In this paper I will expand on an aspect of Gerald Dworkin’s critique of Joel Feinberg’s argument against legal moralism. Through Dworkin’s counterexample of informational blackmail, I maintain that Feinberg’s notion of “free-floating evils” is wrong and oversimplifies the complexity of the relationship of the law and morality.
Before I proceed, some relevant background knowledge is necessary. In his argument, “Devlin Was Right: Law and the Enforcement of Morality,” Dworkin sums up Feinberg’s argument in “The Nature and Value of Rights” as:
“Given the importance of personal liberty, if we are unable to justify a restriction of liberty by pointing to someone who can complain, we cannot restrict liberty.”
For Feinberg, these instances that lack
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Yet, together these rights constitute an act that seems somehow wrong. In Feinberg’s sense of the word, there is nobody to “complain” in the instance of blackmail. By transferring money to the blackmailer, the blackmailee (for lack of a neutral term for “victim”) consents to an agreement, even if it wrongs them. Following Feinberg’s line of thinking, this is not a harmful wrongdoing and does not justify a restriction of liberty. To stay consistent with his argument, Feinberg is forced to either abandon his notion that individual complaint is a necessary component of legal intervention, or “swallow the poison pill” and maintain that blackmail (and similar cases) should not be criminalized. It is unlikely he succumbs to the former and derails his entire argument, so I will attempt to explain why Feinberg’s formula is incorrect, informational blackmail is rightfully criminalized, and consequently, that legal moralism is sometimes …show more content…
Though consensual, the victim of blackmail often is left powerless whether they choose to comply or not. If the blackmailee does not comply, he or she risks defaming information being leaked that could harm them in a very real way. If the blackmailee does comply, the nature of the agreement positions the victim submissive to the blackmailer’s wishes. In this way, the blackmailee is consenting to enter into an agreement with an unequal, lopsided power dynamic. Feinberg or any Volenti-maxim ride-or-dies might object that it doesn’t matter, as they consented into this arrangement, but the blackmailee might not have much of a choice. Say the person being blackmailed is a teacher with a troubled past. As a teen, the teacher got involved in a gang and got in street fights. He was never caught by the law and therefore has no criminal record. After moving away, and becoming a reformed, upstanding citizen with a respected teaching position, somebody from his past calls him up and threatens to tell his boss of his youthful shenanigans unless he pays him X amount of dollars. The teacher did not tell his boss of his past because it is no longer apart of him and in no way affects his professional life. If the boss finds out the teacher withheld this information, he might think the teacher withheld his past for deceptive reasons. The teacher will lose his job and become branded as