Wednesday, September 12, 2012

The Paradox of Blackmail (Part Five)

(Part One, Part Two, Part Three, Part Four)

This is the last part in a series of posts looking at the so-called paradox of blackmail. The paradox arises from the fact that blackmail typically consists in threatening to do what one has a legal right to do in order to receive some kind of advantage. For example, threatening to release sensitive information about someone’s sexual history to others. This makes blackmail distinct from extortion which involves threatening illegal acts in order to receive advantage. It is easy to see why extortion should be criminalised, but it is slightly more difficult to see why blackmail should be.

Throughout this series we’ve been looking at a variety of theories that attempt to resolve the paradox. In essence, each of these theories point to some wrong-making feature of blackmail that makes it legitimate to criminalise it. Each of these theories has been found somewhat lacking. They either fail to show what is wrong with blackmail or fail to explain why we can criminalise a lawful threat coupled with a demand for payment, but yet should not criminalise the lawful threat itself.

The discussion over the previous four posts leads us to the possibility that blackmail ought to be legalised. In this final post, I want to consider this possibility in more detail by looking at Walter Block’s article “The Logic of the Argument on Behalf of Legalizing Blackmail”. As I mentioned in a previous post, Block is probably the foremost defender of the view that blackmail ought to be legalised and his article tries to set out the reasoning behind his defence of that position.

The remainder of the post breaks down into three sections. First, I’ll look at the basic “logic” of the argument in favour legalising blackmail. As we shall see, this argument isn’t actually logical (in the strict sense) but Block is well aware of that fact and tries to overcome it. Second, we’ll consider an initial counterexample to the argument. In dismissing this counterexample, we’ll allow ourselves to better understand Block’s argument. And third, we’ll consider more significant counterexamples and see how Block responds to them.

1. The Logic of the Argument
Block approaches blackmail, like everything else he approaches, from a libertarian perspective. Thus, an initial assumption behind his argument is that people will share the basic libertarian non-aggression axiom. According to this axiom, all actions should be legal (i.e. permitted) provided they do not violate the rights of another. Following this axiom, the government (or state) is only allowed to intervene and legally regulate activities if some rights-violation takes place.

Starting from a libertarian axiom like this is tricky. For many, the ideology of libertarianism has unwelcome connotations, and they might tend to reject the argument as a result. But my own feeling is that even if one is not a libertarian, the axiom to which Block appeals is not particularly controversial. The notion that people should be free to do as they please, as long as they respect the rights of others, is the default position of most liberal political philosophers. The controversy lies in how the axiom gets cashed out in the real world. Block’s blackmail argument is perhaps a good example of how some libertarians do this. If you disagree with that argument, it might be because you disagree with the particular interpretation of the non-aggression axiom involved in that argument, not because you reject the axiom outright.

Anyway, this leads to the question: how does Block move from the axiom to the conclusion that blackmail ought to be legalised? He does with the following kind of argument:

  • (1) Blackmail (typically) consists in two actions: (A) the demand for money for refraining from exercising one’s legal rights; and (B) entering into a contractual promise to refrain from exercising those legal rights. 
  • (2) Action A is permissible: it does not violate anyone’s rights to demand money from them (provided they can refuse the demand, and you don’t threaten something unlawful). 
  • (3) Action B is permissible: it does not violate anyone’s rights to enter into a contractual arrangement to refrain from exercising your legal rights.
  • (4) Therefore, blackmail is permissible.

Of course, this argument just encapsulates the paradox we have been discussing throughout this series. As Block himself notes, the argument effectively breaks down to the following form:

  • (P1) A is okay 
  • (P2) B is okay 
  • (C1) Therefore, A+B is okay.

But this form of argument is invalid. It commits the fallacy of composition. It makes inferences about a whole (A+B) from parts of that whole (A and B separately). Block is aware of this problem, and he tries to respond to it by considering an initial counterexample. We’ll look at this now.

2. The Carbon Monoxide Case
The fallacy of composition becomes readily apparent when we look at this argument:

  • (5) Exposing a person to carbon is harmless (A). 
  • (6) Exposing a person to oxygen is harmless (B). 
  • (7) Therefore, exposing a person to a combination of carbon and oxygen (specifically, carbon monoxide) is harmless (A+B).

The conclusion clearly does not follow. Carbon monoxide is toxic to humans if they are exposed to sufficient quantities of it. We know this. By assuming that what is true for the parts of a whole (Oxygen and Carbon separately) is true of the whole (Oxygen and Carbon combined) we have made a serious, and potentially fatal error. Since Block’s blackmail argument relies on a similarly structured inference it too must be flawed, right?

Possibly, but it is at this point that Block reveals his argumentative strategy. His goal is not to prove that his inference is correct, but rather to shift the burden of proof. As he puts “surely the burden of proof should lie on those urging a very paradoxical legal positions, namely, that two legitimate acts can, when combined, constitute an illegitimate one” (p. 10). He proposes that if he can show that there are disanalogies between the counterexamples and the case of blackmail, and if no one shows exactly why blackmail is wrong, he’ll have a solid defence his position.

So how does this work in this particular case? The argument would be that in combining oxygen and carbon we form a wholly new substance, one that has “emergent” properties that are distinct from those found in each element on its own. In particular, the carbon monoxide molecule has toxic properties not present in the individual substances. But in the case of blackmail, the two acts do not combine in this manner. Each action occurs sequentially and retains its essential character. There is no analogous poisonous interaction. Offering counterexamples in which the essential character of A and B is altered when they are combined will not suffice to defeat the pro-legalisation argument.

3. More Significant Counterexamples
The carbon monoxide case was just to whet the appetite. It is relatively easy to say that the combination of chemical elements is distinct from the combination of human actions. What about counterexamples that involve the latter? Block considers a few. Here’s one to get us started:

Nude Phone-Calling: It is permissible to phone someone while nude (A), and it is permissible to use a public payphone (B), but it is not permissible to use a public payphone while nude.

Leaving aside the surprisingly dated reference to public payphones, this counterexample does seem to work: it involves two seemingly permissible acts which combine to form an impermissible one. One could argue the propriety of public nudity if one wished, but we’ll assume here that it is not kosher. We have bigger fish to fry. We need to ask whether it is a true analogy to the case of blackmail. Unsurprisingly, Block argues that it is not. The problem is that the first action (A) is crucially underspecified. It is indeed okay to phone someone while nude within the privacy of your own home, but once you change the location of the act, its fundamental character is changed too. The problem with nude phone-calling is simply that it involves public nudity, whether one is using the phone or not is irrelevant. Once again, this is quite different from the blackmail case where both actions retain their independent qualities.

How about an alternative example. In the article under discussion, Block analyses several variations on the following scenario:

Double-Booked: John makes an appointment to have lunch with Sarah at 12:00p.m. tomorrow in Cork. John also makes an appointment to have lunch with Emma at 12:00p.m. tomorrow in Dublin. John has made incompatible promises.

Here we have two independently permissible acts — the making of lunch appointments with Sarah (A) and Emma (B) respectively — which combine to form impermissible outcome (one has to break one’s promise with one of the lunch guests). Again, somewhat superficially, this looks to follow the form of Block’s pro-blackmail argument, but with a different (negative) conclusion. Are the two scenarios truly analogous?

Block says “no”. The problem with double-booking oneself for lunch is that, in the ordinary case, the appointments will be made sequentially. Thus, John may initially make the appointment with Sarah and then make one with Emma. But because he already made one appointment, the second one is clearly impermissible. He had already made a commitment, by entering into the second agreement he was breaking that commitment, therefore he was doing something he should not have done. While it is okay to make lunch appointments with different people, it is not okay to this when one knows they will clash. Thus, the sequential nature of the acts renders the second act (B) wrongful in this kind of scenario.

But that is in the “ordinary case”, are there any extraordinary cases where things are different? A suggestion, considered at length by Block, is that of simultaneous lunch invitations. This could be done in two ways. First, by sending letters at the same time to two possible lunch dates, both offering to meet for lunch at the same time but in incompatible locations. Responding to this, Block points to the fact that even if the letters were mailed simultaneously, one could not write the letters simultaneously: one would have to be written after the other. And since the offer made in one would, if accepted, be incompatible with the offer made in the other, writing and mailing the second letter was impermissible.

The second way in which one could have simultaneous lunch invitations is if a hand gesture is understood and perceived by two different individuals to signal a lunch invitation. But the person making the invitation will not or cannot have lunch with both. This is a slightly fanciful example, for surely the person making the gesture would only have intended for one person to perceive and respond to the signal. That it had the unintended consequence of inviting the second person would not be enough to render it impermissible. But supposing they actually did knowingly intend to invite both persons with the hand gesture. The fact that they also knew they would not or could not dine with both, would mean we no longer have two independently permissible acts. Instead, we have a complex act (A+B) in which the person doing the gesturing falsely represented an intention to dine with two different people. This is akin to the poisonous interaction we get in the case of carbon monoxide. It is not like the blackmail case where the two acts retain their independent character.

With this last counterexample dismissed, Block believes he has defended his position. Of course, people could come up with other counterexamples, and they might well address Block’s criticisms, but it’s up to them to do so. This is perhaps the key message of Block’s article: the burden of proof should be on those who wish to criminalise blackmail not on those who wish to decriminalise it. He thinks they haven’t yet met that burden and, arguably, the other posts in this series confirm his analysis.

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