An adequate theoretical justification for the prohibition of blackmail should explain both of its paradoxes. However, a review of contemporary theories of blackmail shows that they are able neither to explain why blackmail is criminalized nor to rationalize the different treatment of blackmail and bribery. This review suggests that the paradoxes of blackmail may not yield to rational analysis. In contrast to deductive analyses premised on rights or economics, this paper offers an account of bribery and blackmail that is premised on their different social meanings. The author suggests that the legal and moral treatment of bribery and blackmail spring from separate, unrelated societal prototypes or narratives that express ideas of community and solidarity, rather than economic rationality or individual rights. Abandoning the search for a unified instrumentalist theory, this account seeks instead to define the social meaning of bribery and blackmail.
Blackmailers, Bribe Takers, and the Second Paradox, 141 U. PA. L. REV. 1663