Chantagem empresarial: hard bargaining ou crime de extorsão?

Criminalizing blackmail puts the liberal legislator in the face of a paradox: How to rationally justify the decision to make it unlawful for someone to demand others to practice a lawful act by threatening them with an equally lawful act? This paradox becomes even more evident when it comes to cases of commercial blackmail, in which both the threatened act and the demanded act are connected with the legal economic activities carried out by the blackmailer and the blackmailed. The present article analyzes three possible positions in the face of this paradox: 1) to affirm that blackmail is not and should not be a crime; 2) to argue that blackmail already constitutes a crime of extortion or criminal coercion and 3) to argue that legislators have good reasons to criminalize blackmail. This article then discusses the different theories that intend to provide the basis that legitimate the criminalization of blackmail. The conclusion is that, on the one hand, not every type of blackmail is already foreseen as a crime and, on the other hand, only some types of blackmail should initially be criminalized. However, the reasons that justify the criminalization of different types of blackmail might be of different sorts, what should lead to distinctions in the structure of criminal offenses.