Eugene Volokh responded to my comments about blackmail in e-mail.

He writes:

1) Contracts promising not to say things or not to do things are quite enforceable. Nondisclosure agreements are an example; so are promises not to develop property;

Okay, so I suspect that my attempted distinction is untenable. Many valid and unobjectionable contracts do seem to be merely “refraining” in nature. A non-disclosure agreement is, after all, quite similar to a blackmail agreement in terms of the form of the exchange. The major difference seems to boil down to the nature of the information.

Additionally, as Paul pointed out to me, many attempts at blackmail are not simply of a “refraining” nature. A blackmailer who offers to exchange photographic negatives of man with his mistress for money is actually providing some concrete object in exchange for the money.

Ah well, so much for that idea!

Eugene continues:

2) In any case, even if blackmail contracts were unenforceable for want of consideration, that would hardly solve the puzzle, no? Blackmailers don’t go to court to sue for breach of the blackmail contract; having the contract be unenforceable thus wouldn’t do much to stop them. The question is why blackmailers can be sent to prison.

Well, I’m not sure that blackmail ought to be illegal. But my doubts are not simply libertarian in nature. I have ethical doubts as well. Do people who do immoral things deserve such legal protection? Does a married man who gets photographed with a hooker deserve to have the law helping him conceal that deed at no cost to himself, thanks to blackmail laws? Or should he have to pay the piper if he wants to keep that information secret?

This issue relates to a deeper problem in ethics that I only consciously identified a few months ago. People are often dissatisfied with the choices that life presents to them. Sometimes, philosophy can see past the obvious alternatives to a better third or fourth or fifth way. But sometimes our options are limited — and they just stink. Sometimes we have gotten ourselves into messes that we cannot get out of neatly or easily or cleanly. However, many people don’t like to hear that, particularly when those messes are self-created. They want the philosopher to come up with the impossible all-around-good solution. And they get mad at the poor philosopher when that all-around-good solution isn’t forthcoming.

I figured this out explicitly thanks to a passage from Dr. Laura’s book How Could You Do That?!. Writing about the most common type of question she gets asked on her show, she writes that it is something along the lines of:

“Now that I’ve done all these things I shouldn’t have done, how can I avoid the consequences I knew, but denied, and just hoped would not happen?”

The purpose of ethics is decidedly not to help people avoid the predictable consequences of their wrongs. And the law shouldn’t be helping in that dubious endeavor either. But such protection is precisely what blackmail laws offer. As a result, they diminish one of the most effective incentives to behave morally, namely the fear that revelation of the bad deed will damage trust in important relationships and diminish reputation within a community. On this analysis, it makes no difference whether the person revealing the sensitive information wants money or not. The law should not be protecting people from their own immoralities.

Given that consideration, perhaps the best option would be to vigorously uphold blackmail agreements in closed court proceedings. Thus the very serious problem of the blackmailer breaking the initial agreement by returning for more and more money could be addressed though the courts rather than through violence. And the privacy of those blackmail agreements would be maintained. But the law would not be actively fostering immorality.

Of course, there might be other compelling reasons to outlaw blackmail that I have ignored here. But I’d need a darn good argument to convince me that blackmail laws are legitimate. Paul did find me two worthwhile book sections on blackmail for me to read, one from Leo Katz’s Ill-Gotten Gains and the other from Walter Block’s Defending the Undefendable. So perhaps I’ll have a more informed opinion in the next few days.