Israel's scandal du jour is the ongoing investigation of President Moshe Katzav on charges of sexual harassment and the parallel intrigue of accusations that the complainant blackmailed the president, demanding payment to hush up the affair. Ethicists are pretty much in agreement that sexual harassment is a serious ethical offense. But it may come as a surprise to readers to know that we are far from consensus regarding the crime of blackmail.
Blackmail is generally defined as demanding payment in return for refraining from some otherwise legitimate action. (If the threatened action is illegal, then the threat is extortion, not blackmail. In the case of the president, it is not illegal for a co-worker to reveal the existence of the alleged intimate relationship, whether or not harassment was involved.) People commonly take for granted that blackmail is a serious ethical offense and, to the best of my knowledge, it is a crime everywhere.
However, some ethicists are at a loss to explain why. One common way of expressing this conundrum is that in blackmail, "two rights make a wrong." Asking someone for money is not a crime, likewise revealing intimate details about a person (existence of a relationship, sexual preference or a misdeed of some kind) is not illegal and in many cases is praiseworthy. Yet, when these are tied together in a quid pro quo (legalese for a deal), all of a sudden it becomes a crime.
In fact, we have not yet done full justice to the puzzle. Even the quid pro quo itself is not illegal if it is initiated by the victim. If I know someone has intimate knowledge about me, and of my own volition I approach them and offer them payment to keep the information under wraps, my action is legal and in fact is legally protected - courts will enforce such a contract. Blackmail is a strange case where two rights, which are also right when put together at the victim's initiative, become a crime when tied together by the payee. Thus, libertarians tend to favor legalization of blackmail.
I once gave this as an essay question on a final exam in ethics. In the course, students learned a number of approaches to ethics (Kantian, utilitarian, etc.); the question asked them to choose one approach and explain why blackmail is unethical. My recollection is that not a single student chose this daunting topic.
There are a number of resolutions of the blackmail paradox. (Even if my students couldn't think them up in a half-hour exam question.) Basically, the assumption is that practically society can't forbid people from spreading gossip about others, but at the same time we really frown on such behavior unless the object is for public benefit. (In Jewish law, gossip is positively forbidden unless essential for obtaining a constructive objective.) When blackmail is illegal, many people can obtain and reveal intimate details about others to the public but most people won't bother. If blackmail is legal, then an incentive is created to dig up dirt about others and then to threaten to reveal it. People are always interested in finding ways to make their threats credible, and we may assume that an entire blackmail industry would spring up.
Some astute ethicists accept this premise and yet still oppose blackmail statutes. Their reasoning is that we want to discourage the kinds of behaviors people are embarrassed to reveal. If there is a thriving blackmail industry, people will be much less likely to engage in marital affairs, criminal acts and so on. My reply is that there are plenty of actions people are individually ashamed of, yet society as a whole does not have an interest in limiting. Often, in the interest of diversity and openness, the law is structured to protect "deviant" behaviors. (This is also one way of understanding the rule in many countries, including Israel, that individuals cannot be compelled to testify against themselves.)
Ironically, then, it is precisely the libertarians who should be favoring the blackmail statutes. Blackmail tends to stifle, above all, unconventional voluntary acts between consenting adults - the very sort of acts that libertarians seek to protect from censure.
If there is a valid public interest in disclosing embarrassing secrets, then we shouldn't let financial interests induce people to keep them under wraps. And if there is no valid interest in disclosure, we shouldn't allow the profit motive to encourage digging up and occasionally revealing people's private affairs. Either way, we're probably better off keeping blackmail a crime.
The writer is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of Technology. He also is a rabbi.