’s focus on motives seems inconsistent
with our embrace of the profit motive in other contexts and indeed with the criminal law’s
general indifference to motive altogether (Robin Hood was guilty of robbery, for example).

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Lindgren assumes that the target’s associates would be better off with complete infor-
mation than without it, then assigns this interest in full disclosure to people who cannot
produce the good he assumes they demand, and then adds that this short-changing of the
target’s associates is wicked enough to be punished as a crime. Each link in the chain is
less than ineluctable.
In any event, as those who have called for more discriminating approaches implicitly
recognize, prevailing law coheres with none of the deontological or utilitarian accounts. If
Robin Hood blackmailed the rich to give to the poor he would be guilty under current law;
his purity of motive, and egalitarian spirit, would not afford him a defense. Meanwhile, if
X declines to expose Y’s embezzlement from Z because X is a bigot who hates Z because
of Z’s race, X commits no crime despite malicious motives and complicity in the domi-
nation of a subordinate class.
The wastefulness of search costs provides no justification for prohibiting blackmail
when the information comes to the blackmailer serendipitously (Lindgren 1984, p. 690). It
also logically calls for criminalizing the search for titillating secrets by agents of the
tabloid press, unless we privilege the willingness-to-pay of voyeurs and vicarious thrill-
seekers over the willingness-to-pay of the target. I might add that the economist counts
investments by the paparazzi in telephoto lenses and fast cars as gains to social welfare, as
well as purchases by celebrities of countermeasures against the paparazzi such as yachts,
mansions, and luxury cars with tinted windows.
From a logic-chopping standpoint, the libertarian position is therefore a strong one.
Even if valid, however, that position ought to give a descriptive explanation as to why
blackmail is a crime in the positive law. Is every legislature in the U.S.-and many more
around the world-irrational or stupid? And, as we shall see, the libertarian position is
logically strong only when we characterize normative inquiry about the criminal law in a
particular way.

The Political Critique of Criminal-Law Theory

What does it mean to argue for or against the prohibition of blackmail? The theoretical
debates seem to assume that we all know what our arguments mean, but I do not think that
we do. And I further believe that indifference to, or imprecision about, the meaning of
normative claims about law lies at the root of the academic controversy about blackmail.
Consider some variations on the assertion that there is no justification for punishing
blackmail. This assertion might mean any of the following, which are not identical:
(1) One who engages in blackmail does not deserve to be punished because he has done
nothing wrong (or harmful).
(2) Legislatures should repeal the statutes making blackmail a crime.
(3) In an ideal criminal code there would be no prohibition of blackmail.
Criminal-law theory actually speaks to version (1), and assumes some, or trivializes
any, connection to (2) or (3). But (1) might be true with no implications about the truth of
(2) or (3).
(2) does not follow from (1) because most legislators may disagree with (1) even if (1)
is true. Individual legislators will have varying views about the truth of (1), and they should
act on their own (or their constituent’s) understandings of culpability and harm. To
overcome this problem we would need to amend (1) to begin ‘‘There is no widely-
supported moral theory according to which a blackmailer does anything wrong

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(or harmful).’’ This sort of claim-sympathetic to the impulses behind different moral
theories but agnostic about their respective ultimate merits-is characteristic of effective
politicians and effective lawyers, but very different from the normative theorist’s quest for
the right moral theory to provide the right answer to the case at hand.
Even so amended (2) does not follow from (1) because legislative action has oppor-
tunity costs. Many legislators who agree with (1) will have other priorities than eliminating
an offense for which there are few prosecutions. How many writers on blackmail, if sitting
in a legislative assembly, would refuse to surrender their view on blackmail in exchange
for, say, abolition of capital punishment or providing vaccinations for impoverished
children?
One might think that at least (1) (in the original form of a fully-justified moral con-
clusion) implies (3), but this is not the case. The notion of an ideal criminal code is itself
ambiguous. It might mean the criminal code that has the best content (i.e., the code
precisely defines the offenses and corresponding penalties dictated by a fully-justified
moral account of punishment), but there is a rival understanding of the ideal criminal code
as the code that would be in force in the ideal state.
The two conceptions may differ. If we agree that in an ideal state there would be a
diversity of comprehensive moral, political and religious viewpoints, and that political
decisions would be made through democratic procedures, the ideal criminal code will vary,
perhaps dramatically, from the ideal code conceived in purely moral terms. As a
descriptive matter I think Rawls was right to point out that a liberal society will foster a
diversity of comprehensive views, not all of them liberal.4 The ideal criminal code,
politically conceived, would be defined procedurally, as the output of the political process
characteristic of the ideal state.
Suppose a criminal law theorist happened to hold the decisive vote in a constitutional
assembly on the issue of whether X should be appointed dictator for life. X always keep his
promises, and he promises the theorist that X will faithfully implement the theorist’s moral
vision of criminal justice, provided the theorist elects X dictator. I would reject X’s offer
because a perfect system of criminal justice (even without accounting for the risk that I
might be mistaken) is not as important as avoiding tyranny. I assume that my view on this
question would be widely shared.
The political conception of the ideal code, however, is empty. It says nothing about
what particular legislators within the ideal system ought to believe or to do. Each of them
would need a moral conception, because without one there is no standard for evaluating the
content of the code. The resulting code, ideal from a political perspective, would not
precisely match any legislator’s moral sense of an ideal code. But it would be the code that,
given the priority of political pluralism over penal perfectionism, is ideal all things
considered.
This construct of the ideal criminal code, politically understood, is still a risky guide to
practical law reform, because all real codes will deviate from the ideal code not just on one
topic but on many. We cannot say that eliminating a single deviation from the ideal code in
a real code moves us closer to the ideal code, because defects in real codes may offset each
other. Suppose a society has a definition of rape that is too narrow (rape is sex without
consent plus force, as proved by resistance to the utmost), and an application of capital
punishment that is too broad (all rape is punished by death). When we consider a proposal

4
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.

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to eliminate the resistance requirement in this particular system, we must account for this
same system’s sanguinary penalty structure. The second-best may not be the practically
attainable system that resembles the ideal in the most particulars.
The way moral theory informs the concept of the political understanding of the ideal
criminal code is by sorting the various moral theories of punishment. If Rawls’ descriptive
claim is correct, the plausible theories will all be held by some but none by all. At what
point is a moral account of punishment one that can be discounted, as not figuring in the
sincere convictions of any reasonable person who might be a legislator? The overlapping
consensus needed to construct the ideal code is different from unanimity, and in the debate
about first-order moral theories of punishment we may find all the guidance we are likely to
get about where the line between a minority position, and an idiosyncratic position, should
be drawn.
The priority of political theory over the theory of punishment is not the only reason why
(1) might not imply (2) or (3). (1) Pronounces a moral judgment on a set of assumed facts.
(2) Calls for changing one piece of an actual system which is in reality a complicated
institutional machine. Whether a change in the substantive law is justified may depend on
considerations related to the institutional machinery rather than the moral judgment. (3)
hypothesizes an ideal code. The hypothesis assumes the institutional context the current
system supplies in (2). The content of the ideal code depends at least in part on what
institutional context is assumed.
Here again we might recall a point made by Rawls (1955). In a famous essay Rawls
purported, inter alia, to rehabilitate the utilitarian theory of punishment, by freeing it from
the logical entailment of intuitively obnoxious conclusions on particular cases, e.g., pun-
ishing the innocent to prevent civil strife. There is, Rawls claimed, a difference between
the claim that a practice is justified and the claim that all actions pursuant to that practice
are justified without respect to the practice.
A system of punishment might be justified by reasons different from those that justify
punishment in particular cases. So, for example, it might be the case (and, in middle years,
I am inclined to believe this) that a system of punishment can only be justified by con-
sequences, but that the system that fosters the best consequences is one organized along
retributive lines. Other thoughtful people might arrange their conclusions differently. The
point I make here is that the substantive criminal code cannot be isolated from the criminal
justice system of which it is but one component.
A criminal code that prescribed the fully justified set of offenses and penalties would in
fact mete out actual punishment different than the code prescribes (and pro tanto thus be
nonideal in operation). Factual errors made in good faith are inevitable, and they cannot
even be minimized without distorting the content of the substantive criminal law. Uni-
versal electronic surveillance and the use of torture in interrogation might reduce the
frequency of good-faith factual error, but the price is too high. Indeed, arrest and pretrial
detention (let alone torture) are functionally equivalent to punishment itself.
To approximate results prescribed by an ideal substantive code, defects in procedure
might be reflected in the code itself. The principle requiring proof beyond reasonable doubt
might mean that strict liability offenses, or the equation of deliberate ignorance with actual
knowledge, would bring punishments actually imposed closer to those prescribed by ideal
theory.
Moreover, whatever institutions and procedures we adopt to implement the substantive
criminal law, those institutions and procedures will themselves be vulnerable to subversion
by the guilty and to abuse by the oppressive. The substantive criminal law will need to
punish such things as lynching and perjury not for first-order reasons of fault and harm, but

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for a derivative concern to protect the legal process itself. The state itself may have
convicted a murderer and sentenced him to death, but that is no defense for the mob that
abducts the murderer and hangs him extra-judicially.
The ideal practice of punishment in any given society necessarily includes the infliction
of much punishment that is not justified in fact in the instant case, and the forbearance from
punishment in many cases in which punishment should be inflicted according to a purely
moral understanding of an ideal code. So a substantive penal code, ideal from a moral point
of view, will misdescribe the ideal in two way. First, it will incorrectly elide the priority of
political legitimacy, and the inevitable distortions of pure theory that accounting for
political legitimacy implies. Second, it will assume that the facts of case are transparent,
when, in reality, inaccurate (and often brutal or intrusive) fact-finding procedures will
distort the actual punishments imposed by any purely substantive code.
The weak point in normative theorizing about criminal law has been the tendency to
focus on whether the actor ought to be punished given the actor’s conduct and accom-
panying mental state. That question is inevitably a moral one, but it is only one of the
questions to be addressed by commentary on criminal law. To say in the passive voice that
D ought to be punished ducks the question of who ought to do this punishing and by what
process. These latter questions are political, and it is their neglect that explains the failure
of the great debate over blackmail.

Blackmail Revisited

At the outset I shall focus on blackmail’s ‘‘central case,’’ the demand for money backed by
the threat of exposing secret criminal behavior. I shall then turn to the somewhat different
case of a demand backed by threat to expose socially scandalous, but legally permissible,
secret conduct.
From a political perspective the argument for prohibiting blackmail is straightforward.
Central-case blackmail is tantamount to private law-enforcement. This threatens the state’s
claimed monopoly on enforcing the criminal law. That monopoly serves a variety of
functions. One is due process; the state acts subject to limitations on the methods of
investigation, and to requirements of adjudicative fairness.
A second function of the state’s monopoly is selective non-enforcement. Modern
criminal codes cover a great deal of private conduct, such as recreational drug use and
prostitution, that pose slight risks of external harm. Modern codes also prohibit much
harmful but very common conduct such as tax evasion and domestic battery. The system
lacks both the political will and the material resources to enforce fully the criminal code.
Legislatures leave it to police and prosecutors to discriminate the street-walker from the
call girl, the open-air drug vendor from the suburban dealer, the ordinary tax cheat from Al
Capone.
Legal blackmail threatens the monopoly and both its functions. Indeed, blackmailers
often have posed as police officers, demanding ‘‘bribes’’ in exchange for covering up the
target’s misdeeds (McLaren 2002, p. 20 & 239). Blackmailers do not observe due process,
and they threaten to impose a serious sanction on those otherwise protected by selective
non-enforcement.
The most powerful analogy between blackmail and uncontroversial offenses is not to
theft or even extortion, but to offenses against the administration of justice, such as
lynching, perjury, bribery, and obstruction of justice. Bribery and perjury offer excellent
examples. Suppose V reports to police that D, the scion of a family of great wealth, raped V,

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and that this charge is factually true. At trial V recants her charge and testifies that she
fabricated it to extort money from D. Bank records and admissions by D prove that D paid V
a huge sum to change her testimony. V’s consent to her own conduct does not provide a
defense, in law or morals, because the administration of justice is an interest that does not
belong to V.
Let us take another example. Suppose D is truthfully accused of robbery. He claims
mistaken identity. To bolster his claim he testifies in his defense, and claims, falsely, to
have been at the movies at the time of the crime, offering into evidence a ticket stub and an
accurate summary of the movie he claims he saw. It is not a crime to lie about past crimes.
It is not a crime to take the stand at your criminal trial. It is, however, a crime to put these
two legal acts together.
In his helpful and acute comments (Christopher 2008), Russell Christopher challenges
the characterization of blackmail as private law-enforcement. In his view, my account is
both under-inclusive (because the blackmail offense does not cover morally similar con-
duct, such as unconditional disclosure), and over-inclusive (because the blackmail offense
does cover transactions not plausibly viewed as punitive). From a moral point of view his
argument is perfectly plausible; but it is less plausible from a political perspective.
To begin with, the delegation to prosecutorial officials of broad discretion via overbroad
legislation is standard operating procedure in the modern criminal justice system. Legis-
lators wish to avoid controversial normative judgments and routinely leave those to police,
prosecutors and courts. If legislatures have passed overbroad blackmail statutes, we
shouldn’t be surprised. The rest of the criminal code is at least as overbroad (Stuntz 2001).
So, for example, in the victim-welcome case,5 no complaint would be brought to the
authorities. If legislation creates the possibility that prosecutors must be trusted to nullify
liability if a philosopher’s improbable hypothetical actually occurs, legislators can live
with that prospect quite easily. They do it all the time.
The claimed under-inclusiveness of the private punishment account relies on such
hypothetical cases as unconditional disclosure, victim-initiated payments for secrecy, or
nonmonetary blackmail, which, Christopher says, resemble private law-enforcement as
much as what the blackmail offense does cover. In some of these cases other statutes,
ranging from extortion to sexual assault or racketeering, might cover the hypothesized
conduct, but let us leave that aside. The failure of the blackmail offense to cover these
cases is a splendid illustration of the difference between political and moral thinking about
criminal justice.
The unique feature of monetary blackmail is the incentive to commit it. The collection
of blackmail-worthy information is costly. Only countervailing financial incentives could
create a blackmail industry that might threaten the systematic enforcement of criminal laws
and/or social norms currently going unenforced by the public system. The philosophers’
puzzle cases-serendipitous discovery, victim-initiated payment, nonmonetary blackmail
and so on-arise from unlikely supposed facts or very peculiar motivations. Legislatures
have not criminalized them because legislatures correctly apprehend that these practices
pose little practical threat to either the wealthy who violate laws and social norms, or to the
discretionary power of the criminal justice system.
The public system of course welcomes and encourages unconditional disclosure by
informants. This type of disclosure simply informs the exercise of official discretion; actual
harm to offenders still depends on how that discretion is exercised. Unconditional

5
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.

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disclosure that sets back the victim’s interests through social disgrace and its economic
consequences is punitive. It is analogous to public prosecution without any plea offer. If it
were common it would be made illegal to the extent constitutional free-expression rights
permit.
Unconditional disclosure is common enough in the tabloid press, because third-parties
will pay for disclosures about celebrities. Free expression rights limit the government’s
range of responses. Most people are not celebrities and so unthreatened by the tabloid
press. Governments, moreover, limit unconditional disclosure by denying private firms the
same powers of investigation enjoyed by the public police. The tabloid press has no legal
power to search, arrest, interrogate, or engage in electronic surveillance. Defamation law
gives those injured by disclosure a form of due process, something not available to the
blackmail victim.
If we build a requirement of public authority into the definition of punishment, private
punishment is excluded terminologically.6 That would mean that the victims of lynching
are not punished. We would need some other word for the practice of private actors who
injure those who break public laws or social norms. Nothing normative or empirical turns
on terminology. The empirical point is that the state claims a monopoly on law-enforce-
ment and legalized blackmail would threaten this monopoly. One particular blackmail
tactic-posing as police and demanding a payoff-makes the point quite clearly. The nor-
mative question is whether the state’s claimed monopoly can be justified, a point to which
we will return.
A more serious difference between blackmail and prosecution might be found in the
blackmailer’s motive. The blackmail is indifferent to the violated law or norm; indeed he
depends for his income on violations. This objection, however, is unimpressive when we
look to the operation of the criminal justice system. Vice cops have the same motivations
as blackmailers; enforcement is a job, and the job is available only because of violations.
Suppose that the police in a community ignore drug dealing and prostitution so long as
the offenders pay protection money to the police. Now suppose a drug dealer or pimp fails
to pay, and is duly arrested, prosecuted, and sent to prison. Is he not punished? Yet the
police have no moral commitment to the law they enforce and indeed are enforcing it in the
instant case to make money by not enforcing it in other cases. They look a lot like
blackmailers, but we don’t have trouble recognizing the convicted dealer’s prison term as
punishment.
Nor can we distinguish blackmail from punishment on the ground that blackmail vic-
tims prefer payment over disclosure. The very great majority of persons serving time in
U.S. prisons pleaded guilty. They preferred a shorter to a longer term, just as the blackmail
victim elects payment as the lesser of two evils. The parallels between plea bargaining and
blackmail are striking.
What about the normative issue? Defending blackmail as a justified supplement to
public law enforcement is not implausible, but I reject this line of justification because
political pluralism and due process deserve priority over penal-law perfectionism. The due
process point can be made more briefly than the pluralism point, so let us begin there. The
blackmailer—and we need to remember that legalized blackmail means not just the solo

6
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).’’.

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shake-down artist but ‘‘Blackmail, Inc.’’—is not interested in the truth of the charge, only
in its plausibility. Moreover, Blackmail, Inc., is not regulated by the Fourth, Fifth, and
Sixth amendments, and the entrapment defense, that regulate police searches, seizures, and
interrogations.7
Well into the nineteenth century in the U.S., and into the twentieth in the U.K., private
prosecution was the norm and public prosecution the exception (Ramsey 2002; Stephen
1883; Steinberg 1989). Private prosecution proved suboptimal (Landau 1999). ‘‘Among the
principal complaints voiced by those who were unhappy (with private prosecutions in
England) were that criminal charges were brought for purposes of harassment, that it both
very costly and time-consuming to institute and conduct prosecutions, and that the system
tended to courage bribery, collusion, and illegal compromises’’ (Sidman 1976, pp. 759–
760).
At least private prosecution required the prosecutor to prove the charge in court. The
blackmailer need not do this, and is free to frame the target and then demand payment.
Absent perjury, false accusations are not criminal. Legal blackmail, against the current
legal background, therefore threatens to bring back the failed institution of private pros-
ecution in a degraded form.
The case for returning to some form of private prosecution rests on the quite plausible
proposition that public prosecutors and police officers have too much discretionary power.
Legislatures retain statutory prohibitions on recreational drug use and prostitution because
legislatures can rely on discretionary enforcement to shield upper-class violators. Official
discretion insulates legal moralism from the political friction that would result from full
enforcement. The prohibition of both controlled substances and prostitution could be much
more fully enforced by use of drug testing and expanded sting operations targeting pur-
chasers rather than suppliers. Police administrators and prosecutors, with the knowledge,
acquiescence, and frequent support of legislators devoted to ‘‘supply-side strategies’’ and
‘‘personal privacy,’’ decline such measures.
Legal blackmail would nicely fill this void. Where public discretion directs institutional
violence down the socioeconomic ladder, the blackmailer shoots uphill. Angus McClaren’s
fascinating historical study, Sexual Blackmail, makes this point emphatically (McLaren
2002). The blackmailer’s targets have been high-status violators of conventional moral-
ity—homosexuals, adulterers, and women procuring abortions.
As McClaren points out, judges in blackmail prosecutions faced a difficult challenge.
They wanted to suppress blackmail without vindicating the victim’s underlying deviance.8
To some extent they failed. The Wolfenden Report emphasized the evil of blackmail as a
reason for repealing the prohibition of homosexual conduct, and the report was the basis
for the repeal of the English sodomy laws (McLaren 2002, pp. 233–238).
Note, however, how proposing legal blackmail as a cure for official discretion’s dis-
interest in high-status violators of problematic criminal laws runs into the political
legitimacy criterion. Legislatures know about prosecutorial discretion and they like it; they
like it fine. Rather than make difficult choices about harm, blame, and liberty themselves,

7
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.
8
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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legislatures find it politically convenient (i.e., politically popular) to delegate such deci-
sions to the executive branch.
Indeed, elected politicians may be an interest group unto themselves when it comes to
blackmail. Mark Foley, Larry Craig, and Eliot Spitzer have countless counterparts as yet
unexposed. Rational legislators with guilty secrets have every incentive to maintain the
prohibition of blackmail.
My point here is more than the claim that agitating for the abolition of blackmail
prohibition is futile. My point is also a moral one. If the criminal law should be made
through democratic processes, the criminal also should have such flaws as inhere in
democratic processes. The classes that do well in democratic politics will have some
advantages in any criminal-justice system adopted through such politics. If we think of the
ideal criminal code as the code that would exist in an ideal state, and if we insist that the
ideal state be a liberal democracy of the modern type, it follows, inexorably if unpleas-
antly, that the ideal code will include many unwise provisions, and omit many wise ones.
Does this mean that anything an elected legislature churns out must be accepted as
justified by the rejection of dictatorship? No; but it does mean that critique of existing rules
must accommodate the priority of political pluralism. Advocates of reform need to make
arguments that appeal to a variety of comprehensive views about punishment, and that
have some chance of democratic success. In the alternative, reformers need to point to
some defect in the democratic process that might provide a moral predicate for judicial
review. The long struggle to abolish the sodomy laws illustrates the former approach.
Lawrence v. Texas, the capstone of that struggle, illustrates the latter.
Something needs to be done about prosecutorial power. We can be quite sure, however,
that legalized blackmail specifically supported by the proposition that this reform would
expose the upper class to some fraction of the pain prescribed by the existing criminal code
is not going to come about through democratic processes. Law students who absorb the
supporting proposition today will abandon it a generation later when they sit in seats of
power. If we retain our commitments, first to political pluralism, and second to rational law
reform, we must search for different reasons, attractive to different comprehensive views.
The apparently independent case of blackmail based on socially disgraceful but not
illegal conduct now merges with blackmail’s central case. In the central case the black-
mailer usurps the public monopoly on law enforcement. In the case of noncriminal
misconduct, the blackmailer assumes the yet more public function of legislation, and then
applies this privately-constructed penalty scheme without adjudicatory due process.
Consider the example of D, who without violating other laws, obtains a video tape
depicting V engaged in homosexual acts within the ambit of the constitutional immunity
conferred by Lawrence. D demands payment from V, backed by the threat of exposing V’s
conduct. Let us assume, further, that disclosure would be more injurious to V, for eco-
nomic or social reasons, than payment of the sum demanded by D.
D is punishing V for legal conduct. There are legitimate political channels for bringing
back the sodomy laws, but D is not pursuing those. In the central case, where V’s secret
conduct is criminal, D only sets himself up as a private system of law enforcement. Here, D
does that much, and more besides. As private enforcer D has the same liabilities as in the
central case. For example, D might fabricate the video tape for the sake of profits. D goes
further and enforces social norms with the functional equivalent of a fine.
Here the legal immunity for the underlying conduct is de jure, across all social classes,
rather than the de facto immunity conferred by discretionary enforcement. The violation of
the political legitimacy criterion is flagrant; a single private individual, acting for profit, is

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Crim Law and Philos (2009) 3:247–260 259

punishing conduct that legislatures have not (and, after Lawrence, could not) make
criminal.
It might be said that the blackmailer is only enforcing the social norms that threaten V
with material consequences. The social norms regulating sexual conduct, however, coexist
with social norms protecting individual privacy. Like the state, that by delegation uses
secondary rules of discretionary enforcement to modify quite radically the primary rules in
the criminal code, society relies on privacy to blunt conflicts between common conduct and
common morality. By actually enforcing the social norm, the blackmailer usurps legisla-
tive as well as administrative authority.

Conclusion

Arguments about criminal law turn out to be much more complicated than is generally
assumed. Criminal-law theorists make abstract cases for and against particular rules, as
though, like Bentham, they were addressing their proposals to a Czarina who had power to
enact if only persuaded. Nobody, however, wants to live under the despotic power of a
Czarina. It follows that our arguments about criminal law ought to be less deeply and more
widely justified, and they should recognize the profound problems posed by the priority of
political pluralism, and of due process, over penal-law perfectionism.
Sometimes, however, due recognition of political and procedural contexts can simplify
rather than complicate normative analysis. The prohibition of blackmail is problematic
when we assume that the criminal law should reflect a fully-justified moral theory. It
becomes much less problematic when we recall that the blackmailer makes his money by
altering a delicate balance between substance and procedure that has been set by elected
legislatures acting under constitutional constraints.

References

Human Rights Watch. (2007). US: Record number for world’s leading jailer. Retrieved December 5, 2007,
from http://hrw.org/english/docs/2007/12/05/usdom17491.htm.
Berman, M. (1998). The evidentiary theory of blackmail: Taking motives seriously. 65. The University of
Chicago Law Review. University of Chicago. Law School, 65, 795–878. doi:10.2307/1600300.
Block, W. (1998). The crime of blackmail: A libertarian critique. Criminal Justice Ethics, 18, 3–10.
Brown, J. (1993). Blackmail as private justice. Pennsylvania Law Review, 141, 1935–1974.
Christopher, K. (2005). Toward a resolution of blackmail’s second paradox. Arizona State Law Journal, 37,
1127–1151.
Christopher, R. (2008, May). A political theory of blackmail: A reply to professor Dripps (paper delivered at
The Evolution of Criminal Law Theory Conference, Rutgers Institute for Law and Philosophy, New
Jersey).
Coase, R. (1988). Blackmail. Virginia Law Review, 74, 655–675. doi:10.2307/1073121.
Epstein, R. (1983). Blackmail, Inc. The University of Chicago Law Review. University of Chicago. Law
School, 50, 553–563. doi:10.2307/1599502.
Fletcher, G. (1993). Blackmail: The paradigmatic crime. Pennsylvania Law Review, 141, 1617–1638.
Hart, H. (1968). Punishment and responsibility. New York: Oxford Press.
Landau, N. (1999). Indictment for fun and profit: A prosecutor’s reward at eighteenth century quarter
sessions. Law and History Review, 17, 507. doi:10.2307/744380.
Lindgren, J. (1984). Unraveling the paradox of blackmail. Columbia Law Review, 84, 670–717. doi:
10.2307/1122502.
McLaren, A. (2002). Sexual blackmail: A modern history. Cambridge, MA: Harvard Press.
Posner, R. (1993). Blackmail, privacy, and freedom of contract. Pennsylvania Law Review, 141, 1817–1844.

123
260 Crim Law and Philos (2009) 3:247–260

Ramsey, C. (2002). The discretionary power of ‘‘public’’ prosecutors in historical perspective. The American
Criminal Law Review, 39, 1309–1393.
Rawls, J. (1955). Two concepts of rules. The Philosophical Review, 64, 3–32. doi:10.2307/2182230.
Rawls, J. (1993). Political liberalism. New York: Columbia Press.
Sidman, A. (1976). The outmoded concept of private prosecution. The American University Law Review, 25,
754–794.
Steinberg, A. (1989). The transformation of criminal justice. Chapel Hill: University of North Carolina
Press.
Stephen, J. (1883). A history of the criminal law of England. London: MacMillan.
Stuntz, W. (2001). The pathological politics of criminal law. Michigan Law Review, 100, 505–600. doi:
10.2307/1290411.

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