Richard H. Helmholz - The Roman Law of Blackmail

Wikipedia:

Richard H. Helmholz (born 1940) is the Ruth Wyatt Rosenson Distinguished Service Professor of Law at the University of Chicago Law School. He received his LL.B. from Harvard Law School in 1965 and also earned an A.B. in French literature at Princeton University, and a Ph.D. in medieval history from the University of California at Berkeley.

He is a member of the Selden Society Council and a fellow of the American Academy of Arts & Sciences and a corresponding fellow of the British Academy. Before moving to the University of Chicago, he spent ten years at Washington University in St. Louis, where he was a professor of law and history. He is best known for his work on the influence of canon law on the common law.

An excerpt from, “The Roman Law of Blackmail” By Richard H. Helmholz, The Journal of Legal Studies, January 2001:

This paper attempts to do three things: first, to describe the classical Roman law as it related to blackmail; second, to follow the subject into the commentaries of the Continental jurists written during the Middle Ages and Renaissance; and third, to cross the English Channel briefly. Its focus is historical. It has no agenda for shaping the law of blackmail that has drawn so much attention in recent scholarly literature. It is hoped that an account of the Roman law of blackmail may interest some of the many scholars who have contributed to understanding the subject. But its aspiration reaches no higher than that. 

The puzzle is this: if one person has information that would harm another’s reputation by bringing shame upon the second person, under normal circumstances he has every right to disclose it. Why, then, should it be illegal for the person with the information to demand money for not revealing that information? It is not altogether easy to see why. Yet that is exactly what the law of blackmail prohibits. The reason for the prohibition against what might be regarded as freedom of contract does seem mysterious, and the natural desire to hit upon a plausible explanation has proved inviting to a wide variety of theoretical approaches, almost all of which assume the law is right to punish blackmail but differ on the reason for the result. The puzzle has also given rise to a casuistic literature that must warm the heart of old-fashioned lawyers who believe in the inevitability and even the utility of drawing fine distinctions in the law.

This paper says little, nothing really, to solve the puzzle that lies at the core of informational blackmail. Indeed, it requires that the reader ‘‘un-think’’ it for a moment. The assumption upon which it rests—that a person has every right to inform the world of what he himself knows, just so long as what he says is true—was not an assumption the Roman law shared. Nor did those who inherited the law of the Romans. That true information necessarily had value was not a view held by the jurists of the Middle Ages. Nor was it accepted by the lawyers and commentators who followed them during the sixteenth and the seventeenth centuries. Therein lies the (admittedly slight) relevance of this paper to the modern subject. It may explain something of how we came to have a law of blackmail, even though it tells us little about why we retain it. This is so because something very like the law discussed in this paper turns up in the early English treatises and cases involving extortion, sedition, and blackmail.